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Is this a FDCPA violation?


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So in Jan. I was taken to court for a debt for roughly 9,000.00.  (before I knew I could fight)  I had responded to the lawsuit and that is it.  It was OC PNC BANK through an assigned lawyer in NY who then assigned it to a lawyer in CO.  My question is, as we were waiting for trial, I never received anything as to discovery.  They had mailed me statements from the account from it's inception I think, lol.  But then I received a letter from my bank that they had supeonaed my bank records that were 10 years worth, the entire time I owned the cc.  The bank sent them my records.  I ended up settling the day before court for 50% of the debt.  The court never ordered discovery.  They did not have permission to get my bank records.  Would that be a violation?  I just thought of this because the judge denied discovery on my current case, stating that form 9 in Colorado is good enough, form 9 is only a disclosure statement.  That is Colorado law, you have to have a pre trial hearing to get discovery, after the disclosure.  We never had disclosure in this first case.

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 But then I received a letter from my bank that they had supeonaed my bank records that were 10 years worth, the entire time I owned the cc. 

 

 

The bank received a subpoena and informed you accordingly. Your opportunity to object to it was then. Since you did move to quash the subpoena (and subsequently prevail on the motion), the bank was obligated to comply by turning over the records. No violation here.

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The bank received a subpoena and informed you accordingly. Your opportunity to object to it was then. Since you did move to quash the subpoena (and subsequently prevail on the motion), the bank was obligated to comply by turning over the records. No violation here.

 

Only if it was court ordered, correct? I only say this because I've heard of JDB's going after bank records directly. If the subpoena did not go through the court it would be a violation, right?

 

Just rumors I've heard. I have no first hand experience.

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Only if it was court ordered, correct? I only say this because I've heard of JDB's going after bank records directly. If the subpoena did not go through the court it would be a violation, right?

 

Just rumors I've heard. I have no first hand experience.

 

Not necessarily. Opposing counsel, as an officer of the court, has the ability to issue subpoena. And they need not be filed with the court. Opposing counsel, on the other hand, should have given you notice, but that's pretty much water under the bridge.

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Not necessarily. Opposing counsel, as an officer of the court, has the ability to issue subpoena. And they need not be filed with the court. Opposing counsel, on the other hand, should have given you notice, but that's pretty much water under the bridge.

 

Good to know. Surprising, but good to know. Thanks.

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And if they don't? Isn't that depriving you of your rights to defend yourself against a records request that really has no basis other than a fishing expedition for post judgment remedies?

 

Yes, that's the reason for the notice. In the context of federal court, this is covered under rule 45.

 

However, one cannot sit on their hands and do nothing, then complain that they were deprived of their rights. Once informed by the bank that a subpoena had been issued, that is the time to actIn this case, nothing was done. 

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Guest usctrojanalum

Only if it was court ordered, correct?

 

Does not have to be Court Ordered.  Officers of the Court and Attorneys have subpoena power.

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Understood. My only point is that the law firm issuing the subpoena should be required to send noitification to the defendant when they do so. Maybe this is not required, but it doesn't seem fair. A letter from a bank may be disregarded. This is why I have recently thought that answering requests for bank records would best be served by objecting based upon privacy and  judgment issues, and adding in that the defendant admits to having made payments to the account at some certain time in the past. That would short circuit their purpose, which is usually to prove that the defendant made payments on the account, an element of account stated, which can fail in several regards. That doesn't leave them with any viable reason to request bank records.

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It doesn't seem fair, because in colorado I found there is no discovery unless a judge orders it, only a disclosure. I was not asked for any disclosure, and they did not offer any except a cc statement. One sided really, he can subpoena bank records but I can't without a pre trial hearing. It is all under the bridge, but good info for future people from colorado.

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Yes, but it seems to be a discovery issue. It does seem prejudicial that the plaintiff can subpoena bank records but the defendant can't request documents required to prove the plaintiff's case. How do you get around this in these lower level courts?

 

What documents are you referring to? 

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correct, they didn't ask, they just served a subpoena to the bank, not signed by the judge.  In this case I had no inkling as to the law, therefore didn't question it. I settled this case.  But I want to know these things, as I had a BK 2 years ago that was dismissed.  After that happened, I tried to get with the CC companies to settle the debts. (I had quite a few, and I went BK not to get out of paying them, but to keep a DJC that got a summary judgement on me without even serving me) from getting any money. (medical).  Anyway, I all the cc companies told me it was to late with the exception of 2.  I settled with them directly, then I settled 3 with a JDC (they had 3 accounts). Then the big one I just settled in Jan. for case above.  I have 4 more hanging out there. The one I am currently involved in is one I believe I settled with the first JDC.  Ya I know stupid me.  I didn't save the letter they sent me. I don't even remember their name.  I looked on my credit report, and only 1 of the 3 is listed as settled.  I am thinking I was taken for a ride, they only did 1, and maybe sold the other 2, I don't know.  But now I am mad.  I never save anything, but you can bet that has changed now, I have a special file for anything coming in  lol.  I also put a record app on my phone.  I'm a slow learner lol, to trusting.

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