Consumer complaint received 2023-08-01
Product: Debt collection — Other debt
Issue: Took or threatened to take negative or legal action — Sued you in a state where you do not live or did not sign for the debt
Company: BANK OF AMERICA, NATIONAL ASSOCIATION (NM)

In XXXX XXXX XXXXXXXX entered into a credit line agreement with Bank of America. The line of credit with Bank of America was set to mature on XX/XX/XXXX. In XXXX and XXXX, XXXX XXXX XXXXXXXX and Bank of America negotiated towards an extension of the line of credit. On XX/XX/XXXX Bank of America submitted an Amended and Restated Loan Agreement to XXXX XXXX XXXX in the amount of {$75000.00}. The Amended and Restated Loan Agreement would have required myself to guaranty the indebtedness and so was never signed. On XX/XX/XXXX XXXX XXXX, XXXX filed its Complaint for Debt and Money Due for Damages for Breach of Business Credit Line Agreement and Personal Guaranty in this matter. XXXX XXXX, XXXX 's Complaint alleged that as of XX/XX/XXXX Bank of America had transferred, endorsed and assigned its interest in the Agreement to XXXX XXXX XXXX XXXX, but offered no evidence of such assignment. XXXX XXXX, XXXX in its Complaint represented to the New Mexico Court that a true and correct copy of the agreement was attached to the Complaint. On XX/XX/XXXX XXXX XXXX, XXXX filed its Motion for Default Judgment against XXXX XXXX XXXX XXXX and myself. On XX/XX/XXXX the court entered Default XXXX against Defendants finding that the allegations in the Complaint were true. According to the docket in this matter no evidence was presented to the court prior to issuance of the default judgment in this matter reflecting ownership of the debt, other than the allegation in the Complaint, and no hearing was set or held at which evidence could have been presented and not be reflected in the docket. On XX/XX/XXXX XXXX XXXX XXXX attempted service on myself apparently for a deposition. Following the attempted service on XX/XX/XXXX I have been involved in an on-going process where a business debt was illegally assigned to a consumer/individual. 
In order to pursue the current complaint, it was XXXX XXXX XXXX obligation to offer evidence and proof to the court that it had standing to bring the cause of action, as XXXX XXXX XXXX is not a party to the original agreement. " One reason for such a requirement is simple : 'One who is not a party to a contract can not maintain a suit upon it. If [ the entity ] was a successor in interest to a party to the [ contract ] it was incumbent upon it to prove this to the court. '' ' Bank of New York v. Romero, 2014-NMSC-007, , J17, 320 P.3d 1, quoting L.R. Prop. Mgmt., Inc. v. Grebe , 1981-NMSC-035,, J7, 96 N.M. 22, 627 P.2d 864. XXXX XXXX, XXXX offered no evidence to the court prior to the issuance of the default judgment that it had standing to enforce the terms of the agreement. It alleged it did, but it offered no evidence of standing. Further, as noted by the court in XXXX XXXX XXXX XXXX, " [ p ] ossession of an unendorsed note made payable to a third party does not establish the right of enforcement, just as finding a lost check made payable to a particular party does not allow the finder to cash it. '' Id., at, J23. Unlike the note at issue in XXXX XXXX XXXX XXXX, the copy of the agreement offered to the court here did not have any endorsements and no evidence was offered that XXXX XXXX, XXXX properly held the note and had standing to enforce it. In addition, as evidenced by XXXX XXXX 's Response to validate debt, XXXX XXXX, XXXX misrepresented to the court that the copy of the agreement attached to the complaint constituted a true and correct copy of the agreement. The Complaint attached a two page " Premium Creditline for Business Authorization and Personal Guaranty ''. That this did not constitute a true and correct copy of the Agreement should have been obvious from the fact that the agreement attached to the Complaint had absolutely no terms, other than the terms regarding the guaranty. By way of contrast, what was later offered to the New Mexico court with the Amended and Restated Loan Agreement ( attached to this complaint ) which contains a complete agreement with terms, and then a separate guaranty agreement. XXXX XXXX, XXXX in its response to validation request also attached as Exhibit B a " Lost Instrument Affidavit '' from Bank of America swearing that the attachment to that Affidavit is a true and correct copy of the agreement. Unlike the two page guaranty that was attached to the original Complaint, the attachment to the " Lost Instrument Affidavit '' is a fourteen page document including express terms regarding the loan to XXXX XXXX XXXX. Finally, while the agreement attached to the Complaint was not a true and complete copy of the agreement and XXXX XXXX, XXXX offered no evidence that it had standing to enforce its terms, the portion of the agreement attached to the Complaint clearly reflects that the New Mexico court would not have had jurisdiction to consider the complaint even if XXXX XXXX, XXXX could establish the other necessary facts. In bold type immediately above Defendant 's signature on behalf of XXXX XXXX XXXX, the note provides " THIS GUARANTY IS GOVERNED BY FEDERAL LAW AND THE LAWS OF NORTH CAROLINA. GUARANTOR ACKNOWLEDGES THAT ANY CONTROVERSIES OR CLAIMS RELATING TO THIS GUARANTY ARE SUBJECT TO ARBITRATION AND/OR JURY TRIAL WAIVER AS PROVIDED IN THE CREDITLINE AGREEMENT. GUARANTOR ACKNOWLEDGES THIS IS A COMMERCIAL TRANSACTION AND NOT A CONSUMER TRANSACTION ''. The key point was that this was not a consumer transaction and was not guaranteed by myself. As Bank of America and XXXX XXXX XXXX, had agreed that all claims would be resolved by arbitration, specifically including any guaranty claims, XXXX XXXX, XXXX could not bring this matter into New Mexico court and the New Mexico court had no jurisdiction over the matter, including no jurisdiction to enter a judgment against I as an Individual/Consumer. As noted and argued by XXXX XXXX XXXX XXXX, I was required to establish proof of a meritorious defense- which I did. Essentially, XXXX XXXX, XXXX lacked standing to bring this suit, the New Mexico court lacked standing to hear the suit, and XXXX XXXX, XXXX failed to prove the terms of the agreement. On a related note, with regard to the requirement for excusable neglect the New Mexico court even had my sworn affidavit noting that I was never served prior to the initiation of this litigation and was not aware of the publication. Further, as sworn by myself, I had no notice of the litigation and judgment against myself until XX/XX/XXXX. In fact, the judgment has been assigned to my spouse- who I was not married to at the time this agreement was established. My spouse was not aware of the judment until XX/XX/XXXX when it was confirmed that funds were being illegally withheld from a paycheck and directed to XXXX XXXX, XXXX. As attempts to set aside judgement in a court remain slow, we believe that this collection of a debt was illegal and known to be illegal as its time of alleged transfer from Bank of America to XXXX XXXX, XXXX. As of this date, XXXX XXXX, XXXX continues to illegally collect on a debt that it did not prove it owned or that this debt was even guaranteed individually by myself.