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I am issueing a Subpeona Duce Tecum to the financial institution

Customer Question

I am issueing a Subpeona Duce Tecum to the financial institution of the defendent in a small claims case in Oklahoma and I also need to by the financial privacy act notify the defendent of my request. Do I use a certificate of service to be delivered to the defendent? and if so do I serve the defendent first then wait 14 days and produce the subpeona with the certificate of service 14 days later to the bank?
Submitted: 5 years ago.
Category: Legal
Expert:  LawHelpNow replied 5 years ago.

Hello and thanks for choosing Just Answer®. I am a licensed attorney, and I will be glad to try and assist you.

 

To provide you with accurate information, could you please clarify this point so I can best address your inquiry:

 

  1. I think I am understanding your plan correctly, but I just want to confirm one point. Have you already tried to compel the defendant (through Discovery) to produce a copy of the canceled check?

 

Once I hear back from you, I will be glad to let you know my answer. There may be some delay as I am assisting other customers or am away from my computer. Please rest assured, however, that I will get back to you as soon as possible.

 

Thanks!

Customer: replied 5 years ago.

The defendent did produce the copy of the front of the check on the first day of court. She explained to the judge that the bank could not locate the back of the check because of damaged microfish. The judge gave her 30 days to get the back of the check she claimed she paid me with. She then in 30 days produced to the court a back copy of a prior cancelled check that she had paid me with. The judge then re scheduled 30 days for me to prove it was a different check. I have that evidence that the back of the cancelled check she produced to the court was payment for a prior invoice. I also have evidence from my bank of all trasactions of biz done with her. I have collected copy of front and back of every cancelled check she has payed me with, along with the deposit slip the check was listed on and the original concurring bank statement with those deposits. This is important because they are all numbered by a bank clearing house.

 

The defendent has also produced a single page photo copy of her bank statement showing where the check in question has cleared her bank. This has been forged, but I can't prove it. If I accuse her of forgery the judge will throw me out. I will look bad for even making the accusation, but a fifth grader can tell it is a fake, because it has been photo copied so many times that the fine print is elligible.

 

The only other thing I could think of doing to disprove her is to subpeona a copy of the front and back of the check myself. On my subpeona duce tecum I reasonably request her bank to produce a microfish copy front and back of the check in question and nothing else. I figured she has produced a fake of it to the court anyway and she would not be able to quash my request.

 

 

Expert:  LawHelpNow replied 5 years ago.

Hello and thanks so much for choosing this forum to pose your important legal question. I will do my best to give you some honest and accurate guidance as I answer your question.

 

  1. I am a licensed attorney, and I will be glad to try and answer your question. I hope that the following information will be helpful to you, but please just write back if you have any follow-up questions or need clarification on anything after reviewing the following information. Thank you for taking the time to write back and supply the additional requested information, which was helpful to my analysis of your inquiry. I am sorry for all you have been through, and I hope that everything gets resolved appropriately for you in this matter.
  2. That was an excellent explanation, and it all makes sense now. Wow -- you have been through the grind here! I commend you for trying to keep a good outlook, and based on the circumstances you are absolutely correct in going with a Subpoena Duce Tecum (SBT). It sounds like you already have a good working knowledge of procedure, so I apologize if some of this is review. I will try and answer each of your questions in the order posed and also give you some other relevant information
  3. Although it is a relaxed forum compared to a court of general jurisdiction, in Oklahoma the Judge is required by law to apply evidence rules even in small claims cases. Procedurally, the rules are more informal although these cases are still governed by certain rules of civil procedure. If you do not already have a copy, the applicable statutory provisions are found in the Civil Procedure Code, specifically Oklahoma Statutes Annotated §§ 12-131 through 12-141; 12-1751 through 12-1773. Answering your questions will take us back to Title 12 (Civil Procedure), as well. In particular, §12-2004 et seq. is instructive. Seeing you are in Stillwater, it would be a good idea to check with the Court Clerk and see if she can provide and standardized discovery forms (subpoena).
  4. "Do I use a certificate of service to be delivered to the defendent?" Essentially, although the procedure and terminology is a bit different. More is required that a general Certificate of Service usually attached to pleadings...i.e. "On such and such date I delivered to Defendant a true and correct copy of...". For a SDT, the process server will complete two items: (1) Proof of Service; and (2) Declaration of Server. These are from different types of cases, but they provide good examples for reference: SDT(1) and SDT(2).
  5. "and if so do I serve the defendent first then wait 14 days and produce the subpeona with the certificate of service 14 days later to the bank?" Since the bank is the custodian of records, you have authority to serve it directly without first serving the defendant. In other words, even as a non-party you can serve the bank -- this is often done, for example, in say injury litigation to obtain copies of medical records from physicians. It works the same way for business and financial records, as well. You will complete the Affidavit of Party Requesting Subpoena Duces Tecum. Once it is served, that puts the ball in the bank's court. It will have to produce the requested document (be sure to include a business records affidavit for their custodian of records to attach), or resist the subpoena. Frankly, I cannot imagine grounds for doing the latter in light of being served with a valid SDT.
  6. "I really need to know how to notify the defendent that I will obtain a copy of the cancelled check for the court?" No permission or formal notification is required. The defendant is already on notice for some time now, and all you need to do is serve her with a copy of the subpoena papers served on the bank.
  7. "and in what process I should do this?" This can be done with a certificate of service just like when you notice her on any other pleading or motion you might have filed in the case.
  8. "Notify the defendent then wait 14 days then serve the subpeona duce tecum to the bank?" I see no need for doing so. Just serve the SDT on the bank, notice the defendant, and if she wants to fight it out with the bank and try to get it not to release the document, that is between the two of them.

 

I hope that this information has been helpful to you. If we can be of any further assistance please free to use our service again. Best wishes for a successful outcome.

 

If my answer has been helpful to you, please click "ACCEPT" so that I may be paid. This is the only way that I will receive compensation for the work performed. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done. Clicking "FEEDBACK" to leave your positive comments is always greatly appreciated.

 

The information provided is general in nature only and should not be construed as legal advice. By using this forum, you acknowledge that no attorney-client relationship has been created between you and Benjamin M. Burt, Jr., Esq. You should always consult with a lawyer in your state.

LawHelpNow, Attorney/Lawyer
Category: Legal
Satisfied Customers: 7591
Experience: Relax. Let's work together. Practical solutions.
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Customer: replied 5 years ago.

Thanks so much Ben!!!!! Sorry took awhile to reply, but you provided me with alot of great reading material. LOL...... This will be a big help and thanks again.

 

Tammie

Expert:  LawHelpNow replied 5 years ago.

Hello again,

 

You are quite welcome. It was entirely my pleasure to be of some help.

 

Many thanks for your "Accept" and especially your kind words. Both are greatly appreciated.

 

Take care and thanks again for using JustAnswer®.

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