3 Biggest Problems wth Robo-Signed Foreclosure Documents

We have been reading the news stories about Chase and BOA using "robo-signers" to sign court foreclosure documents.  It is being reported that banks are filing affidavits in foreclosure cases which may be inaccurate, misleading or false.   The robo-signing process literally involves bank employees signing thousands of foreclosure documents per month with little review of the signed document or the contents of the loan file.

There are three big, potential problems in court when a bank uses a robo-signer to sign foreclosure documents.  Any one of these defenses can be a valid basis for a court to "strike" an affidavit or other document filed in support of a foreclosure.

First, a person signing an affidavit signs under the pains and penalties of perjury and is supposed to have personal knowledge about the contents of the affidavit.  A bank employee who does not review an affidavit before he signs it and who knows nothing about the contents of the affidavit does not qualify as a person with "personal knowledge" about the loan at issue.   

Second, the person signing a document has to have the requisite legal "capacity" to sign the document.  A secretary or a paralegal at a foreclosure mill, in all likelihood, does not have the legal capacity to execute an assignment of a note.  I read one report that a BOA employee may have signed documents on behalf of Bank of New York.  Documents signed by persons who do not have the legal authority to sign them may very well be void.

Third, a document has to be properly executed.  The correct signature on a document is only one part of the process of adequately executing a document.  The document has to have the proper dates on it and may have to meet state law notary requirements.  We have seen foreclosure notices with a signature, while missing a date or evidence that the document was notarized.

In summary, the documents signed by the bank's robo-signers can be challenged in court.  Examine the documents closely and seek to take depostions of any person who signed a document under oath or who has held themselves out as having the ability to execute a key document, such as an assignment.