beverly complaint - bank of america

5/28/2018 Beverly Complaint - Bank of America

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IN THE CIRCUIT COURT OF THE

17TH JUDICIAL CIRCUIT, IN AND

FOR BROWARD COUNTY, FLORIDA

CASE NO. ________________

DON BEVERLY; ADELE MUSSRY; JACKMUSSRY; CONCORDE CAPITAL, INC.;RAZORBACK FUNDING, LLC; D3 CAPITALCLUB, LLC; BFMC INVESTMENT, LLC;COOPER MANAGEMENT; CARMENPAVANO, as Trustee of the EXTRA INNINGDYNASTY TRUST; NASSIM MUSSRY;MELINA EL-ANI; DANIELLE IZAAC; H&N

ASSOCIATES; ARETZ & ASSOCIATES; PARKNATIONAL CAPITAL FUNDING, LLC; PARKNATIONAL MORTGAGE SERVICING; SCOTTMORGAN; VICEROY GLOBALINVESTMENTS, INC.; IRA SOCHET as Trusteeof the IRA SOCHET REVOCABLE INTERVIVOS TRUST; INVESTORS RISKADVANTAGE, LP; SUSSCO, INC.; FLORENCEPALEY, as Personal Representative of theEDWARD PALEY ESTATE; FLORENCEPALEY; THE EDWARD AND FLORENCEPALEY FOUNDATION; STEVEN PALEY;LAURA PALEY; JANE ZARETSKY; STEVENZARETSKY, as Trustee of the JANE ZARETSKYDYNASTY TRUST; LAWRENCE E.DEKELBAUM; SHALOM STRICTLY KOSHERMEATS, INC.; MARMARSER INVESTMENTLLC; CARO GROUP LLC; PIRULIN GROUPLLC; EXITO INVESTMENT GROUP LLC; FDSINVESTMENTS USA, L.L.C.; NEW MIAMIGROUP LLC; BWS INVESTMENTS USA,L.L.C.; NETWORK RESOURCES GROUP, LLC;GGTW INVESTMENTS USA, LLC; BBMSWINVESTMENTS USA, L.L.C.; GOW, L.L.C.;INTERAMERICA HOLDING LLC; MTGHOLDINGS LLC; SHIMON LEVY; RACHELLEVY; DANIEL MINKOWITZ; MORDECHAIBAR ADON; BEN ZION VARON; STEVENSCHRAGA; TODD SNYDER; THIRTEENAQUA HOLDINGS, LTD; VALERIE CARTER;PAUL CARTER; OFM, INC.; CLARICE

Filing # 11953435 Electronically Filed 03/31/2014 05:07:04 PM


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PALMER; ROBERT PALMER; CLARICEPALMER AS TRUSTEE OF THE CLARICEPALMER INTER-VIVOS TRUST; CLARICEPALMER AS TRUSTEE OF THE PALMERFAMILY TRUST; PATRICIA WHITE;

WILLIAM WHITE; PAULA PALLADINO;ANTHONY PALLADINO; JUDITHSCHAEFFER; RICHARD SCHAEFFER; KARENKOZLOWSKI; HRB CAPITAL, LLC; CBMCapital, LLC; EDWARD C. and MARY LORIESALTZMAN; STEVEN ADELSBERG; MAXDEKELBAUM; EDWARD GODIN; SEYMOURSHLOMCHIK AS PERSONALREPRESENTATIVE OF THE ROBERT LEVINESTATE; SEYMOUR SHLOMCHIK ASTRUSTEE OF THE ROBERT B. LEVIN

REVOCABLE TRUST DATED JUNE 18, 2008;BRENDA LEVIN; HARRIET WEINSTEIN;SEYMOR PINEWSKI; LARRY and FERNPOGUST;

Plaintiffs,

v.

BANK OF AMERICA, N.A.; FREDERICKPERRY; MARK R. MALLER; BRIAN

MORMILE; and DOUGLAS DIVIRGILIO;

Defendants.

________________________________/

COMPLAINT

DON BEVERLY; ADELE MUSSRY; JACK MUSSRY; CONCORDE CAPITAL, INC.;

RAZORBACK FUNDING, LLC; D3 CAPITAL CLUB, LLC; BFMC INVESTMENT, LLC;

COOPER MANAGEMENT; CARMEN PAVANO, as Trustee of the EXTRA INNING

DYNASTY TRUST; NASSIM MUSSRY; MELINA EL-ANI; DANIELLE IZAAC; H&N

ASSOCIATES; ARETZ ASSOCIATES; PARK NATIONAL CAPITAL FUNDING, LLC;

PARK NATIONAL MORTGAGE SERVICING; SCOTT MORGAN; VICEROY GLOBAL


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INVESTMENTS, INC.; IRA SOCHET REVOCABLE INTER VIVOS TRUST; INVESTORS

RISK ADVANTAGE, LP; SUSSCO, INC.; FLORENCE PALEY, as Personal Representative of

the EDWARD PALEY ESTATE; FLORENCE PALEY; THE EDWARD AND FLORENCE

PALEY FOUNDATION; STEVEN PALEY; LAURA PALEY; JANE ZARETSKY; STEVEN

ZARETSKY, as Trustee of the JANE ZARETSKY DYNASTY TRUST; LAWRENCE E.

DEKELBAUM; SHALOM STRICTLY KOSHER MEATS, INC.; MARMARSER

INVESTMENT LLC; CARO GROUP LLC; PIRULIN GROUP LLC; EXITO INVESTMENT

GROUP LLC; FDS INVESTMENTS USA, L.L.C.; NEW MIAMI GROUP LLC; BWS

INVESTMENTS USA, L.L.C.; NETWORK RESOURCES GROUP, LLC; GGTW

INVESTMENTS USA, LLC; BBMSW INVESTMENTS USA, L.L.C.; GOW, L.L.C.;

INTERAMERICA HOLDING LLC; MTG HOLDINGS LLC; SHIMON LEVY; RACHEL

LEVY; DANIEL MINKOWITZ; MORDECHAI BAR ADON; BEN ZION VARON; STEVEN

SCHRAGA; TODD SNYDER; THIRTEEN AQUA HOLDINGS, LTD; VALERIE CARTER;

PAUL CARTER; OFM, INC.; CLARICE PALMER; ROBERT PALMER; CLARICE

PALMER A TRUSTEE OF THE CLARICE PALMER INTER-VIVOS TRUST; CLARICE

PALMER AS TRUSTEE OF THE PALMER FAMILY TRUST; PATRICIA WHITE;

WILLIAM WHITE; PAULA PALLADINO; ANTHONY PALLADINO; JUDITH

SCHAEFFER; RICHARD SCHAEFFER; KAREN KOZLOWSKI; HRB CAPITAL, LLC; CBM

CAPITAL LLC; EDWARD C. and MARY LORIE SALTZMAN; STEVEN ADELSBERG;

MAX DEKELBAUM; EDWARD GODIN; SEYMOUR SHLOMCHIK AS PERSONAL

REPRESENTATIVE OF THE ROBERT LEVIN ESTATE; SEYMOUR SHLOMCHIK AS

TRUSTEE OF THE ROBERT B. LEVIN REVOCABLE TRUST DATED JUNE 18, 2008;

BRENDA LEVIN; HARRIET WEINSTEIN; SEYMOR PINEWSKI; LARRY and FERN


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POGUST sue defendants BANK OF AMERICA, N.A., FREDERICK PERRY, MARK R.

MALLER; BRIAN MORMILE; and DOUGLAS DIVIRGILIO; and state as follows:

I. OVERVIEW1. Bank of America helped notorious Ponzi schemer Scott Rothstein defraud the

Plaintiffs out of more than $300,000,000.00. Bank of America actively concealed its knowledge

of the Rothstein fraud scheme and substantially assisted Rothstein in inducing investors to put

millions in the scheme. Bank of Americas goal was induce Rothstein to deposit his ill-gotten

billions at Bank of America and to become the Rothstein schemes principal banker. After the

Rothstein scheme crashed, Bank of America had its Senior Vice-President lie repeatedly under

oath in deposition to try to cover up the Banks role in assisting Rothstein.

2. On January 27, 2010, Scott Rothstein pled guilty to five counts of fraud foroperating a billion-plus-dollar Ponzi scheme, the largest investment fraud in Florida history. On

June 9, 2010 Rothstein was sentenced to 50 years in federal prison.

3. Plaintiffs are some of the many Rothstein Ponzi scheme victims.4. The substantial assistance provided to Rothstein by Bank of America started with

the Banks maneuvering Douglas Von Allmen and family into investing $85,700,000 in the

Rothstein scheme in 2009.

5. By 2009 the Von Allmen family, had been personal banking and investmentmanagement and advisor clients of Bank of America in Fort Lauderdale (the Bank) for over 14

years. Defendant Fred Perry (Perry), Bank of Americas U.S. Trust division Senior Vice-

President, was the Von Allmens personal banker and financial and investmentadvisor.


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6. In 2009 Bank of America became aware that the Von Allmens were interested ininvesting in Rothsteins investment scheme.

7. The Bank through Perry and other senior Bank officers knew in 2009 that theRothstein scheme was fraudulent. Before the Von Allmens invested in the Rothstein investment

program, the Bank performed due diligence reviews of the program in 2007, 2008, and 2009.

The reviews confirmed that it was a scheme to defraud.

8. When the Von Allmens expressed to Bank of America through Perry in April2009 their interest in investing in the Rothstein investment program, the Bank including Perry

knew that Rothstein was dirty, a crook, a bad guy, of dubious provenance, that it was

never believed to be if but rather when [Rothstein] would be caught doing something illegal,

that Rothsteins law firm, RRA, was a known bad entity, that Rothsteins investment scheme

offered returns that were too good to be true and couldnt get past the sniff test , that the

Bank didnt believethe returns, and that the Bank should stay away from Rothstein.

9. The Bank knew it had a fiduciary duty to warn the Von Allmens and its otherBank of America U.S. Trust division banking clients that the Rothstein investment scheme was a

fraud. Perry wrote that On numerous occasions we have made our suspicions known to clients

interested in doing business with him or his firm.

10. Yet the Bank decided in 2009 not to make their suspicions (conclusions, actually)known to the Von Allmens. Bank of America including Perry singled out the Von Allmens and

actively concealed what they knew about the Rothstein fraud. They did so over the objections of

a fellow Bank of America Senior Vice-President, who reminded them in clear terms that they

had a fiduciary duty to disclose to the Von Allmens what they knew about Rothstein. Shortly


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after that, the Senior Vice-President who had objected was branded a squeaky wheel and

pressured to quit.

11. The Bank through Perry substantially assisted Rothstein by helping maneuver theVon Allmens into investing $85.7 million of their money in the Rothstein scheme, at a time

when the scheme was desperate for money. In return, the Bank asked Rothstein to deposit his

billions of Ponzi scheme dollars into Bank of America accounts.

12. In other words, Bank of America (slogan: Higher Standards) willinglysacrificed $85.7 million of a fourteen-year private-banking client and his familys money so that

the Bank could help keep the scheme going, do business with Scott Rothstein, and, ultimately,

become the Rothstein Ponzi schemes principal banker. I told [Rothstein] I thought he should

be aligned with a national U.S. brand [Bank of America] versus some of the smaller foreign

owned brands [TD Bank and Gibraltar Bank]. (Perrydeposition)

13. When Rothsteins Ponzi scheme collapsed on Halloween 2009, the Plaintiffs inthis case lost virtually most of the money that they had invested, i.e., more than

$300,000,000.00. Thanks to the Banks deliberate concealment of Rothsteins fraud and

substantial assistance provided to Rothstein in the perpetration of his fraud, the Plaintiffs in this

case and other Rothstein victims unwittingly invested an additional 565 million more dollars into

the scheme from May to October 2009, or were delayed for months in discovering that they had

been defrauded before May 2009 into investing. Bank of America helped turn the Rothstein

saga from a disaster into a full-fledged catastrophe for South Florida.

14. After the Ponzi scheme collapsed, Bank of America tried hard to cover up itswrongdoing. The Bank had Perry lie repeatedly under oath in deposition about whether the Bank

was aware of Rothsteins fraud and about whether the Bank ever warned its victim-clients about


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it. After the deposition, Perry and other Bank of America senior executives got together and

refined the lies in so-called deposition correction pages (Errata Sheets) in order to try to make

the lies more saleable.

II. PARTIES; JURISDICTION; VENUE15. Plaintiff DON BEVERLY (Beverly) resides in Palm Beach County, Florida.

He was fraudulently induced to invest approximately $1,100,000 into the Ponzi Scheme, without

knowledge that it was such a scheme. Beverly first discovered the facts giving rise to his causes

of action against Defendants no earlier than March 2014.

16. Plaintiffs, ADELE MUSSRY and JACK MUSSRY, are a married couple residingin California. From February 23, 2009 through October 15, 2009, Adele Mussry and Jack

Mussry invested $1,150,000.00 into the Ponzi scheme through Michael Szafranski and ABS

Capital Funding, LLC. The Mussrys first discovered the facts giving rise to their causes of

action against Defendants no earlier than March 2014.

17. Plaintiff, CONCORDE CAPITAL, INC. (hereinafter, Concorde), is a Floridacorporation with its principal place of business in Broward County, Florida. Between August

and September 2009, Concorde invested $2,062,500.00 into the Ponzi scheme through Richard

Pearson and R.L. Pearson & Associates. Concorde first discovered the facts giving rise to its

causes of action against Defendants no earlier than March 2014.

18. Plaintiff, RAZORBACK FUNDING, LLC, (hereinafter, Razorback), is aDelaware limited liability company with its principal place of business in Broward County,

Florida. From October 1, 2009 through October 26, 2009, Razorback invested $31,998,988.50

into the Ponzi scheme through Banyon USVI, LLC. Von Allmen Dynasty Trust, D&L Partners,


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David Von Allmen Living Trust, Ann Von Allmen Living Trust, and Kretschmar were also

major investors in Razorback. Razorback first discovered the facts giving rise to his causes of


19. Plaintiff, D3 CAPITAL CLUB, LLC (hereinafter, D3), is a Delaware limitedliability company with its principal place of business in Broward County, Florida. From

September 16, 2009 through October 23, 2009, D3 invested $13,500,000.00 into the Ponzi

scheme. Von Allmen Dynasty Trust, D&L Partners, and David Von Allmen Living Trust were

investors in D3. D3 first discovered the facts giving rise to its causes of action against

Defendants no earlier than March 2014.

20. Plaintiff, BFMC INVESTMENT, LLC (hereinafter, BFMC), is a Floridalimited liability company with its principal place of business in Broward County, Florida. On

October 15, 2009, BFMC invested $2,400,000.00 into the Ponzi scheme. BFMC first discovered

the facts giving rise to its causes of action against Defendants no earlier than March 2014.

21. Plaintiff, COOPER MANAGEMENT (hereinafter, Cooper), is a Delawarecorporation with its principal place of business in Palm Beach County, Florida. On August 4,

2009, Cooper invested $900,000.00 into the Ponzi scheme through Banyon Income Fund.

Cooper first discovered the facts giving rise to its causes of action against Defendants no earlier

than March 2014.

22. Plaintiff, CARMINE PAVANO, is trustee of EXTRA INNING DYNASTYTRUST (hereinafter Extra Inning Trust), an irrevocable trust with its principal place of

administration in Southington, Connecticut and the successor in interest to the Pavano Dynasty

Trust. From August 18, 2008 through April 2, 2009, the Extra Inning Trust invested


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$7,001,000.00 into the Ponzi scheme through Banyon 1030-32. Pavano first discovered the facts

giving rise to his causes of action against Defendants no earlier than March 2014.

23. Plaintiff, NASSIM MUSSRY, is an individual residing in California. OnSeptember 8, 2009, Nassim Mussry invested $100,000.00 into the Ponzi scheme through

Michael Szafranski and ABS Capital Funding, LLC. Mussry first discovered the facts giving

rise to his causes of action against Defendants no earlier than March 2014.

24. Plaintiff, MELINA EL-ANI, is an individual residing in California. BetweenAugust 10, 2009 and October 13, 2009, Melina El-Ani invested $145,900.00 into the Ponzi

scheme through Michael Szafranski and ABS Capital Funding, LLC. El-Ani first discovered the

facts giving rise to her causes of action against Defendants no earlier than March 2014.

25. Plaintiff, DANIELLE IZAAC1, is an individual residing in California. OnOctober 6, 2009, Danielle Izaac invested $35,000.00 into the Ponzi scheme through Michael

Szafranski and ABS Capital Funding, LLC. Izaac first discovered the facts giving rise to her


26. Plaintiff, H&N ASSOCIATES (hereinafter, H&N), is a New York partnership.On September 4, 2009, H&N invested $200,000.00 into the Ponzi scheme through Michael

Szafranski and ABS Capital Funding, LLC. H&N first discovered the facts giving rise to its


27. Plaintiff, ARETZ ASSOCIATES (hereinafter ARETZ), is a New Yorkpartnership. On October 20, 2009, ARETZ invested $200,000.00 into the Ponzi scheme through

1Prior to her marriage and at all times during the events set forth herein, Danielle Izzacs legal name wasDanielle El-Ani.


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Michael Szafranski and ABS Capital Funding, LLC. Aretz first discovered the facts giving rise

to its causes of action against Defendants no earlier than March 2014.

28. Plaintiff, PARK NATIONAL CAPITAL FUNDING (hereinafter PARKCAPITAL) is a New York limited liability company. Between June 30, 2009 and July 30, 2009,

PARK CAPITAL invested $125,000.00 into the Ponzi scheme through Michael Szafranski and

ABS Capital Funding, LLC. Park Captial first discovered the facts giving rise to its causes of


29. Plaintiff, PARK NATIONAL MORTGAGE SERVICING hereinafter PARKMORTGAGE) is a New York partnership. On October 1, 2009, PARK MORTGAGE invested

$250,000.00 into the Ponzi scheme through Michael Szafranski and ABS Capital Funding, LLC.

Park National first discovered the facts giving rise to its causes of action against Defendants no

earlier than March 2014.

30. Plaintiff, SCOTT MORGAN (hereinafter, Morgan), is an individual residing inIllinois. Between July 24, 2009 and September 21, 2009, Morgan invested $358,791.67. into the

Ponzi scheme into the Ponzi scheme through Michael Szafranski and ABS Capital Funding,

LLC. Morgan first discovered the facts giving rise to his causes of action against Defendants no


31. Plaintiff, VICEROY GLOBAL INVESTMENTS, INC. (hereinafter, Viceroy),is a Georgia corporation with its principal place of business in Atlanta, Georgia. Between

August 31, 2009 and October 7, 2009, Viceroy invested $3,465,000.00 into the Ponzi scheme

through Richard Pearson and R.L. Pearson & Associates. Viceroy first discovered the facts

giving rise to its causes of action against Defendants no earlier than March 2014.


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32. Plaintiff, IRA SOCHET, is the trustee of the IRA SOCHET REVOCABLEINTER VIVOS TRUST (hereinafter, Sochet Trust), an irrevocable trust that between February

and October 2009, invested $148,013,464.29 into the Ponzi scheme through Szafranski, Onyx

Options Consultants Corporation, and Alexa Funding, LLC. Sochet first discovered the facts

giving rise to his causes of action against Defendants no earlier than March 2014.

33. Plaintiff, INVESTORS RISK ADVANTAGE, LP (hereinafter, Investors Risk),is a Delaware corporation with its principal place of business in Miami-Dade County, Florida.

Between February and October 2009, Investors Risk invested $8,545,000.00 into the Ponzi

scheme through Szafranski and Alexa Funding, LLC. Investors Risk first discovered the facts


34. Plaintiff, SUSSCO, INC. (hereinafter, Sussco), is a Florida corporationwith itsprincipal place of business in Miami-Dade County, Florida. Between March and October 2009,

Sussco invested $2,809,166.66 into the Ponzi scheme through Szafranski and ABS Capital

Funding, LLC. Sussco first discovered the facts giving rise to its causes of action against


35. Plaintiff, FLORENCE PALEY, as Personal Representative of the EDWARDPALEY ESTATE, is an individual residing in Palm Beach County, Florida. On September 1,

2009, Edward Paley, since deceased, invested $500,000.00 into the Ponzi scheme through

Banyon Income Fund. Paley first discovered the facts giving rise to her causes of action against


36. Plaintiff, FLORENCE PALEY, is an individual residing in Palm Beach County,Florida. On September 1, 2009, Florence Paley invested $500,000.00 into the Ponzi scheme


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through Banyon Income Fund. Paley first discovered the facts giving rise to her causes of action

against Defendants no earlier than March 2014.

37. Plaintiffs, STEVEN PALEY and LAURA PALEY, are a married couple residingin Bergen County, New Jersey. On August 27, 2009 and October 29, 2009 Steven and Laura

Paley made investments totaling $2,000,000.00 into the Ponzi scheme through Banyon Income

Fund. The Paleys first discovered the facts giving rise to their causes of action against


38. Plaintiff, STEVEN ZARETSKY, as trustee of the JANE ZARETSKYDYNASTY TRUST (hereinafter, Zaretsky Dynasty Trust), an irrevocable trust that on June 8,

2009, invested $100,000.00 into the Ponzi scheme through Banyon Income Fund. Zaretsky first

discovered the facts giving rise to his causes of action against Defendants no earlier than March

2014.

39. Plaintiff, JANE ZARETSKY, is an individual residing in Bergen County, NewJersey. On September 10, 2009, Jane Zaretsky invested $50,000.00 into the Ponzi scheme

through Banyon Income Fund. Zaretsky first discovered the facts giving rise to her causes of


40. Plaintiff, THE EDWARD AND FLORENCE PALEY FOUNDATION(hereinafter, The Paley Foundation), is a New Jersey not -for-profit corporation with its

principal place of business in Bergen County, New Jersey. On August 26, 2009, The Paley

Foundation invested $100,000.00 into the Ponzi scheme through Banyon Income Fund. The

Paley Foundation first discovered the facts giving rise to its causes of action against Defendants

no earlier than March 2014.


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41. Plaintiff, LAWRENCE E. DEKELBAUM (hereinafter, Dekelbaum), is anindividual residing in Maryland. Between June 30, 2009 and October 8, 2009, Dekelbaum

invested $501,520.01 into the Ponzi scheme through Michael Szafranski and ABS Capital

Funding, LLC. Dekelbaum first discovered the facts giving rise to his causes of action against


42. Plaintiff, SHALOM STRICTLY KOSHER MEATS, INC. (hereinafter ShalomKosher) is incorporated under the laws of the State of Maryland. On October 6-8, 2009,

Shalom Kosher invested $22,000.00 into the Ponzi scheme through Michael Szafranski and ABS

Capital Funding, LLC. Shalom Kosher first discovered the facts giving rise to its causes of


43. Plaintiff MARMARSER INVESTMENT LLC (Marmarser) is a Florida limitedliability company. Marmarser was fraudulently induced to invest $1,210,000 into the Ponzi

Scheme, without knowledge that it was such a scheme. Marmarser first discovered the facts


44. Plaintiff CARO GROUP LLC (Caro) is a Florida limited liability company.Caro was fraudulently induced to invest $5,330,000 into the Ponzi Scheme, without knowledge

that it was such a scheme. Caro first discovered the facts giving rise to its causes of action

against Defendants no earlier than March 2014.

45. Plaintiff PIRULIN GROUP LLC (Pirulin) is a Florida limited liabilitycompany. Pirulin was fraudulently induced to invest $2,650,000 into the Ponzi Scheme, without

knowledge that it was such a scheme. Pirulin first discovered the facts giving rise to its causes of



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46. Plaintiff EXITO INVESTMENT GROUP LLC (Exito) is a Florida limitedliability company. Exito was fraudulently induced to invest $2,310,000 into the Ponzi Scheme,

without knowledge that it was such a scheme. Exito first discovered the facts giving rise to its


47. Plaintiff FDS INVESTMENTS USA, L.L.C. (FDS) is a Florida limited liabilitycompany. FDS was fraudulently induced to invest $2,640,000 into the Ponzi Scheme, without

knowledge that it was such a scheme.

48. Plaintiff NEW MIAMI GROUP LLC (New Miami) is a Florida limited liabilitycompany. New Miami was fraudulently induced to invest $1,320,000 into the Ponzi Scheme,

without knowledge that it was such a scheme. New Miami first discovered the facts giving rise

to its causes of action against Defendants no earlier than March 2014.

49. Plaintiff BWS INVESTMENTS USA, L.L.C. (BWS) is a Florida limitedliability company. BWS was fraudulently induced to invest $1,320,000 into the Ponzi Scheme,

without knowledge that it was such a scheme. BWS first discovered the facts giving rise to its


50. Plaintiff NETWORK RESOURCES GROUP, LLC (Network Resources) is aFlorida limited liability company. Network Resources was fraudulently induced to invest

$1,320,000 into the Ponzi Scheme, without knowledge that it was such a scheme. Network

Resources first discovered the facts giving rise to its causes of action against Defendants no


51. Plaintiff GGTW INVESTMENTS USA, LLC (GGTW) is a Florida limitedliability company. GGTW was fraudulently induced to invest $660,000 into the Ponzi Scheme,


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without knowledge that it was such a scheme. GGTW first discovered the facts giving rise to its


52. Plaintiff BBMSW INVESTMENTS USA, L.L.C. (BBMSW) is a Floridalimited liability company. BBMSW was fraudulently induced to invest $660,000 into the Ponzi

Scheme, without knowledge that it was such a scheme. BBMSW first discovered the facts


53. Plaintiff GOW, L.L.C. (GOW) is a Florida limited liability company. GOWwas fraudulently induced to invest $660,000 into the Ponzi Scheme, without knowledge that it

was such a scheme. GOW first discovered the facts giving rise to its causes of action against


54. Plaintiff INTERAMERICA HOLDING LLC (Interamerica) is a Florida limitedliability company. Interamerica was fraudulently induced to invest $660,000 into the Ponzi

Scheme, without knowledge that it was such a scheme. Interamerica first discovered the facts


55. Plaintiff MTG HOLDINGS LLC (MTG), a Nevada limited liability company,was fraudulently induced to invest $1,090,000 into the Ponzi Scheme, without knowledge that it

was such a scheme. MTG first discovered the facts giving rise to his causes of action against


56. Plaintiffs SHIMON LEVY AND RACHEL LEVY are a married couple residingin Florida. They were fraudulently induced to invest over $31,848,333.34 into the Ponzi Scheme

without knowledge that it was such a scheme. The Levys first discovered the facts giving rise to

their causes of action against Defendants no earlier than March 2014.


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57. Plaintiff DANIEL MINKOWITZ resides in New York. He was fraudulentlyinduced to invest over $8,501,666.67 into the Ponzi Scheme without knowledge that it was such

a scheme. Minkowitz first discovered the facts giving rise to his causes of action against


58. Plaintiff MORDECHAI BAR ADON resides in Israel. He was fraudulentlyinduced to invest over $1,377,833.33 into the Ponzi Scheme without knowledge that it was such

a scheme. Bar Adon first discovered the facts giving rise to his causes of action against


59.

Plaintiff BEN ZION VARON resides in Puerto Rico. He was fraudulently

induced to invest over $729,166.68 into the Ponzi Scheme without knowledge that it was such a

scheme. Zion Varon first discovered the facts giving rise to his causes of action against


60. Plaintiff STEVEN SCHRAGA resides in Florida. He was fraudulently inducedto invest over $953,645.84 into the Ponzi Scheme without knowledge that it was such a scheme.

Schraga first discovered the facts giving rise to his causes of action against Defendants no earlier

than March 2014.

61. Plaintiff TODD SNYDER resides in Florida. He was fraudulently induced totransfer $2,160,000 into an RRA IOTA trust account and into the Ponzi Scheme without

knowledge that it was such a scheme. Snyder first discovered the facts giving rise to his causes

of action against Defendants no earlier than March 2014.

62. Plaintiff THIRTEEN AQUA HOLDINGS, LTD (Thirteen Aqua) is a CaymanIslands limited company. Thirteen Aqua was fraudulently induced to transfer $125,000 into an

RRA IOTA trust account and into the Ponzi Scheme without knowledge that it was such a


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scheme. Thirteen Aqua first discovered the facts giving rise to its causes of action against


63. Plaintiffs VALERIE CARTER and PAUL CARTER are married and reside inFlorida. They were fraudulently induced to invest $300,000 into the Ponzi Scheme, without

knowledge that it was such a scheme. The Carters first discovered the facts giving rise to their


64. Plaintiff OFM, INC. (OFM) is a North Carolina corporation. OFM wasfraudulently induced to invest nearly $2,951,160 into the Ponzi Scheme, without knowledge that

it was such a scheme. OFM first discovered the facts giving rise to its causes of action against


65. Plaintiffs CLARICE PALMER and ROBERT PALMER are married and reside inPalm Beach County, Florida. They were fraudulently induced to invest over $2,768,600 into the

Ponzi Scheme, without knowledge that it was such a scheme. The Palmers first discovered the

facts giving rise to their causes of action against Defendants no earlier than March 2014.

66. Plaintiff CLARICE PALMER, trustee of THE CLARICE PALMERINTERVIVOS TRUST, with its principal place of administration in New Jersey, resides in Palm

Beach County, Florida. She was fraudulently induced to invest $500,000 into the Ponzi Scheme,

without knowledge that it was such a scheme. Palmer first discovered the facts giving rise to her


67.

Plaintiff CLARICE PALMER, trustee of THE PALMER FAMILY TRUST, with

its principal place of administration in New Jersey, resides in Palm Beach County, Florida. She

was fraudulently induced to invest $200,000 into the Ponzi Scheme, without knowledge that it


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was such a scheme. Palmer first discovered the facts giving rise to her causes of action against


68. Plaintiffs PATRICIA WHITE and WILLIAM WHITE are married and reside inNew Jersey. They were fraudulently induced to invest $200,000 into the Ponzi Scheme, without

knowledge that it was such a scheme. The Whites first discovered the facts giving rise to their


69. Plaintiffs PAULA PALLADINO and ANTHONY PALLADINO are married andreside in New Jersey. They were fraudulently induced to invest $400,000 into the Ponzi Scheme,

without knowledge that it was such a scheme. The Palladinos first discovered the facts giving

rise to their causes of action against Defendants no earlier than March 2014.

70. Plaintiffs JUDITH SCHAEFFER and RICHARD SCHAEFFER are a marriedcouple residing in Florida. They were fraudulently induced to invest over $1,194,535.60 into the

Ponzi Scheme, without knowledge that it was such a scheme. The Schaeffers first discovered the


71. Plaintiff KAREN KOZLOWSKI resides in Palm Beach County, Florida. She wasfraudulently induced to invest $320,000 into the Ponzi Scheme, without knowledge that it was

such a scheme. Kozlowski first discovered the facts giving rise to her causes of action against


72. Plaintiff HRB CAPITAL, LLC (HRB) is a Florida limited liability company.HRB was fraudulently induced to invest approximately $1,050,000 into the Ponzi Scheme

without knowledge that it was such a scheme. HRB first discovered the facts giving rise to its



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73. CBM Capital, LLC (CBM) is a Florida limited liability company. CBM wasfraudulent induced to invest $2,500,000 into the Ponzi Scheme without knowledge that it was

such a scheme. CBM first discovered the facts giving rise to its causes of action against


74. Plaintiffs EDWARD C. SALTZMAN and MARY LORIE SALTZMAN(Saltzmans) were fraudulently induced to invest $200,000 into the Ponzi Scheme, without

knowledge that it was such a scheme. The Saltzmans first discovered the facts giving rise to their


75.

Plaintiff STEVEN ADELSBERG invested $341,000 into the Ponzi Scheme,

without knowledge that it was such a scheme. Adelsberg first discovered the facts giving rise to

his causes of action against Defendants no earlier than March 2014.

76. Plaintiff MAX DEKELBAUM invested $125,000 into the Ponzi Scheme, withoutknowledge that it was such a scheme. Dekelbaum first discovered the facts giving rise to his


77. Plaintiff EDWARD GODIN invested $115,000 into the Ponzi Scheme, withoutknowledge that it was such a scheme. Godin first discovered the facts giving rise to his causes of


78. Plaintiff SEYMOUR SHLOMCHIK is the personal representative of theROBERT LEVIN ESTATE; prior to his death, Robert Levin was fraudulently induced to invest

$993,000 into the Ponzi Scheme, without knowledge that it was such a scheme. Shlomchik first

discovered the facts giving rise to his causes of action against Defendants no earlier than March

2014.


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79. Plaintiff SEYMOUR SHLOMCHIK, as trustee of the ROBERT B. LEVINREVOCABLE TRUST DATED JUNE 18, 2008, was fraudulently induced to invest

$1,035,841.33 into the Ponzi Scheme, without knowledge that it was such a scheme. Sholmchik

first discovered the facts giving rise to his causes of action against Defendants no earlier than

March 2014.

80. Plaintiff BRENDA LEVIN was fraudulently induced to invest $31,200 into thePonzi Scheme, without knowledge that it was such a scheme. Levin first discovered the facts

giving rise to her causes of action against Defendants no earlier than March 2014.

81.

Plaintiff HARRIET WEINSTEIN was fraudulently induced to invest $60,000 into

the Ponzi Scheme, without knowledge that it was such a scheme. Weinstein first discovered the

facts giving rise to her causes of action against Defendants no earlier than March 2014.

82. Plaintiff SEYMOR PINEWSKI invested $200,000 into the Ponzi Scheme,without knowledge that it was such a scheme. Pinewski first discovered the facts giving rise to

his causes of action against Defendants no earlier than March 2014.

83. Plaintiffs LARRY POGUST and FERN POGUST invested $400,000 into thePonzi Scheme, without knowledge that it was such a scheme. The Pogusts first discovered the


84. Defendant BANK OF AMERICA, N.A. (Bank of America or the Bank) is anational association with its principal place of business in Charlotte, North Carolina. Bank of

America has locations in Broward County, Florida and conducts business there. U.S. Trust is a

private wealth management platform and a division of Bank of America.


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85. Defendant Bank of America Senior Vice President Frederick Perry resides inBroward County, Florida, and at all relevant times was acting within the scope of his

employment with Bank of America.

86. Defendant Mark R. Maller during the relevant period was Bank of AmericaPresident of Broward County. Mark R. Maller resides in Broward County, Florida, and at all

relevant times was acting within the scope of his employment with Bank of America.

87. Defendant Bank of America Private Wealth Manager Brian Mormile resides inDade County, Florida, and at all relevant times was acting within the scope of his employment

with Bank of America.

88. Defendant Bank of America Southeast Regional President of Private BankingDouglas DiVirgilio resides in Sarasota County, Florida, and at all relevant times was acting

within the scope of his employment with Bank of America.

89. This Court has jurisdiction over the claims as the amount in controversy exceeds$15,000.

90. Venue is proper in Broward County as Bank of America conducts business hereand the underlying events alleged in the Complaint occurred here.

III. OTHER RELEVANT PERSONS AND ENTITIES

91. DEAN KRETSCHMAR (Linda Von Allmens son and Doug Von Allmensstepson) (Dean) is an individual who resides in Broward County, Florida. On or about June 3,

2009, Dean invested $8 million in the Rothstein scheme through Banyon Income Fund. Deans

net loss was $7,604,939.67. In addition, on October 8, 2009, Dean invested $400,000 in the


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Rothstein investment program through Razorback, and participated in D3 as a Guarantor of a $5

million loan to Mercata Justa Partners, LLC to invest in the Rothstein scheme.

92. Plaintiff DAVID VON ALLMEN, as trustee of the DAVID VON ALLMENLIVING TRUST (David as Trustee), a revocable trust with its principal place of administration in

Saint Louis County, Missouri, invested $275,000.00 into the Ponzi scheme on or about August 26,

2009, through Banyon Income Fund (BIF), and lost $271,037.55. On or about October 2, 2009,

David as Trustee also invested in Rothstein through Razorback and lost $250,000.00.

93. ANN VON ALLMEN, as trustee of the ANN VON ALLMEN LIVING TRUST(Ann), a revocable trust with its principal place of administration in Saint Louis County, Missouri,

invested $275,000.00, on or about August 28, 2009 into the Ponzi scheme through Banyon Income

Fund, and lost $271,266.37.

94. LAURA STRASSER (Dougs step-daughter and Lindas daughter) and CARLSTRASSER (the Strassers), are individuals who reside in St. Louis, Missouri. On October 1,

2009 and on October 6, 2009, the Strassers invested $1 million in the Rothstein scheme through

Razorback each time, for a total of $2 million. The Strassers lost their entire investment. The

Strassers first discovered the facts giving rise to their causes of action against Defendants no

earlier than 2012.

95. DAVID VON ALLMEN (David) resides in Saint Louis County, Missouri. InOctober 2009 David invested and lost $1 million in the Rothstein investment scheme through D3

Capital Club, a single-purpose entity formed for the purpose of purchasing a Rothstein

confidential settlement.

96. LINDA VON ALLMEN, as trustee of the VON ALLMEN DYNASTY TRUST(Linda), an irrevocable trustwith its principal place of administration in Broward County, Florida,


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at all times relevant was a client of Bank of America. Relying on Bank of America including Fred

Perry to have honored their fiduciary duties to the Von Allmens, Linda as trustee invested and lost

the following sums:

Date Investment Net Loss Entity through whichLinda invested

May 5, 2009 $2,000,000.00 $1,877,135.84Banyon Income Fund

October 1, 2009 $5,000,000.00 $5,000,000.00 Razorback

October 16, 2009 $890,000.00 $890,000.00D3 Capital Club3

97. DOUGLAS J. VON ALLMEN (Doug) is an individual who resides in BrowardCounty, Florida. Relying on Bank of America including Perry to have honored their fiduciary

duties to him and the Von Allmens, Doug invested through D&L Partners, LP.

98. D&L PARTNERS, LP, is a Missouri limited partnership with its principal place ofbusiness in Broward County, Florida. The general partner is D&L Management Corp., a Missouri

corporation, of which Doug is the president. D&L Partners, acting through Doug, who in turn relied

upon Bank of America including Perry to honor their fiduciary duty to him, invested and lost the

following in the Rothstein scheme:

Date Investment Net Loss Entity through whichDoug invested

May 5, 2009June 8, 2009 $45,000,000.00 $42,387,702.98 Banyon Income Fund

October 1, 2009 $13,000,000.00 $13,000,000.00 Razorback

October 16, 2009 $2,610,000.00 $2,610,000.00 D3 Capital Club

2 Razorback Funding, LLC (Razorback) was formed to raise $32 million, which, in turn,would be loaned to Banyon USVI to purchase Rothstein settlements. Banyon USVI was a Banyonentity formed for the purpose of purchasing two Rothstein purported class action settlements, one with aface value of $26.1 million, the other of $40.6 million.

3 D3 Capital Club, LLC was formed to purchase a Rothstein settlement.


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III. BANK OF AMERICAS SUBSTANTIAL ASSISTANCE PROVIDED TOROTHSTEIN.

A. The Bank breached fiduciary duties to the Von Allmens.

1. Bank of America owed fiduciary duties to the Von Allmens.

99. Bank of America, including Perry and the other Defendants, owed fiduciaryduties to the Von Allmens for eighteen years.

100. Bank of America and its Senior Vice President Fred Perry are and during therelevant period were personal bankers and investment advisers to the Von Allmens.

101. Perry is Dougspersonal banker at Bank of Americas U.S. Trust private bankingand wealth-management division. By 2009, Dougs relationship with Perry and the Bank had

spanned 14 years.

102. Perry was Dougs financial confidant. They talked regularly about Dougsinvestments. Doug and I would talk fairly routinely about the different things he was investing

in. Deposition of Frederick Perry (Dec. 22, 2011) (Perry Dep) at 14:25 -15:10,Razorback v.

Rothstein and TD Bank, et al., Case No. CACE09062943 (Fla. 17thCir. Ct.).

103. Perry was Dougs advisor with respect to his and the other Von Allmensinvestments.

104. Pursuant to Dougs advisor-client relationship with the Bank through Perry, Dougmade major investments with Bank of America.

105. In March 2008, for example, Doug emailed Perry about municipal bond funds.Do[]your investment people know of any good open end mutual funds of muni bonds? Doug


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asked. Are there muni ETFs? With the yields they are paying now it looks interesting, but I

would want t[sic] diversified basket. I could be interest in around $20 million.

106. Upon receiving Dougs email, Perry emailed his Bank of America investmentteam, We finally have an opportunity with Doug Von Allmen on the investment side. They

discussed a custom portfolio for Doug, including various Bank of America / Columbia funds.

107. Doug, through D&L Partners, LP (D&L), invested substantial amount in Bankof America in 2008, in Bank of Americas Columbia Funds Series Trust Cash Reserves Capital

Class mutual fund.

108.

In 2008 and 2009, Doug through D&L invested further substantial amounts in

Bank of America, in the Banks Columbia Municipal Reserves mutual fund.

109. In August 2009, Perry exchanged emails with Bank of America Senior Vice-President Hugh Shannon, copying Bank of America Credit Risk Approval Executive Doug Bose;

Bank Credit Risk Manager Amanda Burton; Bank Vice President, Marine Divison, Lisa Verbit;

and Bank of America East Central Florida Market President Samuel Willett. In the emails the

Bank recognized its role as Dougs advisor and its fiduciary responsibility to protect Dougs

interests:

I think as fi nancial advisors we need to be strongly advising him [Doug VonAllmen] to keep a minimal level of liquidity to help protect him(not even takinginto account our credit risk).

(August 12, 2009 email exchange) (emphasis added).

110.

Dougs substantial mutual fund investments with Bank of America in 2008 and

2009, as well as the above-quoted email exchange, illustrate the significant fiduciary role as

investment advisor that the Bank through Perry and others played for Doug. The Bank through


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Perry consulted with Doug regularly and routinely regarding his investments and investment

plans and ideas.

111. As the Von Allmens personal banker and investment advisor, Perry knew that theVon Allmens (particularly Doug and Dean) were always interested in new investment

opportunities, and that they made investments through various family entities, including Plaintiff

D&L Partners.

112. Perrys role in Doug and his familysfinancial and investment life was pervasiveenough that, as Perry gave Rothstein to understand, Perry was Dougs investment spokesperson

and financial confidant. If Perry said yeson an investment, Doug would invest; if Perry said

no, Doug would not invest.

113. Between 2006 and 2009, Perry and his Bank of America investment team held atleast twenty-six meetings concerning Dougs investments and his relationship with Bank of

America.

114. Bank of America through Perry and other Bank senior officers providedinvestment management and advisory services to the other members of the Von Allmen family

as well as to Doug. The Bank regularly pitched them investment opportunities and provided

them with investment advice and strategies.

115. The Bank through Perry acknowledged that their fiduciary duties and obligationsas an investment advisor extended to Dougs children:

Perry: We have provided investment management services to certainfamily members.

Q: Who is that?

A: David Von Allmen, Julia and other Von Allmen children.


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Perry dep at 13:17-21.

116. Dougs stepsonDean first met Perry in 1998 through Doug. Dean opened his firstaccounts with Bank of America in 1999, and made his first investments in 2007 through Perry.

117. As a result of the foregoing, the Bank including Perry assumed and owed to theVon Allmens fiduciary duties of honesty, candor, and good faith, which included the obligation

to disclose material information regarding investment opportunities about which the Bank and

the Von Allmens communicated.

118. The fiduciary duties that Bank of America including Perry owed to the VonAllmens also arose from and were confirmed in various Bank documents.

119. The website of Bank of Americas U.S. Trust division confirms that it has afiduciary relationship with its investor clients:

WELCOME TO U.S. TRUST. At U.S. Trust, we apply our intellectualresources and financial acumen toward helping manage, preserve andenhance you and your familys wealth. From wealth structuring toinvestment management, we believe youll find that our globalperspective, unique team approach, fi duciary platformand more than 200

years of experience not only distinguish us from other private banks, theyprovide for the kind of insights, solutions and expertise that have a worthall their own.

U.S. Trust Home Page, www.ustrust.com/ust/pages/index.aspx (last visited Jan. 4, 2013)

(emphasis added).

120. The Von Allmens were clients of the Bank through its U.S. Trust division.121. Bank of Americas U.S. Trust division website alsostates:

Your trust and investment management relationship is suppor ted by the

strongest standard of integri ty, trust and accountabili ty: the fi duciary

standard. Our commitment i s to serve your best interests and place them

ahead of our own. Of course, in doing so, we often seek to leverage thevast capabilities of Bank of America, including calling upon our partnersand affiliates to assist us in providing you with the level of service you


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have come to expect from us. And, we do this with transparency anddisclosure of conflicts.

U.S. Trust, About Us, www.ustrust.com/ust/pages/about-us.aspx (last visited Jan. 4, 2013)

(emphasis added).

122. The Bank of America / U.S. Trust division website further states:You can expect a thoughtful, thorough approach delivered by your advisorand a team of specialists assembled specifically for you who makeyour concerns their own. These prof essionals help ensur e that your trustand investment management relationshi p is suppor ted by the strongest

standard of in tegri ty and accountabil ity: the fi duciary standard.

U.S. Trust, Our Capabilities, www.ustrust.com/ust/pages/capabilities.aspx (last visited Jan. 4,

2013) (emphasis added).

123. Finally, the Banks fiduciary duties to the Von Allmens also were rooted in thetrust and confidence that the Von Allmens reposed in the Bank and which the Bank accepted

regarding their investments discussed with the Bank.

124. Bank of America senior officers such as Perry received extensive internal trainingand education to ensure that they understood the fiduciary duties that the Bank through Perry and

his fellow officers owed to clients such as the Von Allmens.

125. Senior Vice President John Abbuhl (Abbuhl), Perrys colleague in the BanksU.S. Trust Fort Lauderdale office in the relevant period and a relationship manager at Bank of

America from 2007 to 2009, explained in a sworn statement that adhering to fiduciary

responsibilities was bank policy and part of his training and education at Bank of America s U.S.

Trust division:

[I]n a fiduciary capacity . . . [if] you know more than someone else does . . . and .. . the customer . . . does not have that knowledge . . . you have a higher degree ofresponsibility to act ethically to disclose things.

Sworn Statement of John Abbuhl (Mar. 1, 2013) (Abbuhl Sworn Statement) at 23:18-23:24.


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126. Based on the foregoing, when Doug told the Bank through Perry of his interest ininvesting in the Rothstein settlement investment program in April 2009, the Bank, including

Perry and his colleagues, owed Doug and the Von Allmens fiduciary duties to disclose the

knowledge that they had and assessments they made regarding Rothstein and his investment

scheme.

2. When Doug discussed the Rothstein investment program with Bank of

America in 2009, the Bank knew that it was scheme to defraud and should be

avoided.

i. The Rothstein Ponzi scheme.

127. When Scott Rothstein pled guilty in federal court in 2010, he admitted that he rana fraud scheme in which he falsely represented that his firm had multiple client-plaintiffs who

had reached confidential settlements of sexual harassment and whistleblower claims for large

sums of money that would be paid out over varying periods of time.

128. Rothstein misled investor-victims into believing that the settlement proceeds wereplaced in pre-funded Rothstein trust accounts to be paid out over time to the settling RRA

client.

129. Rothstein claimed that the RRA client would agree to assign to an investor(s) theclients rights to the full settlement amount in exchange for an immediate, discounted lump sum

payment.

130. In reality, there were no settlements. Rothstein fabricated them. There were fewreal RRA clients and no settlement agreements. Returns to Rothstein-scheme investors were not

paid from the settlements as Rothstein had represented, but rather were paid with money

obtained from later investors. It was a classic Ponzi scheme.


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ii. Bank of America knew that Rothsteins investment scheme was

fraudulent in 2007.

131. When Doug told the Bank through Perry in April 2009 that he and his familywanted to invest in the Rothstein settlement investment program, the Bank including Perry knew

and had known since 2007 that the program constituted a scheme to defraud and should be

avoided.

132. In 2007, John Abbuhl, a Bank of America/U.S. Trust Senior Vice-President andPerrys colleague, had a client named George Levin.

133. Levin had been Abbuhls client since 2004 when Abbuhl worked for WachoviaBank. Abbuhl knew Levin as an early investor in PetMeds, an online pet pharmacy offering

medications and other health products for animals. At the time, Levin reported that he had a net

worth in excess of $100 million. Levin had an existing multi-million-dollar banking-client

relationship with Bank of America through his company, Auto Resolutions, LLC.

134. Around the time of Abbuhls transition from Wachovia to Bank of America in2007, Levin told Abbuhl about an attorney friend who was involved in a sexual-harassment-

lawsuit-settlement investment business. Levin did not mention Rothstein by name.

135. In August 2007, another Levin company, Banyon 1030-32, LLC (Banyon),approached Abbuhl about Bank of America providing credit financing that would enable Banyon

to invest in Rothsteins investment scheme. Banyon was a single-purpose investment fund

established to invest solely in Rothsteins settlement investment scheme.

136. At that time in 2007, Bank of America and Rothstein were officed in the samebuilding in downtown Fort Lauderdale. Fred Perry and his colleagues at Bank of America knew

Rothstein.


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137. Frank Preve (Preve) was the person handling day-to-day transactions for Levinand his Banyon company in 2007.

138. On August 29, 2007, Preve emailed Abbuhl and asked if the Bank would considerproviding Banyon $6.5 million in credit financing collateralized by a $27 million Interest on

Trust Account (IOTA) that Rothsteins law firm had:

Hi John, We have an opportunity to do some financing for a Broward lawfirm . . . it involves a IOTA trust account for $27,000,000. Does yourdepartment handle such accounts? I am going to need a $6.5M loan withan assignment of proceeds from the trust account. . . . Any interest???Frank Preve.

139. The IOTA account was purportedly used to hold sexual-harassment settlementproceeds for the benefit of investors in Rothsteins investment scheme. The IOTA account was

promoted by Rothstein as an essential element in the scheme.

140. In response to Preves August 29, 2007 e-mail about a line of credit to invest inthe Rothstein opportunity, Abbuhl responded on August 30, 2007 advising that Bank of America

was absolutely interested. Abbuhl wrote to Preve, Let me know what your schedule looks

like and we can discuss. Preve responded, [W]hy dont you stop by our offices . . . it shouldnt

take more than a few minutes to give you the gist of things. Preve concluded the e-mail, How

does BofA feel about signing NDAs???

141. By NDA Preve meant a non-disclosure agreement. Because Rothsteins lawsuitsettlement business was a Ponzi scheme, he did not want it scrutinized too closely. Thus

Rothstein made a show of being paranoid about the confidentiality issues surrounding the

settlement-related investment transactions, in order to avoid having to disclose much information

or disclose it too widely.


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142. On August 31, 2007, Bank of Americas Abbuhl accepted Preves invitation andmet with him met with him regarding the proposal.

143. Preve explained Rothsteins business to Abbuhl and showed him a spreadsheetthat reported very large account balances and very high rates of return on investments.

144. However, Abbuhl doubted that Bank of America would provide credit to Banyonbased on the IOTA account, given the unrestricted nature of the account as Preve had described

it. In addition, using law-firm IOTA accounts as Rothstein intended was obviously illegal.

Though the amounts at issue and rates of return were impressive, Abbuhl did not believe Bank of

America would agree to lend money to Levin using Rothsteins trust accounts as collateral.

145. The accounts, as described by Preve, were not true trust accounts, but depositorybank accounts. Lending money against a bank account required a hold restricting the removal

of money from the account. This was to ensure that the account retained the money serving as

security for the credit being extended to Banyon. Without that hold, an account could be

emptied at any time, wiping out the Banks security.

146. In addition, as stated, using an IOTA account as the Rothstein scheme was usingit was illegal. Illegal use of the Rothstein IOTA account that was later opened at TD Bank

formed a principal basis for the court in the aforementioned Razorback v. Rothstein and TD

Bank, et al., case to deny Gibraltar Banks motion to dismiss the plaintiffs claim for aiding and

abetting fraud in that case:

THE COURT: All right. You cannot, if you're a responsible lending institutionwith even the most fundamental knowledge of banking laws, permit a law firm totake trust account money and put it in your own operating account, and then inyour own personal accounts, much less suggest that that be done. And that's whatyou've alleged. And that's aiding and abetting with knowledge of wrongfulconduct but not the specific wrongful conduct.


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Hearing Tr.,Razorback v. Rothstein and TD Bank, et al., p. 30 (November 18, 2010).

147. In spite of his initial concern, Abbuhl took Banyonslending request back to theBank. He had no discretion to deny it himself. Under Bank of America policy, all financing

opportunitiesno matter how unlikely to be approved had to be presented to the Bank so that

it could conduct due diligence and make an informed decision.

148. In September 2007, Preve tried to get Abbuhl comfortable with the credit requestby highlighting Levins personal commitment to the Rothstein settlement investments. Preve e-

mailed Abbuhl a rough cut cash flow chart for Levin for 2007 and 2008.

149.

The Bank performed detailed due diligence on the Banyon credit requests in

September 2007. The Bank explored the legal aspects of Rothsteins settlement investment

business, and the Banks in-house lawyer reviewed Banyons credit application.

150. On September 6, 2007, Abbuhl advised Preve that Bank of America had concernsand needed to conduct further due diligence into Rothsteins business model:

I had a lengthy call with the head of the lending for the southeast and the head of

risk management for Private Banking for BofA. They are trying to get their armsaround this concept. Before they commit (yes or no) they want to explore thelegal aspects of this.

151. As stated, Bank of Americas due diligence included having Banyons creditapplication reviewed by an in-house lawyer for the Bank: I overnighted copies of the

documentation you sent to me to Charlotte for them to review in the morning. Because this is an

unusual type of lending request, they also are going to discuss this with our internal legal

advisor.

152. Abbuhl also reviewed an exemplar Rothstein settlement (names redacted), thecornerstone of the Rothstein investment scheme.


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153. Bank of Americas due diligence ultimately revealed that Rothsteins investmentscheme raised was likely a fraud and certainly illegal.

154. Abbuhl told Preve that the very high returns shown on the spreadsheets regardingthe Rothstein investments seem too good to be true. (Abbuhl Sworn Stmt at 58)

155. The Rothstein investments couldn't get past the sniff test, Abbuhl stated.(Abbuhl Sworn Stmt at 67)

156. Bank of America denied the Banyon credit application following its due diligenceassessment.

157.

From 2007 on, the Bank believed that Rothstein was running a fraud. As Perry

later confirmed, it was neverbelieved to be if but rather when he would be caught doing

something illegal. (Perry email to Bank colleagues, Nov. 15, 2009) (emphasis added).

Rothstein was dirty (Perry dep at 33:7), a crook (Abbuhl Sworn Stmt at 80:10 [quoting

Perry]), a bad guy (Abbuhl Sworn Stmt at 91) and of dubious provenance (Perry Nov. 15,

2009 email). Rothsteins law firm, RRA, was a known bad entity (Abbuhl Sworn Stmt at

102:1-8 [quoting Bank Sr. Vice President Charles Pulselli]), Rothsteins scheme offered returns

that were too good to be true (Abbuhl Sworn Stmt at 58:15-16) and couldnt get past the sniff

test (Abbuhl Sworn Stmt at 67:15), the Bank didnt believe the returns (Perry dep at 36:8-9),

and Perry told his colleagues, Stay away from these guys (Rothstein and his associates) (Perry

Dec. 10, 2008 email to Abbuhl, and others).

iii. The Banks denial of the 2007 Banyon credit request because of

Rothstein was logged in the Banks internal pipeline report and

became Bank institutional knowledge.


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158. When a lending request is made to Bank of America, it is as a matter of bankprocedure logged into a weekly internal pipeline report.

159. The Banyon request for credit to invest with Rothstein was logged into thepipeline report, as was the Banks denialof the request.

160. The pipeline report thereafter was available to all relevant Bank personnel,including Perry.

161. Consequently, Bank of Americas decision to decline the Banyon opportunity in2007, based on the Rothstein investment schemes failure of the sniff test, the too good to be

trueverdict, as well as other indicia of fraud, became institutional knowledge at the Bank / U.S.

Trust.

iv. In 2008, Bank of America confirmed that Rothsteins scheme was

fraudulent.

162. In December 2008, the Bank did further due diligence on the Rothstein settlementinvestment scheme and confirmed that the scheme was fraudulent.

163. In October 2008, George Levin approached the Banks Abbuhl again, this timefor a personal loan to buy a Gulfstream G550 business jet. Levin planned to buy the jet and

flipit for a $5 million profit. He had a buyer and felt the transaction was all but certain.

164. Levin intended to rely on the financial health of his Banyon investments, whichwere fully invested in the Rothstein scheme, for collateral to support the loan application. Thus

in 2008 as in 2007, the Rothstein settlement investment scheme was scrutinized by the Bank.

165. By then, there were a number of Banyon funds purchasing Rothsteinsettlements. Because Levin was relying on his interests in Banyon to support the loan, Bank of

America conducted due diligence on both Levins and Banyons financials.


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166. Bank of America obtained a variety of financial statements and tax forms fromLevin and the Banyon funds relating to their investments in Rothsteins scheme.

167. On November 18, 2008, Banyons Preve provided financial documents to TimWakeland (Wakeland), Senior Vice President and Aircraft Sales Executive with Bank of

America Leasing and Corporate Aircraft Financing, including:

Levins Personal Financial Statement dated October 31, 2008, which includedLevins historic cash flow numbers and biography;

CPA statements dated June 30, 2008 for the Banyon entities; October 31, 2008 interim statements for the Banyon entities; Copies of trust account balances as of October 29, 2008, which accounts secured the

Banyon receivables;

Levins tax planning schedule and K-1s; Levins tax filings for all IRS Schedule C and E entities (the Banyon entities

were Schedule C entities); and

Know Your Customer data. Know Your Customer (KYC) is a program toprevent banks from being used, intentionally or unintentionally, for money-

laundering activities.

168. In an e-mail to Abbuhl, Wakeland expressed concern over an unexplained delayby Banyons Preve in providing the last three years of Levins personal tax returns: The delays

[sic] on the tax returns are causing some heartburn. By the end of November, 2008, Preve

provided (or agreed to provide) Matthew Geremia (Geremia), Credit Products Officer with

Bank of America Leasing, additional information the Bank needed to process Levins

application, including:

Levins prior three years personal tax returns; A copy of Banyons corporate structure and ownership;


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Organization documents for Banyon 1030-32; Banyons audited financial statements; Bank/brokerage statements demonstrating Levins liquidity; An explanation of Banyons contingent liabilities; A description of Levins major holdings and future business plans; An explanation of Levins non-Banyon related cash flow; An explanation of Levins annual commitments and contributions; An explanation of the nature of the settlement escrows; Whether Banyon expected any industry or legal challenges in the near future; and Levins growth projections for Banyon.169. On December 10, 2008, Banyons Preve also sent an e-mail to Bank of Americas

Geremia enclosing a typical [Rothstein/RRA sexual harassment claim] settlement package,

October bank deposit verifications from Banyons third-party verifier, maturity schedules, and a

master summary of each schedule.

170. Also on December 10, Bank of Americas Wakeland sent an e-mail to a numberof Bank executives, including Perry and his superior, Mark R. Maller (Maller), Bank of

America Southeast Florida Managing Director and U.S. Trust Division President for Broward

County, in connection with Levins application, asking, Is anyone familiar with the law firm

Rothstein[] Rosenfeldt?

171. Perry responded unequivocally:


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172. Maller added in an e-mail later the same day, I am very familiar.173. Maller sent another e-mail to Perry and Abbuhl instructing them not to create an

e-mail paper trail regarding any discussion of Rothstein: Please discuss face to face rather than

via email on this. Bank of America officials did not want to put their views about Rothstein in

writing.

174. Shortly thereafter, Perry told his superior, Maller, in words or substance, I dontthink you can do that loan [to Levin] because this guy [Levin] is doing business with Scott

Rothstein. (Abbuhl Sworn Stmt at 90) (emphasis added)

175. Perry had always distrusted Rothstein. He told Abbuhl that Rothstein was a badguy. (Abbuhl Sworn Stmt at 91)

176. Charles Pulselli, Senior Vice President and Senior Credit Products Manager withBank of America Leasing and Corporate Aircraft Finance, scheduled a conference call for

December 15, 2008 to discuss Levins aircraft loan application. Two items were on the agenda:

1) reputation risk; and 2) need to discuss BOAs global view in developing and expanding

relationship:


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177. Reputation risk meant the risk of damage to the Banks reputation if the Bankwent through with the transaction. (Abbuhl Sworn Stmt. At 98)

178. The December 15, 2008 call included bank executives Maller, Abbuhl, MattJeremiah, Tim Wakeland, Brian Joyner, and probably Mike Bonner. At the end of the call, the

decision was made to deny the loan. The decision was based on a concern that Bank of

Americas reputation could be damaged by being associated even indi rectly with Rothstein and

hi s investment scheme.

179. The next day, December 16, 2008, Wakeland e-mailed Levin advising him thatthe Bank denied his jet loan.

180. The Bank denied Levins $30 million loan application even though Levins loanwould have brought new, much-needed business to Bank of America during the global economic

crisis. Banyons financials on their face justified the loan. The only explanation for the denial

was Bank reputation risk and the Banks obvious conclusion that the financials were not as

represented, i.e., fraudulent.

181.

During this period, Maller was pressuring Perry, Abbuhl, and their colleagues to

get more business, and had been since at least since August 2008. In August 2008, before Levin

had applied for the loan, Perry and Abbuhls superior, Maller, had sent an e-mail to his team,

including Abbuhl and Perry, pushing them to get more business:


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182. As he had become involved in the discussion over Rothstein in connection withthe Levin loan application, Perry knew that the loan was turned down due to Bank reputation risk

and Banks assessment that Rothstein and his scheme were fraudulent.

183. Like the 2007 Banyon financing opportunity, the 2008 Levin jet loan applicationwas logged into Bank of Americas internal pipeline report and became part of Bank of America

/ U.S. Trust institutional knowledge.

3. In 2009 the Bank actively concealed its knowledge of Rothsteins fraud and

maneuvered victims into investing with Rothstein in order to win Rothsteins

favor, get a billion dollars in depository business from Rothstein, andultimately replace TD Bank as the Rothstein schemes principal banker.

i. What Bank of America knew in 2009.

184. By 2009, Bank of America / U.S. Trust had had a long-standing commitment tothe Von Allmens to adhere to the strongest standard of integrity, trust and accountability: the

fiduciary standard, and to serve your best interests and place them ahead of our own.

185. As Bank of Americas then Senior Vice-President John Abbuhl said in his swornstatement, there was a higher standard of duty and responsibility towards the customers of the

U.S. Trust Division [of Bank of America], and a duty of making sure the customers were not

taking unnecessary financial risks. (Abbuhl Sworn Stmt. at 27)


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186. The Banks U.S. Trust division had a higher degree of responsibility to actethically to disclose things to its clients such as the Von Allmens. (Abbuhl Sworn Stmt at 23-

24)

187. Perry confirmed in 2009 that the Bank, including Perry himself, had a fiduciaryduty from and after 2007 to warn its clients to stay away from Rothstein. In accordance with that

duty, Perry stated that he warned clients often between 2007 and 2009 to stay away from

Rothstein and his investment scheme. Shortly after the Ponzi scheme imploded, Perry wrote:

On numerous occasions we have made our suspicions known to clients

in terested in doing business with him [Rothstein ] or h is firm [RRA] .

(emphasis added).

188. But Perry never made his suspicions (conclusions, actually) known to the VonAllmens. The Bank including Perry never warned the Von Allmens of what they knew about

Rothstein or his firm.

189. In April 2009 or earlier, when Doug told Perry, his long-time Bank of America /U.S. Trust personal banker and investment advisor, of his interest in investing in Rothsteins

settlement investment scheme, Perry and the Bank, instead of warning Doug, told him nothing.

190. At no point did Perry or any other officer of Bank of America warn Doug or anyof the Plaintiffs that the Bank, including Perry, had a concern about Rothstein or that the

investment that Plaintiffs contemplated making with Rothstein was fraudulent or suspicious.

191. The Bank was free to warn the Von Allmens of what it knew about Rothsteinscheme. Neither Rothstein nor his firm were clients of the Bank.


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192. Because the Bank owed fiduciary duties to the Von Allmens, the Bank includingPerry had a duty to warn the Von Allmens of what it knew regarding investing in the Rothstein

scheme (through Banyon).

193. But when Doug told Perry about his desire to invest millions in the Rothsteininvestment program (through Banyon), Perry and the Bank actively concealed their damning

assessment of Rothstein, and instead helped Banyon and Rothstein discreetly maneuver Doug

and his family into investing in the Rothstein scheme.

194. The Banks purpose in helping to maneuver the Von Allmens to invest withRothstein was to infuse the Rothstein Ponzi scheme with millions of Von Allmen dollars to keep

the scheme going, so that Bank of America could attract large Rothstein bank deposits and,

ultimately, replace TD Bank as the Rothstein Ponzi schemes principal banker.

ii. Bank of Americasactive, deliberate concealment in 2009 of its

knowledge of Rothsteins fraud.

195. Doug first learned about the Banyon Income Fund from Barry Bekkedam(Bekkedam) in March of 2009.

196. Bekkedam, a Banyon promoter, came to South Florida from Pennsylvania to meetwith Doug to discuss a possible investment in the Rothstein sexual-harassment and

whistleblower settlement investment program through Banyon. As stated, Banyon was solely

invested in Rothsteins program.

197. Bekkedam was the principal of Ballamor Capital Investment (Ballamor), aPennsylvania-based registered investment advisory firm. Bekkedam had contact with Perry


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because they both were involved, along with Doug, with the Broward County Boys and Girls

Club. Perry and Doug were on the Clubs board of directors.

198. On April 21, 2009, Bekkedam sent Doug an e-mail answering questions aboutBanyon Income Fund:

Doug: Good morning. Attached are some answers to your questions. ThePPM should be completed shortly. My people in NYC [are] withBanyons people working on it today. If you need me to brief the bank[Bank of America] in anticipation of the PPM I am very used to thatprocess. Thanks Barry.

199. Doug forwarded Bekkedamse-mail to Perry, who in turn forwarded it to severalof his Bank of America colleagues. Attached to the forwarded Bekkedam e-mail was a

spreadsheet entitled Von Allmen Questions Spreadsheet.

200. The Bank including Perry concluded that Bekkedam and his firm, Ballamor, werefrauds. He told colleagues after the Rothstein Ponzis collapse that Bekkedam was a POS

(piece of shit), and that Balamor capital will go down.

201. However, the Bank including Perry never disclosed any of this to the VonAllmens in April or May 2009 before they invested in the Rothstein scheme.

202. Instead, the Bank saw an opportunity. Perry had knowledge that Banyon hadplaced billions of dollars with Rothstein. Banyons financials showed $1.9 billion flowing

through the Banyon accounts and into the Rothstein scheme. Bank of America, including Perry,

wanted that money to be deposited at Bank of America.

203. The Bank, including Perry, devised a plan: Help maneuver the Von Allmens intoinvesting in the Rothstein scheme by carefully concealing the Banks knowledge of Rothsteins

fraud, tell Rothstein about Dougs investment in the scheme, take credit for it, and use it as a

springboard to get Rothstein to deposit Rothstein scheme proceeds at Bank of America.


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204. Perry started by telling Rothstein before April 21 that the Bank was going to getVon Allmen to invest in the Rothstein scheme.

205. Perry then confirmed with Rothstein and Bekkedam that he (Perry) was Dougsfinancial spokesman and advisor. Perry played up his spokesman role in part by obtaining and

reviewing Ballamors materials regarding Banyon and the Rothstein investment program,

purportedly for Doug.

206. Perry assured Ballamors managing director and general counsel, Larry Rovin(Rovin), that Perry would treat the information that he received from Bekkedam and Ballamor

as strictly confidential. That is, Perry would treat as confidential the information that helped

confirm his and the Banksnegative impression of Bekkedam, Ballamor, and Rothstein.

207. In other words, the Bank through Perry made a deal with Ballamor to concealfrom the Von Allmens and others the Banks negative conclusions about the Rothstein scheme.

(Perry Deposition Errata Sheets at 51:12; addressed in more detail below).

208. Perry knew about Banyons relationship with Rothstein from Bank of Americasdenial of a line of credit to Banyon in 2007 and from the Banks 2008 refusal to make an aircraft

loan to Levin.

209. After a conversation with Ballamors Rovin, Perry received a letter to signconfirming that he was Dougs investment advisor:


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210. Perry also received an advance draft of the Banyon Income Fund ConfidentialOffering Memorandum dated April 30, 2009 (Banyon COM or PPM), which was provided

to potential investors and discussed the Rothstein investment opportunity.

211. Perry e-mailed Ballamors Rovin on May 4, 2009, I received the PPM today andam in the process of reviewing it with legal counsel. Rovin passed Perrys email on to

Rothstein a half-hour later, and Rothstein okayed the review by the Bank and Bank counsel

within a half-hour after that.

212. The Bank through Perry made sure Rothstein was informed of his receipt of thePPM and NDA, reinforcing Rothsteins understanding that the Bank through Perry was Von

Allmens spokesman/advisor.


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213. As portrayed to Rothstein, the Banks advisory role through Perry with respect toDougs investing in Rothsteins investment scheme was pivotal. As stated, with respect to the

Rothstein scheme, Perry indicated to Rothstein that if Perry said yes, Doug would invest, and

that if Perry said no, Doug would not invest.

214. Doug disclosed the details of the Rothstein investment opportunity with membersof his family, including his wife Linda, his son and daughter-in-law, David and Ann Von

Allmen, his stepson, Dean Kretschmar, and his stepdaughter and her husband, Laura and Carl

Strasser.

215.

Doug informed the Bank through Perry of his desire to invest tens of millions in

the Rothstein settlements (through Banyon).

216. Rothstein emailed BanyonsPreve and Levin on May 2, 2009 that he needed toget[] Dougs money in right away .... Banyons Preve responded, I dont think we can get

this by [Von] A llm[e]n without Perrys approval.

217. Perry e-mailed Doug on May 4, 2009, and told him that the Banyon documents hehad received would be subject to a three-tier review: I would like to have banks outsidecounsel

reviewthe documents simultaneously to my reviewand my credit teams. (emphasis added)

218. The Bank including Perry purposely concealed from Doug as well as theinvesting public that the Bank had already concluded in 2007 that Rothstein and his scheme were

fraudulent and had confirmed that assessment in 2008.

219.

The Banks three-tier due diligence review in May 2009 reaffirmed the Banks

damning assessment of Rothsteins scheme that the Bank had previously made.

220. Perry informed Bank of America colleague John Abbuhl of the Von Allmensintention to invest in the Rothstein investments in May 2009.


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221. Abbuhl was surprised that Perry would go along with Dougs desire to invest inthe Rothstein scheme and conceal what the Bank knew about the scheme, particularly when, a

few months earlier, Perry had torpedoed the aircraft loan to Levin because Levin was invested

with Rothstein.

222. The long-standing fiduciary duties owed to the Von Allmens by the Bank throughPerry did not slip Perrys mind when Doug approached Perryabout investing in the Rothstein

settlement investments. Abbuhl made sure of that.

223. When Abbuhl learned of Dougs intentions to invest with Rothstein, Abbuhlreminded Perry of Bank of Americas fiduciary duties to Doug, which compelled Perry and the

Bank to disclose what he knew before Doug invested. Abbuhl reminded Perry of his and the

Banks responsibility to disclose to the Von Allmens information material to their investment,

and that the Bank had recently rejected a credit-business opportunity because of its assessment of

Rothstein and his investment scheme.

224. On March 1, 2013, Abbuhl provided a sworn statement in which he confirmed thedetails of his conversation with Perry:

Q. Did you say anything to Fred Perry about what he should say, ifanything to Von Allmen about what happened?

A. I did. I said, Fred does M r. Von Allmen know that we declined a loanfour months ago because we couldnt get comfortable with RRA and Scott

Rothstein?

Q. What did Fred say in response to that?

A. No. And I said, you have a fi duciary responsibi li ty to disclose that toyour client. He needs to know that because thats a decision point and he needs

to know about that.

Q. What did Fred say in response?

A. He shrugged it off. He didnt say anything that Iremember.


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Q. Youre absolutely sure that you told Fred that he had a fiduciary duty todisclose that to Doug Von Allmen?

A. I absolutely told him that.

...

Q. How many times did you talk to Mark Maller [Perry and Abbuhlssuperior] in person about it?

A. Multiple times. I dont know a specific number, but multiple times.

Q. What did Mark Maller say in response?

A. He said he would talk to Fred. I dont know that he ever did.

(Abbuhl Sworn Stmt at 111-114) (emphasis added).

225. Perry did not forget his and the Banks fiduciary obligationsto the Von Allmens.The Bank, including Perry, his superior, Mark Maller, and other Bank officers, just decided to

ignore them. Perry decided to conceal the truth from the Von Allmens, lie to Abbuhl, and

discreetly maneuver the Von Allmens into investing over $85 million in the Rothstein scheme.

Perry said to Abbuhl, I was wrong about Scott. I was wrong about RRA...Weve [Perry and the

Bank] done a full background on Scott and hes super clean, squeaky clean. (Abbuhl Sworn

Stmt at 111)

226. There was no background check done on Rothstein showing he was clean. Perrylied. Perry conceded in writing after the Ponzi collapse that he and the Bank always knew that

Rothstein was dirty. But Perry did not want to admit that to Abbuhl, his fellow Senior Vice-

President, in April/May 2009. Perry did not want to have to try to convince Abbuhl that even if

the Bank believed that Rothstein was a fraud the Bank had no obligation to warn Doug of that

fact. Perrys solution was simply to lie to Abbuhl and tell him that Rothstein was clean.


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227. In his December 22, 2011, deposition in Razorback v. TD Bank, anotherRothstein-related lawsuit, Perry told a different lie than the one he told Abbuhl. In Perrys

deposition, instead of lying that Rothstein was squeaky clean, he falsely testified that he

thought he warned Doug about Rothsteins scheme:

Q. You did convey [to Doug] that you didnt understand [theRothstein settlement investment scheme]?

A. I think so.

Perry dep at 83:16-17.

228. But later in his deposition, Perry backtracked to cover himself and the Bank,testifying that although he thinks he conveyed his misgivings about Rothstein to Doug, the

bottom line was that Doug knew more about the Rothstein investment opportunity than Perry

did, so it was not Perrys or the Banks place to warn Doug away from Rothstein. (In other

words, just in case my false testimony that I warned Doug about Rothstein does not carry the

day, let me hedge by adding that the Bank and I never had an obligation to warn him). Perry dep

at 83:19-84:3.

229. The Bank knew that Rothsteins scheme was a fraud. The Bank had a fiduciaryduty to apprise Doug of that. Instead the Bank actively concealed it from the Von Allmens.

230. Perry also lied in his deposition when he testified that in April/May 2009 theBank hasn't done any of this homework [on the Rothstein/Banyon investment] and isnt

interested in doing any of this homework, its not in [the Banks] realm to do so ...." The Bank

did detailed due diligence homeworkon Rothstein in August 2007, December 2008, and April-

May 2009, judged Rothstein and his investment scheme crooked (fraudulent), and concluded that

the Banks clients should stay away from him and his scheme. (On numerous occasions we


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have made our suspicions known to clients interested in doing business with him or his firm

(Perry November 15, 2009 email).) The Bank actively concealed from Doug the homework that

it did on the Rothstein investments, however, and took steps to make Doug believe that the Bank

had no problem with Rothstein or his settlement investment program.

231. While Perry was advising Doug before Dougs initial investment in Rothsteinsscheme in May 2009, Perry said to Bank Senior Vice-President Abbuhl:

[T]hese guys [Rothstein and RRA] arent so bad after all. I'm actuallygoing to be doing something with them, with RRA with one of my clients,Mr. Von Allmen.

Abbuhl Sworn Stmt at 110. The not so bad after all assertion was another lie. The Bank

learned nothing in April-May 2009 that contradicted its longstanding assessment that Rothstein

was a fraud. Rothstein and his firm were as bad as they had ever been in May 2009.

232. Bank of America including Perry wanted Rothstein to deposit his Ponzi billions inthe Bank and wanted to become the schemes banker, and saw an opportunity to do so on the

backs of the Von Allmens. So they actively concealed material facts from Doug, and Perry lied

to Abbuhl to back him off.

iii. Disappearance of the desk file

233. Perry and Abbuhls department maintained a desk file that contained the fullfinancials of Levin and copies of emails regarding the 2008 proposed jet aircraft loan that had

been rejected because of Levins association with Rothstein.

234. The desk file co

beverly complaint - bank of america

Documents

llc edward

llc cbmcapital

llc ggtwinvestments

llc bbmswinvestments

llc bfmc investment

llc d3 capitalclub

llc d3 capital club

levinrevocable trust