echeverria et al vs bank of america, plaintiff's memorandum in support of subpoena

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ABDIEL ECHEVERRIA &

ISABEL SANTAMARIA

Plaintiffs,

Case No. 6:10-cv-01933-JA-DAB

v.

BAC HOME LOANS SERVICING, L.P, and

BANK OF AMERICA, N.A

Defendants,

PLAINTIFF'S MEMORANDUM IN SUPPORT OF SUBPOENA DUCES TECUM

REQUESTING RESIDENTIAL TELEPHONE RECORDS

COMES NOW, The Plaintiffs Abdiel Echeverria and Isabel Santamaria Pro Se, respectfully move this

court enter an order GRANTING the Issuance of a Subpoena Duces Tecum for the production of

residential telephone records that are relevant to this case and hereby submit this Memorandum in

accordance to Rule 45 of the Federal Rules of Civil Procedure and Florida Rules of Civil Procedure

RULE 1.410 SUBPOENA. and RULE 1.351. PRODUCTION OF DOCUMENTS AND THINGS

WITHOUT DEPOSITION.

I. INTRODUCTION

Defendant “Bank of America” (BAC) is a financial corporation which utilizes the telephone system

in order to contact their customers and clients. Bank of America has argued that they are not a “debt

collector” even though their mail communications state otherwise. The Defendant has established an

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“automated” redialing system in order to systematically call their customers, be it for debt collection

purposes or to communicate new products available. When the Plaintiff or other customers have been

called to collect a debt, the representative or automated system will state the usual “this is to collect a

debt” clause.

The Plaintiffs have raised the argument in their “Second Amended Verified Complaint” and the

alternatives that they have been harassed continuously by the Defendant even “after” notifying the

Defendant “Bank of America” (BAC) several times by phone, mail and email that they now have an

attorney to represent them (¶ 47 2nd Amend. Ver. Comp.). The initial attorney for the Plaintiff, Philip J.

Healey at Enrique, Smith & Trent, P.L., advised the Defendant Bank of America of representing the

Plaintiffs and the Defendant began interacting with him soon after therefore acknowledging his

presence as the Plaintiff’s attorney. These communications were submitted as exhibits along with the

Second Amended Verified Complaint.

The need for these home telephone records registered to the property in question 499 Cellini Ave

NE, Palm Bay, Florida, 32907 is a necessity. These records will prove the amount of times that the

Defendant Bank of America harassed the Plaintiffs at all times even after they advised of having legal

representation. These home telephone records will also confirm the times that the Plaintiff called the

Defendant “Bank of America” (BAC) to resolve issues such as payment postings, escrow account,

foreclosure threats and loan modification status/issues, just to name a few. The Plaintiffs also feel the

need to “cross-reference” these phone records with the actual records that they will be requesting from

the Defendant. There is reason to believe that some crucial and relevant phone recordings that will be

requested and submitted by the Defendant will end up “missing” and therefore the Plaintiff’s residential

telephone records will demonstrate “which” exact recording/s were “mysteriously” unavailable.

Unfortunately, detailed telephone records are no longer available to account holders due to FCC

regulations and thanks to the Telephone Records and Privacy Act signed into law in January 2006. The

records requested belong to the Plaintiffs and/or family members. The Plaintiffs already contacted

Brighthouse Networks but these records are not available without a Subpoena Duces Tecum. In

addition, this particular type of Subpoena should be cost-effective and Plaintiffs agree to pay the costs

for the copies to the third-party (Brighthouse) if necessary.

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Brighthouse (third-party) advised the Plaintiff that this particular subpoena can be mailed certified

and that there is no need to “serve” by sheriff or constable the subpoena to a particular person since a

“department” is the recipient. The records will be requested “locally” at Brighthouse Networks

Division Headquarters Customer Care Department, 2251 Lucien Way, Maitland, Florida 32751.

II LEGAL STANDARD

Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's

claim or defense, including the existence, description, nature, custody, condition, and location of any

documents or other tangible things and the identity and location of persons who know of any

discoverable matter. For good cause, the court may order discovery of any matter relevant to the

subject matter involved in the action. Relevant information need not be admissible at the trial if the

discovery appears reasonably calculated to lead to the discovery of admissible evidence.

In this particular request, the Plaintiffs are respectfully moving the court to grant a “subpoena

duces tecum” for documents relevant to this case from a third party (Brighthouse). A subpoena duces

tecum is used to compel the production of documents that might be admissible before the court. It

cannot be used to require oral testimony and ordinarily cannot be used to compel a witness to reiterate,

paraphrase, or affirm the truth of the documents produced. A “subpoena duces tecum” is not limited to

parties to a lawsuit but may also be used for others who have relevant documents. In the absence of a

valid excuse, an individual served with a “subpoena duces tecum” must produce the items sought,

although a subordinate may comply instead. The subpoena might not be permitted if alternative

methods for obtaining the information sought are available. The Plaintiffs however, have tried

alternative methods so far with no success. Determining whether a subpoena duces tecum should be

enforced is a discretionary matter within the judgment of the court.

The subpoena may request material in the recipient's "possession, custody, or control," which

includes information which the recipient has the legal right to demand from others (Fed. R. Civ. P.

45(a)(1)(A)(iii)). The requesting party need not depose the third party, or the document custodian

thereof, who furnishes documents or electronically stored information (Fed. R. Civ. P. 45(a)(1)(C),

45(c)(2)(A)

). The subpoena is issued from the court for the district in which the deposition or

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production is to take place (Fed. R. Civ. P. 45(a)(2)). So long as the production is to take place in the

district in which the issuing court is located, the recipient is obligated to produce material even if it

resides outside the district from which the subpoena was issued and served (Fed. R. Civ. P. 45, advisory

committee notes (1991)

).

III CONCLUSION

Plaintiff’s allegations in their Second Amended Verified Complaint and the alternatives,

particularly Count III “Intentional Misrepresentation”; Count IV “Fair Debt Collection Practices Act”;

and Count V “RICO” (2nd Amend. Ver. Comp.) would be further strengthened with the production of

these residential phone records. Again, these records do not belong to the opposing party (“Bank of

America”) in this lawsuit. These phone records are specifically related to the property in which the

Plaintiffs were called and harassed by the Defendant. These records will also prove the times and dates

that the Plaintiff also called the Defendant. For the above reasons, the Plaintiffs respectfully ask that

this court grant this Subpoena Duces Tecum for Plaintiff’s detailed Residential Telephone Records.

Dated: February 14, 2012

Respectfully submitted,

___________________________________

Abdiel Echeverria – Pro Se

499 Cellini Ave NE

Palm Bay, Florida 32907

(321) 750-6697

(321) 676-4198

___________________________________

Isabel Santamaria – Pro Se

499 Cellini Ave NE

Palm Bay, Florida 32907

(321) 676-4198

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http://www.google.com/url?q=http%3A%2F%2Fwww.law.cornell.edu%2Frules%2Ffrcp%2FACRule45.htm&sa=D&sntz=1&usg=AFrqEzdg_95ue8HhaDCYtUcfokJykFS30Q







IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CASE NO. 6:10-cv-01933-JA-DAB

CERTIFICATE OF SERVICE

We, do hereby CERTIFY that a true and correct copy of PLAINTIFF'S MEMORANDUM IN

SUPPORT OF SUBPOENA DUCES TECUM REQUESTING RESIDENTIAL TELEPHONE

RECORDS has been furnished to: Akerman Senterfitt c/o Paul W. Ettori and William P. Gray,

Attorneys for Defendant BAC Home Loans Servicing, LP, and Bank of America N.A. by:

( X ) mail ( ) fax ( ) mail and fax ( ) email ( ) hand-delivery

on this 14 day of February , 20 12.

____________________________________

Abdiel Echeverria – Plaintiff

____________________________________

Isabel Santamaria – Plaintiff

499 Cellini Ave NE

Palm Bay, FL 32907

(321) 676-4198 or (321) 750-6697

Email: [email protected]

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