Consumer complaint received 2021-08-24
Company: BANK OF AMERICA, NATIONAL ASSOCIATION
State: AZ
Product: Money transfer, virtual currency, or money service
Sub-product: International money transfer
Issue: Other transaction problem

Complaint:
I. INTRODUCTION This is a new complaint. It is based partially on Complaint number XXXX-XXXX-XXXX. we have filed this complaint because Bank of Americas response to the first Complaint was in bad faith and a blatant attempt to avoid responding for its unreasonable actions. We filed a Reply. But, since we could not attach any documents to our Reply and the case was treated as closed, we were advised by the CFPB to file a new Complaint. We are attaching all exhibits to this Complaint, along with our Reply to their Response. 

I am a lawyer in XXXX, Arizona. I was the victim of a criminal scam ( See, Endnote ) in which I lost {$65000.00} involving a fraudulent check in the amount of {$69000.00} drawn on XXXX XXXX, XXXX, XXXX and deposited into my XXXX XXXX XXXX  Account ( XXXX  ) at Bank of America located at XXXX XXXX XXXX XXXX, XXXX, Arizona XXXX. Bank of America was negligent in ( 1 ) failing to reasonably handle the deposit of the check on XX/XX/XXXX, by failing to put a hold on the check or advising me not to use the funds until the check had cleared, ( 2 ) failing to promptly act or notify me when the check was returned to Bank of America from XXXX XXXX  XXXX XXXX as uncollected funds and ( 3 ) failing to act reasonably to stop the wire to an account in XXXX in XXXX from being paid. 

On XX/XX/XXXX, I sent a letter to BOA, which was attached to our initial Complaint as Exhibit A. BOA failed to respond to this letter when we sent it to them and when it filed its Response to our Complaint, it failed to respond to most of the important issues set forth in the letter. 

II. THE XX/XX/XXXX, LETTER. 

A. THE XX/XX/XXXX LETTER STATED THAT BOA FAILED TO PROPERLY HANDLE THE DEPOSIT OF THE CHECK, BY FAILING TO PUT A HOLD ON THE CHECK OR ADVISE ME NOT TO USE THE FUNDS, UNTIL THE CHECK HAD CLEARED. BOA DID NOT RESPOND. 

On XX/XX/XXXX, I deposited at BOA a check in the amount of {$69000.00} drawn on XXXX XXXX  XXXX XXXX ( Exhibit A-1 ). BOA did not put a hold on the check and did not tell me not to use the funds until the check had cleared. I have since learned that banks will put an out-of-state or out-of-country check on hold for at least 10 business days. ( See, XXXX ). According to BOA, When you deposit a check, some or all of the check amounts may not be part of your available balance for a period of time. This is done for the purpose of validating the check and collecting the funds from the issuer of the check. 

When I presented the {$69000.00} check for deposit to the BOA bank teller, she called over someone else to take the check to complete the deposit. That person was either an assistant manager or the head-teller, I am not certain. But neither told me that I should wait any period of time before transferring any funds out of the account. I was never told there was, nor did BOA place a hold on this check.

Contrary to BOAs actions in this matter, in which BOA did not place a hold on the {$69000.00} check drawn on a XXXX bank, on XX/XX/XXXX, when I deposited a check for {$65000.00} drawn on XXXX XXXX, XXXX, into my XXXX  account to cover the overdraft ( Exhibit A-2 ), BOA placed a hold on this check for 10 days ( Exhibit A-3 ). BOA stated, We placed a hold on a check you deposited at a financial Center. The full amount isnt available yet.... A hold was placed on your check because check specific information indicates item may be returned. Additionally, other BOA account holders have stated that BOA regularly places holds on their checks for at least some part of the check amount that they deposit. Yet, BOA did not place even a partial hold on the check from a XXXX bank the amount of {$69000.00} or explain to me that I should not access the funds for a certain period of time. 

By federal law, The Bank Secrecy Act also known as The Currency and Foreign Transactions Reporting Act requires cash or a check deposit of {$10000.00} or more in a single or multiple transaction, be reported by the bank within 15 days of receiving it. The purpose is to validate the check and collect the funds from the issuer of the check. This is not because the Bank is wary of the depositor, but because large amounts of money changing hands could indicate possible illegal activity. There is no indication that BOA reported this transaction to the IRS. Had they done so, the deposit may have been rejected. 

BOAs failure to place a hold on the check and to tell me not to write a check out of the account until the check for {$69000.00} had cleared was a violation of the standard of procedure and care and was negligent. 

B. THE XX/XX/XXXX LETTER STATED THAT BOA FAILED IN SCHEDULING THE FORWARDING OF THE WIRE TO THE BANK IN XXXX, WHEN BOA WAS AWARE THAT XXXX XXXX  HAD RETURNED THE WIRE DUE TO UNABLE TO COLLECT MAKER. BOA DID NOT RESPOND. 

BOA would not provide verbal or written documentation to me of precisely when BOA was notified that the check was fraudulent. Likewise, XXXX XXXX  would not provide verbal or written documentation to me or Detective XXXX XXXX of precisely when BOA was notified that the check was fraudulent. Detective XXXX, a XXXX police detective, contacted XXXX XXXX  regarding the check deposit and was told that the {$69000.00} check ( Exhibit A-1 ) was immediately rejected because it was in US dollars and did not match the account which belonged to another bank customer. He was also told that the routing number on the check was not linked to any XXXX account. He was told that this was known shortly after they received the check ( that had to be XX/XX/XXXX or XXXX at the latest ). 

BOAs records indicate that on XX/XX/XXXX at XXXX XXXX, Arizona time, I requested an online wire for {$65000.00} to the bank account in XXXX ( Because the criminal scammer told me his company did business in XXXX XXXX and the XXXX XXXX, I did not think his having an account in XXXX was unusual, See, endnote. ) and BOA scheduled the Funds Transfer Request ( Exhibit A-4 ). My account showed a balance of {$73000.00} at the time I ordered the wire ( Exhibit A-5 ). 

According to BOA records, it sent the wire on XX/XX/XXXX at XXXX XXXX ET or XXXX XXXX  Arizona time ( Exhibit A-6 ). That wire cleared the account. However, BOAs records indicate that on XX/XX/XXXX at XXXX XXXX ET ( Exhibit A-7 ) the available account balance was already below the {$25.00} level. On XX/XX/XXXX, a Foreign Item Adjustment due to returned due to unable to collect maker was entered on the account. ( Exhibit A-8 ). There is no time, however, indicated. 

What the sequence of events indicates is that BOA did not act reasonably to advise me that the check was rejected by XXXX as fraudulent. The check was deposited on XX/XX/XXXX. On XX/XX/XXXX at XXXX XXXX  ET, the wire for {$65000.00} was sent to the bank in XXXX ( Exhibit A-6 ). 

I contacted XXXX by email and requested information as to when they notified BOA that they were unable to collect from the maker. They never responded. Detective XXXX XXXX, a XXXX police detective, contacted XXXX XXXX  regarding the check deposit and was told that the {$69000.00} check ( Exhibit A-1 ) was immediately rejected because it was in US dollars and did not match the account which belonged to another bank customer. He was also told that the routing number on the check was not correct. He was told that this was known shortly after XXXX received the check ( that had to be XX/XX/XXXX or XXXX at the latest ). BOA would not provide verbal or written documentation to me of precisely when BOA was notified by XXXX that the check was fraudulent. Likewise, XXXX XXXX  would not provide verbal or written documentation to me or Detective XXXX of precisely when BOA was notified that the check was fraudulent. 
Although XXXX XXXX would have notified BOA on the XXXX or XXXX, BOA sent the wire anyway on XX/XX/XXXX, when the online account still showed a balance of {$73000.00} ( Exhibits A-5 and A-6 ).

C. THE XX/XX/XXXX LETTER STATED THAT BOA FAILED TO ACT TO STOP THE WIRE FROM BEING PAID. BOA DID NOT RESPOND. 

On XX/XX/XXXX, I saw the Account Activity Report online, that showed my account was overdrawn ( Exhibit A-5 ). It also showed a Wire Transfer Hold and Debit Hold were processed on XX/XX/XXXX. I printed out the Account Activity Statement and took it with me to BOA when the Bank opened. I met with XXXX XXXX, who I believed to be an assistant manager. I showed her the status of the account and asked her to help find out what was going on. 

She called the Wire Research Department. I waited when she made the phone call. She was on the phone for almost an hour but was unable to get through to anyone. I had an appointment at XXXX XXXX  and she was not getting anywhere, so she wrote her name, email address and phone number on the account statement I had brought in and I left. She stated she would continue to try to reach them. She was unable to reach them that day. They did not answer the phone. 

The next morning, I saw a voicemail from Ms. XXXX ( Translation, Exhibit A-9 ). She had called me at XXXX XXXX  on XX/XX/XXXX. She was giving me an update and told me that she did not have an update yet ; that the wire was still processing ( it is not clear whether this fact is true or not ), and she spent about 40 minutes trying to get through to the Wire Research Team and got nowhere. She, therefore, had no updated information. She wanted me to know that she was working on it and would again call the Wire Research Department to follow-up in the morning. My wife and I met with the branch manager, XXXX XXXX, on two occasions without any satisfactory result. Ms. XXXX told us that once the check left their branch, they had no further responsibility. Meanwhile, time was moving on and the ability to stop the wire was lost. 

On Friday, XX/XX/XXXX, I contacted the BOA Wire Research Department. It took me over an hour to get through. I spoke to someone in that Department of BOA in New York and gave her the information and my phone number. She told me that she would talk to someone further up the line. As I waited, 10 or 15 minutes later the phone disconnected. The person I spoke to had my information and my phone number but never called me back. I was unable to get back to her on their phone system. My frustration was growing that they never attempted to call me back after their dropped calls, especially since they knew the necessity for expediency. 
On Monday, XX/XX/XXXX, I again called the Wire Research Department. I finally reached them and discussed the matter with them. They said they would check to see whether the item was returned or whether or not they could stop it. I went to see Ms. XXXX at the branch office but she would not see me because of other appointments. We scheduled an appointment for XX/XX/XXXX at XXXX XXXX. When we met on XX/XX/XXXX there was no further information. 

On XX/XX/XXXX, I made one further attempt. I again called the Wire Research Department. Instead of reaching the Wire Research Department I was accidentally routed to the Fraud Department. On Friday, XX/XX/XXXX, I spoke with XXXX in the Fraud Department in XXXX XXXX. She said the wire had been processed and the matter had been referred to an investigator. Again, I was never contacted by an investigator. I discovered this is the department that BOA should have contacted in the first place and should have told me to contact.

One major problem was that Ms. XXXX did not contact the BOA Fraud Department. The fraud Department was very responsive. Had she contacted them initially, they would have been able to stop the wire in time. So many days were lost and wasted due to BOA departments not answering phones, not returning phone calls and contacting incorrect bank divisions such as Wire Research Department when it should have been the Fraud Department.

D. THE MAY 6 LETTER STATED THAT BOA FAILED TO SEND ME THE RECALL NOTICE. BOA FAILED TO RESPOND. 
The Fraud Department representative told me she would send me a Recall Notice by email. She told me that sometimes a bank would honor a Recall Notice, but there was no guarantee. When I did not receive an email by Monday, I contacted the Fraud Department and they told me that, contrary to what I was told, they do not send Recall Notices by email, but they would send it to me by regular mail. As of XX/XX/XXXX, I have not received this Recall Notice. I lost whatever chance I had to recover my {$65000.00}. This is indicative of the way in which BOA has handled this matter. They were careless because they could care less.

III. BANK OF AMERICAS RESPONSE TO THE ORIGINALLY FILED COMPLAINT WAS IN BAD FAITH AND A BLATANT ATTEMPT TO AVOID RESPONDING FOR ITS UNREASONABLE ACTIONS.

A. IN ITS RESPONSE TO THE COMPLAINT, BOA STATES, WE HAVE NO RECORD OF RECEIVING THE LETTERS YOU MENTIONED IN YOUR INQUIRY. 

The XX/XX/XXXX, letter ( Exhibit A ), was sent to XXXX XXXX, who was listed on the BOA website, as the CEO of Bank of America, XXXX XXXX XXXX, who was listed as President/CEO Bank of America Arizona and XXXX XXXX , manager, Bank of America branch XXXX XXXX XXXX Additionally, I sent an email to XXXX XXXX, of the letter ( Exhibit B ). That email was received by her ( Exhibit C ). There was no response from anyone. 

On XX/XX/XXXX, I again sent the information to Mr. XXXX by email, as the certified letter sent to him was returned as undeliverable as addressed unable to forward. ( Exhibit D ). We sent a certified second letter to Mr. XXXX and received no response. Additionally, when we learned that XXXX XXXX XXXX was not the CEO of Bank of America Arizona ( We received her certified letter back ), we sent a certified letter to XXXX XXXX, who was listed as the CEO of Bank of America Arizona on the BOA website. We anxiously waited for a response but received none. We never received the calls they said they made to us. If we did, we would have responded timely. 

We then filed our Complaint with the CFPB, on XX/XX/XXXX. We received a voicemail from a XXXX XXXX who stated that she was with the BOA Regulatory Complaint Department. She stated that she was researching the matter. She needed to speak to me directly. She asked me to call back by XX/XX/XXXX ( Exhibit E ). I called her back immediately but was not able to reach her until XX/XX/XXXX. She asked for information, and I sent her my letter of XX/XX/XXXX ( Exhibit F ). 

For BOA to claim that we did not respond promptly but disregarded BOAs communications, is ludicrous. 

B. IN ITS RESPONSE TO THE COMPLAINT, BANK OF AMERICA STATES ON XX/XX/XXXX, THE SCAM VICTIM ACKNOWLEDGMENT FORM WAS SENT FOR YOUR COMPLETION. WE HAVE NOT RECEIVED THE REQUESTED DOCUMENTS ; THEREFORE, OUR CLAIMS DEPARTMENT ATTEMPTED TO CONTACT YOU BY PHONE ON XX/XX/XXXX, AND XX/XX/XXXX ; VOICEMAILS WERE LEFT ON EACH ATTEMPT. 

We have never received a Scam Victim Acknowledgment form ( As previously stated, we never received a promised Recall Notice or spoken to a BOA Fraud Investigator either ). We never saw any voicemails from BOA ( except as previously noted ), as we would have responded quickly, if we had. We had previously sent the letter and emails of the XX/XX/XXXX Letter, with attached documents. As far as we knew, this matter was being ignored by BOA. We would not have failed to respond to any communication from BOA. In fact, we waited for information from BOA and never received it. That is the reason we filed the complaint with the CFPB.

C. BANK OF AMERICAS RESPONSE TO THE COMPLAINT FAILS TO RESPOND TO ITEM 1 OF THE XX/XX/XXXX, LETTER. 

ITEM 1. FAILING TO PROPERLY HANDLE THE DEPOSIT OF THE CHECK, BY FAILING TO PUT A HOLD ON THE CHECK OR ADVISE ME NOT TO USE THE FUNDS UNTIL THE CHECK HAD CLEARED SEE, SECTION II ( A ).

D. BANK OF AMERICAS RESPONSE TO THE COMPLAINT FAILED TO RESPOND TO ITEM 2 OF THE XX/XX/XXXX, LETTER AND THE FACT THAT BANK OF AMERICA WAS AWARE THAT XXXX XXXX  HAD RETURNED THE WIRE ( DUE TO UNABLE TO COLLECT MAKER ) PRIOR TO FORWARDING THE WIRE TO THE BANK IN XXXX. 

ITEM 2. SCHEDULING THE FORWARDING OF THE WIRE TO THE BANK IN XXXX WHEN BOA WAS AWARE THAT XXXX XXXX  HAD RETURNED THE WIRE DUE TO UNABLE TO COLLECT MAKER. 

SEE, SECTION II ( B ).

E. BANK OF AMERICA STATES THAT IF WE ASKED TO AMEND OR CANCEL A PAYMENT, THEY MAY MAKE REASONABLE EFFORT TO ACT ON OUR REQUEST. YET, THEY FAILED TO RESPOND TO ITEM 3 OF THE XX/XX/XXXX LETTER. 

ITEM 3. BANK OF AMERICA FAILED TO ACT TO STOP THE WIRE FROM BEING PAID.

SEE, II ( C ).

III. I HAVE SUFFERED DAMAGE AS A RESULT OF BOAS CONDUCT. 
I have been a lawyer licensed in the states of XXXX, District of XXXX, XXXX, and XXXX. I have been practicing law for over 50 years. I have never had an issue with any XXXX XXXX XXXX Account. I have never had any Bar Association discipline me for any inappropriate activity. 

On XX/XX/XXXX, this overdraft of my Public Service IOLTA Account resulted in an Attorney Trust Account Overdraft Report from Bank of America to the Chief Bar Counsel State of Arizona. As a result, the XXXX  XXXX XXXX notified me that they were investigating this matter and required me to provide a written response and produce numerous documents for examination. 

Because this was a very serious matter, I was required to retain an attorney and incurred substantial legal fees. On XX/XX/XXXX, the XXXX XXXX XXXX XXXX dismissed the charges based upon the fact that I was the victim of a scam that caused the overdraft in my XXXX XXXX XXXX XXXX Account, and I had done everything necessary to remedy the situation. I have sustained serious mental anguish, suffering and embarrassment pertaining to the above due to Bank of Americas negligent handling of this matter.

In the present case, BOA failed to put a hold on a check from out-of-the-country bank in the amount of {$69000.00}. As previously stated, that was a violation of the standard of care. In XXXX  v. XXXX  XXXX  and Financial Corporation, a Memorandum Decision, the Arizona Court of Appeals reversed summary judgment for the defendant for negligence where an escrow company accepted email wire instructions from an imposter for the sale of a business ( There was a slight difference in the email address. ).

The Court stated, Arizona law provides that, whether the defendant has met the standard of care-that is, whether there has been a breach of duty-is an issue of fact that turns on the specifics of the individual case. The Court found that even though the defendant followed up on the account name and confirmed the wiring amount with the plaintiff ( Plaintiff emailed the defendant to release the funds to the imposter. ), and although that was significant evidence a jury might find highly persuasive, it was not an absolute defense.

The court found that based on the discrepancies in the email addresses and the unusual wiring instructions, we can not say as a matter of law that a reasonable escrow agent would not have perceived those facts as evidence of a potential fraud, especially in light of Arizonas Escrows past encounters with fraudulent email instructions. 
BOA failed to respond reasonably and properly to our initial Complaint, just as it failed to respond properly and reasonably during the entire course-of-events that led to my loss of {$65000.00}. This is how it handled this matter from the beginning. 

I demand that Bank of America compensate me for the {$65000.00} that I have lost. In addition, Bank of America acted knowingly and in reckless disregard of its duties and obligations in the way in which it handled this matter. I demand compensatory and punitive damages in the amount of {$250000.00} because of the malicious conduct of BOA which caused me to sustain serious mental anguish, suffering, embarrassment and the costs and expenses incurred defending myself against the XXXX XXXX XXXX. I have been practicing law for over 50 years. I have never had an issue with my XXXX XXXX XXXX Account ( XXXX ). I have never had any Bar Association discipline me for any inappropriate activity.

( Endnote 1 ) THE SCAM : The {$65000.00} check was the result of a criminal scam perpetrated by XXXX  XXXX, allegedly from XXXX, XXXX. I believed that he was a legitimate business client. He told me that he was in international business in XXXX XXXX and the XXXX XXXX. He asked me to represent him regarding a breach of contract case against XXXX XXXX. This occurred during COVID and was not an unusual transaction. He sent me a loan agreement between him and XXXX. He told me he loaned XXXX {$500000.00} as an advance on a project XXXX was working on for the purchase of the XXXX XXXX, a restaurant in XXXX. He said he received the first installment payment of {$130000.00}, but he had not collected anything since then. He sent me a loan agreement and a Funds Transfer Request and Authorization from XXXX XXXX XXXX  XXXX XXXX for the transfer to XXXX of {$500000.00} on XX/XX/XXXX. XXXX sent me an email from XXXX to him dated XX/XX/XXXX, saying he was sorry for the delay in paying. I believed that it was a legitimate business transaction. I sent my fee agreement requesting my standard hourly rate and a {$1500.00} refundable retainer. On XX/XX/XXXX, I sent a collection letter to XXXX. XXXX responded that he would make an initial payment of {$68000.00} plus the {$1500.00} legal fee and make the other payments required pursuant to the schedule. I received a check from XXXX for {$69000.00}, labelled, XXXX XXXX XXXX, drawn on XXXX XXXX, XXXX, XXXX. 
The check contained the following numbers : XXXX XXXX XXXX XXXX XXXX. XXXX said that he had an account at XXXX XXXX, Address : XXXX XXXX, XXXX XXXX, account number XXXX, XXXX : XXXX, Swift Code : XXXX, BENEFICIARY 'S Name : XXXX  XXXX XXXX  XXXX XXXX XXXX XXXX. Subsequently, I talked to both the XXXX police and the FBI. They told me that XXXX was a very sophisticated con artist. In fact, although I was holding {$69000.00} and expected to take a fee for how many hours I had expended, XXXX did not ask me to send the remaining balance but told me to send only {$65000.00} and keep the balance in my XXXX  account for any further work that I might do in attempting to collect the balance due. This further indicated to me that this was a legitimate business transaction.

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