Robosigning Nixes Bank of America's Summary Judgment Claim

Today we report on yet another case of robosigning, this time involving Bank of America. In a new decision from Nassau County (NY) Supreme Court, reported in today’s New York Law Journal, the court stated that an affidavit of fact that was submitted by Bank of America "raise[d] the spectre of the recent ‘robosigning’ scandal.” The court went on to state that although it would not reject the affidavit on that basis alone, it compelled the court “to apply heightened scrutiny.”

Bank of America brought the case to recover an alleged balance on a retail installment agreement for the purchase of a boat. In support of its motion for summary judgment, Bank of America submitted the affidavit of Inez I. Girbac. The bank submitted no documents to prove the facts alleged in the affidavit, or the amount it alleged was due, and relied “primarily, if not solely on the Girbac Affidavit to establish its case.” The court noted that the plaintiff bank attached seven pages that appeared to be a computer printout relating to the defendant’s account, but the attachment was “neither authenticated nor explained, and as such is devoid of probative value.”

With regard to the specifics of the affidavit, the court had three concerns. First, it was unclear whether Ms. Girbac had, or was in a position to have, personal knowledge of the facts she alleged. The affidavit was a form document with a blank in which Girbac’s name was handwritten after the fact. The form used boilerplate language and lacked specificity as to Ms. Girbac’s role and how she gained her personal knowledge, and thus raised the spectre of robosigning.

Second, the Girbac affidavit was vague and conclusory. It did not provide any significant dates, including the date of default, date of acceleration of the loan, date of repossession or date of sale.

Third, the affidavit was marred by errors which, taken with the court’s other concerns, cast doubt upon the integrity of the whole. For instance, in one paragraph, the affidavit stated that the contract at issue related to the purchase of a car, rather than a boat.

The court concluded that such defects rendered the affidavit, standing alone, insufficient to support a motion for summary judgment. The case is Bank of America, N.A. v Danniel Paggy, 601802/09.

-Sheril Stanford

Categories: Debt Defense
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