In states that use a judicial foreclosure process, a foreclosing party (the "bank") must file a lawsuit in court to foreclose. An “affidavit of indebtedness” is a document the bank—or the servicer on behalf of the bank—files as part of that process, which tells the court how much the homeowner owes the bank. If the bank files an incorrect or robo-signed affidavit, you might have a defense to the foreclosure.
When it comes to important decisions, relying on accurate information is essential. An affidavit—a written document signed under oath in front an individual authorized to take oaths, such as a notary public—does just that. It helps ensure the accuracy of information. In other words, an affidavit is useful any time the veracity (truthfulness) of the information is important.
For instance, a couple might use an affidavit to disclose property in a divorce proceeding, or, a business owner could use an affidavit to disclose equipment included in a business sale. If it’s later discovered that the information was false, and the matter ends up in court, a judge will give an affidavit greater evidentiary weight than after-the-fact trial testimony.
The term “affidavit” itself is a general term for a writing signed under oath. Many industries, however, like the banking industry, use particular types of affidavits. An affidavit of indebtedness (also known as an "affidavit of amounts due") is a specific affidavit used in the judicial foreclosure process. In it, the bank must state the amount due and owing on the mortgage loan. Typically, the affidavit will contain the following information:
The bank or servicer will appoint an employee familiar with the bank’s record-keeping practices as the “custodian” of records. Before signing an affidavit on behalf of the bank, the custodian must review the loan documents and verify the affidavit’s contents, including the principal balance, the amount of interest owed, and the costs of the foreclosure. Only then can the custodian attest to the affidavit’s accuracy by signing it under oath.
During the 2010 mortgage crisis, bank employees signed thousands of invalid foreclosure affidavits without first reviewing the mortgage files and verifying the affidavit contents. The practice became known as “robo-signing” because employees spent an average of 30 seconds signing each affidavit.
Today, though, banks and servicers normally review all foreclosure documents pretty carefully. Still, mistakes can happen. You’ll want to look at any affidavit used in your foreclosure closely, including the figures in the affidavit, because the court will base its final judgment on those amounts. If you don’t catch any incorrect amounts, and your state allows deficiency judgments (a civil judgment for the difference between the property sale price and the mortgage amount), you could end up paying more than what you owe.
If you suspect the bank issued an inaccurate or robo-signed affidavit in your foreclosure, consider consulting with a foreclosure attorney. Your attorney will take steps to determine whether the custodian personally verified the information included in the affidavit, check that it contains all necessary and correct information, and perhaps advise you to fight the foreclosure in court.