Is Bank of America Spending Over Six Figures — and Rising — to Fight $75K South Florida Suit?
Palm Beach Circuit Judge Lisa S. Small issued a rebuttable instruction, telling the jury that "Bank of America's records are not reliable."
May 08, 2018 at 02:14 PM
5 minute read
Bank of America is spending “well over six figures” to defend a lawsuit over nonpayment of a $75,000 certificate of deposit, according to plaintiffs lawyer David I. Shiner.
And after two recent adverse rulings, the case appears likely to become more expensive for the bank, thanks to the court's decision to issue a jury instruction creating a rebuttable presumption that Bank of America's records are not reliable.
The court's decision allows the Charlotte, North Carolina-based bank to present evidence to rebut the presumption included in the jury instruction. But that means Bank of America must make an active effort to convince jurors to trust its records. Getting evidence to back the bank's records would be expected to come at additional cost.
Plus, a sanction order entered against the bank on April 3 means it owes attorney fees to the opposing parties for litigation that shows no sign of slowing.
After about five years of litigation, Shiner estimates the bank's legal costs have surpassed $100,000. He also said he is gearing up to seek about $86,000 in attorneys fees following the sanction order.
“This is a case that should have gone away a long time ago, but now it's going sideways on them,” said Shiner, who heads the Shiner Law Group in Boca Raton. “Here's a case that could have been resolved amicably. It's a simple case. But now we keep uncovering unreliable records, there's monetary sanctions and the court has stricken their records—all over a relatively small value case. I'm sure they've got other fish to fry.”
Shiner's comments came months after the bank agreed to pay $66.6 million to settle a class action over overdraft fees.
Bank of America is the defendant in a lawsuit by Karl Makovsky, personal representative of the estate of Jean Irene Makovsky and as agent for Keith Makovsky, Kurt Makovsky and William Makovsky, beneficiaries of a $75,000 certificate of deposit.
The plaintiff represents four brothers who say they discovered the financial document in their mother's possessions after her death.
The mother, Jean Irene Makovsky, opened the certificate of deposit in 1992, and held it in trust for her sons, according to court pleadings. She made the transaction through MBNA America Bank N.A., a Delaware company that Bank of America acquired in 2006. Jean Irene Makovsky died in 2013, leaving the certificate of deposit in a lock box with a note to her children, according to Shiner.
The financial instrument from August 1992 shows a 30-month term, and a February 1995 renewal date. It accumulated interest at a 5 percent rate, with a 5.13 percent effective annual yield, with an estimated current value of about $150,000.
“We're talking about a small sum of money,” Shiner said. “They have just played every game in the book. This case has been going on five years over a relatively insignificant amount of money.”
The bank's attorney—J. Randolph Liebler of Liebler, Gonzalez & Portuondo—did not respond to requests for comment. Emails and calls to Bank of America's press office were not returned.
It is unclear whether Jean Irene Makovsky renewed the CD, or whether the bank still considered the instrument valid. Court filings from Bank of America indicated that the financial institution is prepared to argue it has no record of the document, and that the CD was a non-negotiable instrument.
The brothers say the bank refused to honor the CD when they presented it in 2013. They sued Bank of America for breach of contract, money lent, money owed, unjust enrichment, conversion and breach of fiduciary duty.
The parties were set to go to trial on Nov. 13, 2017. About a month earlier, the bank produced records that were supposed to contain records showing the asset transfer as Jean Irene Makovsky's financial institution, MBNA, transitioned into the Bank of America portfolio.
But a filing seeking sanctions for fraud against the court suggested the bank never produced documents for the relevant period when the CD would have transferred to the new company. Eight months later, the bank's witness filed a document conceding to the error.
As a sanction, Palm Beach Circuit Judge Lisa S. Small in April struck Bank of America's motion for summary judgment. She then reset the trial, and awarded attorney fees and court fees to the plaintiffs to cover their expenses for preparing the motion for sanctions and related filings.
Small stopped short of striking Bank of America's pleadings, as the plaintiffs had requested, but she issued a rebuttal jury instruction that the company's records are unreliable. She left the door open for the bank to present evidence to refute her findings.
Shiner welcomed the ruling.
“That's our whole case,” he said. “Bank of America claims to have no record of my client's CD, but the point is their records are unreliable.”
Meanwhile Shiner said he plans to ask the court for about $86,000 in attorney fees after Small's ruling granting his client reimbursement for November proceedings.
“They should have just paid,” Shiner said. “We're not talking about a lot of money, and now we're talking potentially about fees.
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