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subpoena's - names crossed out


MadMonkey
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Trying to help a friend that has a judgement against them.  The OC with the judgement assigned the debt to a bottom feeder collection agency here in Calif. They filed the legal notices in Superior Court of Los Angeles with respects to collecting the debt. The OC is in another county. (Note: Collection agencies in California are not required to have a license, nor be an attorney)  The other day she gets a call from her ex husband , (they separated 19 years ago, and finalized there divorce in 2009)  Process server showed up at his house he shares with his Girl Friend.  They serve her with a subpoena for him to produce information, during the service the guy asks the Girl Friend who she is, and she says "I am so and so's girl friend"  The guy leaves sits in his car on the phone for thirty minutes.  Comes back to the front door and Subpoena's her.  They crossed out the name of the my friend who the subpoena was intended for and put her name in it.  Then her ex husband tells her that his dad who lives in another part of the state got a Subpoena from the same guys wanted him to produce records including his beneficiaries, etc..  The Subpoena the husband and his girlfriend got was to produce all his financials.   

Obviously everyone is getting a lawyer.  My question is more to how a Subpoena works in this situation.  My understanding is you needed to get the court to stamp each Subpoena separately for each name you want to Subpoena, that you just cannot cross out names.  Also is this not far reaching to try and ascertain an ex husband, his girlfriend and families financials. They have had nothing to do with the person in question for over ten years, the Girl Friend has nothing to do with her.  

Thanks for any input.

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California Civil Procedure 1985(c):

The clerk, or a judge, shall issue a subpoena or subpoena duces tecum signed and sealed but otherwise in blank to a party requesting it,
who shall fill it in before service.

I see arguments for both sides, which is probably what the 30 minute phone call was about.  It was already served, so the changing of the names was not "before service".  On the other hand, the person serving it is authorized to fill in whatever info they want, so the crossed out version is now a different ('new') subpoena.  The long and short of this is the CA and process server didn't want to go though the hassle of going back to court to get a different subpoena.  Everyone knows that if they CA had gone back to the court for a second subpoena, the court would have issued it without skipping a beat.  The question for the court will be whether or not this is legal under the letter of the law, and if not, does the letter of the law trump its spirit.

Was this a subpoena duces tecum?  If so, (b ) says that they have to also serve an affidavit with the subpoena.  Crossing things on an affidavit voids the entire affidavit.

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OK, first off, the only person that has the opportunity to quash the subpoena will be the girl friend but she also can simply answer and state that she had no financial interest in either your friend or the your friend's ex husband. Since they are not married, there is no community property. She just happens to live at the ex-husband's house.

For the ex-husband, was the debt incurred before the divorce or after. That is important because California is a huge Community Property State. If the debt was incurred before the divorce, then he might be liable. I think though that the debt was incurred after the divorce because otherwise, if they knew where to find the ex-husband, they would have sued him too. All he has to show is the divorce decree showing the division of the marital assets, that his assets after the divorce are in his name only, and if he pays alimony to your friend. As to alimony being exempt from garnishment, you would need to check California law.

As for your friend's father, they are looking to see if your friend is the beneficiary of any trust, life insurance, or estate to see if something can be attached now or after your friend's father passes away. They also want to see if your friend's father has any joint assets with your friend that they can seize.

Lawyers are a good idea just so that everyone knows that to provide to the plaintiff. However, I think the plaintiff is on a fishing expedition because your friend does not have any assets or income to garnish.

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Whocares1000:  The debt and judgement occurred after they were divorced, some five years after the divorce finalized.  No Alimony, No Child Support, no financial compensation at all. The father in reference to my original post is not her father.  It is her ex-father in law.  (The father of her ex husband.)  I am still not grasping how they can subpoena him with regards to who his beneficiaries are to his estate.  As you stated they are on a fishing expedition.  I have seen and been involved with many collections in my lifetime.  I have never seen one like this where they are passing out Subpoenas like they were candy at Halloween.

Harry Seaward:  Was this a subpoena duces tecum?  She is waiting to get a complete copy of the one served on her ex husband.  He told her it was several pages long.

 

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I think they are grasping at straws at this point hoping that someone messes up and they can put that person in jail until someone pays the debts because it is obvious they cannot collect from the actual debtor. She has no assets or income that they can levy. This is a tactic used in Minnesota quite a bit too.

My next question is, does this couple have any children? They might be looking at money going to minor children that they can possibly seize by saying that the debtor has control of the money if the debtor has custody of the children. Again, grasping at straws here.

The one with the most to lose would be the ex-husband because he would have to prove that he took his ex-wife's name off of all his real and personal property. If her name is on anything, they can attach it. I would check and see what the subpoena is asking for regarding records (and if they just say bring in everything, he should object to it as overbroad and demand that they list what records they want) and supply those records. They will probably want the divorce decree, his will and proof that all previous marital property was transferred properly to him.

The girlfriend should probably object to the subpoena and try to quash it because she would have the best chance to get it quashed by stating that she is not related to the debtor in any way other than a non-legally binding relationship with the ex-husband and since there was no marriage, her property is her property only. I am sure they would not push too much with the girlfriend because she would be the least likely of the group to have anything they can get.

For the ex-father-in-law, he would probably need to bring in any will, life insurance, and trust documents (or an affidavit stating that he is not the beneficiary or trustee of any trust). I  doubt they can do anything however other than wait if the ex-wife is a beneficiary of a will or life insurance because those are not the ex-wife's assets. They might be looking to document when the ex-wife might come into money.

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3 hours ago, WhoCares1000 said:

The one with the most to lose would be the ex-husband because he would have to prove that he took his ex-wife's name off of all his real and personal property. If her name is on anything, they can attach it. I would check and see what the subpoena is asking for regarding records (and if they just say bring in everything, he should object to it as overbroad and demand that they list what records they want) and supply those records. They will probably want the divorce decree, his will and proof that all previous marital property was transferred properly to him.

I disagree with this primarily because the debt was incurred 5 years after the divorce.  Ex-husband has ZERO legal liability for this and therefore my argument would be that they have NO legal standing or entitlement to any financial information from him. He isn't named in the suit or on the judgment and was no longer the spouse at the time of debt and judgment therefore he is immune. Any transfer of marital property as part of the divorce 5 years prior to the existence of the debt is 100% legal and won't be undone as a fraudulent transfer to hide assets.  The ONLY document they would get from my lawyer would be a copy of the divorce decree showing the marriage ended prior to the existence of the divorce rendering any request for financial information invalid.

3 hours ago, WhoCares1000 said:

The girlfriend should probably object to the subpoena and try to quash it because she would have the best chance to get it quashed by stating that she is not related to the debtor in any way other than a non-legally binding relationship with the ex-husband and since there was no marriage, her property is her property only.

I would be quashing that and more.

3 hours ago, WhoCares1000 said:

For the ex-father-in-law, he would probably need to bring in any will, life insurance, and trust documents (or an affidavit stating that he is not the beneficiary or trustee of any trust). I  doubt they can do anything however other than wait if the ex-wife is a beneficiary of a will or life insurance because those are not the ex-wife's assets. They might be looking to document when the ex-wife might come into money.

Were I representing ex-father in law I would be quashing that subpoena as well.  He had NO legal obligation for the debt even when the couple were married. He has no legal obligation to make her an heir or to adjust his will to ensure she is to pay the debt.  *Also nothing prohibits him from changing his beneficiaries or will at any time after the debtor's exam just to screw the creditor over either. Their seeking ANY financial information from him is way beyond just a fishing expedition.  It is nothing short of a shake down.

I would be finding the nearest and best consumer attorney and suing the pants off this CA and OC for these three defendants (Ex husband/FIL and GF) for FDCPA violation(s): misrepresenting the debt and taking an action they cannot legally take i.e. subjecting parties not legally liable for the debt to a debtor's exam to determine financial responsibility for the debt  This OC and CA knew dam well that the FIL and GF were not legally responsible for the debt and went all in on them anyway.  I doubt it would ever see trial because the risk of punitive damages and other Plaintiffs coming forward with similar claims is too high risk.  JMO but thankfully they are getting lawyers.

To the OP PLEASE let us know how this plays out and concludes.  This is one of the more interesting cases to come through here in a while and sometimes we never get the ending.

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According to the OPs original post, all parties are supposed to be lawyering up anyways so this will be interesting to see how this pays out. My question is one of expense vs compliance. Litigation is expensive, even when you are not in the wrong.

I would like to hear how this all ends up too because I feel this is an attempt to make someone make a mistake to put one of the 3 parties in jail for a shake up because they know they are not or probably never will collect from the debtor.

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8 hours ago, WhoCares1000 said:

I would like to hear how this all ends up too because I feel this is an attempt to make someone make a mistake to put one of the 3 parties in jail for a shake up because they know they are not or probably never will collect from the debtor.

I agree it is a shake down in an attempt to collect but not with a jail plan.  California is one of the most debtor friendly states in the entire country and affords its residents way more rights than even federal law.  Chances on jail are slim to none even if they didn't respond to the subpoena.  The state is just too liberal. My guess is that they sued anyone and everyone the ex-wife ever breathed on in the hopes one of them hit with a subpoena would panic and pay to protect their own credit.  Hopefully it bites them in the A$$ hard for doing it.

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On 7/21/2020 at 9:26 AM, Harry Seaward said:

 

Was this a subpoena duces tecum?  

Yes it was.  I had an opportunity to look at it last evening.  First two pages are the Standard Calif. Form. SUBP-002. It lists all the party names and the area on who is being served is left blank, they hand wrote in the ex- husbands name, and his girlfriends name on a second copy. 3rd page is the  proof of serviced, (blank which did not need to be part of the Subpoena.)  The first attachment, single page, states it is a Duces Tecum with the defendants name at then it has multiple lines requesting bank accounts, vehicles, business partners, etc... The Second Attachment is a Judgement Debtor Exam Questioner.  Pretty standard 70 questions. 

Attachment #3 I found interesting.  It states the following,  DECLARANT IS INFORMED AND BELIEVES, AND UPON SUCH INFORMATION ALLEGES, THAT WITNESS HAS IN HIS/HER/THEIR POSSESSION OR UNDER  HIS/HER/THEIR CONTROL, INFORMATION REGARDING THE ASSETS AND INCOME OF THE JUDGEMENT DEBTOR NEEDED TO ENFORCE THE JUDGMENT.  THE JUDGMENT CREDITOR HAS GOOD CAUSE TO DEMAND THE PRODUCTION OF DOCUMENTS AND THINGS THAT MIGHT LEAD TO THE SATISFACTION OF THE JUDGEMENT. 

Attachment #4, THE DOCUMENTS AND THNGS DESCRIBED IN PARAGRAPH 2 ARE MATERIAL TO ISSUES INVOLVED IN THIS CASE AS THE ARE EITHER REASONABLY CALCULATED TO LEAD TO THE DISCOVER OF INCOME AND ASSETS THAT MAY BE USED TO LEVY OR GARNISH THE JUDGMENT DEBTOR'S PROPERTY IN ORDER TO SATISFY THE JUDGMENT OR SO THAT THE JUDGE OR REFEREE CAN ASCERTAIN THE SCOPE OF SAID JUDGMENT DEBTOR'S NON-EXEMPT PROPERTY IN ORDER THAT THE SAME MAY BE ORDERED TO BE APPLIED TO TOWARD THE SATISFACTION OF THE JUDGMENT PURSUANT TO THE CODE OF CIVIL PROCEDURES SECTION 708-205 ET.SEQ,

Also, she was married after her first husband.  Her 2nd husband died in  2015 and right after that she was dragged into this civil matter.    It's a pretty messed up situation for her.  Another family member who was the main party to this civil suit dragged her into it and in the end threw her under the buss.  She had no legal representation at the onset of the suit and when she gave her first deposition the family member told her she did not need an attorney.  She had just gotten out of the hospital from a emotional breakdown she had from the loss of her 2nd husband and was heavily medicated.  After the deposition a close friend of hers after hearing what took place told her to get an attorney, which she did.  However that attorney failed to protect her rights, from failing to have the deposition thrown out because of her medical condition, to failing to show up on time to hearings, even substitution other attorneys not part of his firm to represent her in court.

On 7/22/2020 at 2:35 AM, WhoCares1000 said:

I would like to hear how this all ends up too because I feel this is an attempt to make someone make a mistake to put one of the 3 parties in jail for a shake up because they know they are not or probably never will collect from the debtor.

I have never heard of  someone going to jail in Calif on Debt.  I am sure a few have spent a weekend in jail for failing to produce records to the court but long term, never.  I have had my fair share of collections over the years and this is the most aggressive I have ever seen.  Especially the broad strokes the CA is using to drag 3rd parties into the case who have absolutely no direct interest in the debtor other than the ex husband because they have two children.  Oh, the Children are both adults. I saw that question earlier whether they are minors.  Looking forward to your comments.

Yes as this progresses all update this thread.

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1 hour ago, MadMonkey said:

I have never heard of  someone going to jail in Calif on Debt.  I am sure a few have spent a weekend in jail for failing to produce records to the court but long term, never.  I have had my fair share of collections over the years and this is the most aggressive I have ever seen.  Especially the broad strokes the CA is using to drag 3rd parties into the case who have absolutely no direct interest in the debtor other than the ex husband because they have two children.  Oh, the Children are both adults. I saw that question earlier whether they are minors.  Looking forward to your comments.

Yes as this progresses all update this thread.

What you go to jail for is contempt of court, not on debt, and you stay in jail for however long the judge thinks it will take to coerce you to cooperate which I am sure the JDB will be arguing to keep the person in jail as long as possible. What they want it to "convince" someone to give them a chunk of money to then not be so aggressive on the contempt charge. This is mostly used against the debtors themselves but it sounds like in this case, the debtor would just as rather sit in jail (or they might have tried it already and the judge ruled that they could coerce the debtor) than make any move to get out of jail.

That said, I am shocked that they did not subpoena the 2 adult children unless they already have and found no assets there either. I think the parties should go to court and review the case file to find out what is going on (I doubt there is a charge to review a case file at the courthouse, I know there is not a charge to do that in Minnesota). I think @Clydesmom might be correct and that all parties should try to quash the subpoenas on the grounds that they have no financial relations to the judgement debtor and did not have any financial relations with the judgement debtor at the time the debt was created. Make them prove their assertion that the subpoenaed parties have discoverable evidence. I am sure they would have no such proof for the girlfriend and very little for the father-in-law. They might have a case for the ex-husband but he can demand that they limit the scope of the subpoena if he fights it to the divorce decree and any assets that they couple might have owned in the marital estate in 2009 (which will most likely be a house if they owned one and any joint accounts). None of the parties should be required to fill out a financial deposition as they are not the judgement debtor and are not financially related to the judgement debtor today.

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1 hour ago, MadMonkey said:

Yes it was.  I had an opportunity to look at it last evening.  First two pages are the Standard Calif. Form. SUBP-002. It lists all the party names and the area on who is being served is left blank, they hand wrote in the ex- husbands name, and his girlfriends name on a second copy. 3rd page is the  proof of serviced, (blank which did not need to be part of the Subpoena.)  The first attachment, single page, states it is a Duces Tecum with the defendants name at then it has multiple lines requesting bank accounts, vehicles, business partners, etc... The Second Attachment is a Judgement Debtor Exam Questioner.  Pretty standard 70 questions. 

Where's the part about names being crossed out? And was there an affidavit? 

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On 7/23/2020 at 10:03 AM, WhoCares1000 said:

That said, I am shocked that they did not subpoena the 2 adult children unless they already have and found no assets there either. 

I am guessing they cannot find them.  One of them is off the grid and the other has moved several times in the last year do to work.

On 7/23/2020 at 10:03 AM, WhoCares1000 said:

They might have a case for the ex-husband but he can demand that they limit the scope of the subpoena if he fights it to the divorce decree and any assets that they couple might have owned in the marital estate in 2009 (which will most likely be a house if they owned one and any joint accounts). 

She actually filed for Divorce in 2002.  It was suppose to be completed in 2004 but her ex-husband never filed the signed paperwork.  She lost track of time was moving on with her life and did not discover the problem until 2007.  They never owned anything jointly other than some cars.  No real property.  Any accounts they had would have been closed in the early 2000's.

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