Finding Banks to Subpoena Instead of Breaking the Law

We’ve written before about the illegal trade in bank account information that a lot of investigators and lawyers get mixed up in. See for instance That Bank Account Information Your Investigator Got? Probably a Crime.

Without a court order or subpoena, banks just are not supposed to hand over account information except in extremely limited circumstances. Wondering prior to filing for divorce how much money your husband may have hidden away is not one of those exceptions. You can read a longer treatment of this topic that I wrote for the American Journal of Family Law.

So, what else can be done in the way of finding bank accounts by using public records? A lot, it turns out.

Most couples know where the other spouse has banked for years, and often they bank at the same institution. Most people change banks when they want to hide their assets. When it comes time to subpoena, the process isn’t terribly expensive. While it’s impractical to send subpoenas to the thousands of banks in the United States, there are ways to narrow the field.

• A newly found business with financing from a new bank. Say you find out that the subject has bought a condominium in the name of a new limited liability company. We see this all the time. The mortgage is not from one of the banks he’s used for years, but from a brand-new bank. Subpoena that bank, because sometimes banks will offer you a better rate if you move some of your money into a checking or savings account too.

• If the bank has affiliated firms in other states or asset management arms, subpoena those too. We’ve seen cases in which an attorney subpoenas a bank the couple used, but neglects to go after other institutions in the same financial family. If the husband’s bank’s parent company happens to own a trust company in South Dakota, you need to look there too. South Dakota allows self-settled spendthrift (asset protection) trusts, which can run on – literally, according to the law — forever. You get two years from formation to challenge them. Similarly, if the bank has a Delaware asset management arm that has created hundreds of numbered LLCs, chances are one of those could benefit the other spouse in the divorce.

• Watch carefully on all documents for where they are notarized. If an estranged husband who is supposed to live in Maryland is signing documents in front of a Nevada notary, you need to ask why that might be. Most banks have notaries on staff. If your husband’s notary works at a Las Vegas bank, you need to be asking that bank for his records.

One extra thought about notaries: Some states require notaries to keep journals of what they notarize and who appeared before them. Those journals are usually public records. If an estranged spouse signed something in a bank, see what else that notary did with the spouse. Perhaps he bought property and signed a mortgage in front of that notary. Or if you’re lucky, both the spouse and the counterparty signed in front of the same notary, and you would have both sides of the transaction right there in notary’s journal.

Judges care about this stuff

It’s all a lot more work than paying some underhanded company a few bucks to impersonate someone else and illegally obtain bank records, but it has the advantage of being legal.

Earlier this year, after explaining to a client why I couldn’t get bank account information without a court order or subpoena, another client called. We had assisted him in covertly filming a warehouse full of fake goods. The client told me that when he appeared in federal court to apply to have Marshalls seize the goods, he also asked the court to seize one of the counterfeiter’s company bank accounts.

The judge shot back, “How do you know about this bank account?” The client had a good response, that the counterfeiter had given us wiring instructions for buying the counterfeit equipment. We were not asking for all the bank accounts, just the one he had given us.

Do not be in the position of having to explain to a judge how you got evidence you’re not supposed to have. Judges are people too. They get angry, and if you are in court, you don’t want them to be angry with you.