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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


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 Plaintiffs 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 Plaintiffs 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.


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


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 Plaintiffs 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 Plaintiffs 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



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


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: andyecorso@yahoo.com