Creditor Abusing the Discovery Process

[jamesd271]

Does any one have any insight on what to do when a creditor has been abusive in his requests for information for a 2004 examination? Are there any limits at all on what he can ask for and when it becomes abusive? I have one creditor that is asking for evidence of all credit card cahrges for the last two years for me and mwife when my wife isn't even filing!

[tobee43]

according to this...yes...they can. but someone else chime in if you know better please....

Rule 2004. Examination



(a) Examination on Motion. On motion of any party in interest, the court may order the examination of any entity.
(b) Scope of Examination. The examination of an entity under this rule or of the debtor under § 343 of the Code may relate only to the acts, conduct, or property or to the liabilities and financial condition of the debtor, or to any matter which may affect the administration of the debtor’s estate, or to the debtor’s right to a discharge. In a family farmer’s debt adjustment case under chapter 12, an individual’s debt adjustment case under chapter 13, or a reorganization case under chapter 11 of the Code, other than for the reorganization of a railroad, the examination may also relate to the operation of any business and the desirability of its continuance, the source of any money or property acquired or to be acquired by the debtor for purposes of consummating a plan and the consideration given or offered therefor, and any other matter relevant to the case or to the formulation of a plan.
(c) Compelling Attendance and Production of Documents. The attendance of an entity for examination and for the production of documents, whether the examination is to be conducted within or without the district in which the case is pending, may be compelled as provided in Rule 9016 for the attendance of a witness at a hearing or trial. As an officer of the court, an attorney may issue and sign a subpoena on behalf of the court for the district in which the examination is to be held if the attorney is admitted to practice in that court or in the court in which the case is pending.
(d) Time and Place of Examination of Debtor. The court may for cause shown and on terms as it may impose order the debtor to be examined under this rule at any time or place it designates, whether within or without the district wherein the case is pending.
(e) Mileage. An entity other than a debtor shall not be required to attend as a witness unless lawful mileage and witness fee for one day’s attendance shall be first tendered. If the debtor resides more than 100 miles from the place of examination when required to appear for an examination under this rule, the mileage allowed by law to a witness shall be tendered for any distance more than 100 miles from the debtor’s residence at the date of the filing of the first petition commencing a case under the Code or the residence at the time the debtor is required to appear for the examination, whichever is the lesser.

[tobee43]

well...let me change that...any atty's out there...i would argue this...and hopfully win?

[CoBelle]

My ex's lawyer was a real jerk off at the 2004 he scheduled for me. I had to provide about 200 pages of subpoenaed docs AND he wanted me to sign a health release to go back and search my HEALTH records for a kajillion years!!!!!!!! I told the judge that he had no cause to know about my history And that since my ex was a doc...well, it made me VERY uncomfortable. He didn't get that.

So , if you can't beat them....then try what I did . I went there and there were 3 attonreys. I answered everything v-e-r-y s-l-o-w-l-y and after 9 hours ex's lawyer gave up. I figured that at an average of $300 per hour per lawyer that the fishing expedition came at a hefty price!

However, I read an article where your attorney can file an objection stating that they are just in a fishing expedition.

[despritfreya]

From experience:

2004 exams are broad in scope. It is an allowed "fishing expedition". So long as the documents requested deal with the financial affairs (debts/assets/business dealings)of the debtor, (assuming the 2004 exam is directed at the debtor), a Motion for Protective Order will 99.99% of the time, be denied. It is not uncommon for the request for documents to go back 4 to 5 years. If such documents are not in your control or in the control of your agent then maybe you can indicate so and not produce them, however, this may backfire and take you down a path you do not want to go.

A creditor has the absolute right to investigate. The concept behind this is that the debtor is asking the Court to absolve him/her of the responsibility to pay something that is due. As a result, the debtor's affairs must be an open book. Many a debtor has lost the right to a discharge when it is proven that they had not kept sufficient records to allow a creditor, interested party, the Trustee or the Court to determine their financial status.

My suggestion: Start gathering the documents. If you need more time, ask for it.

Des.

[tobee43]

thanks so much des for the actual scoop on the 2004. the information is much more reliable coming from someone with expereince on the matter!

[HHM]

From experience:

2004 exams are broad in scope. It is an allowed "fishing expedition". So long as the documents requested deal with the financial affairs (debts/assets/business dealings)of the debtor, (assuming the 2004 exam is directed at the debtor), a Motion for Protective Order will 99.99% of the time, be denied. It is not uncommon for the request for documents to go back 4 to 5 years. If such documents are not in your control or in the control of your agent then maybe you can indicate so and not produce them, however, this may backfire and take you down a path you do not want to go.

A creditor has the absolute right to investigate. The concept behind this is that the debtor is asking the Court to absolve him/her of the responsibility to pay something that is due. As a result, the debtor's affairs must be an open book. Many a debtor has lost the right to a discharge when it is proven that they had not kept sufficient records to allow a creditor, interested party, the Trustee or the Court to determine their financial status.

My suggestion: Start gathering the documents. If you need more time, ask for it.

Des.

Concur. I suppose you could argue that credit charges of the non-filing spouse are irrelevant, but they are only asking for 2 years worth and as was pointed out, a motion for protective order, Motion to quash, or objection would probably be denied.

[tobee43]

two atty's agreeing...nice to see once in awhile

[jamesd271]

HAHAHAHA! Thanks All! To the copier I must go!

[leichenb]

Quick follow up on this thread.. I'll likely need to post elsewhere as well...

With regard to a 2004 Examination (request for docs and deposition), is there a defined timeline that the deposition must occur within from the date of documents produced?

I had a 2004 Examination request that included a date for document production and a deposition date about 30 days later... The hearing didn't occur (long story) but a subsequent order from the BK court granted the party (my ex) an extension to file an objection that was limited to 60 days from my complying with the document production and deposition. I've since produced the documents and have been attempting to get the deposition scheduled (so the 60 day clock starts) but have no luck in scheduling with the atty (i'm Pro Se).

If there is a limit or timeline (say 30 days) within which the deposition should occur, I can then file a motion requesting the 60 day clock start 30 days after the document production as the atty failed to schedule the deposition in a timely fashion.

Thoughts?