4 ms·

If you know a little bit about legal procedure dealing with something like this shouldn't be too hard. You'd file against your local bank based on the address

by CPLX 10y ago

If you know a little bit about legal procedure dealing with something like this shouldn't be too hard. You'd file against your local bank based on the address of the branch you go to for an order to show cause hearing where they are tasked to show up and show cause as to why the transfer of money should go forward. You'd state the basic grounds of mistaken identity, propose a temporary restraining order barring any further action until the case is heard, and go to the court for a judge to sign the order and give instructions for service. Once it gets on everyone's radar as a conflicting court proceeding (rather than a customer service complaint) they'd likely quickly get to the bottom of it. It sounds really hard but it isn't, most courts in bigger cities at least will have an office where you can make an appointment to get free volunteer legal help. Yes this will burn a couple slightly frustrating afternoons getting it together but it's eminimently possible to do, and an interesting exercise for the average person who enjoys learning how things work.

scrummytim 10y ago
> If you know a little bit about legal procedure dealing with something like this shouldn't be too hard. Well, responses on here vary from "sue the bank, it's their fault," to "contact/sue the LASD, it's their fault" to "contact the plaintiff's lawyers, they'll fix it" to "contact the defendant's lawyers, they'll pay for it or else." So clearly, this is likely to cost more than a couple afternoons. One day, a sheriff showed up at my home and confiscated my guns. Turns out some lunatic that I don't even know had filed a domestic abuse restraining order against me and the state I was in grants a temporary order by default. Took 2 months to resolve this and cost me about $6k in legal fees. Took several months to get my guns back. While that's not the same as "you're not actually the guy named in the lawsuit", it illustrates how disruptive this kind of thing can be.
- matt_wulfeck 10y ago
  Absolutely. And he's lucky it was just $4k. What of it was $100k and included money you needed to live and pay the mortgage with? This type of negligence by the bank is downright scary.
  - deleted 10y ago
    [deleted]
  - scrummytim 10y ago
    It's not clear to me that it's the bank's fault. The court must've done some kind of discovery to send the bank a garnish order. So was the bank lazy and just took money from a similar named account without checking the details? Or did the court identify the wrong defendant and issue a garnish order for the wrong person?
    - d_theorist 10y ago
      Either way, BofA should still have given the customer sufficient notification to enable them to object before taking the money.
      - jandrese 10y ago
        I wouldn't be surprised if they are specifically barred from doing this to avoid having defendants liquidate their assets right before the confiscate order comes through.
        ianferrel 10y ago
        It's not like the only options are "take the money" and "let the customer liquidate it". The middle ground is "notify the customer and freeze the accounts while they're responding".
        pc86 10y ago
        Which is no different than just taking the money. You can't get a loan against a frozen account, you can't use a frozen account to buy groceries or pay your mortgage, and you can't get an extension on your credit cards because your account is frozen. Swap out "took my money" with "froze my account" in the article and 90% of the comments here would be identical.
- late2part 10y ago
  I'm sorry that happened to you. You shouldn't lose our 2nd amendment rights based on unsubstantiated claims that you can't defend against. Very unfair and not right. Unfortunately, this is the law in California. But it should be changed, because it's unconstitutional and it's not right.
wilsynet 10y ago
> You'd file [...] an order to show cause hearing where > they are tasked to show up and show cause as to why > the transfer of money should go forward. The article very plainly describes how he was not notified until after the transfer of money already occurred.
- sounds 10y ago
  File it anyway. Get it on their radar.
- CPLX 10y ago
  Then you'd file an OSC with a draft order to restore the money to the account. The only catch would be convincing a judge to sign it, which if you stated the basic facts reasonably clearly and had a little help making sure formatting was correct would likely not be a problem. The overall point is that courts are just another system with a ton of formal rules and procedures, but for the average programmer/hacker type it's really not that hard to learn the basics of how things work and make some headway. People have a slightly irrational fear of the court system (only slightly irrational, it is terrifying) that tends to be paralyzing. Walking in the front door of the court and asking for help, plus a little online research, can help quite a bit. There's quite a few options available to your average smart citizen who wants to navigate it alone.
  - jandrese 10y ago
    It doesn't help that the guy talked to over a dozen people who all passed the buck and gave him everything from useless and misleading advice to a shrug and a "not my problem". In the end, he couldn't find a single lawyer who was both qualified and interested in his case. Everybody was either out of their jurisdiction or uninterested in such a small case.
bgentry 10y ago
In California, I don't believe you can file against a local branch. You'd need to file against BofA at their central legal location for service, which I believe is in LA. However, I think (though not sure) you can still file the case itself in the county where you reside. I know this because I recently filed a small claims case that included Chase as a defendant, and this was the process. The small (<10k) amount of money makes this a bit difficult because that typically falls within the realm of small claims, and they don't move quickly with court dates. My hearing date was about 3 months after filing. Maybe there are special procedures for things that have to move quickly like this?
- CPLX 10y ago
  > Maybe there are special procedures for things that have to move quickly like this? Yes that's what I'm proposing. I don't know CA specifically but in general courts have what's called a "special term" or an "ex parte part" or something similar. In that court a judge is sitting during the day and is available to sign orders that relate to exigent circumstances, which this would qualify for. Typically you can file an OSC and/or a TRO and seek temporary relief while you make arrangements to actually begin a proper suit. It's very commonly used, for example to prevent a business partner from cleaning out an office full of jointly owned supplies, or preventing the auction of a property when there's a dispute over ownership. It's very different from the long slow plodding process by which an actual court case proceeds. But it's applicable here since this isn't an actual court case, it's mistaken identity. Once it comes to everyone's attention formally, with a judge's order, it's almost certain to end right there.

by CPLX 10y ago

scrummytim 10y ago

> If you know a little bit about legal procedure dealing with something like this shouldn't be too hard. Well, responses on here vary from "sue the bank, it's their fault," to "contact/sue the LASD, it's their fault" to "contact the plaintiff's lawyers, they'll fix it" to "contact the defendant's lawyers, they'll pay for it or else." So clearly, this is likely to cost more than a couple afternoons. One day, a sheriff showed up at my home and confiscated my guns. Turns out some lunatic that I don't even know had filed a domestic abuse restraining order against me and the state I was in grants a temporary order by default. Took 2 months to resolve this and cost me about $6k in legal fees. Took several months to get my guns back. While that's not the same as "you're not actually the guy named in the lawsuit", it illustrates how disruptive this kind of thing can be.

matt_wulfeck 10y ago
Absolutely. And he's lucky it was just $4k. What of it was $100k and included money you needed to live and pay the mortgage with? This type of negligence by the bank is downright scary.
- deleted 10y ago
  [deleted]
- scrummytim 10y ago
  It's not clear to me that it's the bank's fault. The court must've done some kind of discovery to send the bank a garnish order. So was the bank lazy and just took money from a similar named account without checking the details? Or did the court identify the wrong defendant and issue a garnish order for the wrong person?
  - d_theorist 10y ago
    Either way, BofA should still have given the customer sufficient notification to enable them to object before taking the money.
    - jandrese 10y ago
      I wouldn't be surprised if they are specifically barred from doing this to avoid having defendants liquidate their assets right before the confiscate order comes through.
      - ianferrel 10y ago
        It's not like the only options are "take the money" and "let the customer liquidate it". The middle ground is "notify the customer and freeze the accounts while they're responding".
        pc86 10y ago
        Which is no different than just taking the money. You can't get a loan against a frozen account, you can't use a frozen account to buy groceries or pay your mortgage, and you can't get an extension on your credit cards because your account is frozen. Swap out "took my money" with "froze my account" in the article and 90% of the comments here would be identical.
late2part 10y ago
I'm sorry that happened to you. You shouldn't lose our 2nd amendment rights based on unsubstantiated claims that you can't defend against. Very unfair and not right. Unfortunately, this is the law in California. But it should be changed, because it's unconstitutional and it's not right.

wilsynet 10y ago

> You'd file [...] an order to show cause hearing where > they are tasked to show up and show cause as to why > the transfer of money should go forward. The article very plainly describes how he was not notified until after the transfer of money already occurred.

sounds 10y ago
File it anyway. Get it on their radar.
CPLX 10y ago
Then you'd file an OSC with a draft order to restore the money to the account. The only catch would be convincing a judge to sign it, which if you stated the basic facts reasonably clearly and had a little help making sure formatting was correct would likely not be a problem. The overall point is that courts are just another system with a ton of formal rules and procedures, but for the average programmer/hacker type it's really not that hard to learn the basics of how things work and make some headway. People have a slightly irrational fear of the court system (only slightly irrational, it is terrifying) that tends to be paralyzing. Walking in the front door of the court and asking for help, plus a little online research, can help quite a bit. There's quite a few options available to your average smart citizen who wants to navigate it alone.
- jandrese 10y ago
  It doesn't help that the guy talked to over a dozen people who all passed the buck and gave him everything from useless and misleading advice to a shrug and a "not my problem". In the end, he couldn't find a single lawyer who was both qualified and interested in his case. Everybody was either out of their jurisdiction or uninterested in such a small case.

bgentry 10y ago

In California, I don't believe you can file against a local branch. You'd need to file against BofA at their central legal location for service, which I believe is in LA. However, I think (though not sure) you can still file the case itself in the county where you reside. I know this because I recently filed a small claims case that included Chase as a defendant, and this was the process. The small (<10k) amount of money makes this a bit difficult because that typically falls within the realm of small claims, and they don't move quickly with court dates. My hearing date was about 3 months after filing. Maybe there are special procedures for things that have to move quickly like this?

CPLX 10y ago
> Maybe there are special procedures for things that have to move quickly like this? Yes that's what I'm proposing. I don't know CA specifically but in general courts have what's called a "special term" or an "ex parte part" or something similar. In that court a judge is sitting during the day and is available to sign orders that relate to exigent circumstances, which this would qualify for. Typically you can file an OSC and/or a TRO and seek temporary relief while you make arrangements to actually begin a proper suit. It's very commonly used, for example to prevent a business partner from cleaning out an office full of jointly owned supplies, or preventing the auction of a property when there's a dispute over ownership. It's very different from the long slow plodding process by which an actual court case proceeds. But it's applicable here since this isn't an actual court case, it's mistaken identity. Once it comes to everyone's attention formally, with a judge's order, it's almost certain to end right there.