Bank of America says that a lawsuit over its practice of "robo-signingâ€ foreclosure affidavits should be thrown out, arguing that the plaintiffs suffered no harm since they could have possibly lost their homes anyway.
The suit, filed last month in federal court in Indiana, concerns the bank's alleged routine practice of using "robo-signersâ€ - people who signed affidavits by the pile and never asked questions. The practice was allegedly kicked off by the financial crisis and the increasing number of borrowers who defaulted on their loans, sending the bank into "a never-ending game of catch up.â€
As a result, the complaint alleges, the bank hired workers with little experience or relevant knowledge -- "what one industry insider characterized as the 'Burger King kids'â€ -- to prepare documents to be used in foreclosure proceedings, including affidavits that contained "essential allegationsâ€ concerning the bank's rights under the mortgages.
Affidavits signed "by the hundreds"
The robo-signers, according to one lawyer, were made up of Wal-Mart employees, hair stylists, and assembly line workers. Florida attorney Peter Ticktin told the Associated Press that the banks' "mortgage servicers hired people who would never question authority.â€
These individuals "signed the affidavits by [the] hundreds, and had no actual knowledge of the facts contained therein,â€ according to the suit. Unfortunately for Bank of America, signing an affidavit without knowledge of its contents constitutes perjury, not an inconsequential crime by any definition. Bank of America knew the documents were perjured, the suit alleges, but continued to submit them to courts hearing foreclosure proceedings.
Lead plaintiffs Dwayne and Melisa Davis say that Bank of America foreclosed on their home in 2008, attaching an affidavit signed by Keri Selman. Selman, according to the suit, "is a nationally known robo-signer and, in fact, has been called a 'robo-signer extraordinaire.'â€ The complaint alleges that the statements in the Selman affidavit "are necessarily purjured,â€ since it would be impossible for Selman to read all the documentation in the Davis's case "and still read all of the accompanying documentation to all of the other affidavits she signed that same day.â€
BofA: You brought the wrong claim
The Davises are asking for monetary damages on behalf of themselves and a class consisting of anyone whose property was foreclosed on by Bank of America between October 18, 2006, and the present.
But Bank of America says that the Davises haven't shown that, by taking the robo-signers out of the equation, the result would be any different.
"Plaintiffs plead no facts to support their claim that the result, i.e., a judgment of foreclosure, would have been any different,â€ Matthew Strzynski, an attorney with Krieg DeVault LLP, wrote in response to the complaint.
The bank also argued that the plaintiffs brought suit under a statute that doesn't apply to their situation. The complaint alleged, among other things, violations of the Fair Debt Collection Practices Act, arguing that Bank of America "filed false, deceptive, misleading, and perjured affidavits in connection with the collections of debts.â€ Bank of America argues, however, that foreclosures are not initiated for the purposes of collecting a debt, but rather to protect the lender's interest in the subject property.
The suit comes at the same time as news that foreclosures were down nine percent in October, likely due to a moratorium on the practice by several major banks. Bank of America announced on October 9 that it was suspending foreclosures in all 50 states, although it partially lifted the ban less than two weeks later.