Bank of America Liable for Failure to Honor Power of Attorney

Fraud & Financial Abuse

In a recent Florida case, Bank of America was held liable for refusing to honor a power of attorney:

Copyright 2009 Stuart News Company All Rights Reserved The Stuart News/Port
St. Lucie News (Stuart, Florida) November 15, 2009 Sunday Martin County
Edition SECTION: LOCAL; Pg. B5 LENGTH: 496 words HEADLINE: Stuart man 
takes on Bank of America BYLINE: Melissa E. Holsman staff writer BODY:
– When Clarence H. Smith Jr. sued Bank of America in 2007 over its
refusal to honor the power of attorney his now-deceased father had enacted years
before, he called it as a case of David against Goliath. And like
David, Smith on Friday walked out of court a winner, armed with a jury award
worth $64,142. “I’m glad we won, but I think it’s a victory for more than
just us,” said Smith, 67, of Stuart. “It’s a victory for anyone who gets a
rough deal from a big bank — that a little person can prevail against a huge
international bank.” After a week-long trial, it took a one-man,
five-women jury 15 minutes to determine Bank of America had not acted
reasonable in September 2007 when it denied Smith Jr.’s request to
transfer $65,000 his father, Clarence H. Smith Sr, then held in a joint account
with a female friend he knew from living at Ocean Palms Retirement Center.
Smith said his ordeal with the bank began when he became suspicious
money may be missing from his father’s bank accounts. He presented to
former Stuart branch manager Victoria Carscadden the durable power of attorney
he’d had on behalf of his father with a request to transfer money from the
elder Smith’s jointly held accounts into a new account only the father and son
could access. But instead of honoring the request, Carscadden
testified that she consulted bank policies and called the woman on the account
with Clarence Smith Sr., and she accused the son of trying to steal his
father’s money. Carscadden said she refused Smith’s request because bank
rules governing jointly held accounts require that all signatures on an
account must agree to any transfers or changes. The woman sharing Clarence
Smith Sr.’s account, she said, had refused to allow any money to be moved.
At trial, Smith’s Stuart attorney William R. Ponsoldt Jr. showed that
despite Carscadden visiting Clarence Smith Sr. to see he was competent and that
he wanted his son to manage his affairs, she still refused to recognize
Clarence Smith Jr.’s power of attorney. Shortly afterward, Ponsoldt told
jurors, the woman sharing Clarence Smith Sr.’s account moved all the
money into an account only she could access. Clarence Smith Sr. died about
three weeks later, Ponsoldt said. He argued that the bank’s refusal to =
honor Smith’s power of attorney went against state law. During his closing
argument, Bank of America attorney J. Randolph Liebler of Miami, said
based on bank policies, “it would be absolutely inappropriate to have honored
the power of attorney where there was some allegation of abuse — rightly or
wrongly.” After court, Bank of America spokeswoman Shirley Norton
said they were disappointed in the jury’s verdict. “We believe that
neither the facts nor the law support the verdict,” she said, “and we plan to
appeal.” Smith meanwhile, said he’ll use the money to pay bills from
his father’s estate. “I feel fortunate we were able to take on Bank of
America,” he said. “Think of all the people who can’t.”
Thanks to Brevard attorney Nicola Melby for bringing this to my attention.  North Carolina also has laws to help with enforcement of a valid power of attorney.  N.C.GS. Section 32A-40 et sq.
Address: 1414 Raleigh Rd Ste 203, Chapel Hill NC 27517
Phone: 919.636.0950 | Toll Free: 800.201.0413 | Fax: 919.493.6355 |