Consumer Credit Cases and Robosigning

Robosigning is a term created and popularized in connection with  scandals involving the mortgage foreclosure crisis. It did not have an official legal definition, but refers to the process of “mass signing” forged or fraudulent documents relating to mortgage foreclosure. It also refers to signing documents without having actual knowledge of the contents of the documents.

We recently dealt with a debt collection Consumer Credit Case where we brought to the Court’s attention what we believed to be a case of Robo signing. In this case the Affidavit central to the debt collector’s case had all of the particulars of the case on one page, but the signature of the “witness” completely separate on another page.  As we wrote,

1. Moreover, and of even greater concern, “Exhibit C” which is central to Plaintiff’s case contains a jurat page which is by design separate from the facts it purports to authenticate. Indeed the affidavit before the Jurat Page includes the words “the remained of this page intentionally left blank”.
2. This is a clear indication of the presumption, if not the certainty, that the affiant did not read the affidavit, but that that her signature was mechanical appended to this and probably many other affidavits.
3. Given that the various affidavits come from several different states it is appropriate to cite HSBC Mortg. Servs., Inc. v. Murphy Supreme Judicial Court of Maine May 19, 2011 19 A.3d 815 (Me. 2011) 19 A.3d 8152011 Me. 59, which rejected such an affidavit in a summary judgment motion setting, citing New York’s Court of Appeal, stating,The New York Court of Appeals, having noted the recurring problem of lenders submitting unreliable affidavits and documents in residential foreclosure proceedings, has adopted a rule that requires attorneys representing lenders in foreclosure cases to personally affirm that they have taken reasonable steps to verify the accuracy of the papers filed with the court in support of the foreclosure. See New Court Rule Says Attorneys Must Verify Foreclosure Papers, New York Law Journal,  http://www.law.com/jsp/nylj/PubArticleNY. jsp?id= 12024736 28860 slreturn= 1 hbxlogin=l (last visited May 18, 2011).
4. And stating, [W]e readily conclude that the Vadney affidavits submitted in support of HSBC’s second motion for summary judgment, like the Gonzalez affidavit submitted before them, are inherently untrustworthy and do not satisfy the foundational requirements of M.R. Evid. 803(6). Because the information contained in the affidavits, and the business records attached to them, are not of a quality that would be admissible at trial, the court erred by granting a summary judgment.

We will have to wait and see what the Court makes of this, but certainly it is important to examine every affidavit submitted in a debt collection case to see if this kind of practice is afoot and to call it out when it is.