Author Topic: deposition duces tecum?  (Read 5816 times)

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vialna

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deposition duces tecum?
« on: July 06, 2006 08:06:33 PM »
i have been ordered to give deposition duces tecum...first of all what does that mean?
the letter also states that i must produce all subpoenaed docs. or be held in contempt of court?  What if i dont have docs. or no means to get them?
Also, because of my cancer i have only 2 days aweek when i feel well...im hoping this is on one of those days, although i never no when that will be...or i will be puking my brains out all over the place...having said that..

does anyone know what i need to do to ask this to be pushed ahead 60 days or so?
this document was issued through the county court house...i sure would appreciate
any ones suggestions on this matter...........thanks  v

Rottweiler

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Re: deposition duces tecum?
« Reply #1 on: July 06, 2006 08:42:28 PM »
i have been ordered to give deposition duces tecum...first of all what does that mean?
the letter also states that i must produce all subpoenaed docs. or be held in contempt of court?  What if i dont have docs. or no means to get them?
Also, because of my cancer i have only 2 days aweek when i feel well...im hoping this is on one of those days, although i never no when that will be...or i will be puking my brains out all over the place...having said that..

does anyone know what i need to do to ask this to be pushed ahead 60 days or so?
this document was issued through the county court house...i sure would appreciate
any ones suggestions on this matter...........thanks  v

A subpoena duces tecum means that they want you to bring all the documentation they ask for--and that you have in your possession--to court when you show up for the deposition.

However, you may have some relief here, because of the fact you are chronically ill and under treatment:  Have your doctor(s) provide a statement to the court with proof showing that you are too ill to appear and forcing you to give the depo would risk your health further, if not be fatal to you.   I doubt the court would force you to go through with the depo. if you havethis done.  If you don't have your doctors intervene, and get leave of the court to have you released from the summons to appear, the plaintiff's attorney will just see this as a "stall" and a deliberate attempt to disobey a court order.  They then could very well have the court put out a bench warrant for your arrest.  Cancer and a stint in jail do not "mix" well, and could definetly kill you! The plaintiffs do have the option of calling for the production of the documents with a written deposition in lieu of you appearing in person for questioning.

By them asking for a subpoena duces tecum, it's clear they what really want is the documents and records you have, and your personal testimony is secondary.
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

vialna

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Re: deposition duces tecum?
« Reply #2 on: July 06, 2006 08:54:38 PM »
so lets say i appear with whatever docs i have...will they take control of those at that time...lets say the titles to two paid old vehicles...or do they have to follow a process...if so what would be the next step after the depostion...would this also be a good time to bring in my filed court copy of homestead affidavit and filed tenants by entireties doc....

Also..
Florida, unlike most other states, all types of property, including all real property, tangible personal property, and intangible personal property, may be owned by a married couple as tenants by entireties. Whether a married couple owns property as unprotected joint tenants with survivorship or as protected tenants by entireties depends on the intent of the spouses.  The Florida Supreme Court has said that any real or personal property owned jointly by a hustand and wife is presumed to be owned as tenants by entireties

If the atty no's this why am i doing all this stuff..........v

Flyingifr

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Re: deposition duces tecum?
« Reply #3 on: July 06, 2006 09:37:54 PM »
i have been ordered to give deposition duces tecum...first of all what does that mean?
the letter also states that i must produce all subpoenaed docs. or be held in contempt of court?  What if i dont have docs. or no means to get them?
Also, because of my cancer i have only 2 days aweek when i feel well...im hoping this is on one of those days, although i never no when that will be...or i will be puking my brains out all over the place...having said that..

does anyone know what i need to do to ask this to be pushed ahead 60 days or so?
this document was issued through the county court house...i sure would appreciate
any ones suggestions on this matter...........thanks  v

From the Lectric Law Library Lexicon:

Quote
DUCES TECUM - Bring with thee. A writ commonly called a subpoena duces tecum, commanding the person to whom it is directed to bring with him some writings, papers, or other things therein specified and described, to a deposition, to counsel for litigants in an action, or before the court.

In general, all relevant papers in the possession of the witness must be produced, but to this general rule there are exceptions. E.g., attorneys and solicitors who hold the papers of their clients cannot be compelled to produce them, unless the client could have been so compelled; neither can documents that are covered by the 5th Amendment's protection against self-incrimination.

That said, if I were you, I would make sure I made this deposition as quick and painful (for them) as possible. Here is how I would attack it:

First, if you don't have the exact document they are asking for, say so. You are being honest and just because they ask for it doesn't mean you have to follow Indiana Jones to the ends of the Earth to produce it. The more they ask for and the less you have, the better.

Second, I would play the illness to the limit of my ability not to laugh. Not that your illness is funny (it isn't, and I sympathize with you - but you can use it to a strategic advantage). Here's how it would go (if I were you):

Their Attorney: Now, Flyingifr, did you bring the document identified as #1 with you?
Me: No, I don't have a copy. Could I see yours?
TA: No. Let the record show that the Defendant did not produce the document demanded.
Me: Let the record also show that the Defendant doesn't HAVE the document demanded.
TA: Let's move on to document #2.
Me: I'm feeling sick - my medication does that to me (throws up on the Judge's desk). Sorry, Your Honor.
Me: I have cancer and the medication does strange and terrible things to me (lets out the loudest fart I can). Sorry, your Honor.
TA: Let's move on. Do you have....
Me: hiccup.... hiccup.... hiccup
TA: Document #4?
Me: Yes, I have part of it. I have the second and fifth pages but I accidentally used 1, 3, 4 and 6 as toilet paper in an emergency. I can get them if you want, it was only yesterday.
TA: No, that won't be necessary.


..... you get the idea......
« Last Edit: July 06, 2006 09:42:33 PM by Flyingifr »
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

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xYBDx

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Re: deposition duces tecum?
« Reply #4 on: July 06, 2006 11:21:48 PM »
OK, now that Im off the floor and back in my seat....

Flying is right, if you dont have a document, you dont have it. Lost in the mail, ate by the dog, used for TP, whatever. If the atty doesn't like that, tough.

Though, I'd like to explore the "Can I see yours?" line, in a very sneaky way. "Perhaps if I can see yours, so I could then recognize any copy I might have and didnt realize it,  may I see yours?"

If he says no, then "Why? You have it and will produce as evidence in the proceeding correct? Why wouldn't you alow me to see it to help you here?". "Excuse me, but is this nothing more than a fishing expedition?".

In the big picture, have your doctor write a letter to the court that you're seriously ill, and proceeding with a trial process at this time would seruiously endanger your life. Included it with a Motion for Continuance seeking 180 days, and if the idiot argues remind the ocurt that there is, as the plaintiff keeps telling you, INTEREST accruing on the alleged debt and therefore Plaintiff's rights are preserve in total through any postponement.

Just incase you want to put the whole thng on hold till your treatments are over.
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vialna

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Re: deposition duces tecum?
« Reply #5 on: July 06, 2006 11:27:04 PM »
lets see here, ive already lost this judgement in a motion for summary...its been awarded to the jdb..now hes asking for a deposition...what happens next...
xybdx mentioned trial......is there a trial next...or is this just to find assets  and go after assets since they have already been awarded the judgement.......NOW IM CONFUSED............ v

fraudfighter

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Re: deposition duces tecum?
« Reply #6 on: July 07, 2006 12:01:24 AM »
lets see here, ive already lost this judgement in a motion for summary...its been awarded to the jdb..now hes asking for a deposition...what happens next...
xybdx mentioned trial......is there a trial next...or is this just to find assets  and go after assets since they have already been awarded the judgement.......NOW IM CONFUSED............ v

It's called "Execution". It's also called "Final Process".
A judgment creditor in Florida has five years to begin to "execute" on his judgment.
That means begin to use the power of the court to enforce it.
Part of that is to use "Interrogatories in Aid of Execution", which is what you just received from them.
This is the laundry list of financial questions and requests for production of documents to get you to disclose your financial assets so they can decide what assets to seize to collect on their judgment against you.

Anything that is Tenancy by the Entireties is not subject to Execution if the judgment was only against you.
The only property subject to execution would be property owned by you.

You have 30 days to file an appeal against the final judgment.
You have one year to file a 1.540(b) relief from judgment motion against the judgment (Any Fraud or Misrepresentation on the part of the PLTF?)

Also, you can't be put in jail for contempt involving a money judgment in FL due to the FL Constitution and F.S. 56. I put that information in the FL law data dump in the rubyruby MSJ sticky.


 
« Last Edit: July 07, 2006 12:03:42 AM by fraudfighter »

rubyruby27

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Re: deposition duces tecum?
« Reply #7 on: July 07, 2006 12:57:43 AM »
Vialna,

Listen to fraud.  Is it past the 30 days yet.

Sent you PM.

fraudfighter

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Re: deposition duces tecum?
« Reply #8 on: July 07, 2006 02:31:47 PM »
lets see here, ive already lost this judgement in a motion for summary...its been awarded to the jdb..now hes asking for a deposition...what happens next...
xybdx mentioned trial......is there a trial next...or is this just to find assets  and go after assets since they have already been awarded the judgement.......NOW IM CONFUSED............ v

If they filed a motion for a continuing writ of garnishment or garnishment on your bank account, and if you filed a timely claim for exemption as head of household and if they filed an affidavit denying your claim, then a hearing or trial would be held as part of final process. You would have the right to demand a jury trial. The burden of proof is on you, though, to prove the claim of exemption.


rubyruby27

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Re: deposition duces tecum?
« Reply #9 on: July 07, 2006 04:06:17 PM »
Blind trying to help the blind here.

I have a copy of what the JDB sent to the courts.

Is there anything in the sworn statement that she could get her on fraud or misrepresentation. The 30 days was up 2 days ago, is it possible for her to get her Dr to say that she was sick during that time and was unable to file a motion in a timely manner?

I DO HEREBY CERTIFY that today, personally appeared before me an officer duly authorized to administer oaths and take  acknowledgements, ,xxxx, who is personally known to me,  and who being duly sworn, deposes and says that the facts alleged in the foregoing affidavit are true,  correct, and based  upon personal knowledge and that this oath was executed  freeely, voluntarily, and for the purposes herein expressed.

Witness stuff here.

In the motion all it says is JBD has card agreement and bill of sale and the Defendant accounts were closed in 2003 for non payment and that she owed so much money.

I don't see the bill of sale from the last JDB to this JDB that sued her.  It could be it was not given to her and it is in the court file and she needs to go look at her file.  What she has is the OC to the first JDB that sold it to the JDB that sued her.

Now how would she know how much is really owed, since she didn't work for Discover (OC).

There is a notation --The exhibits referenced in the documents are CDR Disc's.  Only the subject account is printed and attached from that CDR, as the other accounts are not relevant to this case.


 Does this info help anyone to offer another/best solution for her problem.



xYBDx

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Re: deposition duces tecum?
« Reply #10 on: July 07, 2006 04:53:50 PM »
Sorry if I confused things. I was suggesting you could get the deposition postponed for 180 days due to health issues. The post judgment interest that is ticking away PRESERVES the plaintiff's rights under the law, so they really can't justify INSISTING on moving forward with no continuance, even at the risk of your life....since thier rights are preserved by the interest accruing.

Also, there will be a "hearing" after the deposition information is mulled over, where the judgment creditor will go asking the court to act on your assetts/income/etc to pay off the judgment. So even if you do the deposition you could still move to continue the matter for 180 days before the hearing, which would keep them off your back while you finish your treatment.

I cant see a judge ever refusing your motion and forcing you to proceed against the proclaimation of your doctor(s) that it could seriously adversely affect your health.
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