Racher et al v. Lusk et al

Filing 235

ORDER denying 232 defendant Ron Lusk's Motion to Quash Subpoena Duces Tecum Directed to Plains Capital Bank (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 4/19/2017. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DORIS RACHER,
SANDRA CISPER,
EARLENE ADKISSON, Co-personal
Representatives of the ESTATE OF
ERYETHA MAYBERRY, DECEASED,
and
JAMES KINGSBURY, Personal
Representative of the Estate of and Next
of Kin to Rachel Mary Kingsbury,
Deceased,
Plaintiffs,
vs.
RON LUSK, an Individual;
WESTLAKE MANAGEMENT
COMPANY, a Texas Corporation; and
WESTLAKE NURSING HOME
LIMITED PARTNERSHIP, an Oklahoma
limited partnership, formerly d/b/a
Quail Creek Nursing and Rehabilitation
Center,
Defendants.

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Case No. CIV-13-665-M

ORDER
Before the Court is defendant Ron Lusk’s (“Lusk”) Motion to Quash Subpoena Duces
Tecum Directed to Plains Capital Bank, filed February 22, 2017. On March 1, 2017, plaintiffs
filed their objection, and on March 8, 2017, Lusk filed his reply. Based upon the parties’
submissions, the Court makes its determination.
Plaintiffs have final judgments against Lusk totaling approximately $1,550,000. Plaintiffs
have not been able to collect on these judgments. Plaintiffs have issued a subpoena to Plains
Capital Bank to ascertain the source of funds that Lusk uses to make his monthly house payment
of $11,900. Specifically, plaintiffs have requested:

All documents from May 1, 2013, to the present date that show the
financial institutions and account numbers for the source of funds
(whether by check, automatic withdrawal or some other method of
payment) for the periodic payments associated with the loan and
mortgage on the residential property located at 6214 Park Lane,
Dallas, TX 75225, a/k/a Lt 14 and 45 45FT of 15, BI A/5470,
Preston Estates, in which Plains Capital Bank is the lender and
Ronald E. Lusk, SS # XXX-XX-0707 is one of the borrowers, as
evidenced by the Note and Deed of Trust in the amount of
$1,500,000 dated April 25, 2013, and recorded May 1, 2013, a copy
of which is attached hereto; and
All documents from January 1, 2016, to the present date that show
the amount held in escrow in regard to the loan and mortgage
described above.
Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in
Civil Action at 3 [docket no. 229-1]. Lusk now moves the Court to quash the subpoena to Plains
Capital Bank.
“The rules governing discovery in postjudgment proceedings are quite permissive.”
Republic of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250, 2254 (2014). Federal Rule of Civil
Procedure 69(a)(2) states:
In aid of the judgment or execution, the judgment creditor or a
successor in interest whose interest appears of record may obtain
discovery from any person – including the judgment debtor – as
provided in these rules or by the procedure of the state where the
court is located.
Fed. R. Civ. P. 69(a)(2). Further, the general rule in the federal system is that subject to the district
court’s discretion, “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case . . . .” Fed. R.
Civ. P. 26(b)(1). “So long as the discovery is in aid of execution of a judgment, the majority of
the case law requires only that the information sought be relevant” and “relevant information
pursuant to Rule 69(a)(2) must be such that it could possibly lead to executable assets.” Stan Lee

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Media, Inc. v. The Walt Disney Co., Civil Action No. 12-cv-02663-WJM-KMT, 2015 WL
5210655 at *2 (D. Colo. Sept. 8, 2015).
Lusk asserts the subpoena should be quashed because it seeks financial information
concerning his exempt homestead property and such information is irrelevant to his ability to
satisfy plaintiffs’ judgments against him. Lusk further asserts that identifying the source of funds
used to pay his monthly obligations due on the mortgage on the exempt homestead will not show
his ability to pay the judgment debt of plaintiffs. Plaintiffs contend that regardless of whether
Lusk’s house qualifies as exempt, the source of the funds used to make those house payments is
not exempt and the source of the funds, therefore, could be garnished or executed upon.
Accordingly, plaintiffs contend that the financial information sought through the subpoena is
relevant.
Having reviewed the parties’ submissions, the Court finds that the subpoena to Plains
Capital Bank should not be quashed. Specifically, the Court finds that the subpoena seeks relevant
information that could possibly lead to executable assets. By seeking information regarding the
source of funds used to make Lusk’s mortgage payments, plaintiffs are simply attempting to obtain
information about Lusk’s assets and income, as the source of funds could be an asset or income of
Lusk’s, that could be used to satisfy plaintiffs’ judgments.
Accordingly, the Court DENIES Lusk’s Motion to Quash Subpoena Duces Tecum
Directed to Plains Capital Bank [docket no. 232].
IT IS SO ORDERED this 19th day of April, 2017.

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