Consumer complaint received 2022-08-12
Company: BANK OF AMERICA, NATIONAL ASSOCIATION
State: FL
Product: Mortgage
Sub-product: Conventional home mortgage
Issue: Struggling to pay mortgage

Complaint:
As you know, I filed a XXXX  XXXX bankruptcy petition on XX/XX/XXXX which immediately stayed all judicial proceedings against me, the Debtor, including but not limited to the incomplete XX/XX/XXXX foreclosure and your post-petition XX/XX/XXXX Motion to Place Case on Active Status. As explained below, the XX/XX/XXXX foreclosure was not complete until the Clerk of the state Court files a certificate of sale which in this case, still has not yet happened, and therefore, your XX/XX/XXXX Motion was filed post-petition, and as such, clearly violates the aforementioned Automatic Stay. 

Here in Florida, it is well settled law that a foreclosure sale is not complete until the Clerk files a certificate of sale. See In re XXXX, XXXX XXXX XXXX ( XXXX. XXXX, XXXX  Florida XXXX ) ; XXXX XXXX  XXXX, XXXX. XXXXXXXX XXXX Florida XXXX ( Case No. XXXX ) ; In re XXXX, XXXX XXXX XXXX ( XXXX. XXXXXXXX XXXX  Florida XXXX ) ; and XXXXXXXX XXXX XXXXXXXX, XXXX XXXX XXXX ( XXXX. XXXX, XXXX  Florida XXXX ). 

As you may know, your clients failure to immediately vacate the XX/XX/XXXX foreclosure sale and to immediately withdraw, would be a willful violation of the Automatic Stay provisions, which subjects both you and your clients to sanctions. See In re XXXX, XXXX XXXX XXXXXXXX ( XXXX. XXXX. XXXX XXXX ). 

Although your client violated the automatic stay by not immediately moving to vacate the XX/XX/XXXX foreclosure sale, that in-action, in itself, may or may not have been a willful stay violation. Additionally, on XX/XX/XXXX, both you and your client, was well aware of the automatic stay when I filed a suggestion of bankruptcy and simultaneously served you and your client with a copy of that suggestion as such, your client received actual notice of the bankruptcy case on or before XX/XX/XXXX. 

Therefore, on XX/XX/XXXX, once notice was given that bankruptcy relief had been filed on XX/XX/XXXX, you and your client had an affirmative duty to undo the violation of the stay i.e., to undo the XX/XX/XXXX foreclosure sale, which is incomplete because the clerk of the state Court has not filed a certificate of sale. 

Several courts, including those here in the XXXX XXXX of Florida, have held that the failure to take action to undo an innocent violation of the automatic stay constitutes a willful violation of the stay. XXXX XXXX XXXX XXXX ; Also see XXXX XXXX XXXXXXXX, XXXX XXXX XXXX ( XXXX. XXXX. XXXX XXXX ). 

In XXXX, the court was unaware of the bankruptcy petition, and therefore entered a Default Final Judgment. Subsequently, counsel for the debtor sent a letter to the creditor 's attorney requesting that he vacate the judgment. The attorney refused to do so and the debtor moved for sanctions. The court granted sanctions, holding that the attorney had an affirmative duty to undo the violation of the automatic stay. Id. at XXXX. Since the attorney had the opportunity to remedy the situation but refused to do so, the Court found that he was in willful violation of the automatic stay. Id. See XXXX XXXX XXXXXXXX, XXXX XXXX XXXX ( XXXX. XXXX. XXXX XXXX ) ( holding that the automatic stay requires that a creditor not only stop collection efforts in garnishment proceedings initiated pre-petition, but must take the affirmative action of dismissing the garnishment proceedings ) ; See also In XXXX XXXX XXXX XXXX  XXXX ( XXXX. XXXX. XXXX XXXX ) ; In XXXX XXXX XXXX XXXX XXXX ( XXXX. XXXX. Ohio XXXX ) ; and XXXX XXXX XXXX XXXX XXXX. XXXX ( XXXX. XXXX. Ga XXXX ).

Company public response: Company has responded to the consumer and the CFPB and chooses not to provide a public response
Company response to consumer: Closed with explanation