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Echeverria et al vs Bank of America, Plaintiff's Memorandum in Support of Subpoena

Echeverria et al vs Bank of America, Plaintiff's Memorandum in Support of Subpoena

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Published by Isabel Santamaria
Echeverria et al vs Bank of America Lawsuit Plaintiff's Memorandum in Support of Subpoena Duces Tecum Requesting Residential Telephone Records
Echeverria et al vs Bank of America Lawsuit Plaintiff's Memorandum in Support of Subpoena Duces Tecum Requesting Residential Telephone Records

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Published by: Isabel Santamaria on Feb 15, 2012
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11/10/2012

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IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF FLORIDAORLANDO DIVISION
 
ABDIEL ECHEVERRIA &ISABEL SANTAMARIAPlaintiffs,
Case No. 6:10-cv-01933-JA-DAB 
v.BAC HOME LOANS SERVICING, L.P, andBANK OF AMERICA, N.ADefendants,
PLAINTIFF'S MEMORANDUM IN SUPPORT OF SUBPOENA DUCES TECUMREQUESTING RESIDENTIAL TELEPHONE RECORDS
 COMES NOW, The Plaintiffs Abdiel Echeverria and Isabel Santamaria Pro Se, respectfully move thiscourt 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 inaccordance 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 THINGSWITHOUT DEPOSITION.
 
I. INTRODUCTION
 Defendant “Bank of America” (BAC) is a financial corporation which utilizes the telephone systemin order to contact their customers and clients. Bank of America has argued that they are not a “debtcollector” even though their mail communications state otherwise. The Defendant has established an -1-
 
“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 beencalled to collect a debt, the representative or automated system will state the usual “this is to collect adebt” clause.The Plaintiffs have raised the argument in their “Second Amended Verified Complaint” and thealternatives that they have been harassed continuously by the Defendant even “after” notifying theDefendant “Bank of America” (BAC) several times by phone, mail and email that they now have anattorney to represent them (¶ 47 2
nd
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 thePlaintiffs 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 theSecond 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 theDefendant Bank of America harassed the Plaintiffs at all times even after they advised of having legalrepresentation. These home telephone records will also confirm the times that the Plaintiff called theDefendant “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 theneed to “cross-reference” these phone records with the actual records that they will be requesting fromthe Defendant. There is reason to believe that some crucial and relevant phone recordings that will berequested and submitted by the Defendant will end up “missing” and therefore the Plaintiff’s residentialtelephone records will demonstrate “which” exact recording/s were “mysteriously” unavailable.Unfortunately, detailed telephone records are no longer available to account holders due to FCCregulations and thanks to the Telephone Records and Privacy Act signed into law in January 2006. Therecords requested belong to the Plaintiffs and/or family members. The Plaintiffs already contactedBrighthouse Networks but these records are not available without a Subpoena Duces Tecum. Inaddition, this particular type of Subpoena should be cost-effective and Plaintiffs agree to pay the costsfor the copies to the third-party (Brighthouse) if necessary.-2-
 
Brighthouse (third-party) advised the Plaintiff that this particular subpoena can be mailed certifiedand 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 NetworksDivision 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'sclaim
or defense, including the existence, description, nature, custody, condition, and location of anydocuments or other tangible things and the identity and location of persons who know of anydiscoverable 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 thediscovery 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 “subpoenaduces tecum” for documents relevant to this case from a third party (Brighthouse). A subpoena ducestecum is used to compel the production of documents that might be admissible before the court. Itcannot 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 avalid 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 alternativemethods for obtaining the information sought are available. The Plaintiffs however, have triedalternative methods so far with no success. Determining whether a subpoena duces tecum should beenforced is a discretionary matter within the judgment of the court.The subpoena may request material in the recipient's "possession, custody, or control," whichincludes 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 custodianthereof, 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 -3-

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