Estate of Makovsky vs Bank of America

Motion for Sanctions results in a Rebuttable Court Instruction to the Jury that “Bank of America’s Records are Not Reliable.”

Plaintiff’s Motion for Sanctions Results in the Court awarding Plaintiff Attorneys’ Fees and a rebuttable Jury Instruction that “Bank of America’s records are not reliable.”

Boca Raton, Palm Beach County, Florida – April 11, 2018 – A Palm Beach Circuit Court Judge has issued sanctions against Bank of America, one of the nation’s leading financial institutions. According to the lawsuit, Estate of Makovsky vs. Bank of America, N.A. (Case Number: 50-2013-CA-018966-XXXX-MB), Bank of America is accused of allegedly misappropriating the funds of a deceased Palm Beach County woman.

According to the Court’s Order issued on April 3, 2018, the Honorable Lisa S. Small ruled that the Estate’s case against Bank of America “hinges on recordkeeping.” In making the ruling, the Court stated that “[Bank of America] is responsible for failure to present the documents that are critical to the case and [Bank of America] is responsible for making the misrepresentations during the deposition.” As a result, and after the evidentiary hearing, Judge Small awarded attorney’s fees to the Estate, struck Bank of America’s previously filed Motion for Summary Judgment, and “will send a rebuttable instruction to the jury that [Bank of America’s] records are not reliable.”

David I. Shiner, one of the trial attorneys representing the Estate, said that the allegations against Bank of America include Bank of America’s failure to account for a $75,000 Certificate of Deposit, which Jean Irene Makovsky opened in 1992 and held in trust for the benefit of her four sons. According to the allegations, Jean Irene Makovsky originally opened the Certificate of Deposit with MBNA (Maryland Bank), which Bank of America subsequently acquired in 2006 along with all of its customers, accounts, and funds.

It is alleged that Ms. Makovsky died prior to redeeming the Certificate of Deposit funds. When Ms. Makovsky died, her sons thereafter presented the Certificate of Deposit confirmation to Bank of America and were unsuccessful in recovering the funds. Bank of America has denied any record of Ms. Makovsky’s Certificate of Deposit funds.

According to attorney Ronnie M. Gotti, in 2015, Bank of America produced Ms. Makovsky’s bank records with Bank of America. However, the records Bank of America produced did not include Ms. Makovsky’s bank records for the critical time for when Bank of America acquired MBNA in 2006. Mr. Gotti explained that the critical records for the time period of September 2004 through February 2008 were not produced until October 11, 2017, which was just prior to trial. As reflected in the Court’s April 3, 2018 ruling, “[Bank of America] did not provide an adequate explanation as to why these documents [i.e., September 2004 through February 2008] were not produced earlier.”

The Court’s ruling also addressed allegations surrounding Bank of America’s corporate representative’s deposition testimony; at his deposition, Bank of America’s corporate representative testified that certain documents produced by Bank of America were “irrelevant.” Subsequently, Bank of America’s corporate representative attempted to clarify his testimony vis-à-vis an errata sheet filed on October 11, 2017, just prior to trial and the same date the critical records were produced. In the Court’s ruling, the Judge found that “[Bank of America] did not provide an adequate explanation for the gap in time for [Bank of America’s corporate representative] to come forward with his clarification.”

This case, which the Estate originally brought in 2013, is currently reset for trial in the summer of 2018. After more than five years of litigation, the Estate is ready to have a Palm Beach County jury finally determine the ultimate disposition of what occurred to Ms. Makovsky’s Certificate of Deposit funds.

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