Lenders or mortgage holders are required to submit an affidavit in support of their motion for summary judgment, generally called an “Affidavit of Amount Due” or “Affidavit of Indebtedness”. This affidavit lays out certain relevant information about the debtor’s mortgage debt.
In the fall of 2010, deficiencies in the production, execution, and review of affidavits and other legal documents related to the mortgage foreclosures gave way to the “robo-signing” controversy that has not quite been resolved to this day.
In this context, the recent case of Glarum v. Lasalle Bank, N.A., 4D10-1372 (Fla. 4th DCA, September 7, 2011) may complicate banks’ efforts to foreclose in Florida. According to the court’s ruling, it is not enough for the person signing and preparing the affidavit to obtain the information from the lender’s computer system. The affiant must be able to verify that the computerized entries were correct at the time they were made. In Glarum, The affidavit was found to be inadmissible hearsay as the affiant had no knowledge of how the data was produced and was not competent to authenticate the data. An important fact in this case is that the person signing the affidavit worked for a loan servicing agency and had admitted in discovery that he did not have personal knowledge of all the facts in the affidavit.
LaSalle Bank, N.A. has already filed a motion for rehearing asking Florida’s Fourth District Court of Appeal to clarify its decision. LaSalle Bank, N.A. believes that the ruling creates confusion, as some now believe that only the bank employee who personally entered the computerized information into a bank’s computer system may prepare and sign the affidavit of amount due. Such an interpretation would effectively preclude many foreclosures as the person entering the data may no longer be an employee of the foreclosing bank.
Although the events in Glarum do not quite rise to “robo-signing” proportions, it is one more tool in the foreclosure defense arsenal that is sure raise some waves and further slow foreclosure process in Florida.
Craig I. Kelley, Esquire of Kelley & Fulton, P.L., represents individual and business debtors and creditors in Chapter 7, 11, 12, and 13 proceedings. He is A.V. rated by Martindale-Hubbell directory, which is the highest rating as voted on by his peers in the legal profession. He is an Adjunct Professor of Bankruptcy Law at Palm Beach State College and lectures nationally on the topics of Bankruptcy and Foreclosure. His law firm is located in West Palm Beach and he can be reached at 561-491-1200 or at firstname.lastname@example.org. For more information log on to www.kelleylawoffice.com.