Consumer complaint received 2018-12-16
Company: BANK OF AMERICA, NATIONAL ASSOCIATION
State: FL
Product: Mortgage
Sub-product: Home equity loan or line of credit (HELOC)
Issue: Struggling to pay mortgage

Complaint:
On XX/XX/XXXX, Bank of America, N, A, acquired a judgment against our property and a sale date was scheduled for XX/XX/XXXX. The judgment must be set aside as a matter of Florida Law. 

Florida law is clear that negotiable instrument is an unconditional promise to or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order. 673.1041 ( 1 ), XXXX XXXX. ( XX/XX/XXXX). Our Line of Credit with Bank of America reflects no such undertaking. it only obligates us to repay whatever we borrow. As a result is not a negotiable instrument. We suggest that Bak of America reviews the must correct case law regarding the matter. See XXXX XXXX XXXX v XXXX XXXX XXXX, Case no. XXXX, attached herein. In XXXX v XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX ( XXXX XXXX XXXX XXXX  ), the borrowers executed a series of credit agreements, the first for a credit line up to {$30000.00}, the second modified line of credit up to XXXX. The Florida Fifth DCA held that the line of credit was nonnegotiable instrument because it was not for a fixed sum. The bank of America line of credit note is not a self authenticated negotiable instrument. By its own terms, the note established a credit limit from which we could request in advance. The line of credit was not an unconditional promise to pay a fixed amount of money. Rather, it established the maximum amount of borrowing power extended to a borrower by a given lender, to be drawn upon by the borrower as needed. See Line of Credit Balcks Law Dictionary, 949 ( 8th ed. 1999 ). The BOA line of credit does not require the payment of a fixed amount of money, making it nonnegotiable instrument. As such, it is not self-authenticating. Absent proof of authentication, it was inadmissible. See XXXX XXXX XXXX XXXX.v XXXX , XXXX XXXX XXXX XXXX ( XXXX XXXX XXXX XX/XX/XXXX) ( unauthenticated documents attach as an exhibit is inadmissible ). 

Bank of America may argue that the final judgment was acquired by consent. Although this may be true, under Florida law a homeowner may be relieve from consent to judgment on the grounds of mistake, surprise, or excusable neglect. A consent to judgment may be attacked under FRCPR XXXX ( B ). XXXX of XXXX XXXX v XXXX, XXXX XXXX XXXX XXXX, 10 Fla. L. Weekly XXXX ( XXXX XXXX XXXX., XXXX ). At this juncture we are filling a XXXX ( b ) motion to be relieve from the final Judgment for the reasons stated. 
We have requested financial assistance from BOA and the current servicer to no avail. Both BOA and XXXX XXXX XXXX have engaged in Floridas deceptive business practices. Although we have sent multiple complete application followed by many emails and follow up phones the servicer would deny receiving any information, which the oldest trick in the world. XXXX is a fraudulent servicer who claims to process loan modification. Law enforcement should know that although XXXX loss mitigation application are extensive they do not review the information and would continue to deny receiving any documents. Shortly after, we received emails from their legal counsel claiming not to have received the documents and therefore only cash for keys is the options. The CFPB should know that XXXX and BOA have both engaged in elaborate scheme to defraud many homeowners. The CFPB should also review other claims filed against XXXX and BOA regarding the mater, you will find that the complaints are flooding!!!!!. We respectfully request that you take action against BOA and XXXX XXXX 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