Asset searches: who can get bank information and why

Accessing bank account information can be vitally important, particularly for those engaged in a lending transaction seeking to fulfill due diligence requirements. But getting your hands on the information can be a challenge.

Asset searches are not illegal. However, certain methods to obtain bank or investment account information can be, such as pretext calling. The simplest way to obtain financial information is via the account holder, a designated representative, or a party with a valid court order. The first two options are unlikely to be forthcoming. As for the third choice, obtaining a court order to access such information can be time-consuming and costly.

Access to financial information is regulated by both federal and state laws. For example, the Gramm-Leach-Bliley Act (GLBA) prohibits obtaining customer information from a financial institution under false pretenses and imposes an obligation on financial institutions to protect customer information. Generally, a “customer” is defined as an individual consuming goods or services for personal or household use, although some authorities have included sole proprietors, partnerships of five or fewer, and other small businesses to receive the same privacy protections. For businesses, the issue of data protection is governed by contract. While the consumer protection provisions of laws like the GLBA would not apply, it does not mean that financial institutions can freely share their information.

International asset searches present their own set of problems. Other countries – particularly those in the European Union – have strict data privacy laws that prohibit any access to personal information as well as the transfer of data across national borders. Federal law also comes into play, with the Foreign Corrupt Practices Act presenting potential liability issues if an entity searching for asset information obtained the information by illegal means (such as bribing a banking or government official).

What about judgments? While a judgment cannot by itself force a bank or brokerage firm to disclose account information, it allows a creditor to use the court to seize the debtor’s assets. With a judgment in hand, a creditor can file for an order of examination which will require the debtor to disclose – under oath – the location of assets, details about income, or other relevant information. However, the judicial process of obtaining a judgment reveals the intent of the creditor and can give the debtor time to empty an account or move assets prior to the court entering an order. Judgments can also be tricky to enforce. State law governs judgments with specifics varying in each jurisdiction. In California, a creditor must obtain a writ of execution directing a levying officer (usually a sheriff) to serve the writ on the named institution. The institution must then freeze the specific account(s) or, in certain situations, turn over the balance in the account. Serving a writ of execution in California was recently simplified to allow service on a “central location” designated by a bank with nine or more locations in the state or accept service at any branch without such a designated office.

Long-arm statutes can be used to reach accounts in a jurisdiction other than where the judgment originated. A debtor can object to the attempt and courts typically impose a test of whether the debtor or third party (like the bank or brokerage holding the assets) has connections with the court or creditor, which, at a minimum, can delay the process and make it more expensive.

For assets like stocks, bonds, and commodities, creditors can again obtain a court order that can liquidate the account into cash to be turned over to the creditor. It should be noted that certain types of accounts (notably retirement accounts) cannot be reached, even in cases of fraud. To preserve an account balance, a creditor can serve a levy on a brokerage in order to put a hold on the account while waiting for a court order.

Public records – ranging from property records to litigation – can also help locate or confirm a debtor’s assets. One important consideration: it is essential to vet any company that purports to be able to obtain financial account information. Many misleading claims and offers about obtaining such information can be found on the Internet and creditors should ensure that any data obtained was in accordance with applicable law and regulations.

Asset searches: who can get bank account information and why

A quick Internet search for ways to get someone’s bank or investment account information returns at least a dozen private investigation companies that promise to find these records “anywhere in the US and worldwide” for judgment collections, verification of net worth and for “just about any other purpose.” But a closer look at these Web sites reveals a fine-print disclaimer stating that the information is from public records such as divorce cases and probate filings. And there are a few that do not bother with a disclaimer, providing only an 800 number to call.

Asset searches, which may include bank and investment accounts, are not illegal; however, certain actions to obtain this information, such as pre-texting, are illegal. And although there are methods that can be used to obtain financial information covertly, most if not all, are questionable and often futile. There is no clear way for anyone other than the account holder, a designated representative or a party with a valid court order to get account information without violating the law.

There is a general misconception that a judgment, just by virtue of its issuance, can be used to force a bank or financial institution to disclose account information, but the enforcement of judgments is governed by each state’s laws. In California, for example, a writ of execution is necessary. These writs are rendered on a county-by-county basis and direct a levying officer (usually a sheriff) to serve the writ on the named institution. The institution then may be required to freeze the account and in some cases to hand over the account balance. State laws also allow the creditor, after a judgment is obtained, to examine and request asset information from the debtor. This, however, puts the debtor on notice and may result in draining an account before a writ of execution is served.

The privacy protection laws that govern access to financial information under false pretenses depend on whether the affected customer is a consumer or a business entity. The more significant legislation is directed at protecting consumers, defined generally in the laws and in interpretative decisions as ”individuals consuming goods or services for personal or household use.” The Gramm-Leach-Bliley Act (GLBA) prohibits obtaining customer information from a financial institution under false pretenses and imposes an obligation to protect customer information. Under the GLBA, a customer means “an individual consumer,” which is essentially the same as the definition of a consumer under the Fair Credit Reporting Act (FCRA). In addition to the GLBA and FCRA, there are other potentially applicable federal privacy laws, as well as a long list of state laws. But even if a specific law may cover only consumers, the financial institution’s contract with the business customer would certainly be construed as preventing third-party access.

June 10th, 2011|Educational Series|
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