Justice F. Dana Winslow
In this action by Capital One Bank to recover nearly $19,000 allegedly due on a credit card issued to Levano, the bank moved for summary judgment arguing it established a prima facie case based on breach of contract and account stated. The court disagreed noting the bank failed to submit proof of service of the summons and complaint, yet stated insofar as Levano failed to move for summary judgment on grounds of lack of personal jurisdiction, such affirmative defense was waived. Further, it found the bank failed to make a prima facie showing of its entitlement to judgment noting the affidavit of Ubini, listed as “litigation support representative,” bore certain indicia, on its face, of “robo-signing,” provoking a heightened scrutiny of the application, despite the lack of opposition. Also, it found Ubini’s affidavit was questionable as neither the nature of her employment, nor her purported firsthand knowledge was specified, stating the first page of her affidavit provides an entirely different account number than of later pages with the number correlating to account statements. The court was concerned with the generic nature of several statements and inclusion of statements inapplicable to the subject account, thus denied the bank’s motion for summary judgment.
