Notice of Production from Non-Party and Subpoena Duces Tecum

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maggiejune:
I have benefited thus far from the help found on this board and that of Debtorboard.  The history on this is as shown below.  This is absolutely insane that Asset is allowed to continue to harrass me when I have denied their complaint.  I don't know what to file at this juncture or what to do.  Any advice would be appreciated.  Thank you.

Plaintiff - Asset

1.  03/25/06
Summons served on me for CC debt on 2 accts totaling 15K.
Complaints for each were - BOC, open acct, acct stated, unjust enrichment. The exhibits were the assignment and bill of sale for each, the cardmember agreement for each, and the statement of account for each (prepared by Asset).

2.  04/10/06
I answered and denied all complaints.  I also pointed out that the Plaintiff was attempted to collect on debt that was past SOL.

3.  05/05/06
Plaintiff's Request for Admisions to Defendent.  The statements echoed the Complaint - essentially stating that I opened the accts, I received CC services from the OCs, I used the CCs, I received statements from the OCs, and I failed to make payments to the OCs.

Also received this date - Plaintiff's Request for Production of Documents to Defendant.

4.  05/23/06
I filed Response to Request for Admissions, Interrogatories, and Production.  In this I denied all admisions and objected to all requests for production, stating I did not own the accts.

Also filed this date - Request for the Production of Documents.

5.  06/07/06
Plaintiff's Response to Defendant's First Request to Produce.  As follows -

COMES NOW PLAINTIFF, ASSET ACCEPTANCE LLC, and responds to the Defendant's, (me), Request for Production as follows:
     1.  As to request for copy of the original signed agreement(s) or application(s) that validate and initiate the binding action of these alleged open ended account(s):  A copy of the application is not in the possession, custody, or control of Plaintiff, but has been ordered from original creditor and will be produced if and when received.
     2.  As to request for copy of full accounting of all transactions from inception regarding these supposed open-ended account(s) in order to determine their rightful origin, owner, use, and numeric accuracy:  Please see attached statement.

The attachment was a photocopy of a CC statement for one of the accts addressed to me with a balance that matched their complaint. The finance charge, daily periodic rate, corresponding APR, annualized APR, are all 0.00.  Also, the  street number was wrong in the address (3133 instead of 3113) and I ALWAYS use my PO box for bills so there is no way I would ever have received a CC statement at my street address.  AND, the statement closing date was 07/09/04, or 15 months AFTER the Date of Charge Off shown on the Statement of Account which was 04/08/02.  

6.  06/13/06
I filed a Motion to Dismiss.  Of course, I got the collective groan from all those on Debtorboard with more knowledge of procedure than me.  (blush) In the MTD I again claimed non-ownership of the 2 accts and pointed out that the photocopied statement did not correlate with the date on the Plaintiff's own Statement of Account, and that the OC surely would not be sending a CC statement 15 months after charge-off.  I reiterated that the debt the plaintiff was attempting to collect on was past SOL.

7.  07/11/06
Plaintiff files a Memorandum of Law in Opposition to the MTD and cites case law supporting this.  Plaintiff also states the the debt is not past SOL and provides the 5-yr SOL verbiage from the FS.

8.  08/09/06
I file Motion to Compel Discovery, noting that the Plaintiff had been compelled 3 months earlier and had produced only one document that was uncertifiable and seemingly fraudulently produced, and demanding AGAIN that the plaintiff produce documentation to support their complaints against me in the face of my denial of ownership of either CC acct.

9.  09/28/06
A Notice of Hearing is scheduled relative to Defendant's Motion to Compel.

At the hearing, I stated the accts were not mine.  I denounced the statement the plaintiff had produced and brought to the court's attention the descrepancy of the date, the address not being one I would have used, and the 0.00 values in many of the columns.  I again demanded production of a certified copy of the original signed agreements and a full certifiable accounting of all transactions from inception.

The judge ordered the plaintiff to produce documents within 30 days.


I thought the matter was over at this point as I knew they could not produce documents that did not exist.  However, ....

10.  02/08/07
A Notice of Hearing is scheduled relative to Defendant's Objection to Interrogatories

At the hearing, I stated again everything I had stated at the first hearing.  The plaintiff wanted to subpoena my bank account.  I objected, stating to the judge this was clearly a violation of my rights and my privacy.  This was a different judge and he gave the Plaintiff 30 days to produce.

(side note - It didn't occur to me until just now, but I never received anything between the first hearing and the second hearing, so who, what, how was this hearing scheduled?  Who requested it?  If the plaintiff, shouldn't I have been notified or shouldn't they have filed something?  Was there a breach of procedure here?)


And now the latest ....

11.  04/30/07
I received the Notice of Production from Non-Party and Subpoena Duces Tecum

This is to be served on only one of the OCs. (recall at the beginning of this story that the Complaint was for two CC accts.) and reads as follow:

NOTICE OF PRODUCTION FROM NON-PARTY

TO:  (me)

YOU ARE HEREBY NOTIFIED that after 10 days from the date of service of this notice, if service is by delivery or 15 days from the date of service, if service is by mail, and if no ojection is received from any party, the undersigned will isue or apply to the clerk of this court for issuance of the attached subpoena directed to Chase BanK, who is not a party and whose address is (their address), to produce the items listed at the time and place specified in the subpoena.



SUBPOENA DUCES TECUM

THAT STATE OF FLORIDA

TO:    Chase Bank

SERVE:  CT Corporation System, Registered Agent
             (address)

     YOU ARE COMMANDED to appear at Asset Acceptance LLC, 2840 S. Falkenburg Road, Riverview, Florida, 33569 on May 30, 2007 at 2:00 p.m., and to have with you at that time and place the following:

1.  Any and all copies of checks (front and back) issued for payment on the Chase account number (xxxx) held by (me), social security number (xxx), from January 1999 through December 1, 2002.  

2.  Any adn all copies of itemized statements sent to Defendant reflecting purchases, payments, and financial charges from January 1999 through December 1, 2002 on the Chase account number (xxxx) held by (me), social security number (xxx).

3.  A copy of the signed application submitted by (me), social security number (xxx), on the Chase account number (xxxx)

4.  Any and all copies of business records reflecting notices, amendments to the Chase cardmember agreement mailed to Defendant and copies of actual notices and amendments mailed to Defendant.

     These items will be inspected and may be copied at that time.  You will not be required to surrender the original items.  You may comply with this subpoena by providing legible copies of the items to be produced to the attorney whose name appears on this subpoena on or before the scheduled date of production.  You may condition the preparation of the copies upon the payment in advance of teh reasonable cost of preparation.  You may mail or deliver the copies to teh attorney whose name appears on this subpoena and thereby eliminate your appearance at the time and place specified above.  You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whose name appears on this subpoena.  THIS WILL NOT BE A DEPOSITION.  NO TESTIMONY WILL BE TAKEN.

If you fail to:

1.  appear a specified; or

2.  furnish the records instead of appearing as provided above; or

3.  object to this subpoena,

you may be in contempt of court.  You are subpoenaed to appear by the following attorney, and unless excused from this subpoena by this attorney or the court you shall respond to this subpoena as directed.


OK, so that's the story.  Sorry the post is so long.  It has been 13-1/2 months since I was initially served.  Frankly, I don't know what my next move is.  Thanks to whoever had the fortitude to read this long post and share their thoughts and advice.

rubyruby27:
I don't know if what they are requesting is legite or not that will be for someone like Fraud to answer.

I would file a motion to compel again with sanctions.  Look up FS 57.105 and see if it applies and file that

I would also file a motion to preclude any evidence they may produce from the point they were required by the courts to give you.

File another motion to dismiss based on SoL, that is the Judge didn't deny your first motion.

Use the Fernandez case and FS on what is 4 yr vs 5 yr. tolling, written insturment.  Look at the case law section, there is plenty of case law to back it up, submit this case law with your motion for the Judge to read.

Set the court dates.

If you have to go to this production appt.  again say I don't have anything in my possession.

Joey:
Regarding this "NOTICE OF PRODUCTION FROM NON-PARTY" , etc. is this something new they are doing?  Is this a new strategy they are taking? And when these debt buyers buy these debt packages, don't they have a some type of hold harmless agreement or non-recourse agreement with the banks they buy the debt from which restricts them so  they can not go back to and involve the original creditor?

gulfbreeze:
BUSINESS RECORDS HEARSAY EXCEPTION
ASSIGNMENT OF THE DEBT

A debt has been assigned and the assignee has brought suit. Can the assignee’s custodian offer the original creditor’s business records as evidence pursuant to the Modern Shopbook Rule?

Issue Considered
Who can testify as the custodian of the relevant business records? According to part 5 of the 7-part test below the records must be authenticated or verified by a custodian.  Generally this is the person who made the record or a supervisor. However, if the records have been transferred to another entity such as an assignee, can an employee of the assignee be a proper custodian?  

Definitions
Authentication – The act of giving authority to a record or other written instrument so as to render it legally admissible in evidence.

Custodian – a person entrusted with the responsibility with guarding or maintaining property.

Entrant – the person who made the records.

Modern Shopbook Rule  – Verified regular entries in business records may be admitted in evidence with proof from the entrant or a supervisor of the entrant who can testify to the regular course of business.

Virginia Code
8.01-391 Copies of originals as evidence.

Test for Admitting Business Records
General Test for Admitting Business Records is:

1. The records should be business records.
 
2. The entry must have been made in the normal or ''regular'' course of business. The exception applies to records made in the ordinary course of business not merely kept in the ordinary course of business.  

Thus, a document prepared by one entity not in the ordinary course of business but retained in the files of another entity as a matter of routine should not qualify under this hearsay exception.

3. The entry must have been made at or near the time of the transaction.

4. The entry must have been authorized.

5. The entry must be ''authenticated'' as being a record prepared in the ordinary course of business. The record must be authenticated or ''verified'' by some person (e.g., the person who made the entry or a superior) who can testify that the record was made in the ordinary course of business.

6. Books of Original Entry This includes computer records;
 
7. Personal knowledge of entrant. Under the traditional business entries rule, the entrant need not have personal knowledge of the facts entered.

Test for a Proper Custodian
 An individual who has knowledge of how the records were:

1. prepared;
2. maintained; and
3. kept.

Help in Determining Who is a proper Custodian
It is fairly clear that the person who made the records or his or her supervisor is a proper custodian.  

A Virginia case held that the records could be authenticated by an official of the entity that made the records. This individual was not the custodian of the records, but was an employee who had knowledge of how the records were complied and maintained. He also had access to the records as an integral part of his responsibilities as a fraud investigator for the company.

   Where there is an Assignment
A custodian from the assignee who:
• did not make the records;
• did not supervise the individual who made the records;
• has no knowledge of how the records were complied or maintained; and
• does not have access to all of the records of the assignor-maker as an integral part of her/his responsibilities,

would presumably not be a proper custodian.

Two matters appear from the case law to be controlling factors and bear emphasis:
1. Knowledge of how the records are made, maintained and kept, along with  
2. access to all of the records.

A Virginia Supreme Court case held that a bank’s vice-president was a proper custodian based on her testimony describing the manner in which the bank’s records were prepared, maintained and kept. The fact that the bank vice-president had access to the records also helped to establish the trustworthiness and reliability of the records.

Copies of Record
Copies of business records are admissible in evidence as the original (whether the original exists or not) provided that such copy is satisfactorily identified and authenticated as a true copy by a custodian of such record or by the person to whom said custodian reports.  

If they be different, and is accompanied by a certificate that said person does in fact have the custody.

Burden
The party desiring to introduce the records has the burden to authenticate or verify the records through the use of a proper custodian.

Argument for Admitting Records
This witness:
• is the custodian of the original creditor’s records;
• testified that these are original creditor’s business records;
• testified that he/she made the entries or supervised those individuals who did make the entries;
• testified that these records were made in the ordinary course of original creditor’s Corporation business; and
• testified that the entries were made contemporaneously with the transactions.

Practice Note:  One can request to ‘voir dire’ on materials offered in evidence to establish the foundation, materiality or relevance of the evidence prior to the judge’s ruling on admissibility.  Alternatively, one can request a decision on admissibility be reserved until after Defendant’s cross examination.

Questions from Direct Examination
If the debtor/defendant has objected to any of the entries from the original creditor’s documents, you should hear these questions or the proper answers.  If not, you may object to admission of evidence (from materials of the original creditor) because a foundation has not been presented under the ‘Business Records Hearsay Exception’.

Are you the custodian for the records of the original creditor Corporation?

Did you make the entries for the records in this matter?

Did you supervise the individuals who made the entries?

Are the records you have brought to court business records of the original creditor’s Corporation?

Were these business records made in the ordinary course of original creditor’s Corporation’s business?

Were the entries to the business records made at or near the time of the transaction?
   
Were you the custodian of the records at the time these records were made?

Do you have access to all of the business records of the original creditor’s  Corporation?
   
Practice Note:  Since the Business Records Hearsay Exception is part of statutory law, you can object to an improper foundation without specifying which part of the test is missing.
   
You may also hear these questions of an assignee’s custodian:

   Custodian for Assignee of Business Records

Are you the custodian for the records of the [ASSIGNEE] Corporation, assignee of the [ORIGINAL CREDITOR] Corporation.

Are these business records of the [ASSIGNEE] Corporation?

Did you receive the business records from the [ORIGINAL CREDITOR Corporation?

How did you receive these business records?

Do you work for the [ASSIGNEE] Corporation?

Do you do not work for the [ORIGINAL CREDITOR] Corporation?

Did you make the records in this matter?

Did you supervise [ORIGINAL CREDITOR] personnel who made these
   records?

You do not have access to all of [ORIGINAL CREDITOR]’s business
   records?

Can you say that these records were made contemporaneously with the transactions?

Can you say that these records were made in the ordinary course of business?

Argument Against Admitting Records Where the Custodian is from the Assignee Corporation

This witness:
• did not make the records;
• did not supervise the individual who made the records;
• has no knowledge of how the records were complied or maintained; and
• does not have access to all of the records of the assignor-maker as an integral part of her/his responsibilities

Other Vignettes You Maybe Interested in

1. Initial Pleading
To seek the aid of the courts to enforce your rights, you must allege sufficient facts as to those rights. This is done by pleadings.

2. Adequacy of the Bill of Particulars   
A bill of particulars was filed, but the defendant claims that it is inadequate to prepare a defense. What can the Defendant do?

3. Answer – Motion to Extend Time to File & Amending
How do you request the court to accept an untimely filed Answer with Grounds of Defense and how do you amend an Answer?

4. Discovery – Assignment – Interrogatories – Production of Documents
The defendant’s interrogatories and request for documents in an assignment. Circuit Court

5. How to Request a Bill of Particulars
What is a Bill of Particulars and how and When to Request it.

Joey:
Thanks Gulfbreeze.  So would you object to this notice before they apply to send it to Chase or after? Maggiejune did you object to this notice you got on 4/30?

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