EFTA01084930

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA RAZORBACK FUNDING, LLC, D3 CASE NO.: 09-062943 (19) CAPITAL CLUB, LLC, BFMC INVESTMENT, LW, LINDA VON ALLMEN, as Trustee of the VON ALLMEN DYNASTY TRUST, D&L PARTNERS, LP, DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST. ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST, and DEAN KRETSCHMAR, Plaintiffs, v. SCOTT W. ROTHSTEIN, DAVID BODEN, DEBRA VILLEGAS, ANDREW BARNETT, IRENE STAY. TD BANK, N.A., FRANK SPINOSA, JENNIFER KERSTETTER, ROSANNE CARETSKY, BANYON INCOME FUND. L.P., BANYON USVI, LLC, GEORGE G. LEVIN. FRANK PREVE, MICHAEL SZAFRANSKI, ONYX OPTIONS CONSULTANTS CORPORATION. and BERENFELD SPRITZER SHECHTER SHEER, LLP, Defendants. AMENDED COMPLAINT Plaintiffs, RAZORBACK FUNDING, LLC; D3 CAPITAL CLUB, LLC; BFMC INVESTMENT, LW; LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP• DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR (collectively referred to herein as "Plaintiffs") Page 1 of 289 EFTA01084930 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint hereby sue the Defendants, SCOTT W. ROTHSTEIN; DAVID BODEN; DEBRA VILLEGAS; ANDREW BARNETT; IRENE STAY; TD BANK, N.A.; FRANK SPINOSA; JENNIFER KERSTETTER; ROSANNE CARETSKY; BANYON INCOME FUND, L.P.; BANYON USVI, LLC; GEORGE G. LEVIN, FRANK PREVE; MICHAEL SZAFRANSKI; ONYX OPTIONS CONSULTANTS CORPORATION; and BERENFELD SPRITZER SHECHTER SHEER, LLP (collectively referred to herein as "Defendants"), and allege as follows: Plaintiffs' Claims 1. The Plaintiffs sue the Defendants and seek the following: a. Compensatory damages in excess of $100,000,000.00, pre judgment interest, and other amounts to be particularized at trial as a direct and proximate result of Defendants' commission of the following: i. conversion; ii. fraudulent misrepresentation; iii. negligent misrepresentation; iv. negligent supervision; v. breach of fiduciary duty; vi. civil conspiracy; and vii. aiding and abetting fraud, conversion and breach of fiduciary duty; b. punitive damages upon obtaining leave of court; c. taxable costs and attorney's fees; and Palle 2 of 289 EFTA01084931 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint d. any such further relief this court deems equiteble—antl—just under the circumstances. Overview 2. This action arises out of a fraudulent scheme orchestrated by Scott W. Rothstein, who bilked investors out of hundreds of millions of dollars. Mr. Rothstein, through the use of his law firm Rothstein Rosenfeldt Adler, P.A. (collectively referred to herein as the "Principal Conspirators" and more fully described, infra), devised an elaborate plan to assign putative plaintiffs' confidential settlements with structured payments to investors at a lump sum discounted rate. In reality, while some of the cases used to induce investor funding were real, all of the confidential settlements were purely fabricated. Indeed, returns to earlier investors were not made via structured payments, but instead were made with the principal obtained from later investors--a classic Ponzi scheme.' 3. However, the Principal Conspirators did not act alone. Defendant, TD BANK, N.A. (hereinafter, "TD Bank"), a subsidiary of Toronto Dominion Bank, was complicit in this scheme, serving as a critical lynchpin "legitimizing" the Principal Conspirators' plot and facilitating crucial inducements to investor action. Specifically, investors were duped by TD Bank employees conspiring with the Principal Conspirators to manipulate TD Bank's trust account statements and deceiving investors with false senses of security predicated on written assurances that settlement funds existed and would only be released directly to them. It is these bank A Ponzi scheme is generally recognized as a fraudulent investment operation that pays returns to separate investors from their own money or from monies paid by subsequent investors, rather than from any actual profit earned. The scheme is named after Charles Ponzi who became notorious for using the technique in early 1920. Page 3 of 289 EFTA01084932 Razorback Funding, LLC, et aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (19) Amended Complaint declarations, tantamount to a guaranty, which gravely impacted investor risk-evaluation analysis and unduly influenced investors to close their deals. 4. Moreover, demonstrative of TD Bank's participation or alternatively, evidence of their gross negligence and wanton disregard, is the bank's reckless disregard of numerous "red flags." Irrefutably, TD Bank knew that Rothstein Rosendfeldt Adler, P.A. (hereinafter, "RRA") was moving hundreds of millions of dollars through its 'I'D Bank trust accounts. In fact, in October 2009 alone, almost a half of a billion dollars moved in and out of RRA's Fort Lauderdale based trust accounts--more money than most bank branches would likely see in a decade. Yet, despite the massive amount of funds being moved by one client, TD Bank never sought independent verification of the source of monies, choosing instead to stand idly by. The Ponzi scheme simply could not have gained traction without TD Bank's involvement in sanctioning or, otherwise, willfully failing to authenticate the origin of the enormous amounts of money coming through its doors. 5. Unfortunately, this is not the only pending case which alleges a m Bank affiliate as a complicit actor involved in a Ponzi scheme. On August 29, 2009, TD Bank's parent, Toronto Dominion Bank, was sued for "knowing assistance and/or dishonest assistance" in a Ponzi scheme based upon, inter alia, holding over $20,000,000.00 in fraudulent proceeds and transferring hundreds of millions of dollars through the alleged perpetrator's accounts. See a copy of the Dynasty Furniture Manufacturing, Ltd., et al., v. Toronto Dominion Bank, Statement of Claim attached hereto for reference as Exhibit "A." 6. Based on the allegations set forth herein, Plaintiffs aver that, at all materials times, 'I'D Bank had actual knowledge of its complicit involvement in a highly-organized Ponzi scheme Palle 4 of 289 EFTA01084933 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint and/or was recklessly or willfully blind to its role in materially supporting the scheme. TD Bank's acts and/or omissions in assisting, facilitating, and actively participating in the Ponzi scheme, renders TD Bank as a direct and proximate cause of Plaintiffs' losses and, therefore, is liable for the damages Plaintiffs incurred. 7. Furthermore. as alleged in detail infra. the Principal Conspirators' inner-circle of facilitators (Villegas. Boden. Barnett. Stay and Berenfeld) and promoters (Levin, Preve. Banyon Szafranski and Onyx) were essential to the perpetration of this systemic fraud and their actions equally as culpable. Indeed, Rothstein in a November 23, 2009 interview with the Sun-Sentinel stated that "karma has caught up with him, but it will catch up with others too . . . You're in a town full of thieves, and at the end of the day. everyone will see. I'll leave it at that." The Plaintiffs 8. LINDA VON ALLMEN is Trustee of the VON ALLMEN DYNASTY TRUST (hereinafter, "Dynasty Trust"), an irrevocable trust with its principal place of administration in Broward County, Florida. In or around the summer of 2009, the Dynasty Trust invested S2,000,000.00 into the Ponzi scheme through Banyon Income Fund. 9. Plaintiff, D&L PARTNERS, LP (hereinafter, "D&L Partners"), is a Missouri limited partnership with its principal place of business in Broward County, Florida. In or around the summer of 2009, D&L Partners invested approximately $45,000,000.00 into the Ponzi scheme through Banyon Income Fund. Doug Von Allmen is the general partner of D&L Partners. 10. DAVID VON ALLMEN. is Trustee of the DAVID VON ALLMEN LIVING TRUST (hereinafter, "DVA Trust"), a revocable trust with its principal place of administration in Palle 5 of 289 EFTA01084934 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint Saint Louis County, Missouri. On or about August 26_2009, the DVA Trust invested $275.000.00 into the Ponzi scheme through Banyon Income Fund. II. ANN VON ALLMEN, is Trustee of the ANN VON ALLMEN LIVING TRUST (hereinafter, "AVA Trust"), a revocable trust with its principal place of administration in Saint Louis County. Missouri. On or about August 28. 2009. the AVA Trust invested $275,000.00 into the Ponzi scheme through Banyon Income Fund. 12. Plaintiff, DEAN KRETSCHMAR (hereinafter, "Kretschmar"), is an individual residing in Broward County, Florida. On or about June 3 2009, Kretschmar invested $8,000,000.00 into the Ponzi scheme through Banyon Income Fund. 13. RAZORBACK FUNDING, LLC, (hereinafter, "Razorback"), is a Delaware limited liability company with its principal place of business in Broward County, Florida. Razorback invested $32,000,000.00 into the Ponzi scheme through Banyon USVI, LLC. Dynasty Trust, D&L Partners and Kretchmar were also major investors in Razorback. 14. Plaintiff, D3 CAPITAL CLUB, LLC (hereinafter, 133"), is a Delaware limited liability company with its principal place of business in Broward County, Florida. D3 invested $13,500,000.00 into the Ponzi scheme. Dynasty Trust, D&L Partners and Kretchmar were major investors in D3 as well. 15. Plaintiff, BFMC INVESTMENT, LLC (hereinafter, "BFMC"), is a Florida limited liability company with its principal place of business in Broward County, Florida On or about October 2009, BFMC invested $2,400,000.00 into the Ponzi scheme. PaRe 6 of 289 EFTA01084935 Razorback Funding, LLC, a aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (I.9) Amended Complaint The Defendants - Principal Conspirators 16. Scott W. Rothstein, Esq. (hereinafter, "Rothstein") is an individual residing in Broward County, Florida and, at all times relevant hereto, was one of Rothstein, Rosenfeldt Adler, P.A.'s founders, its managing partner and CEO. Rothstein is the principal organizer of the Ponzi scheme. 17. Non-party RRA is a Florida professional association with its principal place of business in Broward County, Florida. RRA was used as the front to this elaborate Ponzi scheme, serving as the purported law firm representing putative plaintiffs in connection with their pre-suit, confidential settlements. RRA's trust accounts were allegedly used to receive the putative defendants' settlement funds and used to receive investor payments._Rothstein and RRA are collectively referred to as the "Principal Conspirators". The Defendants - Co-Conspirators TD Bank Defendants 18. TD Bank is a foreign national banking association registered to do business in Florida. 'ID Bank maintains substantial contact with Florida through its multiple branches throughout the state. 'ID Bank was the financial epicenter of the Ponzi scheme. Among other things, TD Bank conspired, induced, and facilitated the Principal Conspirators' deceptive practices, allowing Principal Conspirators to divert hundreds of millions of investor dollars through TD Bank accounts. 19. FRANK SPINOSA (hereinafter, "Spinosa"), is an individual residing in Broward County, Florida and, at all times relevant hereto, was a senior vice-president of operations for 'ID Bank. Spinosa participated in the scheme by, among other things, meeting with investors, verifying PaRe 7 of 289 EFTA01084936 Razorback Funding, LLC, a aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (19) Amended Complaint account statements and providing investors with purported irrevocable "lock letters" securing investor funds. 2O. JENNIFER KERS 1E1 1 hR (hereinafter, "Kerstetter"), is an individual residing in Broward County, Florida and, at all times relevant hereto, was an assistant manager for TD Bank. Kerstetter participated in the scheme by, among other things, meeting with investors, verifying account statements, and providing investors with purported irrevocable "lock letters" securing investor funds. 21. ROSEANNE CARETSKY (hereinafter, "Caretsky"), is an individual residing in Broward County, Florida, and, at all times relevant hereto, was an assistant vice president and branch manager for TD Bank. Caretsky participated in the scheme by, among other things, meeting with investors, verifying account statements, and providing investors with purported irrevocable "lock letters" securing investor funds. RRA Defendants 22. DAVID BODEN (hereinafter, "Boden"), is an individual residing in Fort Lauderdale, Florida and, at all times relevant hereto, was a partner and general counsel for RRA. Boden was Rothstein's "right-hand man" and an essential participant in the scheme by, among other things, recruiting and soliciting investors and drafting documents to induce investors into funding the settlement while having actual and/or constructive knowledge that the investments were part of a Ponzi scheme. 23. DEBRA E. VILLEGAS (hereinafter, "Villegas"), is an individual residing in Broward County, Florida and, at all times relevant hereto, was the chief operating officer at RRA. Villegas, Rothstein's number two at RRA, participated in the scheme by, among other things, PaRe 8 of 289 EFTA01084937 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint furnishing false bank account statements and wire transfers to investors for the purpose of inducing investor funding despite having actual or constructive knowledge that the investments were a Ponzi scheme. 24. ANDREW BARNETT (hereinafter, "Barnett"), is an individual residing in Broward County, Florida and, at all times relevant hereto, was the Director of Corporate Development for RRA. Barnett, participated in the scheme by, among other things, recruiting, soliciting and inducing investor funding despite having actual or constructive knowledge that the investments were a Ponzi scheme. 25. IRENE STAY (hereinafter, "Stay"), is an individual residing in Broward County, Florida and, at all times relevant hereto, was the chief financial officer of RRA. Stay participated in the scheme by furnishing investors with falsified bank account statements and wire transfer confirmations used to induce investor funding despite having actual or constructive knowledge that the investments were a Ponzi scheme. Banyon Defendants 26. GEORGE G. LEVIN (hereinafter, "Levin"), is an individual residing in Broward County, Florida and, at all times relevant hereto, was the chief executive officer of Banyon USVI, LLC and Banyon Income Fund. Levin who previously owned and operated GGL Industries. Inc. d/b/a Classic Motor Carriages, a company convicted of federal fraud charges. actively participated in the scheme by. among other things. recruiting. inducing and securing investor funding despite having actual or constructive knowledge that the investments were a Ponzi scheme. 27. FRANK J. PREVE (hereinafter, "Preve"), is an individual residing in Broward County, Florida and, at all times relevant hereto, was the chief operating officer or agent of Banyon Palle 9 of 289 EFTA01084938 Razorback Funding, LLC, a aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (19) Amended Complaint USVI, LLC and Banyon Income Fund who maintained an office at RRA. Preve, a convicted bank fraud and embezzlement felon2 participated in the scheme by, among other things, recruiting, inducing and securing investor funding despite having actual or constructive knowledge that the investments were a Ponzi scheme. 28. BANYON INCOME FUND. L.P. (hereinafter. "BIM. is a Delaware limited partnership which Levin and Preve operated as a putative investment entity to purchase the Ponzi scheme settlements with investor funds. 29. BANYON USVI. LLC (hereinafter. "Banyon USVI"), is a Delaware limited liability company which Levin and Preve operated as a putative investment entity to purchase the Ponzi scheme settlements with investor funds. Onyx Defendants 30. MICHAEL SZAFRANSKI (hereinafter, "Szafranski"). is an individual residing in Miami-Dade County. Florida and, at all times relevant hereto, was the president of Onyx Options Consultants Corporation and who maintained an office inside RRA. Szafranski was hired as an "independent" third-party on behalf of BIF, Banyon USVI, Razorback and D3 tasked with verifying critical aspects of the purported investment deals. Specifically, Szafranski was the only person authorized to analyze unredacted settlement documents, to confirm the Principal Conspirators' finances through TD Bank and to offer an opinion as to the authenticity of the settlement deals. Szafranski participated in the scheme by. among other things. making material misrepresentations 2 Frank Preve plead guilty to bank embezzlement charges in 1985 and received ten (10) years probation and a $10,000.00 fine for falsifying loan documents in connection with a scheme that resulted in losses exceeding $2,300,000.00. Page 10 of 289 EFTA01084939 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint false verifications and actively inducing investor funding despite having actual or constructive knowledge that the investments were a Ponzi scheme. 31. ONYX OPTIONS CONSULTANTS CORPORATION d/b/a/ ONYX CAPITAL MANAGEMENT (hereinafter, "Onyx"), is a Florida limited liability company which Szafranski owns and operates as a third-party verifier and putative investment entity employed to facilitate and induce investor funding into the Ponzi scheme. CPA Defendant 32. BERENFELD SPRITZER SHECHTER SHEER, CPA'S LLP (hereinafter, "Berenfeld"). is a Florida limited liability partnership who, at all times relevant hereto, served as the auditing firm for BIF and Banyon USVI and as the accounting firm for RRA. Berenfeld participated in the scheme by, among other things conspiring, inducing, and facilitating the Principal Conspirators' deceptive practices. by providing audited financial statements which purported to authenticate hundreds of millions of dollars of false receivables, allowing Principal Conspirators to perpetrate a fraud. Page 11 of 289 EFTA01084940 Razorback Funding, LLC, et aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (19) Amended Complaint The Ponzi Scheme The Rothstein Facade 33. From humble beginnings in 2003, Rothstein built RRA into one of the fastest growing Florida-based law firms. Under Rothstein's stewardship, RRA grew from seven attorneys to over seventy and amassed over two hundred and fifty in staff. Along with its dramatic growth in size, RRA rapidly emerged as a legal, political and philanthropic powerhouse. 34. Not surprisingly, Rothstein amassed an enormous portfolio of assets including more than sixteen real estate properties, twenty-five cars, an eighty-seven foot yacht, and various interests in a myriad of businesses ranging from watches to restaurants to vodka. See a list of Rothstein's assets seized by the federal government along with estimates of their value attached hereto as Exhibit "A-1." 35. Rothstein lived lavishly and spent prolifically--critical components necessary to set his scheme in motion. 36. With RRA's tireless marketing efforts and meteoric rise into prominence, Rothstein quickly made forays into preeminent social circles, rubbing elbows with high net- worth individuals and political luminaries, the perfect breeding grounds to lure wealthy investors. His plot was up and running. The Plan 37. Rothstein seized upon his new found stature to entice investors into what would eventually become a Ponzi scheme using his budding employment and labor practice at RRA as his conduit. Page 12 of 289 EFTA01084941 Razorback Funding, LLC, et aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (19) Amended Complaint 38. The scheme was predicated on the Principal Conspirators self-professed pipeline of pm-suit, confidential settlement agreements as the "preeminent sexual harassment and labor employment law firm in the country." Investors were told that the Principal Conspirators had an extensive in-house private investigative team, including former F.B.I. and C.I.A. agents, whose singular task was to obtain compromising evidence against high-profile putative defendants. Rothstein's story was that the evidence and surveillance acquired, often supporting civil causes of action ranging from sexual harassment to mass tort cover-ups to whistle-blower claims, was presented to the putative defendant who was then offered an opportunity to avoid litigation and the negative publicity associated therewith by agreeing to resolve the matter voluntarily by and through a confidential settlement with the putative plaintiff. 39. Once the putative defendant agreed, the confidential settlement always included two main ingredients: (1) that structured payments to a putative plaintiff be made over time, generally a three to nine month time period; and (2) that the putative defendant would fund the entire settlement up front to be held in RRA's TD Bank trust account and disbursed to the putative plaintiff in accordance with the terms of the confidential settlement agreement. The Pitch 40. Rothstein informed investors that the putative plaintiffs did not want to wait for the structured monthly payouts and would agree to assign their rights to the structured payout for a lump-sum payment typically at a discount in the range of 20-40% of the settlements' face- value. _Rothstein always had a plethora of plausible explanations as to why a putative plaintiff wanted their money now and simply could not wait for the structured monthly payments. Page 13 of 289 EFTA01084942 Razorback Funding, LLC,et aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (19) Amended Complaint 41. Rothstein claimed to want nothing from the deal and was only presenting the "opportunity" for a putative plaintiff's benefit and to facilitate recovery of RRA's contingent fee. Notwithstanding, Rothstein would often boast that if not for his professional and legal conflicts he would be the one purchasing these assignments. 42. As a means to induce investor action, Rothstein would show investors the purported settlement agreement in an attempt to substantiate the deal; however, because the settlements were pre-suit and confidential, the names of the putative plaintiffs and putative defendants were redacted. 43. Additionally, the Principal Conspirators would provide: (1) confirmation of RRA's trust account balance at TD Bank evidencing the putative defendants fully funded settlement proceeds; (2) a "lock letter", drafted and executed by a TD Bank executive, irrevocably confirming that the respective settlement proceeds in RRA's trust account could only be paid directly to the investor's designated account which, in most cases, was an account at TD Bank; and (3) opportunities for an independent third-party verifier to authenticate the underlying settlement, assignment and funding of settlement proceeds. 44. Notably, Rothstein was hyper-vigilant regarding access to RRA accounts under the guise of confidentiality. In fact, potential investors could only access TD Bank account information in one of two ways. Either Rothstein would invite the investor to his office to view the online balance provided by himself or Stay3 or, he would "authorize" TD Bank to provide copies of account statements and wire transfers prepared and delivered by TD Bank executives See Exhibit "W" infra, which is an October 6 2009 on-line screen shot of RRA's TD Bank accounts accessed (logged in) by Irene Shannon which is Irene Stay's maiden name. ("Welcome. Irene Shannon! You last logged in on Tuesday, October 06.2009 4:37 PM.") Page 14 of 289 EFTA01084943 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint Spinosa, Kerstetter and Caretsky. On numerous occasions, TD Bank vice-president Spinosa, assistant manager Kerstetter, and assistant vice president Caretsky, physically handed the trust account statement to Rothstein in the immediate presence of an investor. 45. As the final piece to persuade an investment, Rothstein would offer to personally guaranty the transaction. This personal guaranty, secured by the significant assets (as discussed, supra), was a vital component which tacitly lent credibility and security to the transaction. 46. Once an investor was interested, the Principal Conspirators, in conjunction with Boden, drafted an agreement for the assignment of the settlement agreement and proceeds. 47. Upon execution of the assignment, the investor would wire transfer to RRA's trust account the lump sum payment for immediate disbursement to the putative plaintiff. Thereafter, RRA was obligated to make payment from the funds previously verified and held in RRA's trust account at TD Bank directly to the investor's lock letter trust account at TD Bank in strict accordance with the terms of the purported settlement agreement. Page 15 of 289 EFTA01084944 Razorback Funding, LLC, et aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (l9) Amended Complaint Ponzi Scheme In Action Fabricated Settlements Premised on Real Cases 48. In certain instances, the purported settlements, albeit fraudulent, were based on actual cases being handled by RRA. For example, one of the settlements involved herein was based upon facts surrounding Jeffrey Epstein, the infamous billionaire financier. In fact, RRA did have inside information due to its representation of one of Epstein's alleged victims in a civil case styled Jane Doe v. Jeffrey Esptein, pending in the Southern District of Florida. Representatives of D3 were offered "the opportunity" to invest in a pre-suit $30,000,000.00, court settlement against Epstein arising from the same set of operative facts as the Jane Doe case, but involving a different underage female plaintiff. See e-mail dated October 6, 2009 referencing Epstein which is attached hereto and incorporate herein as Exhibit "B." To augment his concocted story Rothstein invited D3 to his office to view the thirteen banker's boxes of actual case files in Jane Doe in order to demonstrate that the claims against Epstein were legitimate and that the evidence against Epstein was real. In particular, Rothstein claimed that his investigative team discovered that there were high-profile witnesses onboard Epstein's private jet where some of the alleged sexual assaults took place and showed D3 copies of a flight log purportedly containing names of celebrities, dignitaries and international figures. Because of these potentially explosive facts, putative defendant Epstein had allegedly offered $200,000,000.00 for settlement of the claims held by various young women who were his victims. Adding fuel to the fire, the investigative team representative privately told a D3 representative that they found three additional claimants which Rothstein did not yet know about. Page 16 of 289 EFTA01084945 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint Further, Preve was present for this meeting, despite the fact that he was not involved as an investor or representative in the D3 deal. 49. Additionally, Rothstein used RRA's representation in the Epstein case to pursue issues and evidence unrelated to the underlying litigation but which was potentially beneficial to lure investors into the Ponzi scheme. For instance, RRA relentlessly pursued flight data and passenger manifests regarding flights Epstein took with other famous individuals knowing full well that no under age women were on board and no illicit activities took place. RRA also inappropriately attempted to take the depositions of these celebrities in a deliberate effort to bolster Rothstein's lies. 50. Conspicuously, and contrary to Banyon's allegations's, Preve and Szafranski shared an office at RRA one floor down from Rothstein providing them access to Rothstein to assist in the furtherance of the Ponzi scheme. This fact helps explain why Preve attended the aforementioned D3 meeting despite his lack of involvement as an investor or representative. 51. Another actual case which Rothstein attempted to use as a false predicate for his scheme was a mass tort case against Chiquita Brands International. In this instance, Rothstein claimed to be representing plaintiffs in 450 wrongful death cases on the verge of settling for $2,000,000.00 each. Rothstein told investors to begin raising funds in order to purchase this settlement. See e-mail dated October 14, 2009 referencing Chiquita which is attached hereto and incorporated herein as Exhibit "C." While the cases against Chiquita are real, Rothstein did not represent any of the plaintiffs and the cases remain pending. In a November 23. 2009. "Confidential Update From Banyon". Levin erroneously alleges that *The allegation that Mr. Preve had an office at the Rothstein law firm, or that he may have helped the Rothstein firm to mislead potential investors is a total lie. Period." Page 17 of 289 EFTA01084946 Razorback Funding, LLC, et aL, v. TD Bank N.A., et Case No.: 09-062943 (19) Amended Complaint Plaintiffs' Investments: I. Banyon Income Fund 52. BIF was formed in May 2009, and served as an original feeder fund for the Principal Conspirators settlement deals. 53. According to the offering materials provided by Levin and Preve BIF's stated investment goal was to purchase: discount settlements and related periodic revenue stream from individual plaintiffs who have settled their labor and employment related lawsuits or claims, and who would otherwise receive their settlement amounts over a period of time. The purchased settlements are secured by the full settlement amounts which will have been deposited in a trust account established by the plaintiff's attorney for the benefit of the plaintiff prior to purchase by Banyon Income Fund, LP. These settlements are released to Banyon Income Fund, LP over time to liquidate the purchased settlement. See Confidential Offering Memorandum dated April 30, 2009, a copy of which is attached hereto and incorporated herein as Composite Exhibit "D." 54. Not coincidentally, BIF's investment strategy is identical to the purported investment vehicle offered by the Principal Conspirators at the center of the Ponzi scheme. 55. In fact, the Confidential Offering Memorandum avers that "folnce a structure of formal documentation was put in place and a relationship established with Rothstein. the General Partner was able to achieve a large ramp up in business volume . . . [which.' have stabilized at Approximately $60.000.000 - $75,000,000 in funded business per month," and that the "fflunding for these activities has come from credit facilities with institutional hedge fund lenders as well as the personal capital of Mr. Levin." Id. Page 18 of 289 EFTA01084947 Razorback Funding, LLC, et aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (19) Amended Complaint 56. Significantly. Banyon's Confidential Offering Memorandum relies heavily upon an audited financial statement prepared by Berenfeld which purportedly details Banyon's staggerin growth and astounding returns verifying . inter dia, that: a. Levin, by and through Banyon affiliated companies, was doing as much as $75,000,000.00 in business a month with Rothstein• b. Through March 2009, Banyon affiliated companies purchased over $1.1 billion dollars worth of legal settlements from Rothstein for a cost of $657,000,000.00: c. By the end of March 2009, the Banyon affiliated companies had realized over $531,000,000.00 million in returns: and d. Banyon affiliated companies listed receivables in excess of $559,000,000.00 from pending settlements investments. See id 57. BIF's Confidential Offering Memorandum provided investors a window into the Principal Conspirators' house of cards, as the hedge fund was just one of the investment consortiums feeding the Ponzi scheme's voracious appetite. 58. All or substantially all of BIF's assets were funneled into the Principal Conspirators' scheme which served as rocket fuel blasting the obscure investment vehicle to dizzying heights. Page 19 of 289 EFTA01084948 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 59. In the spring of 2009, Barry Bekkedam from Ballamor Capital Management, LLC (hereinafter, "Ballamor")5 and promoter of ELF, met Doug Von Allmen (D&L Partners) to discuss D&L Partners' participation in ELF. 60. During that discussion, Mr. Von Allmen learned that ELF was started by Levin, a professed mentor and confidant of Rothstein, and that the settlements ELF was purchasing were through an exclusive arrangement negotiated between Rothstein and Levin on behalf of BIF. 61. Mr. Von Allmen was told by Mr. Bekkedam that Levin was personally worth in excess of $400,000,000.00 and would personally guarantee the settlements. 62. Additionally, Mr. Bekkedam told Mr. Von Allmen that the settlements were already fully-funded in the attorneys' trust accounts, that a "Big Four's auditing firm would verify them quarterly, and that Ballamor had continuous unfettered access to the trust account balances and would oversee Banyon's hiring of an independent verifier to monitor and confirm the settlement transaction. 63. Finally, Mr. Von Allmen was told by Mr. Bekkedam that it would take two signatures to move the money, one of which would be someone from BM. 64. In reliance on these purported security and verification procedures, on or about May 4. 2009. Mr. Von Allmen (through D&L Partners) and his wife Linda Von Allmen (through Dynasty Trust) first wired ELF funds: approximately one month later, his son and daughter-in-law David and Ann Von Allmen (through the DVA Trust and AVA Trust) and his step-son, Dean s Ballamor Capital Management, LLC is an S.E.C. registered investment advisor specializing in managing investments on behalf of high and ultra-high net worth individuals 6 As it turns out, the - Big Four" accounting firm referenced was Berenfeld. Page 20 of 289 EFTA01084949 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l9) Amended Complaint Kretsclunar (collectively referred to herein as "Banyon Investors") also funded investments as directed by Ballamor and Mr. Bekkedam. 65. Prior to investing, each Banyon Investor received a 'The aforementioned Confidential Offering Memorandum describing the terms and conditions of the investment structure in greater detail. See Composite Exhibit "1)." 66. Significantly, the Confidential Offering Memorandum provided that a receipt of the putative defendant's wire transfer of the full settlement proceeds into RRA's trust account would be verified by an independent third party (see Szafranski, infra). Id. 67. Additionally, the Banyon Investors were assured that in cooperation with TD Bank executives (which turned out to be Spinosa, Kerstetter and Caretsky), that BIF's third-party verifier would have online access to banking records for each deposit account and admission into all records related to the purchased settlements and settlement trust accounts. Id. 68. Furthermore, the Memorandum states that while "Ballamor will receive no compensation for its participation or investment recommendation . . . George Levin has an greement in principle with Ballamor and its principal, Barry R. Bekkedam, with respect to an equity investment in Ballamor by Mr. Levin and a loan to Mr. Beklcedam, the final terms of which have not been determined."' Id. 69. Szafranski, president of Onyx Capital Management, acted as an the designated independent, third-party verifier for the Banyon Investors and BIF. Prior to and during the course of 7 In fact we now know that Ballamor and Mr. Bekkedam received $5.000.000.00 from Levin for their involvement in this Ponzi scheme along with a $18,000,000.00 investment through Ballamor into Nova Bank. a Pennsylvania bank. Page 21 of 289 EFTA01084950 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint his investigation, Szafranski obtained the following information demonstrative of TD Bank's involvement: a. October 29, 2008 letter signed by Caretsky, assistant branch manager with Commerce Banks enclosing three trust account statements for RRA: (1) account number containing $166,922,339.00; (2) account number containing $40,125,685.44; and (3) account number containing $348,229,463.21. All three trust account statements for RRA are attached hereto and incorporated herein as Composite Exhibit b. March 20, 2009 letter signed by Kerstetter an assistant manager for TD Bank enclosing three trust account statement for RRA: (1) account number showing a balance of $104,211,711.22; (2) account number showing a balance of $368,333,133.20; and (3) account number showing a balance of $110,331,563.13. All three account statements referenced are attached hereto and incorporated herein as Composite Exhibit "F." c. April 17, 2009 letter signed by Caretsky as a TD Bank Assistant Vice President, enclosing RRA trust account statement for: (1) account number showing a balance of $61,117,111; (2) RRA trust account statement for account number 6860755104 showing a balance of $80,978,935.31; (3) RRA trust account statement for account number showing a balance of $136,122,322.87; (4) RRA trust account statement for account number showing a balance of $198,644,311.13; and (5) RRA trust account statement for account number showing a balance of $483,668,999.39. All five trust account 8 Commerce Bank was a predecessor in interest to TD Bank as a result of T-D-Benkls-3 -7-1411ion-perehtie ef--GOOIMe+Ge-Bankria-March 2008 purchase. Page 22 of 289 EFTA01084951 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint statements referenced are attached hereto and incorporated herein as Composite Exhibit "G." d. June 22, 2009 Commerce Bank wire transfer to RRA trust account ending x- 0923 in the amount of $1,957,500.00 and purporting to be a funded settlement, a copy of which is attached hereto and incorporated herein as Exhibit "If'; e. June 22, 2009 Commerce Bank wire transfer to RRA trust account ending x- 0923 in the amount of $2,680,000.00 and purporting to be a funded settlement , a copy of which is attached hereto and incorporated herein as Exhibit "I"; f. June 22, 2009 Commerce Bank wire transfer to RRA trust account ending x- 0923 in the amount of $695,000.00 and purporting to be a funded settlement, a copy of which is attached hereto and incorporated herein as Exhibit "J"; g. June 30, 2009 Commerce Bank wire transfer to RRA trust account ending x- 0923 in the amount of $2,208,000.00 and purporting to be a funded settlement , a copy of which is attached hereto and incorporated herein as Exhibit "K"; h. July 1, 2009 Commerce Bank wire transfer to RRA trust account ending x- 0923 in the amount of $6,072,000.00 and purporting to be a funded settlement , a copy of which is attached hereto and incorporated herein as Exhibit "L"; i. July 13, 2009 letter signed by Kerstetter from TD Bank enclosing RRA trust account statement for account number showing a balance of $14,286,000.00, a copy of which is attached hereto and incorporated herein as Composite Exhibit "M"; and j. July 17, 2009 TD Bank wire transfer to RRA trust account ending x-0923 in the amount of $22,348,221.00 and purporting to be a funded settlement, a copy of which is attached hereto and incorporated herein as Exhibit "N"; Page 23 of 289 EFTA01084952 Razorback Funding, LLC, a aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (19) Amended Complaint 70. In reliance on the foregoing as confirmed by Szafranski, the Banyon Investors collectively invested $60 550,000.00 into RIF and into the Ponzi scheme. 2. Razorback Funding, LLC 71. Razorback was formed September 24, 2009 for purposes of investing in two RRA settlements: (1) a $40,600,000.00 structured settlement, payable in four equal monthly installments, offered in exchange for a lump sum payment of $23,200,000.00; and (2) a $26,100,000.00 structured settlement, payable in three equal monthly installments, offered in exchange for a lump sum payment of $17,400,000.00. See Confidential Settlement Agreements and Releases which are attached hereto and incorporated herein as Composite Exhibit "O." 72. In particular, the deal was structured so Razorback would fund $32,000,000.00 towards the purchase of these settlements by means of a loan to Banyon USVI, LW. Banyon USVI in turn would contribute $8,600,000.00 to purchase the settlement proceeds from the Principal Conspirators. See Acknowledgement of AssignmenUPurchase of Settlement Proceeds and Sale and Transfer Agreements which is attached hereto and incorporated herein as Composite Exhibit "P." 73. On or about September 18, 2009, as part of its due diligence, Razorback obtained a copy of a TD Bank "lock letter" signed by Spinosa used in a prior deal. See September 18, 2009 lock letter from TD Bank which is attached hereto and incorporated herein as Exhibit "Q." The lock letter indicates that TD Bank had been irrevocably instructed to pay the fund identified in a particular RRA trust account only to the investor's bank account. 74. On October 1, 2009, Szafranski, who was utilized as the independent reviewer for Razorback as well met with Rothstein to review and verify all of the documents supporting the Page 24 of 289 EFTA01084953 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l9) Amended Complaint Razorback deal. In that meeting, Szafranski purportedly witnessed Rothstein sign on to the 'ID Bank on-line banking website and verified that all of the wire transfers for the underlying Razorback settlement deals had been received by RRA and were held in RRA's trust account ending in x-1356. A copy of the October 1, 2009 email from Szafranski verifying the above- referenced account is attached hereto and incorporated herein as Exhibit "R." 75. Szafranski also verified that a "lock letter" had been received by Spinosa as Regional Vice President of ID Bank dated October 1, 2009 stating the following: Pursuant to your written instructions to us of September 30, 2009, please be advised that all funds contained in the above referenced account shall only be distributed upon your or Stuart Rosenfeldt's instruction and shall only be distributed to Banyon USVI (Del), LLV, do Razorback Funding, LLC, Debt & Equity Re-Payment Account: TD Bank, NA, 319 Glen Head Road, Old Brookville, NY, ABA: 026013673, Account # Your letter is understood not to convey ownership of the account or access to the account to any other party, but rather is meant to irrevocably restrict conveyances as follows: conveyances shall only be made from the account referenced above to the Banyon USVI account. See October 1, 2009 letter which is attached hereto and incorporated herein as Exhibit "S." 76. Spinosa e-mailed the "lock letter" to Rothstein earlier that day with a message stating that at Rothstein's "request and instructions, this account [RRA's trust account] has been irrevocably locked as to destination of all disbursements [which was Razorback's account, also at TD Bank]. The letter confirming same is attached. Please do not deposit any funds into this account that are not soley (sic) to be directed to the entity set forth in the irrevocable instruction." A copy of the October 1, 2009 email from Spinosa is attached hereto and incorporated herein as Exhibit "T." Page 25 of 289 EFTA01084954 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l9) Amended Complaint 77. Also on October 1, 2009, Razorback received copies of two wire transfers from Preve, a Banyon USVI representative, demonstrating that a total of $66,700,000.00 (the full settlement funding being purchased) had been received by RRA in its trust account with ID Bank. A copy of the October 1, 2009 wire transfers is attached hereto and incorporated herein as Composite Exhibit "U." 78. On the same day, Preve forwarded Razorback an email from Rothstein providing: (1) confirmation of Preve's purported $8,000,000.00 wire into RRA's trust account; and (2) that no disbursement on the deal would be made until he received the $32,000,000.00 from Razorback. A copy of the October 1, 2009 email from Rothstein is attached hereto and incorporated herein as Exhibit "V." 79. On October 3, 2009, Razorback attempted to contact Spinosa to verify the details of the lock letter. The Razorback representative was unable to reach Spinosa but did receive confirmation from Spinosa's assistant that she prepared the lock letter and that Spinosa signed it. 80. On October 7, 2009, Razorback received an email from Preve which contained an on-line screen shot of an RRA trust account at ID Bank indicating a balance of $66,700,000.00. A copy of the TD Bank account screen shot is attached hereto as Exhibit "W." 81. Finally, on October 22, 2009, Szafranski met again with Rothstein and verified that all of the putative plaintiffs in the Razorback deals received their disbursements by reviewing TD Bank's on-line banking website. A copy of Szafranski October 22, 2009 confirming email is attached hereto and incorporated herein as Exhibit "X." 82. In reliance on the foregoing, Razorback transferred the sum of $32,000,000.00 to RRA's trust account. Page 26 of 289 EFTA01084955 Razorback Funding, LLC, a aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (19) Amended Complaint 3. D3 Capital Club, LLC 83. D3 was formed October 4, 2009 for purposes of investing in a $30,000,000.00 RRA structured settlement, payable in six equal monthly installments of $5,000,000.00, offered in exchange for $18,000,000.00. See Confidential Settlement Agreements and Releases which is attached hereto and incorporated herein as Composite Exhibit "Y." 84. A D3 representative, who was also a representative of Razorback's management team, had knowledge of and relied upon the contacts and representations made by TD Bank in connection with the Razorback transaction. 85. On or about October 15, 2009, as part of its due diligence, D3 obtained a copy of a TD Bank "lock letter" signed by Spinosa stating the following: Pursuant to your written instructions to us of October 14, 2009, please be advised that all funds contained in the above referenced account shall only be distributed upon your or Stuart Rosenfeldt's instruction and shall only be distributed to D3 Capital Club, LLC, 2833 NE 35th Court, Fort Lauderdale, FL, 33308, TD Bank NA, Account # 4245728568. Your letter is understood not to convey ownership of the account or access to the account to any other party, but rather is meant to irrevocably restrict conveyances as follows: conveyances shall only be made from the account referenced above to the 'I'D bank account # 4245728568 belonging to D3 Capital Club, LLC. See October 15, 2009 lock letter attached hereto and incorporated herein as Exhibit "Z." 86. On October 15, 2009, Spinosa signed another letter enclosing a copy of RRA's trust account bank statement showing a balance in excess of $30,000,000.00. See October 15, 2009 letter attached hereto and incorporated herein as Composite Exhibit "AA." 87. Furthermore, on October 15, 2009, Kerstetter drafted a letter to RRA enclosing a copy of RRA's trust account bank statement for the D3 settlement showing a balance in excess of Page 27 of 289 EFTA01084956 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint $30,000,000.00. This letter was personally delivered by Kerstetter to Rothstein in a D3 representative's presence while inside the TD Bank Fort Lauderdale branch. See October 15, 2009 letter attached hereto and incorporated herein as Exhibit "AA-1." Later that day, Kerstetter met again with that same D3 representative at a location outside of the bank in order to sign the paperwork to open a D3 account at TD Bank. 88. On October 16, 2009 and again on October 19, 2009, a D3 representative sent emails to Spinosa and Kerstetter advising that D3 had opened its account for purposes of doing business with RRA and asked about the mechanics of the irrevocable lock letter that D3 had with RRA account number 4246051629. A copy of the October 16, 2009 and October 19, 2009 emails are attached hereto and incorporated herein as Composite Exhibit "BB." 89. Spinosa responded to the October 19, 2009 email with a phone call to the D3 representative. During the conversation, the lock letter was acknowledged by Spinosa who refusedto provide any further details about the Principal Conspirators' accounts. 90. Finally, on October 19, 2009, Szafranski met with Rothstein and verified that the sum of $30,000,000.00 was wired from the putative defendant into the RRA trust account ending x- 1629. A copy of the October 19, 2009 email is attached hereto and incorporated herein as Exhibit "CC:' 91. In reliance on the foregoing, D3 transferred the sum of $13,500,000.00 to RRA's trust account. Page 28 of 289 EFTA01084957 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 4. BFMCInve.sintent, LLC 92. BFMC was formed in November 1998 to fund investment opportunities. 93. On September 28 2009, BFMC principal, Barry Florescue ("Florescue") met socially with Andrew Barnett ("Barnett"), Director of Corporate Development for RRA. 94. During this meeting, Bamett described his role at RRA and invited Florescue to meet Rothstein later that week to discuss a lucrative investment opportunity. Florescue was aware of Rothstein given Rothstein's prominence in the Fort Lauderdale business and social community, and a meeting was scheduled at RRA on September 30, 2009. 95. Florescue and his employee, Mark Seigel ("Seigel"), arrived in RRA's offices and were initially introduced to Boden. Coincidentally, Boden had, many years earlier, worked as a junior staff member with Florescue's corporate counsel and had actively worked on one of Florescue's previous financing transactions. 96. After several minutes, Boden and Barnett led Florescue and Seigel into Rothstein's private office. 97. After introductions, Rothstein described an investment opportunity involving purchasing various settlements with structured payments explaining as follows: a. RRA is a nationally recognized firm representing whistleblowers in whistleblower lawsuits against employers. RRA has specific expertise in a specific type of litigation called Qui Tam litigation, in which the defendant is also accused of defrauding the United States government. RRA became a magnet for Qui Tam cases following its success as co-counsel in a 2008 Eli Lilly Qui Tam case, which resulted in a $1 billion plus settlement. Page 29 of 289 EFTA01084958 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint b. RRA was currently representing whistleblower plaintiffs inside a Fortune 500 company that had allegedly defrauded the United States government. Citing confidentiality, Rothstein could not share the name of the defendant, but he described it as a large food conglomerate that had substituted cheaper ingredients into food supplies sold to the government under national contracts. Rothstein was rounding up dozens of whistleblowers inside the company who had been threatened by senior management to remain silent regarding the company's fraud. c. RRA had negotiated numerous settlements for $1,400,000.00 for various whistleblower clients, but the defendant insisted on paying the settlements out over four months. The plaintiffs wanted their cash up front. d. Rothstein explained that the putative plaintiffs were willing to take a large discount up front because: (i) they had a high degree of concern over whether defendant would attempt to prevent them from receiving payments after settling and, (ii) Rothstein explained in detail a legal concept called "privity" — plaintiff was "in privity" with the defendant which subjected their settlement to reversal by the federal government. Rothstein represented that a third party buyer of the settlement rights would not be subject to such reversal as the third party was not "in privity" with the defendant. e. The settlement documents were drafted and ready to be settled, but Rothstein needed to find an investor to fund the settlement. Rothstein explained that such a transaction was legal, because the settlement agreement had no "anti-assignment rights", but that any third party investor couldn't be given any details about the parties involved in the settlement, because it was by nature highly confidential and did contain strong confidentiality provisions. Page 30 of 289 EFTA01084959 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint f. Due to the fact that a "funder" could not be given any information about the case, the defendant, or the plaintiff, and given the fact that Rothstein needed a high degree of confidentiality about even the existence of the funding arrangement (in order to prevent defendants from explicitly prohibiting this type of arrangement going forward), Rothstein could only engage in such transaction with local friends with whom he trusted. g. RRA's clients were willing to accept $800,000.00 up front in exchange for their rights to the $1,400,000.00 settlement, payable over 4 months. h. Rothstein could not personally fund the structured settlements because it was illegal for him or his firm to profit from a structured settlement in which he represented the plaintiff. However, it was in his firm's interest to find a funder so that the firm could settle the case and get paid its contingency fee. i. Rothstein remarked that the transaction would be substantiated and verified, that he would provide evidence of the settlement in his office, and that he would get on the phone with Spinosa of TD Bank to confirm that the putative defendant's funds had been wired into a Florida Bar trust account with instructions to only release the funds in that account to the specified funder. 98. Upon concluding the meeting, Barnett walked Florescue and Seigel out to the elevator. During a debrief, Barnett revealed that the defendant was Dole Foods, which had knowingly supplied the U.S. Government with impure orange juice in a major juice contract that called for 100% pure orange juice. Barnett said that Rothstein had offered to sign a corporate and personal guaranty as a further inducement to make the investment. Page 31 of 289 EFTA01084960 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 99. Between September 30, 2009 and October 15, 2009, BFMC worked with their counsel and Boden on various transaction documents necessary to close the deal. 100. During the first week of October 2009, Florescue telephoned Spinosa, who Florescue knew professionally based on various banking activities previously engaged in, to inquire about Rothstein. Spinosa said that he could not talk about Rothstein without Rothstein's consent. 101. In early October, 2009, Boden finalized the deal documents for BFMC's investment in three identical RRA settlements: (1) a $1,400,000.00 structured settlement, payable in four equal monthly installments, offered in exchange for a lump sum payment of $800,000.00; (2) a second $1,400,000.00 structured settlement, payable in four equal monthly installments, offered in exchange for a lump sum payment of $800,000.00; and (3) a third $1,400,000.00 structured settlement, payable in four equal monthly installments, offered in exchange for a lump sum payment of $800,000.00. See correspondence from David Boden which is attached hereto and incorporated herein as Exhibit "DD." 102. BFMC's explicit understanding from Boden and Rothstein was that the putative defendant's funds were to be held in RRA's trust account and could only be released directly to BFMC's account pursuant to an irrevocable "lock letter." 103. On or about October 15, 2009, as part of its due diligence, BFMC obtained a copy of a m Bank "lock letter" signed by Spinosa stating that: [p]ursuant to your written instructions to us of October 14, 2009, please be advised that all funds contained in the above referenced account shall only be distributed upon your or Stuart Rosenfeldt's instruction and shall only be distributed to BB&T (RCA: Colonial Bank), Pompano Beach Branch # 32083, ABA# Page 32 of 289 EFTA01084961 Razorback Funding, LLC, a aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (191 Amended Complaint 062001319, for further credit to: BFMC Investment, LLC Account # Your letter is understood not to convey ownership of the account or access to the account to any other party, but rather is meant to irrevocably restrict conveyances as follows: conveyances shall only be made from the account referenced above to the BB&T (FICA: Colonial Bank) account # belonging to BFMC Investment, LLC. See October 15, 2009 lock letter attached hereto and incorporated herein as Exhibit “EE." 104. Later that day, and in reliance on the foregoing, BFMC wired $2,400,000.00 to RRA's TD Bank account number Implosion of Rothstein's Ponzi Scheme 105. In October 2009, the Ponzi scheme reached critical mass. October was a huge month for investor settlement redemptions and Rothstein knew that the influx of new investor capital could not satisfy all previous investor obligations. Sensing that the end was near, Rothstein began planning his escape. 106. On October 17, 2009, Rothstein sent a firm-wide e-mail at RRA asking for help to determine whether a "client" who is facing a multitude of criminal charges in the United States-- including fraud, money laundering and embezzlement--could be extradited to the United States or Israel from abroad after renouncing his United States citizenship. Rothstein's email asked for countries which did not have extradition treaties with the United States or Israel9 and concluded by stating that "[t]his client is related to a very powerful client of ours and so time is of the essence. Lets rock and roll... there is a very large fee attached to this case. Thanks Love ya 9 Not coincidentally Morocco, Rothstein's destination on October 27, 2009, was one of the countries that does not have an extradition treaty with either the United States or Israel, Page 33 of 289 EFTA01084962 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint Scott." See Sun-Sentinel article dated November 16, 2009 referencing the October 17, 2009 email which is attached hereto and incorporated herein as Exhibit "FF." Suffice it to say, Rothstein was the purported "client" and this is the first clear written indication that he knew his fate. 107. By the end of October 2009, Rothstein and RRA began to default on the investors' structured payments and the Ponzi scheme began to unravel. 108. On October 26, 2009 Linda Von Allmen spoke with Rothstein at Bova restaurant who, in between martinis, admitted that he was "having a bad day." Rothstein was joined by a woman and his bodyguard, believed to be Joe Alu, who may have witnessed this exchange. 109. On October 27. 2009, Richard Pearson, who had invested $18,000,000.00 in the Ponzi scheme, confronted Rothstein who was sitting with Spinosa inside of Bova restaurant. Pearson, in Spinosa's presence, demanded to know why he had not received two scheduled payments due to him the week prior. Rothstein attempted to diffuse the situation leaving Spinosa visibly shaken. 110. Shortly thereafter, Rothstein proceeded to methodically drain the TD Bank RRA accounts dry, depleting virtually all of the remaining investors' money as well as the money of many of the firms' clients. III. On the evening of October 27, 2009, Rothstein secretly boarded a private G-5 jet destined for Morocco, but not before completing a $16,000,000.00 wire transfer to a Moroccan bank. Page 34 of 289 EFTA01084963 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 112. By October 30, 2009, investors began to scramble desperately attempting to reach Rothstein for answers. Unbeknownst to them Rothstein was already gone, along with their investments, as the Ponzi scheme finally buckled under the pressure of obligations due. 113. Alarmed investors frantically reached out to RRA executives and attorneys begging for information as to the whereabouts of Rothstein and their more than $30,000,000.00 in overdue payments. Stuart Rosenfeldt (hereinafter, "Rosenfeldt") assembled a team including Boden. Stay and Grant Smith. at RRA to begin answering the deluge of investor calls by first confirming with Stay (RRA's C.F.O.) that RRA's operating and trust accounts contained more than $1 billion dollars. Shamefully, Stay refused to provide Rosenfeldt the confirmation requested. Growing ever agitated, Rosenfeldt and the others continued to press Stay demanding to know what was going on and that she produce current account statements. Eventually Stay relented and began inconsolably crying repeating the phrase. "I don't want to go to jail." Rosenfeldt proceeded to conference call Spinsoa who initially declined to provide account balance verification but after much cajoling finally informed Rosenfeldt that the RRA accounts had been almost completely depleted. Devastating Fallout 114. The velocity at which the Ponzi scheme cratered sent a sonic boom felt throughout the financial and legal world. 115. Reeling from its shameful missteps in connection with the Rothstein scandal, an emergency receiver was appointed for RRA on November 4, 2009 for the purpose of winding down its operations. Page 35 of 289 EFTA01084964 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 116. As the dust begins to settle, critical details have emerged revealing the scope and magnitude of this the nefarious scheme. By way of example Plaintiffs have discovered that: a. the entirety of Plaintiffs' more than $100,000,000.00 investment is gone; b. plaintiffs' "lock letter" accounts were never funded with the purported settlement money and contained only a nominal deposit of $100.00; c. even after Rothstein's October 27, 2009 departure to Morocco, millions of dollars continued to flow out of RRA accounts from the Fort Lauderdale TD Bank accounts, indicative of an insider(s) maintaining operations of the Ponzi scheme including, but not limited to: i. Shimon Levy $366,000.00 ii. Shimon Levy $287,500.00 iii. Onyx Capital $263,000.00 iv. Barbe Frank $240,000.00 v. Shimon Levy $225,000.00 vi. Obidia Levy $250,000.00 vii. Rachel Levy $50,000.00 viii. Daniel Minkowitz $225,000.00 ix. Benzion Varon $33,333.00 x. Dominic Ponatchio $280,000.00 xi. Daniel Minkowitz $200,000.00 xii. Daniel Minkowitz $100.000.00 xiii. Shimon Levy $366,666.00 xiv. Shimon Levy $337,500.00 xv. Onyx Capital $275,000.00 xvi. Obidia Levy $268,000.00 xvii. Obidia Levy $175,000.00 xviii. Moty Ban-Adon $132,000.00 xix. Benzion Varon $33,333.00 xx. Ahnick Kahlid $16,000,000.00 xxi. BWS Investments $300,000.00 xxii. Pirulin Group $300,000.00 xxiii. Condorde Capital $300,000.00 xxiv. National Financial $150,000.00; Page 36 of 289 EFTA01084965 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint d. in April 2009. $53.060.000.00 in credits and $51,560,000.00 in debits were transacted through four RRA trust accounts at TD Bank• e. in October 2009 $235,000,000.00 in credits and $232,000,000.00 in debits were transacted through the RRA accounts at TD Bank; f. the $8,000,000.00 wire transfer confirmation used by Preve and Rothstein to induce Razorback's $32,000,000.00 payment was in fact never received by RRA or 'I'D Bank; g. on November 1, 2009, Mel Lifshitz of DE Securities whose group invested nearly $100,000,000.00 into the Ponzi scheme, advised a group of investor' victims that he personally sat with Spinosa at TD Bank and verified investment account balances; h. during that same meeting. Levin informed the group that he reached out to Rothstein in Morocco letting him know that Banyon stood ready to provide shortfall financing if he was having trouble making payments. Astoundingly. Levin's revealing admission took the group by surprise because one of the core "deal" tenants insured against any possible deficit by requiring a putative defendant's settlement to be funded prior to an investors lump sum purchase. Thus, any shortfall, even the smallest one, is patently contrary to the investment structure and obvious evidence that the monies are either being misused or are a part of a Ponzi scheme. 10 The group of investors attending the November 1.2009 meeting include: Dean Kretschmar. Ted Morse Ed Morse. Richard Pearson. Ira Sachet. Mel Lifshitz. AJ Discala. Mac Melvin. Mark Nordlicht. Jack Simony. Steve Jackel. Laurence King. Steve Levin. George Levin. Frank Preve. Barry Bekkedam. and Michael Szafranski. Page 37 of 289 EFTA01084966 Razorback Funding, LLC, et aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (19) Amended Complaint i. Plaintiffs now believe that Levin's statement was a thinly-veiled attempt to cover his tracks after Rothstein rejected Levin's last-ditch efforts to persuade Rothstein to keep the Ponzi scheme going. In support, Plaintiffs rely on a October 31, 2009 email from Preve to Rothstein stating that "We f Levin and Preve) understand that the shortage is now 300m which is still manageable if we have your cooperation. Let me know," to which Rothstein responds. "Mat is not the shortage that is the amount of money needed to give the investors back their money. I really just need to end it frank. It will make it easier for everyone." (emphasis added). The attempt to try and "manage" the hole created now presumes that Levin and Preve had knowledge of a prior deficit and serves as an unwitting admission of their involvement in the perpetuation of the Ponzi scheme- j. sometime in the Spring or Summer of 2009, Ted Morse was personally provided with a written account balance statement by Caretsky at TD Bank; k. on July 27, 2009 Rothstein transferred a property with an assessed value of $407.750.00 to Villegas for "love and affection" and $100.00. Notwithstanding owning the property free and clear. Villegas who earned $250,000.00 a year, decided to pull $100,000.00 out of the property days prior to the IRS filing of a forfeiture in rem complaint against the property 1. Berenfeld's audited financial statements for the affiliated Banyon entities confirmed finance receivables of $517.404.505.00 due from RRA Page 38 of 289 EFTA01084967 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (191 Amended Complaint settlements worth more than $1.100.000,000.00. See Composite Exhibit As now discovered. these verified finance receivables were pure fiction. Incontrovertibly. Berenfeld either willfully participated in this fraud or knew or should have known as part of the audit process that the finance receivables were fabricated and incapable of being independently verify; m. Berenfeld's complicity in the Ponzi scheme is further compounded by their role as accountants for RRA and Rothstein and Rosenfeldt individually providing them with first-hand knowledge of the patent inconsistencies between Banyon's purported verified audited receivables and RRA's actual numbers; n. due to the vast complexity in maintaining the Ponzi scheme's fraudulent accounting, it is only sophisticated accountants could have accounted for "phantom" investments over a period of four years allowing the Principal Conspirators to generate falsified statements necessary to dupe investors; o. Ballamor and Mr. Bekkedam received a $5.000.000.00 "loan" from Levin for procuring investor funds along with a $18,000.000.00 investment through Ballamor into Nova Bank, a Pennsylvania bank: p. the TD Bank account statements provided and verified by Szafranski were completely fabricated and incapable of being confirmed. In most instances, there was either no money in the settlement accounts or the amounts contained were hundreds of millions less than what was Page 39 of 289 EFTA01084968 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint represented in the statements (see Comparison Chart of Actual Account Balances with Provided Deal Account Statements as attached hereto and incorporated herein as Composite Exhibit "GG."): and q. TD Bank either knew or certainly should have known of the criminality and/or gross irregularities of RRA's operations. Alternatively, TD Bank's actions and/or omissions in not conducting any due diligence inquiry into RRA's suspicious activities, unorthodox settlement structures, lack of supporting document and vigilant (if not obsessive) control over account access was either deliberate or reckless. 117. A Ponzi scheme cannot be operated without insider help. Plaintiffs believe that additional members of RRA, including its non-lawyer investigators, were used by Rothstein to perpetuate, promote and facilitate the Ponzi scheme. The details of these individuals or entities involvement and participation is presently unknown but further allegations and counts will be added as discovery is conducted and information concerning the complicity of these individuals or entities is confirmed. Jurisdiction and Venue 118. This court has jurisdiction over this matter as an action for damages in excess of $100,000,000.00 exclusive of attorneys' fees, costs and interest. 119. Venue is appropriate Broward County, Florida, pursuant to § 47.011, Fla. Stat., because the Defendants' reside in Broward County, Florida and the cause of action accrued in Broward County, Florida. 120. All conditions precedent, if any, have been met, waived or excused. Page 40 of 289 EFTA01084969 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 121. Plaintiffs have retained the undersigned firm and have agreed to pay it a reasonable fee. COUNT I1- FRAUDULENT MISREPRESENTATION (against Scott Rothstein) 122. Plaintiffs incorporate the allegations contained in paragraphs I through 447121 as if restated herein. 123. This is a claim for fraudulent misrepresentation. 124. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 125. In furtherance of the Ponzi scheme. Rothstein knowingly made material false statements and representations, including but not limited to representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 126. Rothstein intended the Banyon Investors to act on his knowingly false presentations. re 127. The Banyon Investors justifiably relied upon Rothstein's representations to their detriment. 128. As a direct and proximate result of Rothstein's false statements, The Banyon Investors have sustained damages. WHEREFORE. LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST-; D&L PARTNERS. LP;: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN Page 41 of 289 EFTA01084970 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint LIVING TRUST; and DEAN KRETSCHMAR request judgment against SCOTT ROTHSTEIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 112 - FRAUDULENT MISREPRESENTATION (against Jennifer Kerstetterl 129. Plaintiffs incorporate the allegations contained in paragraphs 1 through 40-7121 as if restated herein. 130. This is a claim for fraudulent misrepresentation. 131. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 132. In furtherance of the Ponzi scheme. Kerstetter knowingly made material false statements and representations including, but not limited to, supplying investors with false bank account statements. 133. Kerstetter intended the Banyon Investors to act on her knowingly false representations. 134. The Banyon Investors justifiably relied upon Kerstetter's representations to their detriment. 135. As a direct and proximate result of Kerstetter's false statements. the Banyon Investors have sustained damages. WHEREFORE, THE LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST-; D&L PARTNERS. LP;; DAVID VON ALLMEN, as Trustee of the DAVID Page 42 of 289 EFTA01084971 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against JENNIFER KERS 1E.11ER for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 1143 - FRAUDULENT MISREPRESENTATION (against Roseanne Caretskv) 136. Plaintiffs incorporate the allegations contained in paragraphs 1 through 4-07121 as if restated herein. 137. This is a claim for fraudulent misrepresentation. 138. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 139. In furtherance of the Ponzi scheme, Caretsky knowingly made material false statements and representations including, but not limited to. supplying investors with false bank account statements. 140. Caretsky intended the Banyon Investors to act on her knowingly false representations. 141. The Banyon Investors justifiably relied upon Caretsky's representations to their detriment. 142. As a direct and proximate result of Caretsky's false statements, the Banyon Investors have sustained damages. Page 43 of 289 EFTA01084972 Razorback Funding, LLC, et aL, v. TD Bank N.A., et aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. THE LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST-: D&L PARTNERS. LP;; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against ROSEANNE CARETSKY for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 44 of 289 EFTA01084973 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint COUNT I-V-4 - FRAUDULENT MISREPRESENTATION (against TD Bank, N.A.) 143. Plaintiffs incorporate the allegations contained in paragraphs I through 447121 as if restated herein. 144. This is a claim for fraudulent misrepresentation. 145. At all times material hereto, Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 146. At all times material hereto, Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 147. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 148. In furtherance of the Ponzi scheme, TD Bank, through Kerstetter and Caretsky, knowingly made material false statements and representations including, but not limited to, supplying investors with false bank account statements. 149. TD Bank. through Kerstetter and Caretsky, intended the Banyon Investors to act on their knowingly false representations. 150. The Banyon Investors justifiably relied upon TD Bank's through Kerstetter's and Caretsky's representations to their detriment. 151. As a direct and proximate result of TD Bank's, made through Kerstetter's and Caretsky's. false statements. the Banyon Investors have sustained damages. WHEREFORE. LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST;; D&L PARTNERS, LP,: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN Page 45 of 289 EFTA01084974 Razorback Funding, LLC, a aL, v. TD Bank N.A., a Case No.: 09-062943 (19) Amended Complaint LIVING TRUST: and DEAN KRETSCHMAR request judgment against TD BANK. N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT V5 - FRAUDULENT MISREPRESENTATION (against George G. Levin) 152. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 153. This is a claim for fraudulent misrepresentation. 154. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 155. In furtherance of the Ponzi scheme, Levin knowingly made material false statements and representations including, but not limited to, representing that the settlement areements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 156. Levin intended the Banyon Investors to act on his knowingly false representations. 157. The Banyon Investors justifiably relied upon Levin's representations to their detriment. 158. As a direct and proximate result of Levin's false statements, the Banyon Investors have sustained damages. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN Page 46 of 289 EFTA01084975 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint LIVING TRUST: and DEAN KRETSCHMAR request judgment against GEORGE LEVIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 6 - FRA DULENT MISREPRESENTATION (against Frank Preve) 159. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 160. This is a claim for fraudulent misrepresentation. 161. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 162. In furtherance of the Ponzi scheme. Preve knowingly made material false statements and representations including, but not limited to, representing that the settlement areements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 163. Preve intended the Banyon Investors to act on his knowingly false representations. 164. The Banyon Investors justifiably relied upon Preve's representations to their detriment. 165. As a direct and proximate result of Preve's false statements, the Banyon Investors have sustained damages. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN Page 47 of 289 EFTA01084976 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint LIVING TRUST: and DEAN KRETSCHMAR request judgment against FRANK PREVE for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 7 - FRAUDULENT MISREPRESENTATION (against Banvon Income Fund, LP, and Banyon USVI, LLC) 166. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 167. This is a claim for fraudulent misrepresentation. 168. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 169. At all times material hereto, Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 170. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 171. In furtherance of the Ponzi scheme. Banyon USVI and BIF. through Levin and Preve, knowingly made material false statements and representations including, but not limited to, representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 172. Banyon USVI and BIF, through Levin and Preve, intended the Banyon Investors to act on their knowingly false representations. 173. The Banyon Investors justifiably relied upon Banyon USVI's and BIF's. through Levin's and Preve's, representations to their detriment. Page 48 of 289 EFTA01084977 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 174. As a direct and proximate result of Banyon USVI's and BIF's. made through Levin's and Preve's. false statements and representations. the Banyon Investors have sustained damages. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against BANYON INCOME FUND, LP, and BANYON USVI, LLC., for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 8 - FRAUDULENT MISREPRESENTATION (against Michael Szfranski) 175. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 176. This is a claim for fraudulent misrepresentation. 177. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 178. In furtherance of the Ponzi scheme, Szfranski knowingly made material false statements and representations including, but not limited to. verifying false bank statements and deal documents. 179. Szfranski intended the Banyon Investors to act on his knowingly false representations. 180. The Banyon Investors justifiably relied upon Szfranski's representations to their detriment. Page 49 of 289 EFTA01084978 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 181. As a direct and proximate result of Szfranski's false statements, the Banyon Investors have sustained damages. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN ICRETSCHMAR request judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 9 - FRAUDULENT MISREPRESENTATION (against Onyx Capital Management) 182. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 183. This is a claim for fraudulent misrepresentation. 184. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. 185. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 186. In furtherance of the Ponzi scheme. Onyx. through Szfranski, knowingly material false statements and representations. including, but not limited to, verifying false bank statements and deal documents. 187. Onyx, through Szfranski, intended the Banyon Investors to act on its knowingly false representations. Page 50 of 289 EFTA01084979 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 188. The Banyon Investors justifiably relied upon Onyx's. through Szfranski's, representations to their detriment. 189. As a direct and proximate result of Onyx's, made through Szfranski's, false representations, the Banyon Investors have sustained damages. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN ICRETSCHMAR request judgment against ONYX CAPITAL MANAGEMENT, for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 10 - FRAUDULENT MISREPRESENTATION (against Berenfeld Spritzer Shechter Sheer. LLP) 190. Plaintiffs incorporate the allegations contained in paragraphs I through 121 as if restated herein. 191. This is a claim for fraudulent misrepresentation. 192. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 193. In furtherance of the Ponzi scheme. Berenfeld knowingly made material false statements and representations including, but not limited to. providing false auditing documents relating to Banyon and RRA. 194. Berenfeld intended the Banyon Investors to act on its knowingly false representations. Page 51 of 289 EFTA01084980 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 195. The Banyon Investors justifiably relied upon Berenfeld's representations to their detriment. 196. As a direct and proximate result of Berenfeld's false statements, the Banyon Investors have sustained damages. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN ICRETSCHMAR request judgment against BERENFELD SPRITZER SHECHTER SHEER, LLP, for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 11- NEGLIGENT MISREPRESENTATION (against Jennifer Kerstetter 197. Plaintiffs incorporate the allegations contained in paragraphs 1 through 447121 as if restated herein. 198. This is a claim for negligent misrepresentation. 199. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 200. In furtherance of the Ponzi scheme. Kerstetter made material false statements and representations including, but not limited to, supplying investors with false bank account statements. 201. When making the false statements and representations. Kerstetter either knew or reasonably should have known that they were false. Page 52 of 289 EFTA01084981 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 202. Kerstetter owed the Banyon Investors a duty of care because she knew or had reason to know that the Banyon Investors were placing trust and confidence in her and relying on her to inform them. 203. Kerstetter breached her duty to the Banyon investors Investors by making, false representations with the intention that the Banyon Investors rely on them. 204. The Banyon Investors justifiably relied upon Kerstetter's representations to their detriment. 205. As a direct and proximate result of Kerstetter's false statements, the Banyon Investors have sustained damages. WHEREFORE, LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST-; D&L PARTNERS. LP;: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against JENNIFER 1 11ER for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT V-112 - NEGLIGENT MISREPRESENTATION (against Roseanne Caretskv) 206. Plaintiffs incorporate the allegations contained in paragraphs I through 447121 as if restated herein. 207. This is a claim for negligent misrepresentation. 208. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. Page 53 of 289 EFTA01084982 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint 209. In furtherance of the Ponzi scheme, Caretsky made material false statements and representations. including, but not limited to. showing investors false statements of the amounts in RRA trust accounts. 210. When making the false statements and representations. Caretsky either knew or reasonably should have known that they were false. 211. Caretsky owed the Banyon Investors a duty of care because she knew or had reason to know that the Banyon Investors were placing trust and confidence in her and relying on her to inform them. 212. Caretsky breached her duty to the Banyon investors by making false presentations with the intention that the Banyon Investors rely on them. 213. As a direct and proximate result of Caretsky's false statements, the Banyon Investors have sustained damages. WHEREFORE. LINDA VON ALLMENT as Trustee of the VON ALLMEN DYNASTY TRUST,; D&L PARTNERS, LI1/4 DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against ROSEANNE CARETSKY for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 54 of 289 EFTA01084983 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT VII13 - NEGLIGENT MISREPRESENTATION (anainst TD Bank, N.A.) 214. Plaintiffs incorporate the allegations contained in paragraphs I through 447121 as if restated herein. 215. This is a claim for negligent misrepresentation. 216. At all times material hereto, Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 217. At all times material hereto, Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 218. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 219. In furtherance of the Ponzi scheme, TD Bank, through Kerstetter and Caretsky, made material false statements and representations. including, but not limited to. showing investors false statements of the amounts in RRA trust accounts. 220. When making the false statements and representations. TD Bank. through Kerstetter and Caretsky, either knew or reasonably should have known that they were false. 221. TD Bank owed the Banyon Investors a duty of care because it knew or had reason to know that the Banyon Investors were placing trust and confidence in it and relying on it to inform them. 222. TD Bank breached its duty to the Banyon Investors by making false representations, through Kerstetter and Caretsky, with the intention that the Banyon Investors rely on them. Page 55 of 289 EFTA01084984 Razorback Funding, LLC, er aL, v. TD Bank N.A., a al.. Case No.: 09-062943 (19) Amended Complaint 223. The Banyon Investors justifiably relied upon TD Bank's. through Kerstetter's and Caretsky's. representations to their detriment. 224. As a direct and proximate result of TD Bank's representations, made through Kerstetter and Caretsky, the Banyon Investors have sustained damages. WHEREFORE, LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST-; D&L PARTNERS. LP;: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against TD BANK, N.A., for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 441114 - NEGLIGENT MISREPRESENTATION (against George G. Levin) 225. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 226. This is a claim for negligent misrepresentation. 227. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 228. In furtherance of the Ponzi scheme, Levin made material false statements and representations including, but not limited to, representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 229. When making the false statements and representations, Levin either knew or reasonably should have known that they were false. Page 56 of 289 EFTA01084985 Razorback Funding, LLC, a aL, v. TD Bank N.A., a A. Case No.: 09-062943 (19) Amended Complaint 230. Levin owed the Banyon Investors a duty of care because he knew or had reason to know that the Banyon Investors were placing trust and confidence in him and relying on him to inform them. 231. Levin breached his duty to the Banyon investors by making false representations with the intention that the Banyon Investors rely on them. 232. The Banyon Investors justifiably relied upon Levin's representations to their detriment. 233. As a direct and proximate result of Levin's false statements, the Banyon Investors have sustained damages. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against GEORGE LEVIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 15 - NEGLIGENT MISREPRESENTATION (against Frank Preve) 234. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 235. This is a claim for negligent misrepresentation. 236. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. Page 57 of 289 EFTA01084986 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 237. In furtherance of the Ponzi scheme. Preve made material false statements and representations including, but not limited to. representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 238. When making the false statements and representations. Preve either knew or reasonably should have known that they were false. 239. Preve owed the Banyon Investors a duty of care because he knew or had reason to know that the Banyon Investors were placing trust and confidence in him and relying on him to inform them. 240. Preve breached his duty to the Banyon investors by making false representations with the intention that the Banyon Investors rely on them. 241. The Banyon Investors justifiably relied upon Preve's representations to their detriment. 242. As a direct and proximate result of Preve's false statements, the Banyon Investors have sustained damages. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST: D&L PARTNERS. LP; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against FRANK PREVE for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 58 of 289 EFTA01084987 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint COUNT 16 - NEGLIGENT MISREPRESENTATION (against Banvon Income Fund, LP, and Banvon USVhLLC) 243. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 244. This is a claim for negligent misrepresentation. 245. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 246. At all times material hereto. Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 247. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 248. In furtherance of the Ponzi scheme, Banyon USVI and BIF, through Levin and Preve. made material false statements and representations including, but not limited to, representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 249. When making the false statements and representations, Banyon USVI and BIF, through Levin and Preve, either knew or reasonably should have known that they were false. 250. Banyon USVI and BIF owed the Banyon Investors a duty of care because it knew or had reason to know that the Banyon Investors were placing trust and confidence in it and relying on it to inform them. 251. Banyon USVI and BIF breached its duty to the Banyon Investors by making false representations, through Levin and Preve, with the intention that the Banyon Investors rely on them. Page 59 of 289 EFTA01084988 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 252. The Banyon Investors justifiably relied upon Banyon USVI's and BIF's, through Levin's and Preve's, representations to their detriment. 253. As a direct and proximate result of Banyon USVI's and BIF's representations, made through Levin and Preve, the Banyon Investors have sustained damages. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against BANYON INCOME FUND, LP, and BANYON USVI, LLC., for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 17 - NEGLIGENT MISREPRESENTATION (against Michael Szfranski) 254. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 255. This is a claim for negligent misrepresentation. 256. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 257. In furtherance of the Ponzi scheme, Szfranski made material false statements and representations including. but not limited to. verifying false bank statements and deal documents. 258. When making the false statements and representations. Szfranski either knew or reasonably should have known that they were false. Page 60 of 289 EFTA01084989 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 259. Szfranski owed the Banyon Investors a duty of care because he knew or had reason to know that, as an independent verifier. the Banyon Investors were placing trust and confidence in him and relying on him to inform them. 260. Szfranski breached his duty to the Banyon investors by making false representations with the intention that the Banyon Investors rely on them. 261. The Banyon Investors justifiably relied upon Szfranski's representations to their detriment. 262. As a direct and proximate result of Szfranski's false statements, the Banyon Investors have sustained damages. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against MICHAEL SZFRANSKI for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 18 - NEGLIGENT MISREPRESENTATION (against Onyx Capital Management) 263. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 264. This is a claim for negligent misrepresentation. 265. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. Page 61 of 289 EFTA01084990 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 266. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 267. In furtherance of the Ponzi scheme, Onyx, through Szfranski, made material false statements and representations, including, but not limited to, verifying false bank statements and deal documents. 268. When making the false statements and representations, Onyx. through Szfranski either knew or reasonably should have known that they were false. 269. Onyx owed the Banyon Investors a duty of care because it knew or had reason to know that, as an independent verifier, the Banyon Investors were placing trust and confidence in it and relying on it to inform them. 270. Onyx breached its duty to the Banyon Investors by making false representations through Szfranski, with the intention that the Banyon Investors rely on them. 271. The Banyon Investors justifiably relied upon Onyx's, through Szfranski's, representations to their detriment. 272. As a direct and proximate result of Onyx's representations. made through Szfranski. the Banyon Investors have sustained damages. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN ICRETSCHMAR request judgment against ONYX CAPITAL MANAGEMENT for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 62 of 289 EFTA01084991 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l9) Amended Complaint COUNT 19 - NEGLIGENT MISREPRESENTATION (against Berenfeld Spritzer Shechter Sheer, LLP) 273. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 274. This is a claim for negligent misrepresentation. 275. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 276. In furtherance of the Ponzi scheme. Berenfeld made material false statements and representations including, but not limited to. providing false auditing documents relating to Banyon and RRA. 277. When making the false statements and representations, Berenfeld either knew or reasonably should have known that they were false. 278. Berenfeld owed the Banyon Investors a duty of care because it knew or had reason to know that, as an independent auditor, the Banyon Investors were placing trust and confidence in it and relying on it to inform them. 279. Berenfeld breached its duty to the Banyon investors by making false representations with the intention that the Banyon Investors rely on them. 280. The Banyon Investors justifiably relied upon Berenfeld's representations to their detriment. 281. As a direct and proximate result of Berenfeld's false statements. the Banyon Investors have sustained damages. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON Page 63 of 289 EFTA01084992 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN ICRETSCHMAR request judgment against BERENFELD SPRTI LER SHECHTER SHEER. LLP, for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 20 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Frank Spinosa) 282. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 283. This is a claim for aiding and abetting breach of fiduciary duty. 284. Spinosa was aware that as trustee of the attorney trust account where the Banyon Investors' purported settlement funds were deposited. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. Spinosa was also aware that as trustee of the attorney trust account containing the funds to which the Banyon Investors had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty. loyalty, and care to the Banyon Investors. 285. Spinosa was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to the Banyon Investors. 286. Spinosa actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors and his breaches of fiduciary duty. 287. Spinosa's actions have directly caused injury and damage to the Banyon Investors. Page 64 of 289 EFTA01084993 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST: D&L PARTNERS. LP: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 21- AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Jennifer Kerstetter) 288. Plaintiffs incorporate the allegations contained in paragraphs 1 through 4-04121 as if restated herein. 289. This is a claim for aiding and abetting breach of fiduciary duty. 290. Kerstetter was aware that as trustee of the attorney trust accounts where the Banyon Investors' purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty. and care to the Banyon Investors. Kerstetter was also aware that as trustee of the attorney trust accounts containing the funds to which the Banyon Investors had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. 291. Kerstetter was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to the Banyon Investors. 292. Kerstetter actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors and his breaches of fiduciary duty. Page 65 of 289 EFTA01084994 Razorback Funding, LLC, a aL, v. TD Bank N.A., a A. Case No.: 09-062943 (I.9) Amended Complaint 293. Kerstetter's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMENT as Trustee of the VON ALLMEN DYNASTY TRUST;; D&L PARTNERS, LP,: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against JENNIFER KERS ILI I ER for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 4X22 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Roseanne Caretskv) 294. Plaintiffs incorporate the allegations contained in paragraphs I through 44-7121 as if restated herein. 295. This is a claim for aiding and abetting breach of fiduciary duty. 296. Caretsky was aware that as trustee of the attorney trust accounts where the Banyon Investors' purported settlement funds were deposited. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. Caretsky was also aware that as trustee of the attorney trust accounts containing the funds to which the Banyon Investors had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. 297. Caretsky was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to the Banyon Investors. Page 66 of 289 EFTA01084995 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 298. Caretsky actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors and his breaches of fiduciary duty. 299. Caretsky's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST-; D&L PARTNERS. U T: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against ROSEANNE CARETSKY for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT X23 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against TD Bank. N.A.1 300. Plaintiffs incorporate the allegations contained in paragraphs I through 447121 as if restated herein. 301. This is a claim for aiding and abetting breach of fiduciary duty. 302. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 303. At all times material hereto. Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 304. TD Bank was aware that as trustee of the attorney trust accounts where the Banyon Investors' purported settlement funds were deposited. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. TD Bank was also aware that as trustee of the attorney trust accounts containing the funds to which the Banyon Investors had an exclusive Page 67 of 289 EFTA01084996 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. 305. TD Bank was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to the Banyon Investors. 306. TD Bank. through its employees acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors and his breaches of fiduciary duty. 307. TD Bank's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST;: D&L PARTNERS. LP;; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against TD BANK, N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XI24 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Debra Villegas) 308. Plaintiffs incorporate the allegations contained in paragraphs I through 40-7121 as if restated herein. 309. This is a claim for aiding and abetting breach of fiduciary duty. 310. Villegas was aware that as trustee of the attorney trust accounts where the Banyon Investors' purported settlement funds were deposited. Rothstein had fiduciary duties of honesty Page 68 of 289 EFTA01084997 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint loyalty, and care to the Banyon Investors. Villegas was also aware that as trustee of the attorney trust accounts containing the funds to which the Banyon Investors had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. 311. Villegas was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to the Banyon Investors. 312. Villegas actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors and his breaches of fiduciary duty. 313. Villegas's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN- as Trustee of the VON ALLMEN DYNASTY TRUST;; D&L PARTNERS. LP;: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against DEBRA VILLEGAS for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT X1125 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Irene Stav) 314. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 315. This is a claim for aiding and abetting breach of fiduciary duty. Page 69 of 289 EFTA01084998 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 316. Stay was aware that as trustee of the attorney trust accounts where the Banyon Investors' purported settlement funds were deposited. Rothstein had fiduciary duties of honesty loyalty, and care to the Banyon Investors. Stay was also aware that as trustee of the attorney trust accounts containing the funds to which the Banyon Investors had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. 317. Stay was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to the Banyon Investors. 318. Stay actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors and his breaches of fiduciary duty. 319. Stay's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against IRENE STAY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 26 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against George G. Levin) 320. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 321. This is a claim for aiding and abetting breach of fiduciary duty. Page 70 of 289 EFTA01084999 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 322. Levin was aware that as trustee of the attorney trust accounts where the Banyon Investors' purported settlement funds were deposited. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. Levin was also aware that as trustee of the attorney trust accounts containing the funds to which the Banyon Investors had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. 323. Levin was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to the Banyon Investors. 324. Levin actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors and his breaches of fiduciary duty. 325. Levin's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against GEORGE G. LEVIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 27 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY is a ainst tilk PreveI 326. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 327. This is a claim for aiding and abetting breach of fiduciary duty. Page 71 of 289 EFTA01085000 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 328. Preve was aware that as trustee of the attorney trust accounts where the Banyon Investors' purported settlement funds were deposited. Rothstein had fiduciary duties of honesty loyalty, and care to the Banyon Investors. Preve was also aware that as trustee of the attorney trust accounts containing the funds to which the Banyon Investors had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. 329. Preve was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to the Banyon Investors. 330. Preve actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors and his breaches of fiduciary duty. 331. Preve's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against FRANK PREVE for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 28 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Banvon Income Fund, LP, and Banvon USVI, LLC) 332. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 333. This is a claim for aiding and abetting breach of fiduciary duty. Page 72 of 289 EFTA01085001 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 334. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 335. At all times material hereto, Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 336. Banyon USVI and BIF were aware that as trustee of the attorney trust accounts where the Banyon Investors' purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty, and care to the Banyon Investors. Banyon USVI and BIF were also aware that as trustee of the attorney trust accounts containing the funds to which the Banyon Investors had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. 337. Banyon USVI and BIF were aware that Rothstein was financially exploiting the investors to their detriment, and were aware that Rothstein was breaching his fiduciary obligations to the Banyon Investors. 338. Banyon USVI and BIF, through its employees acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors and his breaches of fiduciary duty. 339. Banyon USVI's and BIF's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against BANYON INCOME Page 73 of 289 EFTA01085002 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint FUND. LP. and BANYON USVI, LLC.. for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 29 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Michael Szfranski) 340. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 341. This is a claim for aiding and abetting breach of fiduciary duty. 342. Szfranski was aware that as trustee of the attorney trust accounts where the Banyon Investors' purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty. and care to the Banyon Investors. Szfranski was also aware that as trustee of the attorney trust accounts containing the funds to which the Banyon Investors had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. 343. Szfranski was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to the Banyon Investors. 344. Szfranski actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors and his breaches of fiduciary duty. 345. Szfranski's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN Page 74 of 289 EFTA01085003 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint LIVING TRUST: and DEAN ICRETSCHMAR request judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 30 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Onyx Capital Management) 346. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 347. This is a claim for aiding and abetting breach of fiduciary duty. 348. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. 349. Onyx was aware that as trustee of the attorney trust accounts where the Banyon Investors' purported settlement funds were deposited, Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. Onyx was also aware that as trustee of the attorney trust accounts containing the funds to which the Banyon Investors had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. 350. Onyx was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to the Banyon Investors. 351. Onyx. through its employees acting within the scope of their employment actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors and his breaches of fiduciary duty. 352. Onyx's actions have directly caused injury and damage to the Banyon Investors. Page 75 of 289 EFTA01085004 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST: D&L PARTNERS. LP: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN ICRETSCHMAR request judgment against ONYX CAPITAL MANAGEMENT for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 31- AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Berenfeld Spritzer Shechter Sheer, LLP) 353. Plaintiffs incorporate the allegations contained in paragraphs I through 121 as if restated herein. 354. This is a claim for aiding and abetting breach of fiduciary duty. 355. Berenfeld was aware that as trustee of the attorney trust accounts where the Banyon Investors' purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty. and care to the Banyon Investors. Berenfeld was also aware that as trustee of the attorney trust accounts containing the funds to which the Banyon Investors had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. 356. Berenfeld was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to the Banyon Investors. 357. Berenfeld actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors and his breaches of fiduciary duty. Page 76 of 289 EFTA01085005 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 358. Berenfeld's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN ICRETSCHMAR request judgment against BERENFELD SPRIIZER SHECHTER SHEER. LLP. for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 32 — BREACH OF FIDUCIARY DUTY (against Scott Rothstein) 359. Plaintiffs incorporate the allegations contained in paragraphs 1 through 447121 as if restated herein. 360. This is a claim for breach of fiduciary duty. 361. As trustee of the attorney trust accounts where the Banyon Investors' purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty, and care to the Banyon Investors. Additionally, as trustee of the attorney trust accounts containing the funds to which the Banyon Investors had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty, loyalty, and care to the Banyon Investors. 362. Rothstein breached his fiduciary duties by raiding the RRA trust accounts for his personal use. 363. Rothstein's actions have directly caused injury and damages to the Banyon Investors. Page 77 of 289 EFTA01085006 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST-: D&L PARTNERS. LP;: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against SCOTT ROTHSTEIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XIIB3 - BREACH OF FIDUCIARY DUTY (against TD Bank, N.A.) 364. Plaintiffs incorporate the allegations contained in paragraphs 1 through 4-07121 as if restated herein. 365. This is a claim for breach of fiduciary duty. 366. At all times material hereto, Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 367. At all times material hereto, Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 368. In Florida. a bank assumes a fiduciary duty with its customer under special circumstances where the bank knows or has reason to know that the customer is placing trust and confidence in the bank and is relying on the bank to so counsel and inform him. Under the circumstances outlined above, where TD Bank knew that the Banyon Investors were relying on Kerstetter's and Caretsky's representations that the RRA trust accounts contained substantial funds, TD Bank was a fiduciary of the Banyon Investors and owed them the fiduciary duties of honesty, loyalty, and care. Page 78 of 289 EFTA01085007 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint 369. TD Bank breached its fiduciary duties through the actions of its employees by either ignoring or actively assisting and providing substantial assistance to Rothstein in its financial exploitation of the Banyon Investors. 370. TD Bank's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN. as Trustee of the VON ALLMEN DYNASTY TRUST-: D&L PARTNERS. LPT; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against TD BANK, N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT X4V34 - BREACH OF FIDUCIARY DUTY (against George G. Levin) 371. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 372. This is a claim for breach of fiduciary duty. 373. By holding himself out as a co-investor, Levin became a fiduciary of the Banyon Investors and owed the Banyon Investors the fiduciary duties of honesty. loyalty, and care. 374. Levin breached his fiduciary duties by either ignoring or actively assisting and providing substantial assistance to Rothstein in his financial exploitation of the Banyon Investors. 375. Levin's actions have directly caused injury and damage to the Banyon Investors. Page 79 of 289 EFTA01085008 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST: D&L PARTNERS. LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against GEORGE G. LEVIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 35 - BREACH OF FIDUCIARY DUTY (against Frank Preve) 376. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 377. This is a claim for breach of fiduciary duty. 378. By holding himself out as a co-investor, Previn became a fiduciary of the Banyon Investors and owed the Banyon Investors the fiduciary duties of honesty. loyalty, and care. 379. Preve breached his fiduciary duties by either ignoring or actively assisting and providing substantial assistance to Rothstein in his financial exploitation of the Banyon Investors. 380. Preve's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against FRANK PREVE for compensatory damages, together with court costs and such further relief as the Court deems proper. Page 80 of 289 EFTA01085009 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint COUNT 36 - BREACH OF FIDUCIARY DUTY (aaainst Banvon Income Fund, LP, and Banvon USVI,LLC1 381. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 382. This is a claim for breach of fiduciary duty. 383. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 384. At all times material hereto. Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 385. Banyon USVI and BIF were fiduciaries of the Banyon Investors and owed them the fiduciary duties of honesty, loyalty, and care. 386. Banyon USVI and BIF breached their fiduciary duties through the actions of its employees by either ignoring or actively assisting and providing substantial assistance to Rothstein in its financial exploitation of the Banyon Investors. 387. Banyon USVI's and BIF's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against BANYON INCOME FUND, LP. and BANYON USVI, LLC.. for compensatory damages, together with court costs and such further relief as the Court deems proper. Page 81 of 289 EFTA01085010 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint COUNT 37 - BREACH OF FIDUCIARY DUTY (against Michael Szfranski) 388. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 389. This is a claim for breach of fiduciary duty. 390. Szfranski, as an independent verifier, was a fiduciary of the Banyon Investors and owed them the fiduciary duties of honesty, loyalty, and care. 391. Szfranski breached his fiduciary duties by either ignoring or actively assisting and providing substantial assistance to Rothstein in his financial exploitation of the Banyon Investors. 392. Szfranski's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against MICHAEL SZFRANSKI for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 38 - BREACH OF FIDUCIARY DUTY (against Onyx Capital Management) 393. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 394. This is a claim for breach of fiduciary duty. Page 82 of 289 EFTA01085011 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 395. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. 396. Onyx, as an independent verifier. was a fiduciary of the Banyon Investors and owed them the fiduciary duties of honesty, loyalty, and care. 397. Onyx breached its fiduciary duties through the actions of its employees by either ignoring or actively assisting and providing substantial assistance to Rothstein in its financial exploitation of the Banyon Investors. 398. Onyx's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN ICRETSCHMAR request judgment against ONYX CAPITAL MANAGEMENT for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 39 - BREACH OF FIDUCIARY DUTY (against Berenfeld Spritzer Shechter Sheer. LLP) 399. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 400. This is a claim for breach of fiduciary duty. 401. Berenfeld. as an independent auditor, was a fiduciary of the Banyon Investors and owed them the fiduciary duties of honesty, loyalty, and care. Page 83 of 289 EFTA01085012 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 402. Berenfeld breached its fiduciary duties by either ignoring or actively assisting and providing substantial assistance to Rothstein in his financial exploitation of the Banyon Investors. 403. Berenfeld's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST: D&L PARTNERS. LP; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN ICRETSCHMAR request judgment against BERENFELD SPRII LER SHECHTER SHEER, LLP. for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 40 - AIDING AND ABETTING FRAUD (against Frank Spinosa) 404. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 405. This is a claim for aiding and abetting fraud. 406. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank 407. Spinosa knew of Rothstein's fraudulent scheme. 408. Spinosa actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors through fraud. Spinosa's assistance included, but Page 84 of 289 EFTA01085013 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (191 Amended Complaint was not limited to, supplying investors with false bank account statements and misleading and untrue written assurances concerning the settlement accounts. 409. Spinosa's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST: D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against FRANK A. SPINOSA for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 41- AIDING AND ABETTING FRAUD (against Jennifer Kerstetter) 410. Plaintiffs incorporate the allegations contained in paragraphs I through 40-7121 as if restated herein. 411. This is a claim for aiding and abetting fraud. 412. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 413. Kerstetter knew of Rothstein's fraudulent scheme. 414. Kerstetter actively assisted. and provided substantial assistance, to Rothstein in his financial exploitation of The Banyon Investors through fraud. Kerstetter's assistance included, but was not limited to, providing false documentation to the Banyon Investors that the RRA trust accounts contained substantial funds when they did not. Page 85 of 289 EFTA01085014 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 415. Kerstetter's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST;; D&L PARTNERS, LP,: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against JENNIFER KERS 1 EIIER for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT X4142 - AIDING AND ABETTING FRAUD (against Roseanne Caretskv) 416. Plaintiffs incorporate the allegations contained in paragraphs 1 through 4-07121 as if restated herein. 417. This is a claim for aiding and abetting fraud. 418. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank 419. Caretsky knew of Rothstein's fraudulent scheme. 420. Caretsky actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of The Banyon Investors through fraud. Caretsky's assistance included but was not limited to. providing false documentation to the Banyon Investors that the RRA trust accounts contained substantial funds when they did not. 421. Caretsky's actions have directly caused injury and damage to the Banyon Investors. Page 86 of 289 EFTA01085015 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE, LINDA VON ALLMEN: as Trustee of the VON ALLMEN DYNASTY TRUST-: D&L PARTNERS. LP;; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against ROSEANNE CARETSKY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XVI43 - AIDING AND ABETTING FRAUD (against TD Bank, N.A.) 422. Plaintiffs incorporate the allegations contained in paragraphs 1 through 407121 as if restated herein. 423. This is a claim for aiding and abetting fraud. 424. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 425. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 426. At all times material hereto, Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 427. TD Bank knew of Rothstein's fraudulent scheme. 428. TD Bank, through Kerstetter and Caretsky. actively assisted. and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors through fraud. TD Bank's assistance included, but was not limited to, providing false documentation to the Banyon Investors that the RRA trust accounts contained substantial funds when they did not. Page 87 of 289 EFTA01085016 Razorback Funding, LLC, et aL, v. TD Bank N.A., a al.. Case No.: 09-062943 (19) Amended Complaint 429. TD Bank's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST;; D&L PARTNERS. LP,: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against TD BANK. N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT X-11-1144 - AIDING AND ABETTING FRAUD (against Debra Villegas) 430. Plaintiffs incorporate the allegations contained in paragraphs 1 through 447121 as if restated herein. 431. This is a claim for aiding and abetting fraud. 432. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank 433. Villegas knew of Rothstein's fraudulent scheme. 434. Villegas actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of all of the investor victims of Rothstein's Ponzi scheme. including the Banyon Investors. through fraud. Villegas's assistance included, but was not limited to furnishing false bank account statements and wire transfers to investors in order to induce them to invest despite having actual or constructive knowledge that the investments were a Ponzi scheme. Page 88 of 289 EFTA01085017 Razorback Funding, LLC,er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 435. Villegas's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST;; D&L PARTNERS, LP,: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against DEBRA VILLEGAS for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XVIII45 - AIDING AND ABETTING FRAUD (against Irene Stay) 436. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 437. This is a claim for aiding and abetting fraud. 438. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank 439. Stay knew of Rothstein's fraudulent scheme. 440. Stay actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of all of the investor victims of Rothstein's Ponzi scheme. including the Banyon Investors. through fraud. Stay's assistance included. but was not limited to. furnishing false bank account statements and wire transfers to investors in order to induce them to invest despite having actual or constructive knowledge that the investments were a Ponzi scheme. 441. Stay's actions have directly caused injury and damage to the Banyon Investors. Page 89 of 289 EFTA01085018 Razorback Funding, LLC, a aL, v. TD Bank N.A., a al.. Case No.: 09-062943 (I.9) Amended Complaint WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST: D&L PARTNERS. LP: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against IRENE STAY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 46 - AIDING AND ABETTING FRAUD (against George G. Levin) 442. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 443. This is a claim for aiding and abetting fraud. 444. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 445. Levin knew of Rothstein's fraudulent scheme. 446. Levin actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors through fraud. Levin's assistance included, but was not limited to. representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 447. Levin's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN. as Trustee of the DAVID VON Page 90 of 289 EFTA01085019 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against GEORGE G. LEVIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 47 - AIDING AND ABETTING FRAUD (against Frank Preve) 448. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 449. This is a claim for aiding and abetting fraud. 450. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 451. Preve knew of Rothstein's fraudulent scheme. 452. Preve actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors through fraud. Preve's assistance included, but was not limited to, representing that the settlement agreements purchased by investors were real. that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 453. Preve's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against FRANK PREVE for Page 91 of 289 EFTA01085020 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 48 - AIDING AND ABETTING FRAUD (against Banyon Income Fund. LP. and Banvon USVI, LLC) 454. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 455. This is a claim for aiding and abetting fraud. 456. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank 457. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of BANYON USVI and BIF. 458. At all times material hereto. Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 459. Banyon USVI and BIF knew of Rothstein's fraudulent scheme. 460. Banyon USVI and BIF, through Levin and Preve, actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors through fraud. Banyon USVI's and BIF's assistance included, but was not limited to, representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 461. Banyon USVI's and BIF's actions have directly caused injury and damage to the Banyon Investors. Page 92 of 289 EFTA01085021 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against BANYON INCOME FUND. LP, and BANYON USVI, LLC., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 49 - AIDING AND ABETTING FRAUD (against Michael Szfranski) 462. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 463. This is a claim for aiding and abetting fraud. 464. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 465. Szfranski knew of Rothstein's fraudulent scheme. 466. Szfranski actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors through fraud. Szfranski's assistance included, but was not limited to, verifying false bank statements and deal documents. 467. Szfranski's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN Page 93 of 289 EFTA01085022 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint LIVING TRUST; and DEAN KRETSCHMAR request judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 50 - AIDING AND ABETTING FRAUD (against Onyx Capital Management) 468. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 469. This is a claim for aiding and abetting fraud. 470. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank 471. At all times material hereto, Szfranski was acting in the scope of his employment as president of Onyx. 472. Onyx knew of Rothstein's fraudulent scheme. 473. Onyx. through Szfranski, actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors through fraud. Onyx's assistance included, but was not limited to, verifying false bank statements and deal documents. 474. Onyx's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST: D&L PARTNERS. LP: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against ONYX CAPITAL Page 94 of 289 EFTA01085023 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint MANAGEMENT for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 51- AIDING AND ABETTING FRAUD (against Berenfeld Spritzer Shechter Sheer, LLP) 475. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 476. This is a claim for aiding and abetting fraud. 477. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 478. Berenfeld knew of Rothstein's fraudulent scheme. 479. Berenfeld actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of the Banyon Investors through fraud. Berenfeld's assistance included, but was not limited to, providing false auditing documents relating to Banyon and RRA. . 480. Berenfeld's actions have directly caused injury and damage to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN ICRETSCHMAR request judgment against BERENFELD SPRITZER SHECHTER SHEER. LLP, for compensatory damages, together with court costs and such further relief as the Court deems proper. Page 95 of 289 EFTA01085024 Razorback Funding, LLC, a aL, v. TD Bank N.A., a A. Case No.: 09-062943 (I.9) Amended Complaint COUNT 52 — CONVERSION (against Scott Rothstein) 481. Plaintiffs incorporate the allegations contained in paragraphs I through 447121 as if restated herein. 482. This is a claim for conversion. 483. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of the Banyon Investors when he absconded with the Banyon Investors $60408550.000.00 in funds. 484. Rothstein's conversion of the Banyon Investors funds has permanently deprived the Banyon Investors of their property. 485. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 486. Rothstein's actions have directly caused injury and damages to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST-; D&L PARTNERS. LP;: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against SCOTT ROTHSTEIN for compensatory damages, together with court costs and such further relief as the Court deems proper. Page 96 of 289 EFTA01085025 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT XIX53 - AIDING AND ABETTING CONVERSION (against Jennifer-KerstetterFrank Spinosa) 487. Plaintiffs-ineerperatePlaintiff incorporates the allegations contained in paragraphs I through 4-07121 as if restated herein. 488. This is a claim for aiding and abetting conversion. 489. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of the Banyon Investors when he absconded with their-the Banyon Investors' $60 000550.000.00 in funds. 490. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. 491. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 492. Spinosa actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving the Banyon Investors of its property by deceiving the Banyon Investors into turning their property over to Rothstein under false pretenses. 493. Spinosa's actions have directly caused injury and damages to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN Page 97 of 289 EFTA01085026 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint LIVING TRUST; and DEAN KRETSCHMAR request judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 54 - AIDING AND ABETTING CONVERSION fp a air ennifer Kerstetter 494. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 495. This is a claim for aiding and abetting conversion. 496. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of the Banyon Investors when he absconded with their $60,550,000.00 in funds. 497. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. 498. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 499. Kerstetter actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving the Banyon Investors of their property by deceiving the Banyon Investors into turning their property over to Rothstein under false pretenses. 500. Kerstetter's actions have directly caused injury and damages to the Banyon Investors. Page 98 of 289 EFTA01085027 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. LINDA VON ALLMEN: as Trustee of the VON ALLMEN DYNASTY TRUST-: D&L PARTNERS. LPr; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against JENNIFER ICERS1b1 1 ER for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT VCSS - AIDING AND ABETTING CONVERSION (against Roseanne Caretskv) 501. Plaintiffs incorporate the allegations contained in paragraphs I through 407121 as if restated herein. 502. This is a claim for aiding and abetting conversion. 503. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of the Banyon Investors when he absconded with their S60.000550.000.00 in funds. 504. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. 505. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. Page 99 of 289 EFTA01085028 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 506. Caretsky actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving the Banyon Investors of their property by deceiving the Banvon Investors into turning its property over to Rothstein under false pretenses. 507. Caretsky's actions have directly caused injury and damages to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN. as Trustee of the VON ALLMEN DYNASTY TRUST-: D&L PARTNERS. LP;: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against ROSEANNE CARETSKY for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XXIS6 - AIDING AND ABETTING CONVERSION (against TD Bank, N.A.) 508. Plaintiffs incorporate the allegations contained in paragraphs I through -1-0-7121 as if restated herein. 509. This is a claim for aiding and abetting conversion. 510. As described more fully above. the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RR/ft. and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of the Banyon Investors when he absconded with their $60.000550.000.00 in funds. 511. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. Page 100 of 289 EFTA01085029 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 512. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 513. At all times material hereto, Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 514. At all times material hereto, Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 515. TD Bank, through its employees while acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving the Banyon Investors of their property by allowing Rothstein to make unauthorized withdrawals of its funds and by deceiving the Banyon Investors into turning its property over to Rothstein under false pretenses. 516. TD Bank's actions have directly caused injury and damages to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST-; D&L PARTNERS. LP;; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against TD BANK N.A., for compensatory damages, together with court costs and such further relief as the Court deems proper. Page 101 of 289 EFTA01085030 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT XXII57 - AIDING AND ABETTING CONVERSION (flainst Debra Valens) 517. Plaintiffs incorporate the allegations contained in paragraphs I through 407121 as if restated herein. 518. This is a claim for aiding and abetting conversion. 519. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of the Banyon Investors when he absconded with the Banyon Investors' $60.000550,000.00 in funds. 520. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. 521. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 522. Villegas actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving the Banyon Investors of their property by deceiving the Banyon Investors into turning their property over to Rothstein under false pretenses. 523. Villegas's actions have directly caused injury and damages to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST;; D&L PARTNERS, LP,: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN Page 102 of 289 EFTA01085031 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint LIVING TRUST: and DEAN KRETSCHMAR request judgment against DEBRA VILLEGAS for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT X-X14158 - AIDING AND ABETTING CONVERSION (against Irene Stay) 524. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 525. This is a claim for aiding and abetting conversion. 526. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of the Banyon Investors when he absconded with the Banyon Investors' S60.550.000.00 in funds. 527. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. 528. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 529. Stay actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving the Banyon Investors of their property by deceiving the Banyon Investors into turning their property over to Rothstein under false pretenses. 530. Stay's actions have directly caused injury and damages to the Banyon Investors. Page 103 of 289 EFTA01085032 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST: D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against IRENE STAY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 59 - AIDING AND ABETTING CONVERSION (against George G. Levin) 531. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 532. This is a claim for aiding and abetting conversion. 533. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RR/ft. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of the Banyon Investors when he absconded with their $60.550.000.00 in funds. 534. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. 535. Based upon Rothstein having initially fled the country after emptying out the trust accounts. any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 536. Levin actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving the Banyon Investors of their property by representing that Paxe 104 of 289 EFTA01085033 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint the settlement agreements purchased by investors were real, that they had been fully funded, that they would be paid out to investors over a predetermined schedule, and by deceiving the Banyon Investors into turning its property over to Rothstein under false pretenses. 537. Levin's actions have directly caused injury and damages to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against GEORGE G. LEVIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 60 - AIDING AND ABETTING CONVERSION (against Frank Preve) 538. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 539. This is a claim for aiding and abetting conversion. 540. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of the Banyon Investors when he absconded with their $60.550.000.00 in funds. 541. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. Page 105 of 289 EFTA01085034 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 542. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 543. Preve actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving the Banyon Investors of their property by representing that the settlement agreements purchased by investors were real, that they had been fully funded, that they would be paid out to investors over a predetermined schedule, and by deceiving the Banyon Investors into turning its property over to Rothstein under false pretenses. 544. Preve's actions have directly caused injury and damages to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST: D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against MICHAEL SZFRANSKI for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 61- AIDING AND ABETTING CONVERSION (against Banvon Income Fund, LP, and Banvon USVI, LLC1 545. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 546. This is a claim for aiding and abetting conversion. 547. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and Page 106 of 289 EFTA01085035 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 ill% Amended Complaint control over the property of the Banyon Investors when he absconded with their $60.550.000.00 in funds. 548. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. 549. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 550. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 551. At all times material hereto. Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 552. Banyon USVI and BIF. through its employees while acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving the Banyon Investors of their property by representing that the settlement agreements purchased by investors were real, that they had been fully funded, that they would be paid out to investors over a predetermined schedule, and by deceiving the Banyon Investors into turning its property over to Rothstein under false pretenses. 553. Banyon USVI's and BIF's actions have directly caused injury and damages to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST: D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN Pane 107 of 289 EFTA01085036 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint LIVING TRUST; and DEAN KRETSCHMAR request judgment against BANYON INCOME FUND. LP. and BANYON USVI. LLC.. for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 62 - AIDING AND ABETTING CONVERSION (against Michael Szfranski) 554. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 555. This is a claim for aiding and abetting conversion. 556. As described more fully above. the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of the Banyon Investors when he absconded with their $60,550,000.00 in funds. 557. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. 558. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their aroperty would be futile. 559. Szfranski actively assisted. and provided substantial assistance, to Rothstein in either temporarily or permanently depriving the Banyon Investors of their property by verifying false bank statements and deal documents and by deceiving the Banyon Investors into turning its property over to Rothstein under false pretenses. Page 108 of 289 EFTA01085037 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 560. Szfranski's actions have directly caused injury and damages to the Banyon Investors. WHEREFORE. LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN ICRETSCHMAR request judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 63 - AIDING AND ABETTING CONVERSION (against Onyx Capital Management) 561. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 562. This is a claim for aiding and abetting conversion. 563. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of the Banyon Investors when he absconded with their $60,550,000.00 in funds. 564. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. 565. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. Page 109 of 289 EFTA01085038 Razorback Funding, LLC, er aL, v. TD Bank N.A., a al.. Case No.: 09-062943 (19) Amended Complaint 566. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. 567. Onyx, through its employees while acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving the Banyon Investors of their property by verifying false bank statements and deal documents and by deceiving the Banyon Investors into turning its property over to Rothstein under false pretenses. 568. Onyx's actions have directly caused injury and damages to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN ICRETSCHMAR request judgment against ONYX CAPITAL MANAGEMENT for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 64 - AIDING AND ABETTING CONVERSION (against Berenfeld Spritzer Shechter Sheer, LLP) 569. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 570. This is a claim for aiding and abetting conversion. 571. As described more fully above, the deals in which the Banyon Investors invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and Pane 110 of 289 EFTA01085039 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint control over the property of the Banyon Investors when he absconded with their $60.550.000.00 in funds. 572. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. 573. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 574. Berenfeld actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving the Banyon Investors of their property by providing false auditing documents relating to Banyon and RRA and by deceiving the Banyon Investors into turning its property over to Rothstein under false pretenses. 575. Berenfeld's actions have directly caused injury and damages to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN ICRETSCHMAR request judgment against BERENFELD SPRTI LER SHECHTER SHEER. LLP, for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 65 - NEGLIGENT SUPERVISION (against TD Bank, N.A.) 576. Plaintiffs incorporate the allegations contained in paragraphs I through 44-7121 as if restated herein. PaRe II I of 289 EFTA01085040 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 577. This is a claim for negligent supervision. 578. As described more fully above. Spinosa. Kerstetter and Caretsky participated with actual or constructive knowledge, in Rothstein's Ponzi scheme. Kerstetter's and Caretsky's participation included, but was not limited to, providing the Banyon Investors with false information concerning the amounts deposited in RRA trust accounts. 579. In reliance on Kerstetter's and Caretsky's representations. on May 5_2009. the Banyon Investors began sending_payments to RRA's account at TD Bank. eventually funding a total of $60,000550.000.00. 580. The Banyon Investors' reliance on Kerstetter's and Caretsky's representations was reasonable and justified. 581. TD Bank owed a duty to the Banyon Investors to ensure that its employees were not actively defrauding depositors by making false representations in order to trick them into making unsafe deposits into trust accounts that they knew or reasonably should have known were being raided by Rothstein. 582. TD Bank breached its duties to the Banyon Investors because it had actual or constructive notice that its assistant manager and assistant vice president and branch manager were either fraudulently or negligently participating in a scheme which resulted in the unauthorized raiding of investors' deposits, and acted unreasonably by failing to investigate or take corrective action. 583. As a direct and proximate result of TD Bank's failure to investigate or take corrective action against Kerstetter or Caretsky. the Banyon Investors have sustained damages. Page 112 of 289 EFTA01085041 Razorback Funding, LLC, et aL, v. TD Bank N.A., et aL. Case No.: 09-062943 O.91 Amended Complaint WHEREFORE. LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST-; D&L PARTNERS. LP;; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against TD BANK N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. Pane 113 of 289 EFTA01085042 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT XXI-V66 - FRAUDULENT MISREPRESENTATION (against Scott Rothstein) 584. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 585. This is a claim for fraudulent misrepresentation. 586. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 587. In furtherance of the Ponzi scheme. Rothstein knowingly made material false statements and representations, including but not limited to representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 588. Rothstein intended Razorback to act on his knowingly false representations. 589. Razorback justifiably relied upon Rothstein's representations to its detriment. 590. As a direct and proximate result of Rothstein's false statements. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against SCOTT ROTHSTEIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT VP/67 - FRAUDULENT MISREPRESENTATION (against Frank Spinosa) 591. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 592. This is a claim for fraudulent misrepresentation. Page 114 of 289 EFTA01085043 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint 593. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 594. In furtherance of the Ponzi scheme. Spinosa knowingly made material false statements and representations including, but not limited to, supplying investors with false bank account statements and misleading and untrue written assurances concerning the settlement accounts. 595. Spinosa intended Razorback to act on his knowingly false representations. 596. Razorback justifiably relied upon Spinosa's representations to its detriment. 597. As a direct and proximate result of Spinosa's false statements, Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT VI-VMS - FRAUDULENT MISREPRESENTATION (against Jennifer Kerstetterl 598. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 599. This is a claim for fraudulent misrepresentation. 600. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. Page 115 of 289 EFTA01085044 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 601. In furtherance of the Ponzi scheme. Kerstetter knowingly made material false statements and representations including, but not limited to. supplying investors with false bank account statements. 602. Kerstetter intended Razorback to act on her knowingly false representations. 603. Razorback justifiably relied upon Kerstetter's representations to its detriment. 604. As a direct and proximate result of Kerstetter's false statements. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING, LLC, requests judgment against JENNIFER KERS 1 ELLER for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XX-V1469 - FRAUDULENT MISREPRESENTATION (against Roseanne Caretskvl 605. Plaintiff incorporates the allegations contained in paragraphs 1 through 447121 as if restated herein. 606. This is a claim for fraudulent misrepresentation. 607. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 608. In furtherance of the Ponzi scheme. Caretsky knowingly made material false statements and representations including, but not limited to. supplying investors with false bank account statements. 609. Caretsky intended Razorback to act on her knowingly false representations. 610. Razorback justifiably relied upon Caretsky's representations to its detriment. Page 116 of 289 EFTA01085045 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 611. As a direct and proximate result of Caretsky's false statements. Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against ROSEANNE CARETSKY for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 41470 - FRAUDULENT MISREPRESENTATION (against TD Bank. N.A.1 612. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 613. This is a claim for fraudulent misrepresentation. 614. At all times material hereto, Spinosa was acting in the scope of his employment as Regional Vice President of T.D. Bank. 615. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 616. At all times material hereto. Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 617. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 618. In furtherance of the Ponzi scheme. TD Bank, through Spinosa, Kerstetter. and Caretsky, knowingly made material false statements and representations including, but not limited to. supplying investors with false bank account statements and supplying investors with misleading and untrue written assurances concerning the settlement accounts. Page 117 of 289 EFTA01085046 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint 619. TD Bank. through Spinosa, Kerstetter, and Caretsky, intended Razorback to act on their knowingly false representations. 620. Razorback justifiably relied upon TD Bank's, through Spinosa's. Kerstetter's. and Caretsky's, representations to its detriment. 621. As a direct and proximate result of TD Bank's. made through Spinosa's Kerstetter's, and Caretsky's, false statements. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against TD BANK N.A., for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XXIX71 - FRAUDULENT MISREPRESENTATION (against Frenk-FreveGeorge G. Levin) 622. Plaintiff incorporates the allegations contained in paragraphs I through 4-07121 as if restated herein. 623. This is a claim for fraudulent misrepresentation. 624. As described more fully above. Rothstein was operating a Ponzi scheme through his lirm. RRA, and through TD Bank. 625. In furtherance of the Ponzi scheme, Levin knowingly made material false statements and representations including, but not limited to. representing that the settlement Agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 626. Levin intended Razorback to act on his knowingly false representations. 627. Razorback justifiably relied upon Levin's representations to its detriment. Page 118 of 289 EFTA01085047 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 628. As a direct and proximate result of Levin's false statements. Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against GEORGE LEVIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 72 - FRAUDULENT MISREPRESENTATION (against Frank Preve) 629. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 630. This is a claim for fraudulent misrepresentation. 631. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 632. In furtherance of the Ponzi scheme, Preve knowingly made material false statements and representations including, but not limited to, supplying investors with false bank account statements and false confirmations that other monies had been wired to RRA trust accounts. 633. Preve intended Razorback to act on his knowingly false representations. 634. Razorback justifiably relied upon Preve's representations to its detriment. 635. As a direct and proximate result of Preve's false statements. Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING, LLC. requests judgment against FRANK PREVE for compensatory damages, together with court costs and such further relief as the Court deems proper. Pane 119 of 289 EFTA01085048 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT XXX-.-NECrLIGEN-T73 - FRAUDULENT MISREPRESENTATION (against Frank SpinosaBanvon Income Fund, LP, and Banvon USVI. LLC) 636. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 637. This is a claim for fraudulent misrepresentation. 638. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 639. At all times material hereto. Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and IMF. 640. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 641. In furtherance of the Ponzi scheme, Banyon USVI and ELF, through Levin and Preve, knowingly made material false statements and representations including, but not limited to. representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 642. Banyon USVI and BIF. through Levin and Preve. intended Razorback to act on their knowingly false representations. 643. Razorback justifiably relied upon Banyon USVI's and BIF's. through Levin's and Preve's, representations to their detriment. 644. As a direct and proximate result of Banyon USVI's and BIF's, made through Levin's and Preve's, false statements and representations. Razorback has sustained damages. Page 120 of 289 EFTA01085049 Razorback Funding, LLC, a aL, v. TD Bank N.A., a al.. Case No.: 09-062943 (I.9) Amended Complaint WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against BANYON INCOME FUND. LP. and BANYON USVI. LLC.. for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 74 - FRAUDULENT MISREPRESENTATION (against Michael Szfranski) 645. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 646. This is a claim for fraudulent misrepresentation. 647. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 648. In furtherance of the Ponzi scheme. Szfranski knowingly made material false statements and representations including, but not limited to, verifying false bank statements and deal documents. 649. Szfranski intended Razorback to act on his knowingly false representations. 650. Razorback justifiably relied upon Szfranski's representations to its detriment. 651. As a direct and proximate result of Szfranski's false statements, Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 75 - FRAUDULENT MISREPRESENTATION (against Onyx Capital Management) Page 121 of 289 EFTA01085050 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 652. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 653. This is a claim for fraudulent misrepresentation. 654. At all times material hereto, Szfranski was acting in the scope of his employment as president of Onyx. 655. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 656. In furtherance of the Ponzi scheme, Onyx, through Szfranski, knowingly material false statements and representations, including, but not limited to, verifying false bank statements and deal documents. 657. Onyx. through Szfranski, intended Razorback to act on its knowingly false representations. 658. Razorback justifiably relied upon Onyx's, through Szfranski's, representations to its detriment. 659. As a direct and proximate result of Onyx's. made through Szfranski's, false representations. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against ONYX CAPITAL MANAGEMENT, for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 76 - FRAUDULENT MISREPRESENTATION (against Berenfeld Spritzer Shechter Sheer, LLP1 660. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. Page 122 of 289 EFTA01085051 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 661. This is a claim for fraudulent misrepresentation. 662. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 663. In furtherance of the Ponzi scheme, Berenfeld knowingly made material false statements and representations including, but not limited to. providing false auditing documents relating to Banyon and RRA. 664. Berenfeld intended Razorback to act on its knowingly false representations. 665. Razorback justifiably relied upon Berenfeld's representations to its detriment. 666. As a direct and proximate result of Berenfeld's false statements, Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING, LLC, requests judgment against BERENFELD SPRITZER SHECHTER SHEER. LLP, for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 77 - NEGLIGENT MISREPRESENTATION (against Frank Spinosa) 667. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 668. This is a claim for negligent misrepresentation. 669. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. Page 123 of 289 EFTA01085052 Razorback Funding, LLC, a aL, v. TD Bank N.A., a al.. Case No.: 09-062943 (19) Amended Complaint 670. In furtherance of the Ponzi scheme. Spinosa made material false statements and representations including. but not limited to. supplying investors with false bank account statements and misleading and untrue written assurances concerning the settlement accounts. 671. When making the false statements and representations, Spinosa either knew or reasonably should have known that they were false. 672. Spinosa owed Razorback a duty of care because he knew or had reason to know that Razorback was placing trust and confidence in him and relying on him to inform it. 673. Spinosa breached his duty to Razorback by making false representations with the intention that Razorback rely on them. 674. Razorback justifiably relied upon Spinosa's representations to its detriment. 675. As a direct and proximate result of Spinosa's false statements. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against FRANK A. SPINOSA for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XXXI78 - NEGLIGENT MISREPRESENTATION (against Jennifer Kerstetter) 676. Plaintiff incorporates the allegations contained in paragraphs 1 through 4-07121 as if restated herein. 677. This is a claim for negligent misrepresentation. 678. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. Page 124 of 289 EFTA01085053 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 679. In furtherance of the Ponzi scheme, Kerstetter made material false statements and representations including. but not limited to. supplying investors with false bank account statements. 680. When making the false statements and representations. Kerstetter either knew or reasonably should have known that they were false. 681. Kerstetter owed Razorback a duty of care because she knew or had reason to know that Razorback was placing trust and confidence in her and relying on her to inform it. 682. Kerstetter breached her duty to Razorback by making false representations with the intention that Razorback rely on them. 683. Razorback justifiably relied upon Kerstetter's representations to its detriment. 684. As a direct and proximate result of Kerstetter's false statements. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING, LLC, requests judgment against JENNIFER KERS 1'E.1 1ER for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XXXII79 - NEGLIGENT MISREPRESENTATION (against Roseanne Caretskv) 685. Plaintiff incorporates the allegations contained in paragraphs 1 through 4-0-7121 as if restated herein. 686. This is a claim for negligent misrepresentation. 687. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. Page 125 of 289 EFTA01085054 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 688. In furtherance of the Ponzi scheme. Caretsky made material false statements and representations including. but not limited to. supplying investors with false bank account statements. 689. When making the false statements and representations, Kerstetter either knew or reasonably should have known that they were false. 690. Caretsky owed Razorback a duty of care because she knew or had reason to know that Razorback was placing trust and confidence in her and relying on her to inform it. 691. Caretsky breached her duty to Razorback by making false representations with the intention that Razorback rely on them. 692. Razorback justifiably relied upon Caretsky's representations to its detriment. 693. As a direct and proximate result of Caretsky's false statements. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING, LLC, requests judgment against ROSEANNE CARETSKY for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XX-2X-11180 - NEGLIGENT MISREPRESENTATION (against TD Bank, N.A.) 694. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 695. This is a claim for negligent misrepresentation. 696. At all times material hereto. Spinosa was acting in the scope of his employment as Regional Vice President of T.D. Bank. Page 126 of 289 EFTA01085055 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 697. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 698. At all times material hereto. Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 699. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 700. In furtherance of the Ponzi scheme. TD Bank. through Spinosa. Kerstetter. and Caretsky, made material false statements and representations, including, but not limited to. showing investors false statements of the amounts in RRA trust accounts and providing misleading and untrue written assurances concerning the settlement accounts. 701. When making the false statements and representations. TD Bank, through Spinosa. Kerstetter. and Caretsky, either knew or reasonably should have known that they were false. 702. TD Bank owed Razorback a duty of care because it knew or had reason to know that Razorback was placing trust and confidence in her and relying on it to inform them. 703. TD Bank breached its duty to Razorback by making false representations. through Spinosa. Kerstetter. and Caretsky. with the intention that Razorback rely on them. 704. Razorback justifiably relied upon TD Bank's, through Spinosa's, Kerstetter's. and Caretsky's, representations to their detriment. 705. As a direct and proximate result of TD Bank's representations. made through Spinosa. Kerstetter, and Caretsky, Razorback has sustained damages. Page 127 of 289 EFTA01085056 Razorback Funding, LLC,et aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against TD BANK, N.A.. for compensatory damages. together with court costs and such further relief as the Court deems proper. GOUNT-XXXIAL--AIDING-AND-ABET--TING-RREAGWOF-FIDUGIARY--DU-W COUNT 81- NEGLIGENT MISREPRESENTATION (against grank-SpinesaGeorge G. Levin) 706. Plaintiff incorporates the allegations contained in paragraphs 1 through 4-07121 as if restated herein. 707. This is a claim for negligent misrepresentation. 708. As described more fully above, Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 709. In furtherance of the Ponzi scheme. Levin made material false statements and representations including, but not limited to. representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 710. When making the false statements and representations. Levin either knew or reasonably should have known that they were false. 711. Levin owed Razorback a duty of care because he knew or had reason to know that Razorback was placing trust and confidence in him and relying on him to inform them. 712. Levin breached his duty to Razorback by making false representations with the intention that Razorback rely on them. 713. Razorback justifiably relied upon Levin's representations to its detriment. Page 128 of 289 EFTA01085057 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint 714. As a direct and proximate result of Levin's false statements. Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING. LLC. requests judgment against GEORGE LEVIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 82 - NEGLIGENT MISREPRESENTATION (against Frank Preve) 715. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 716. This is a claim for negligent misrepresentation. 717. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 718. In furtherance of the Ponzi scheme, Preve made material false statements and representations including, but not limited to. representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 719. When making the false statements and representations, Preve either knew or reasonably should have known that they were false. 720. Preve owed Razorback a duty of care because he knew or had reason to know that was placing trust and confidence in him and relying on him to inform them. 721. Preve breached his duty to Razorback by making false representations with the intention that Razorback rely on them. 722. Razorback justifiably relied upon Preve's representations to its detriment. Page 129 of 289 EFTA01085058 Razorback Funding, LLC,er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 723. As a direct and proximate result of Preve's false statements. Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against FRANK PREVE for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 83 - NEGLIGENT MISREPRESENTATION (against Banvon Income Fund. LP. and Banvon USVI, LLC) 724. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 725. This is a claim for negligent misrepresentation. 726. At all times material hereto. Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 727. At all times material hereto. Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 728. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 729. In furtherance of the Ponzi scheme, Banyon USVI and BIF, through Levin and Preve. made material false statements and representations including, but not limited to, representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 730. When making the false statements and representations. Banyon USVI and BIF. through Levin and Preve, either knew or reasonably should have known that they were false. Pane 130 of 289 EFTA01085059 Razorback Funding, LLC,er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 731. Banyon USVI and BIF owed Razorback a duty of care because it knew or had reason to know that Razorback was placing trust and confidence in it and relying on it to inform them. 732. Banyon USVI and BIF breached its duty to Razorback by making false representations, through Levin and Preve. with the intention that Razorback rely on them. 733. Razorback justifiably relied upon Banyon USVI's and BIF's, through Levin's and Preve's. representations to its detriment. 734. As a direct and proximate result of Banyon USVI's and BIF's representations, made through Levin and Preve Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against BANYON INCOME FUND, LP, and BANYON USVI, LLC., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 84 - NEGLIGENT MISREPRESENTATION (against Michael Szfranski) 735. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 736. This is a claim for negligent misrepresentation. 737. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 738. In furtherance of the Ponzi scheme. Szfranski made material false statements and representations including, but not limited to, verifying false bank statements and deal documents. 739. When making the false statements and representations, Szfranski either knew or reasonably should have known that they were false. Pane 131 of 289 EFTA01085060 Razorback Funding, LLC, et aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint 740. Szfranski owed Razorback a duty of care because he knew or had reason to know that, as an independent verifier. Razorback was placing trust and confidence in him and relying on him to inform them. 741. Szfranski breached his duty to Razorback by making false representations with the intention that Razorback rely on them. 742. Razorback justifiably relied upon Szfranski's representations to its detriment. 743. As a direct and proximate result of Szfranski's false statements. Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING, LW, requests judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 85 - NEGLIGENT MISREPRESENTATION (against Onyx Capital Management) 744. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 745. This is a claim for negligent misrepresentation. 746. At all times material hereto, Szfranski was acting in the scope of his employment as president of Onyx. 747. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 748. In furtherance of the Ponzi scheme, Onyx, through Szfranski, made material false statements and representations, including, but not limited to. verifying false bank statements and deal documents. Page 132 of 289 EFTA01085061 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 749. When making the false statements and representations, Onyx. through Szfranski either knew or reasonably should have known that they were false. 750. Onyx owed Razorback a duty of care because it knew or had reason to know that, as an independent verifier. Razorback was placing trust and confidence in it and relying on Onyx to inform it. 751. Onyx breached its duty to Razorback by making false representations. through Szfranski. with the intention that Razorback rely on them. 752. Razorback justifiably relied upon Onyx's, through Szfranski's, representations to its detriment. 753. As a direct and proximate result of Onyx's representations. made through Szfranski. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against ONYX CAPITAL MANAGEMENT for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 86 - NEGLIGENT MISREPRESENTATION (against Berenfeld Spritzer Shechter Sheer. LLP) 754. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 755. This is a claim for negligent misrepresentation. 756. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. Page 133 of 289 EFTA01085062 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 757. In furtherance of the Ponzi scheme. Berenfeld made material false statements and representations including, but not limited to. providing false auditing documents relating to Banyon and RRA. 758. When making the false statements and representations, Berenfeld either knew or reasonably should have known that they were false. 759. Berenfeld owed Razorback a duty of care because it knew or had reason to know that, as an independent auditor. Razorback were placing trust and confidence in it and relying on it to inform them. 760. Berenfeld breached its duty to Razorback by making false representations with the intention that Razorback rely on them. 761. Razorback justifiably relied upon Berenfeld's representations to its detriment. 762. As a direct and proximate result of Berenfeld's false statements. Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against BERENFELD SPRITZER SHECHTER SHEER, LLP, for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 87 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Frank Spinosa) 763. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 764. This is a claim for aiding and abetting breach of fiduciary duty. 765. Spinosa was aware that as trustee of the attorney trust account where Razorback's purported settlement funds were deposited, Rothstein had fiduciary duties of honesty. loyalty, Pane 134 of 289 EFTA01085063 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint and care to Razorback. Spinosa was also aware that as trustee of the attorney trust account containing the funds to which Razorback had an exclusive right to collect in the near future Rothstein had fiduciary duties of honesty, loyalty, and care to Razorback. 766. Spinosa was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to Razorback. 767. Spinosa actively assisted, and provided substantial assistance. to Rothstein in his financial exploitation of Razorback and his breaches of fiduciary duty. 768. Spinosa's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XaX-V88 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Jennifer Kerstetter) 769. Plaintiff incorporates the allegations contained in paragraphs I through 407121 as if restated herein. 770. This is a claim for aiding and abetting breach of fiduciary duty. 771. Kerstetter was aware that as trustee of the attorney trust account where Razorback's purported settlement funds were deposited, Rothstein had fiduciary duties of honesty. loyalty, and care to Razorback. Kerstetter was also aware that as trustee of the attorney trust account containing the funds to which Razorback had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to Razorback. Page 135 of 289 EFTA01085064 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l91 Amended Complaint 772. Kerstetter was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to Razorback. 773. Kerstetter actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback and his breaches of fiduciary duty. 774. Kerstetter's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against JENNIFER KERS1blIER for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT LIOW189 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Roseanne Caretsky) 775. Plaintiff incorporates the allegations contained in paragraphs 1 through 4-0-7121 as if restated herein. 776. This is a claim for aiding and abetting breach of fiduciary duty. 777. Caretsky was aware that as trustee of the attorney trust account where Razorback's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty, and care to Razorback. Caretsky was also aware that as trustee of the attorney trust account containing the funds to which Razorback had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to Razorback. 778. Caretsky was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to Razorback. Page 136 of 289 EFTA01085065 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 779. Caretsky actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback and his breaches of fiduciary duty. 780. Caretsky's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING, LLC, requests judgment against ROSEANNE CARETSKY for compensatory damages. together with court costs and such further relief as the Court deems proper. Pane 137 of 289 EFTA01085066 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint COUNT XXX-11-1190 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against TD Bank, N.A.1 781. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 782. This is a claim for aiding and abetting breach of fiduciary duty. 783. At all times material hereto, Spinosa was acting in the scope of his employment as Regional Vice President of T.D. Bank. 784. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 785. At all times material hereto. Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 786. TD Bank was aware that as trustee of the attorney trust account where Razorback's purported settlement funds were deposited, Rothstein had fiduciary duties of honesty, loyalty, and care to Razorback. TD Bank was also aware that as trustee of the attorney trust account containing the funds to which Razorback had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to Razorback. 787. TD Bank was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to Razorback. 788. TD Bank. through its employees acting within the scope of their employment actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback and his breaches of fiduciary duty. 789. TD Bank's actions have directly caused injury and damage to Razorback. Page 138 of 289 EFTA01085067 Razorback Funding, LLC, et aL, v. TD Bank N.A., et al.. Case No.: 09-062943 (I.9) Amended Complaint WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against TD BANK, N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XXXV44191 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Debra Villegas) 790. Plaintiff incorporates the allegations contained in paragraphs 1 through 444-7121 as if restated herein. 791. This is a claim for aiding and abetting breach of fiduciary duty. 792. Villegas was aware that as trustee of the attorney trust account where Razorback's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty and care to Razorback. Villegas was also aware that as trustee of the attorney trust account containing the funds to which Razorback had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty. loyalty, and care to Razorback. 793. Villegas was aware that Rothstein was financially exploiting the investors to their detriment. and was aware that Rothstein was breaching his fiduciary obligations to Razorback. 794. Villegas actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback and his breaches of fiduciary duty. 795. Villegas's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against DEBRA VILLEGAS for compensatory damages. together with court costs and such further relief as the Court deems proper. Pane 139 of 289 EFTA01085068 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT XXXIX92 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Franii-PreveIrene Stasi) 796. Plaintiff incorporates the allegations contained in paragraphs I through 44-7121 as if restated herein. 797. This is a claim for aiding and abetting breach of fiduciary duty. 798. Stay was aware that as trustee of the attorney trust account where Razorback's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty, loyalty, and care to Razorback. Stay was also aware that as trustee of the attorney trust account containing the funds to which Razorback had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty. loyalty, and care to Razorback. 799. Stay was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to Razorback. 800. Stay actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback and his breaches of fiduciary duty. 801. Stay's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against IRENE STAY for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 93 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against George G. Levin) 802. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 803. This is a claim for aiding and abetting breach of fiduciary duty. Page 140 of 289 EFTA01085069 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 804. Levin was aware that as trustee of the attorney trust accounts where Razorback's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty and care to Razorback. Levin was also aware that as trustee of the attorney trust accounts containing the funds to which Razorback had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty. loyalty, and care to Razorback. 805. Levin was aware that Rothstein was financially exploiting the investors to their detriment. and was aware that Rothstein was breaching his fiduciary obligations to Razorback. 806. Levin actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback and his breaches of fiduciary duty. 807. Levin's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against GEORGE G. LEVIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 94 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Frank Preve) 808. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 809. This is a claim for aiding and abetting breach of fiduciary duty. 810. Preve was aware that as trustee of the attorney trust account where Razorback's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty, and care to Razorback. Preve was also aware that as trustee of the attorney trust account Page 141 of 289 EFTA01085070 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint containing the funds to which Razorback had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty. loyalty, and care to Razorback. 811. Preve was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to Razorback. 812. Preve actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback and his breaches of fiduciary duty. 813. Preve's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against FRANK PREVE for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XL95 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Banvon Income Fund, LP, and Banvon USVI, LLC) 814. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 815. This is a claim for aiding and abetting breach of fiduciary duty. 816. At all times material hereto. Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 817. At all times material hereto. Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 818. USVI and BIF were aware that as trustee of the attorney trust accounts where Razorback's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty, loyalty, and care to Razorback. Banyon USVI and BIF were also aware that as trustee of the attorney trust accounts containing the funds to which Razorback had an exclusive right to Pane 142 of 289 EFTA01085071 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 ft% Amended Complaint collect in the near future. Rothstein had fiduciary duties of honesty. loyalty, and care to Razorback. 819. Banyon USVI and BIF were aware that Rothstein was financially exploiting the investors to their detriment, and were aware that Rothstein was breaching his fiduciary obligations to Razorback. 820. Banyon USVI and BM, through its employees acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback and his breaches of fiduciary duty. 821. Banyon USVI's and BIF's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against BANYON INCOME FUND. LP. and BANYON USVI. LLC.. for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 96 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Michael Szfranski) 822. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 823. This is a claim for aiding and abetting breach of fiduciary duty. 824. Szfranski was aware that as trustee of the attorney trust accounts where the Razorback's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty, loyalty, and care to Razorback. Szfranski was also aware that as trustee of the attorney Page 143 of 289 EFTA01085072 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint trust accounts containing the funds to which Razorback had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty. loyalty, and care to Razorback. 825. Szfranski was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to Razorback. 826. Szfranski actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback and his breaches of fiduciary duty. 827. Szfranski's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING, LW, requests judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 97 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Onyx Capital Management) 828. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 829. This is a claim for aiding and abetting breach of fiduciary duty. 830. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. Pane 144 of 289 EFTA01085073 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 831. Onyx was aware that as trustee of the attorney trust accounts where Razorback's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty and care to Razorback. Onyx was also aware that as trustee of the attorney trust accounts containing the funds to which Razorback had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty. loyalty, and care to Razorback. 832. Onyx was aware that Rothstein was financially exploiting the investors to their detriment. and was aware that Rothstein was breaching his fiduciary obligations to Razorback. 833. Onyx, through its employees acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback and his breaches of fiduciary duty. 834. Onyx's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against ONYX CAPITAL MANAGEMENT for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 98 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Berenfeld Spritzer Shechter Sheer, ULF) 835. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 836. This is a claim for aiding and abetting breach of fiduciary duty. 837. Berenfeld was aware that as trustee of the attorney trust accounts where Razorback's purported settlement funds were deposited, Rothstein had fiduciary duties of Pane 145 of 289 EFTA01085074 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint honesty. loyalty, and care to Razorback. Berenfeld was also aware that as trustee of the attorney trust accounts containing the funds to which Razorback had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to Razorback. 838. Berenfeld was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to Razorback. 839. Berenfeld actively assisted. and provided substantial assistance, to Rothstein in his financial exploitation of Razorback and his breaches of fiduciary duty. 840. Berenfeld's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against BERENFELD SPRITZER SHECHTER SHEER. LLP, for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 99 — BREACH OF FIDUCIARY DUTY (against Scott Rothstein) 841. Plaintiff incorporates the allegations contained in paragraphs 1 through +0-7121 as f restated herein. 842. This is a claim for breach of fiduciary duty. 843. As trustee of the attorney trust account where Razorback's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty, and care to Razorback. Additionally. as trustee of the attorney trust account containing the funds to which Razorback had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty. loyalty, and care to Razorback. Page 146 of 289 EFTA01085075 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 844. Rothstein breached his fiduciary duties by raiding the RRA trust accounts for his personal use. 845. Rothstein's actions have directly caused injury and damages to Razorback. WHEREFORE. RAZORBACK FUNDING, LLC, requests judgment against SCOTT ROTHSTEIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT X-14100 - BREACH OF FIDUCIARY DUTY (against TD Bank, N.A.) 846. Plaintiff incorporates the allegations contained in paragraphs 1 through 4-0.7121 as if restated herein. 847. This is a claim for breach of fiduciary duty. 848. At all times material hereto, Spinosa was acting in the scope of his employment as Regional Vice President of T.D. Bank. 849. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 850. At all times material hereto, Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 851. In Florida. a bank assumes a fiduciary duty with its customer under special circumstances where the bank knows or has reason to know that the customer is placing trust and confidence in the bank and is relying on the bank to so counsel and inform him. Under the circumstances outlined above, whereby TD Bank knew that Razorback was relying on Spinosa's assurances to Razorback of the precautions in place to prevent improper withdrawals from its account. TD Bank was a fiduciary of Razorback and owed Razorback the fiduciary duties of Pane 147 of 289 EFTA01085076 Razorback Funding, LLC, a aL, v. TD Bank N.A., a al.. Case No.: 09-062943 (l91 Amended Complaint honesty. loyalty, and care. Additionally, where TD Bank knew that Razorback investors were relying on Spinosa's. Kerstetter's and Caretsky's representations that the RRA trust accounts contained substantial funds. TD Bank was a fiduciary of Razorback and owed Razorback the fiduciary duties of honesty, loyalty, and care. 852. TD Bank breached its fiduciary duties through the actions of its employees by either ignoring or actively assisting and providing substantial assistance to Rothstein in its financial exploitation of Razorback. 853. TD Bank's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against TD BANK, N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT X441101 - BREACH OF FIDUCIARY DUTY (against FF&RIE-PreveGeorge G. Levin) 854. Plaintiff incorporates the allegations contained in paragraphs 1 through 1-0-7121 as if restated herein. 855. This is a claim for breach of fiduciary duty. 856. By holding himself out as a co-investor, Levin became a fiduciary of Razorback and owed Razorback the fiduciary duties of honesty. loyalty, and care. 857. Levin breached his fiduciary duties by either ignoring or actively assisting and providing substantial assistance to Rothstein in his financial exploitation of Razorback. 858. Levin's actions have directly caused injury and damage Razorback. Page 148 of 289 EFTA01085077 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against GEORGE G. LEVIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 102 - BREACH OF FIDUCIARY DUTY (againstF ik Preve) 859. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 860. This is a claim for breach of fiduciary duty. 861. By holding himself out as a co-investor. Preve became a fiduciary of Razorback and owed Razorback the fiduciary duties of honesty. loyalty, and care. 862. Preve breached his fiduciary duties by either ignoring or actively assisting and providing substantial assistance to Rothstein in his financial exploitation of Razorback. 863. Preve's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against FRANK 1'REVE for compensatory damages. together with court costs and such further relief as the Court deems proper. GOUNT--X-1311I---AIDINGAND-ABET--TING-FRAHD COUNT 103 - BREACH OF FIDUCIARY DUTY (against FranIt-SpinesuBanvon Income Fund, LP, and Banvon USVI. LLC) 864. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 865. This is a claim for breach of fiduciary duty. Pane 149 of 289 EFTA01085078 Razorback Funding, LLC, a aL, v. TD Bank N.A., a al.. Case No.: 09-062943 ill% Amended Complaint 866. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 867. At all times material hereto, Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and IMF. 868. Banyon USVI and BIF were fiduciaries of Razorback and owed it the fiduciary duties of honesty. loyalty, and care. 869. Banyon USVI and BIF breached their fiduciary duties through the actions of its employees by either ignoring or actively assisting and providing substantial assistance to Rothstein in its financial exploitation of Razorback. 870. Banyon USVI's and BIF's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against BANYON INCOME FUND, LP. and BANYON USVI, LLC.. for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 104 - BREACH OF FIDUCIARY DUTY (against Michael Szfranski) 871. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 872. This is a claim for breach of fiduciary duty. 873. Szfranski. as an independent verifier. was a fiduciary of Razorback and owed it the fiduciary duties of honesty, loyalty, and care. 874. Szfranski breached his fiduciary duties by either ignoring or actively assisting and providing substantial assistance to Rothstein in his financial exploitation of Razorback. Pane 150 of 289 EFTA01085079 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 875. Szfranski's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against MICHAEL SZFRANSKI for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 105 - BREACH OF FIDUCIARY DUTY (against Onyx Capital Management) 876. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 877. This is a claim for breach of fiduciary duty. 878. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. 879. Onyx, as an independent verifier, was a fiduciary of Razorback and owed it the fiduciary duties of honesty, loyalty, and care. 880. Onyx breached its fiduciary duties through the actions of its employees by either wnoring or actively assisting and providing substantial assistance to Rothstein in its financial exploitation of Razorback. 881. Onyx's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against ONYX CAPITAL MANAGEMENT for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 106 - BREACH OF FIDUCIARY DUTY (against Berenfeld Spritzer Shechter Sheer, LLP) Paae 151 of 289 EFTA01085080 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 882. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 883. This is a claim for breach of fiduciary duty. 884. Berenfeld, as an independent auditor, was a fiduciary of Razorback and owed them the fiduciary duties of honesty. loyalty, and care. 885. Berenfeld breached its fiduciary duties by either ignoring or actively assisting and providing substantial assistance to Rothstein in his financial exploitation of Razorback. 886. Berenfeld's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against BERENFELD SPRITZER SHECHTER SHEER, LLP, for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 107 - AIDING AND ABETTING FRAUD (against Frank Spinosa) 887. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 888. This is a claim for aiding and abetting fraud. 889. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank 890. Spinosa knew of Rothstein's fraudulent scheme. 891. Spinosa actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback through fraud. Spinosa's assistance included, but was not limited to, supplying Razorback with false bank account statements and misleading and untrue written assurances concerning the settlement accounts. Pane 152 of 289 EFTA01085081 Razorback Funding, LLC, a aL, v. TD Bank N.A., a al.. Case No.: 09-062943 (19) Amended Complaint 892. Spinosa's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against FRANK A. SPINOSA for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XI.P1108 - AIDING AND ABETTING FRAUD (against Jennifer Kerstetter) 893. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as it restated herein. 894. This is a claim for aiding and abetting fraud. 895. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 896. Kerstetter knew of Rothstein's fraudulent scheme. 897. Kerstetter actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback through fraud. Kerstetter's assistance included, but was not limited to. providing false documentation to Razorback that the RRA trust accounts contained substantial funds when they did not. 898. Kerstetter's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against JENNIFER KERS IEVIER for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XL-V109 - AIDING AND ABETTING FRAUD (against Roseanne Caretsky) Page 153 of 289 EFTA01085082 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 899. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 900. This is a claim for aiding and abetting fraud. 901. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 902. Caretsky knew of Rothstein's fraudulent scheme. 903. Caretsky actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback through fraud. Caretsky's assistance included, but was not limited to, providing false documentation to Razorback that the RRA trust accounts contained substantial funds when they did not. 904. Caretsky's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against ROSEANNE CARETSKY for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XL-V1110 - AIDING AND ABETTING FRAUD (against TD Bank, N.A.) 905. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 906. This is a claim for aiding and abetting fraud. 907. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank 908. At all times material hereto Spinosa was acting in the scope of his employment for TD Bank. Page 154 of 289 EFTA01085083 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l9) Amended Complaint 909. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 910. At all times material hereto. Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 911. TD Bank knew of Rothstein's fraudulent scheme. 912. TD Bank. through Spinosa. Kerstetter, and Caretsky. actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback through fraud. TD Bank's assistance included, but was not limited to. providing false documentation to Razorback that the RRA trust accounts contained substantial funds when they did not and supplying investors with misleading and untrue written assurances concerning the settlement accounts. 913. TD Bank's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against TD BANK, N.A., for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XLV-11111 - AIDING AND ABETTING FRAUD (against Debra Villegas) 914. Plaintiff incorporates the allegations contained in paragraphs 1 through 447121 as if restated herein. 915. This is a claim for aiding and abetting fraud. Page 155 of 289 EFTA01085084 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint 916. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 917. Villegas knew of Rothstein's fraudulent scheme. 918. Villegas actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of all of the investor victims of Rothstein's Ponzi scheme, including Razorback. through fraud by furnishing false bank account statements and wire transfers to investors in order to induce them to invest despite having actual or constructive knowledge that the investments were a Ponzi scheme. 919. Villegas's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against DEBRA VILLEGAS for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT KIN4111I2 - AIDING AND ABETTING FRAUD (against Frank-PreveIrene Stay) 920. Plaintiff incorporates the allegations contained in paragraphs 1 through 447121 as if restated herein. 921. This is a claim for aiding and abetting fraud. 922. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 923. Stay knew of Rothstein's fraudulent scheme. 924. Stay actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of all of the investor victims of Rothstein's Ponzi scheme, including Razorback. through fraud by furnishing false bank account statements and wire transfers to Page 156 of 289 EFTA01085085 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint investors in order to induce them to invest despite having actual or constructive knowledge that the investments were a Ponzi scheme. 925. Stay's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING, LLC, requests judgment against IRENE STAY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 113 - AIDING AND ABETTING FRAUD (against George G. Levin) 926. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 927. This is a claim for aiding and abetting fraud. 928. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 929. Levin knew of Rothstein's fraudulent scheme. 930. Levin actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback through fraud. Levin's assistance included, but was not limited to, representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 931. Levin's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against GEORGE G. LEVIN for compensatory damages, together with court costs and such further relief as the Court deems proper. Page 157 of 289 EFTA01085086 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT 114 - AIDING AND ABETTING FRAUD (against Frank Prevel 932. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 933. This is a claim for aiding and abetting fraud. 934. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 935. Preve knew of Rothstein's fraudulent scheme. 936. Preve actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback through fraud. Preve's assistance included, but was not limited to, confirming wire transfers into Rothstein's trust accounts that he knew were fabricated. 937. Preve's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against FRANK PREVE for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XLIX115 - AIDING AND ABETTING FRAUD a ainsl Banvon Income Fund, LP, Ban on USVI, LLC) 938. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 939. This is a claim for aiding and abetting fraud. 940. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. Page 158 of 289 EFTA01085087 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 941. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 942. At all times material hereto, Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 943. Banyon USVI and BIF knew of Rothstein's fraudulent scheme. 944. Banyon USVI and BIF, through Levin and Preve, actively assisted, and provided substantial assistance. to Rothstein in his financial exploitation of Razorback through fraud. Banyon USVI's and BIF's assistance included, but was not limited to, representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 945. Banyon USVI's and BIF's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against BANYON INCOME FUND, LP, and BANYON USVI, LLC., for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 116 - AIDING AND ABETTING FRAUD (against Michael Szfranski) 946. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 947. This is a claim for aiding and abetting fraud. 948. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. Page 159 of 289 EFTA01085088 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 949. Szfranski knew of Rothstein's fraudulent scheme. 950. Szfranski actively assisted, and provided substantial assistance. to Rothstein in his financial exploitation of Razorback through fraud. Szfranski's assistance included, but was not limited to, verifying false bank statements and deal documents. 951. Szfranski's actions have directly caused injury and damage to Razorback. WHEREFORE. RAZORBACK FUNDING, LLC. requests judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 117 - AIDING AND ABETTING FRAUD (against Onyx Capital Management) 952. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 953. This is a claim for aiding and abetting fraud. 954. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 955. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. 956. Onyx knew of Rothstein's fraudulent scheme. 957. Onyx. through Szfranski, actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback through fraud. Onyx's assistance included, but was not limited to, verifying false bank statements and deal documents. 958. Onyx's actions have directly caused injury and damage to Razorback. Page 160 of 289 EFTA01085089 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against ONYX CAPITAL MANAGEMENT for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 118 - AIDING AND ABETTING FRAUD (against Berenfeld Spritzer Shechter Sheer, LLP) 959. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 960. This is a claim for aiding and abetting fraud. 961. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 962. Berenfeld knew of Rothstein's fraudulent scheme. 963. Berenfeld actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of Razorback through fraud. Berenfeld's assistance included, but was not limited to, providing false auditing documents relating to Banyon and RRA. . 964. Berenfeld's actions have directly caused injury and damage to Razorback. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against BERENFELD SPRITZER SHECHTER SHEER, LLP, for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 119 - CONVERSION (against Scott Rothstein 965. Plaintiff incorporates the allegations contained in paragraphs 1 through 4O121 as if restated herein. 966. This is a claim for conversion. Page 161 of 289 EFTA01085090 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 967. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of Razorback when he absconded with Razorback's $32,000,000.00 in funds. 968. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 969. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of its property would be futile. 970. Rothstein's actions have directly caused injury and damages to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against SCOTT ROTHSTEIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT I=120 - AIDING AND ABETTING CONVERSION (against Frank Spinosa) 971. Plaintiff incorporates the allegations contained in paragraphs 1 through 4-0-7121 as if restated herein. 972. This is a claim for aiding and abetting conversion. 973. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of Razorback when he absconded with Razorback's $32.000,000.00 in funds. Page 162 of 289 EFTA01085091 Razorback Funding, LLC, a aL, v. TD Bank N.A., a al.. Case No.: 09-062943 091 Amended Complaint 974. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 975. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of its property would be futile. 976. Spinosa actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving Razorback of its property by deceiving Razorback into turning its property over to Rothstein under false pretenses. 977. Spinosa's actions have directly caused injury and damages to Razorback. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT I.1121 - AIDING AND ABETTING CONVERSION (against Jennifer Kerstetter) 978. Plaintiff incorporates the allegations contained in paragraphs 1 through 407121 as if restated herein. 979. This is a claim for aiding and abetting conversion. 980. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of Razorback when he absconded with Razorback's $32.000.000.00 in funds. Page 163 of 289 EFTA01085092 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 981. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 982. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of its property would be futile. 983. Kerstetter actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving Razorback of its property by deceiving Razorback into turning its property over to Rothstein under false pretenses. 984. Kerstetter's actions have directly caused injury and damages to Razorback. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against JENNIFER KERS 1 LIIER for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 1.41122 - AIDING AND ABETTING CONVERSION (against osea Roseanne Caretsk 985. Plaintiff incorporates the allegations contained in paragraphs I through 407121 as if restated herein. 986. This is a claim for aiding and abetting conversion. 987. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of Razorback when he absconded with Razorback's $32.000.000.00 in funds. Pane 164 of 289 EFTA01085093 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 988. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 989. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of its property would be futile. 990. Caretsky actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving Razorback of its property by deceiving Razorback into turning its property over to Rothstein under false pretenses. 991. Caretsky's actions have directly caused injury and damages to Razorback. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against ROSEANNE CARETSKY for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 1.111123 - AIDING AND ABETTING CONVERSION (against TD Bank, N.A.) 992. Plaintiff incorporates the allegations contained in paragraphs I through 407121 as if restated herein. 993. This is a claim for aiding and abetting conversion. 994. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of Razorback when he absconded with Razorback's 32 000 000 00 in funds. Page 165 of 289 EFTA01085094 Razorback Funding, LLC, a aL, v. TD Bank N.A., a A. Case No.: 09-062943 all Amended Complaint 995. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 996. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of its property would be futile. 997. At all times material hereto Spinosa was acting in the scope of his employment for TD Bank. 998. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 999. At all times material hereto. Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 1000. TD Bank. through its employees while acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving Razorback of its property by allowing Rothstein to make unauthorized withdrawals of its funds and by deceiving Razorback into turning its property over to Rothstein under false pretenses. 1001. TD Bank's actions have directly caused injury and damages to Razorback. WHEREFORE. RAZORBACK FUNDING, LLC, requests judgment against TD BANK N.A., for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 1.1-V124 - AIDING AND ABETTING CONVERSION (against Debra Villegas) Page 166 of 289 EFTA01085095 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1002. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1003. This is a claim for aiding and abetting conversion. 1004. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of Razorback when he absconded with Razorback's $32.000,000.00 in funds. 1005. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 1006. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of its property would be futile. 1007. Villegas actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving Razorback of its property by deceiving Razorback into turning its property over to Rothstein under false pretenses. 1008. Villegas's actions have directly caused injury and damages to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against DEBRA VILLEGAS for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT I.,V125 - AIDING AND ABETTING CONVERSION (against Fraalt-PreveIrene Stay) 1009. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. Page 167 of 289 EFTA01085096 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1010. This is a claim for aiding and abetting conversion. 1011. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of Razorback when he absconded with Razorback's 32 000 000.00 in funds. 1012. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 1013. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of its property would be futile. 1014. Stay actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving Razorback of its property by deceiving Razorback into turning its property over to Rothstein under false pretenses. 1015. Stay's actions have directly caused injury and damages to Razorback. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against IRENE STAY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 126 - AIDING AND ABETTING CONVERSION (against George G. Levin) 1016. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1017. This is a claim for aiding and abetting conversion. Page 168 of 289 EFTA01085097 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1018. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of Razorback when he absconded with their $32,000,000.00 in funds. 1019. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 1020. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of its property would be futile. 1021. Levin actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving Razorback of its property by representing that the settlement agreements purchased by investors were real, that they had been fully funded, that they would be paid out to investors over a predetermined schedule, and by deceiving Razorback into turning its property over to Rothstein under false pretenses. 1022. Levin's actions have directly caused injury and damages to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against GEORGE G. LEVIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 127 - AIDING AND ABETTING CONVERSION (against Frank Preve) 1023. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1024. This is a claim for aiding and abetting conversion. Page 169 of 289 EFTA01085098 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1025. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of Razorback when he absconded with Razorback's $32,000,000.00 in funds. 1026. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 1027. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of its property would be futile. 1028. Preve actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving Razorback of its property by deceiving Razorback into funding settlements that he knew did not exist. 1029. Preve's actions have directly caused injury and damages to Razorback. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 1.-V1128 - AIDING AND ABETTING CONVERSION ig a ainst Banvon Income Ftm fl td Banvon USVI, LLC) 1030. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1031. This is a claim for aiding and abetting conversion. 1032. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. In Pane 170 of 289 EFTA01085099 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of Razorback's when he absconded with its $32.000.000.00 in funds. 1033. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 1034. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of its property would be futile. 1035. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 1036. At all times material hereto. Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 1037. Banyon USVI and BIF. through its employees while acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving Razorback of its property by representing that the settlement agreements purchased by investors were real, that they had been fully funded, that they would be paid out to investors over a predetermined schedule, and by deceiving Razorback into turning its property over to Rothstein under false pretenses. 1038. Banyon USVI's and BIF's actions have directly caused injury and damages to Razorback. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against BANYON INCOME FUND, LP, and BANYON USVI, LLC., for compensatory damages. together with court costs and such further relief as the Court deems proper. PaRe 171 of 289 EFTA01085100 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint COUNT 129 - AIDING AND ABETTING CONVERSION (against Michael Szfranski) 1039. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1040. This is a claim for aiding and abetting conversion. 1041. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of Razorback when he absconded with its $32,000.000.00 in funds. 1042. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 1043. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of their property would be futile. 1044. Szfranski actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving Razorback of its property by verifying false bank statements and deal documents and by deceiving Razorback into turning its property over to Rothstein under false pretenses. 1045. Szfranski's actions have directly caused injury and damages to Razorback. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against judgment against MICHAEL SZFRANSKI for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 130 - AIDING AND ABETTING CONVERSION Page 172 of 289 EFTA01085101 Razorback Funding, LLC,er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint (against Onyx Capital Management) 1046. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1047. This is a claim for aiding and abetting conversion. 1048. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of Razorback when he absconded with its $32,000,000.00 in funds. 1049. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 1050. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of their property would be futile. 1051. At all times material hereto, Szfranski was acting in the scope of his employment as president of Onyx. 1052. Onyx. through its employees while acting within the scope of their employment actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving Razorback of its property by verifying false bank statements and deal documents and by deceiving Razorback into turning its property over to Rothstein under false pretenses. 1053. Onyx's actions have directly caused injury and damages to Razorback. Pane 173 of 289 EFTA01085102 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (1.91 Amended Complaint WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against judgment against ONYX CAPITAL MANAGEMENT for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 131 - AIDING AND ABETTING CONVERSION (against Berenfeld Spritzer Shechter Sheer. LLP) 1054. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1055. This is a claim for aiding and abetting conversion. 1056. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of Razorback when he absconded with their $32,000,000.00 in funds. 1057. Rothstein's conversion of Razorback's funds has permanently deprived Razorback of its property. 1058. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by Razorback to make demand upon him for the return of its property would be futile. 1059. Berenfeld actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving Razorback of its property by providing false auditing documents relating to Banyon and RRA and by deceiving Razorback into turning its property over to Rothstein under false pretenses. 1060. Berenfeld's actions have directly caused injury and damages to Razorback. Page 174 of 289 EFTA01085103 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint WHEREFORE. RAZORBACK FUNDING, LLC, requests judgment against BERENFELD SPRITZER SHECHTER SHEER. LLP, for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 132 - NEGLIGENT SUPERVISION (against TD Bank, N.A.) 1061. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1062. This is a claim for negligent supervision. 1063. As described more fully above. Spinosa, Kerstetter. and Caretsky participated, with actual or constructive knowledge. in Rothstein's Ponzi scheme. Spinosa's. Kerstetter's. and Caretsky's participation included, but was not limited to, providing the Razorback with false information concerning the amounts deposited in RRA trust accounts and supplying investors with misleading and untrue written assurances concerning the settlement accounts. 1064. In reliance on Spinosa's. Kerstetter's, and Caretsky's representations, on October 2 2009. Razorback began sending payments to RRA's account at TD Bank. eventually funding a total of $32,000,000.00. 1065. Razorback's reliance on Spinosa's, Kerstetter's, and Caretsky's representations was reasonable and justified. 1066. TD Bank owed a duty to Razorback to ensure that its employees were not actively defrauding depositors by making false representations in order to trick them into making unsafe deposits into trust accounts that they knew or reasonably should have known were being raided by Rothstein. Pane 175 of 289 EFTA01085104 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 1067. TD Bank breached its duties to Razorback because it had actual or constructive notice that its assistant manager and assistant vice president and branch manager were either fraudulently or negligently participating in a scheme which resulted in the unauthorized raiding of investors' deposits. and acted unreasonably by failing to investigate or take corrective action. 1068. As a direct and proximate result of TD Bank's failure to investigate or take corrective action against Spinosa, Kerstetter, or Caretsky. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against TD BANK N.A., for compensatory damages, together with court costs and such further relief as the Court deems proper. Pane 176 of 289 EFTA01085105 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT 1 11133 - FRAUDULENT MISREPRESENTATION (against Scott Rothstein) 1069. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1070. This is a claim for fraudulent misrepresentation. 1071. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1072. In furtherance of the Ponzi scheme. Rothstein knowingly made material false statements and representations. including but not limited to representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 1073. Rothstein intended D3 to act on his knowingly false representations. 1074. D3 justifiably relied upon Rothstein's representations to its detriment. 1075. As a direct and proximate result of Rothstein's false statements. D3 has sustained damages. WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against SCOTT ROTHSTEIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT IrAzIlll34 - FRAUDULENT MISREPRESENTATION (against Frank Spinosa) 1076. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1077. This is a claim for fraudulent misrepresentation. Page 177 of 289 EFTA01085106 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1078. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1079. In furtherance of the Ponzi scheme. Spinosa knowingly made material false statements and representations including, but not limited to, supplying investors with false bank account statements and misleading and untrue written assurances concerning the settlement accounts. 1080. Spinosa intended D3 to act on his knowingly false representations. 1081. D3 justifiably relied upon Spinosa's representations to its detriment. 1082. As a direct and proximate result of Spinosa's false statements, D3 has sustained damages. WHEREFORE, D3 CAPITAL CLUB. LLC. requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 131X135 - FRAUDULENT MISREPRESENTATION (against Jennifer Kerstetter) 1083. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1084. This is a claim for fraudulent misrepresentation. 1085. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1086. In furtherance of the Ponzi scheme. Kerstetter knowingly made material false statements and representations including, but not limited to, supplying investors with false bank account statements. Page 178 of 289 EFTA01085107 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1087. Kerstetter intended D3 to act on her knowingly false representations. 1088. D3 justifiably relied upon Kerstetter's representations to its detriment. 1089. As a direct and proximate result of Kerstetter's false statements. D3 has sustained damages. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against JENNIFER KERSTE FIER for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 122X136 - FRAUDULENT MISREPRESENTATION (against Roseanne Caretsky) 1090. Plaintiff incorporates the allegations contained in paragraphs 1 through 4-04121 as if restated herein. 1091. This is a claim for fraudulent misrepresentation. 1092. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1093. In furtherance of the Ponzi scheme. Caretsky knowingly made material false statements and representations including, but not limited to, supplying investors with false bank account statements. 1094. Caretsky intended D3 to act on her knowingly false representations. 1095. D3 justifiably relied upon Caretsky's representations to its detriment. 1096. As a direct and proximate result of Caretsky's false statements. D3 has sustained damages. Page 179 of 289 EFTA01085108 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against ROSEANNE CARETSKY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 13-X4137 - FRAUDULENT MISREPRESENTATION (against TD Bank, N.A.) 1097. Plaintiff incorporates the allegations contained in paragraphs 1 through 447121 as if restated herein. 1098. This is a claim for fraudulent misrepresentation. 1099. At all times material hereto. Spinosa was acting in the scope of his employment as Regional Vice President of T.D. Bank. 1100. At all times material hereto, Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 1101. At all times material hereto. Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 1102. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 1103. In furtherance of the Ponzi scheme, TD Bank, through Spinosa, Kerstetter, and Caretsky knowingly made material false statements and representations including, but not limited to. supplying investors with false bank account statements and supplying investors with misleading and untrue written assurances concerning the settlement accounts. 1104. TD Bank. through Spinosa. Kerstetter. and Caretsky intended D3 to act on their knowingly false representations. Page 180 of 289 EFTA01085109 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1105. D3 justifiably relied upon TD Bank's through Spinosa's. Kerstetter's, and Caretsky's representations to its detriment. 1106. As a direct and proximate result of TD Bank's, made through Spinosa's Kerstetter's. and Caretsky's false statements. D3 has sustained damages. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against TD BANK. N.A. for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT LXII-•-NEGLIGENT138 - FRAUDULENT MISREPRESENTATION Larinst Franli-SpinestMGeorge G. Levin) 1107. Plaintiff incorporates the allegations contained in paragraphs 1 through 407121 as if restated herein. 1108. This is a claim for fraudulent misrepresentation. 1109. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1110. In furtherance of the Ponzi scheme. Levin knowingly made material false statements and representations including, but not limited to. representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 1111. Levin intended D3 to act on his knowingly false representations. 1112. D3 justifiably relied upon Levin's representations to its detriment. 1113. As a direct and proximate result of Levin's false statements. D3 has sustained damages. Page 181 of 289 EFTA01085110 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l9) Amended Complaint WHEREFORE, D3 CAPITAL CLUB. LLC, requests judgment against GEORGE LEVIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 139 - FRAUDULENT MISREPRESENTATION (against Frank Preve) 1114. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1115. This is a claim for fraudulent misrepresentation. 1116. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1117. In furtherance of the Ponzi scheme. Preve knowingly made material false statements and representations including, but not limited to, representing that the settlement greements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 1118. Preve intended D3 to act on his knowingly false representations. 1119. D3 justifiably relied upon Preve's representations to their detriment. 1120. As a direct and proximate result of Preve's false statements, D3 has sustained damages. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against FRANK PREVE for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 182 of 289 EFTA01085111 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 ill% Amended Complaint COUNT 140 - FRAUDULENT MISREPRESENTATION (against Banvon Income Fund, LP, and Banvon USVI.LLC) 1121. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1122. This is a claim for fraudulent misrepresentation. 1123. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 1124. At all times material hereto. Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 1125. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 1126. In furtherance of the Ponzi scheme. Banyon USVI and BIF, through Levin and Preve, knowingly made material false statements and representations including, but not limited to. representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 1127. Banyon USVI and BIF. through Levin and Preve, intended D3 to act on their knowingly false representations. 1128. D3 justifiably relied upon Banyon USVI's and BIF's, through Levin's and Preve's, representations to their detriment. 1129. As a direct and proximate result of Banyon USVI's and BIF's, made through Levin's and Preve's, false statements and representations. D3 has sustained damages. Pane 183 of 289 EFTA01085112 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE, D3 CAPITAL CLUB. LLC. requests judgment against BANYON INCOME FUND. LP. and BANYON USVI. LLC., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 141 - FRAUDULENT MISREPRESENTATION (against Michael Szfranski) 1130. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1131. This is a claim for fraudulent misrepresentation. 1132. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1133. In furtherance of the Ponzi scheme. Szfranski knowingly made material false statements and representations including, but not limited to, verifying false bank statements and deal documents. 1134. Szfranski intended D3 to act on his knowingly false representations. 1135. D3 justifiably relied upon Szfranski's representations to its detriment. 1136. As a direct and proximate result of Szfranski's false statements. D3 has sustained damages. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 184 of 289 EFTA01085113 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 O91 Amended Complaint COUNT 142 - FRAUDULENT MISREPRESENTATION against Onyx Capital Management) 1137. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1138. This is a claim for fraudulent misrepresentation. 1139. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. 1140. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 1141. In furtherance of the Ponzi scheme. Onyx. through Szfranski, knowingly material false statements and representations, including, but not limited to, verifying false bank statements and deal documents. 1142. Onyx. through Szfranski. intended D3 to act on its knowingly false representations. 1143. D3 justifiably relied upon Onyx's. through Szfranski's. representations to its detriment. 1144. As a direct and proximate result of Onyx's, made through Szfranski's, false presentations, D3 has sustained damages. re WHEREFORE. D3 CAPITAL CLUB, LLC. requests judgment against ONYX CAPITAL MANAGEMENT. for compensatory damages. together with court costs and such further relief as the Court deems proper. Paae 185 of 289 EFTA01085114 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint COUNT 143 - FRAUDULENT MISREPRESENTATION (against Berenfeld Spritzer Shechter Sheer, LLP) 1145. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1146. This is a claim for fraudulent misrepresentation. 1147. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1148. In furtherance of the Ponzi scheme. Berenfeld knowingly made material false statements and representations including, but not limited to, providing false auditing documents relating to Banyon and RRA. 1149. Berenfeld intended D3 to act on its knowingly false representations. 1150. D3 justifiably relied upon Berenfeld's representations to its detriment. 1151. As a direct and proximate result of Berenfeld's false statements. D3 has sustained damages. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against BERENFELD SPRITZER SHECHTER SHEER. LLP, for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 144 - NEGLIGENT MISREPRESENTATION (against Frank Spinosa) 1152. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1153. This is a claim for negligent misrepresentation. Page 186 of 289 EFTA01085115 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1154. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1155. In furtherance of the Ponzi scheme. Spinosa made material false statements and representations including, but not limited to, supplying investors with false bank account statements and misleading and untrue written assurances concerning the settlement accounts. 1156. When making the false statements and representations. Spinosa either knew or reasonably should have known that they were false. 1157. Spinosa owed D3 a duty of care because he knew or had reason to know that D3 was placing trust and confidence in him and relying on him to inform it. 1158. Spinosa breached his duty to D3 by making false representations with the intention that D3 rely on them. 1159. D3 justifiably relied upon Spinosa's representations to its detriment. 1160. As a direct and proximate result of Spinosa's false statements, D3 has sustained damages. WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT LKIII145 - NEGLIGENT MISREPRESENTATION (against Jennifer Kerstetter) 1161. Plaintiff incorporates the allegations contained in paragraphs 1 through 4-0;121 as if restated herein. 1162. This is a claim for negligent misrepresentation. Page 187 of 289 EFTA01085116 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 ill% Amended Complaint 1163. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1164. In furtherance of the Ponzi scheme, Kerstetter made material false statements and representations including, but not limited to, supplying investors with false bank account statements. 1165. When making the false statements and representations. Kerstetter either knew or reasonably should have known that they were false. 1166. Kerstetter owed D3 a duty of care because she knew or had reason to know that D3 was placing trust and confidence in her and relying on her to inform it. 1167. Kerstetter breached her duty to D3 by making false representations with the intention that Razorback rely on them. 1168. D3 justifiably relied upon Kerstetter's representations to their detriment. 1169. As a direct and proximate result of Kerstetter's false statements. D3 has sustained damages. WHEREFORE, D3 CAPITAL CLUB. LLC, requests judgment against JENNIFER KERS 1E1 1ER for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 1.2X1-V146 - NEGLIGENT MISREPRESENTATION (against Roseanne Caretsky) 1170. Plaintiff incorporates the allegations contained in paragraphs I through 4-0-7121 as if restated herein. 1171. This is a claim for negligent misrepresentation. Page 188 of 289 EFTA01085117 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l9) Amended Complaint 1172. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1173. In furtherance of the Ponzi scheme. Caretsky made material false statements and representations including, but not limited to, supplying investors with false bank account statements. 1174. When making the false statements and representations. Kerstetter either knew or reasonably should have known that they were false. 1175. Caretsky owed D3 a duty of care because she knew or had reason to know that D3 was placing trust and confidence in her and relying on her to inform it. 1176. Caretsky breached her duty to D3 by making false representations with the intention that D3 rely on them. 1177. D3 justifiably relied upon Caretsky's representations to their detriment. 1178. As a direct and proximate result of Caretsky's false statements. D3 has sustained damages. WHEREFORE, D3 CAPITAL CLUB. LLC, requests judgment against ROSEANNE CARETSKY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT LXV147 - NEGLIGENT MISREPRESENTATION (against TD Bank, N,A.) 1179. Plaintiff incorporates the allegations contained in paragraphs 1 through 447121 as if restated herein. 1180. This is a claim for negligent misrepresentation. Page 189 of 289 EFTA01085118 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1181. At all times material hereto. Spinosa was acting in the scope of his employment as Regional Vice President of T.D. Bank. 1182. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 1183. At all times material hereto. Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 1184. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 1185. In furtherance of the Ponzi scheme, TD Bank, through Spinosa, Kerstetter, and Caretsky made material false statements and representations. including. but not limited to, showing investors false statements of the amounts in RRA trust accounts and providing misleading and untrue written assurances concerning the settlement accounts.. 1186. When making the false statements and representations. TD Bank, through Spinosa, Kerstetter, and Caretsky either knew or reasonably should have known that they were false. 1187. TD Bank owed D3 a duty of care because it knew or had reason to know that D3 was placing trust and confidence in her and relying on it to inform them. 1188. TD Bank breached its duty to D3 by making false representations, through Spinosa, Kerstetter, and Caretsky, with the intention that D3 rely on them. 1189. D3 justifiably relied upon TD Bank's. through Spinosa's, Kerstetter's. and Caretsky's. representations to its detriment. Page 190 of 289 EFTA01085119 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1190. As a direct and proximate result of TD Bank's representations, made through Spinosa. Kerstetter. and Caretsky D3 has sustained damages. WHEREFORE. D3 CAPITAL CLUB, LLC, requests judgment against TD BANK. N.A., for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT-LXV-I-AMING-AND-ABE14ING-BREAGH-OF-FIDUCIARY-DU-W COUNT 148 - NEGLIGENT MISREPRESENTATION (against FrankSpinosaGeorge G. Levin) 1191. Plaintiff incorporates the allegations contained in paragraphs 1 through 407121 as if restated herein. 1192. This is a claim for negligent misrepresentation. 1193. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 1194. In furtherance of the Ponzi scheme. Levin made material false statements and representations including, but not limited to. representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 1195. When making the false statements and representations. Levin either knew or reasonably should have known that they were false. 1196. Levin owed D3 a duty of care because he knew or had reason to know that D3 was placing trust and confidence in him and relying on him to inform them. 1197. Levin breached his duty to D3 by making false representations with the intention that D3 rely on them. Page 191 of 289 EFTA01085120 Razorback Funding, LLC,er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1198. D3 justifiably relied upon Levin's representations to its detriment. 1199. As a direct and proximate result of Levin's false statements. D3 has sustained damages. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against GEORGE LEVIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 149 - NEGLIGENT MISREPRESENTATION (against Frank Preve) 1200. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1201. This is a claim for negligent misrepresentation. 1202. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 1203. In furtherance of the Ponzi scheme, Preve made material false statements and representations including, but not limited to. representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 1204. When making the false statements and representations. Preve either knew or reasonably should have known that they were false. 1205. Preve owed D3 a duty of care because he knew or had reason to know that D3 was placing trust and confidence in him and relying on him to inform them. 1206. Preve breached his duty to D3 by making false representations with the intention that D3 rely on them. Page 192 of 289 EFTA01085121 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 1207. D3 justifiably relied upon Preve's representations to its detriment. 1208. As a direct and proximate result of Preve's false statements. D3 has sustained damages. WHEREFORE. D3 CAPITAL CLUB, LLC, requests judgment against FRANK PREVE for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 150 - NEGLIGENT MISREPRESENTATION (against Banvon Income Fund, LP, and Banvon USVI, LLC) 1209. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1210. This is a claim for negligent misrepresentation. 1211. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 1212. At all times material hereto. Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 1213. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1214. In furtherance of the Ponzi scheme. Banyon USVI and BIF, through Levin and Preve. made material false statements and representations including, but not limited to, representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 1215. When making the false statements and representations, Banyon USVI and BIF, through Levin and Preve, either knew or reasonably should have known that they were false. Page 193 of 289 EFTA01085122 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 1216. Banyon USVI and BIF owed D3 a duty of care because it knew or had reason to know that D3 was placing trust and confidence in it and relying on it to inform them. 1217. Banyon USVI and BIF breached its duty to D3 by making false representations, through Levin and Preve, with the intention that D3 rely on them. 1218. D3 justifiably relied upon Banyon USVI's and BIF's, through Levin's and Preve's. representations to its detriment. 1219. As a direct and proximate result of Banyon USVI's and BIF's representations made through Levin and Preve D3 has sustained damages. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against BANYON INCOME FUND. LP. and BANYON USVI, LLC., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 151 - NEGLIGENT MISREPRESENTATION (against Michael Szfranski) 1220. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1221. This is a claim for negligent misrepresentation. 1222. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 1223. In furtherance of the Ponzi scheme. Szfranski made material false statements and representations including. but not limited to. verifying false bank statements and deal documents. 1224. When making the false statements and representations. Szfranski either knew or reasonably should have known that they were false. Pane 194 of 289 EFTA01085123 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (1.9) Amended Complaint 1225. Szfranski owed D3 a duty of care because he knew or had reason to know that, as an independent verifier. D3 was placing trust and confidence in him and relying on him to inform them. 1226. Szfranski breached his duty to D3 by making false representations with the intention that D3 rely on them. 1227. D3 justifiably relied upon Szfranski's representations to its detriment. 1228. As a direct and proximate result of Szfranski's false statements. D3 has sustained damages. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 152 - NEGLIGENT MISREPRESENTATION (against Onyx Capital Management) 1229. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1230. This is a claim for negligent misrepresentation. 1231. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. 1232. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1233. In furtherance of the Ponzi scheme, Onyx, through Szfranski. made material false statements and representations, including, but not limited to, verifying false bank statements and deal documents. Page 195 of 289 EFTA01085124 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 1234. When making the false statements and representations, Onyx. through Szfranski either knew or reasonably should have known that they were false. 1235. Onyx owed D3 a duty of care because it knew or had reason to know that, as an independent verifier, D3 was placing trust and confidence in it and relying on Onyx to inform it. 1236. Onyx breached its duty to D3 by making false representations. through Szfranski with the intention that D3 rely on them. 1237. D3 justifiably relied upon Onyx's. through Szfranski's. representations to its detriment. 1238. As a direct and proximate result of Onyx's representations, made through Szfranski, D3 has sustained damages. WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against ONYX CAPITAL MANAGEMENT for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 153 - NEGLIGENT MISREPRESENTATION (against Berenfeld Spritzer Shechter Sheer. LLP) 1239. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1240. This is a claim for negligent misrepresentation. 1241. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1242. In furtherance of the Ponzi scheme. Berenfeld made material false statements and representations including, but not limited to, providing false auditing documents relating to Banyon and RRA. Pane 196 of 289 EFTA01085125 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 1243. When making the false statements and representations. Berenfeld either knew or reasonably should have known that they were false. 1244. Berenfeld owed D3 a duty of care because it knew or had reason to know that, as an independent auditor. D3 was placing trust and confidence in it and relying on it to inform them. 1245. Berenfeld breached its duty to D3 by making false representations with the intention that D3 rely on them. 1246. D3 justifiably relied upon Berenfeld's representations to its detriment. 1247. As a direct and proximate result of Berenfeld's false statements, D3 has sustained damages. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against BERENFELD SPRITZER SHECHTER SHEER. LLP. for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 154 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Frank Spinosa) 1248. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1249. This is a claim for aiding and abetting breach of fiduciary duty. 1250. Spinosa was aware that as trustee of the attorney trust account where D3's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty and care to D3. Spinosa was also aware that as trustee of the attorney trust account containing the funds to which D3 had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty. loyalty, and care to D3. Page 197 of 289 EFTA01085126 Razorback Funding, LLC, et aL, v. TD Bank N.A., a aL. Case No.: 09-062943 ft% Amended Complaint 1251. Spinosa was aware that Rothstein was financially exploiting the investors to their detriment. and was aware that Rothstein was breaching his fiduciary obligations to D3. 1252. Spinosa actively assisted, and provided substantial assistance. to Rothstein in his financial exploitation of D3 and his breaches of fiduciary duty. 1253. Spinosa's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT LXVII155 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Jennifer Kerstetter) 1254. Plaintiff incorporates the allegations contained in paragraphs 1 through 447121 as if restated herein. 1255. This is a claim for aiding and abetting breach of fiduciary duty. 1256. Kerstetter was aware that as trustee of the attorney trust account where D3's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty and care to D3. Kerstetter was also aware that as trustee of the attorney trust account containing the funds to which D3 had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty. loyalty, and care to D3. 1257. Kerstetter was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to D3. 1258. Kerstetter actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 and his breaches of fiduciary duty. 1259. Kerstetter's actions have directly caused injury and damage to D3. Pane 198 of 289 EFTA01085127 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against JENNIFER KERS 1'h I 1ER for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT InX-V11.1156 AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Roseanne Caretskv) 1260. Plaintiff incorporates the allegations contained in paragraphs I through 4447121 as if restated herein. 1261. This is a claim for aiding and abetting breach of fiduciary duty. 1262. Caretsky was aware that as trustee of the attorney trust account where D3's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty and care to D3. Caretsky was also aware that as trustee of the attorney trust account containing the funds to which D3 had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty. loyalty, and care to D3. 1263. Caretsky was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to D3. 1264. Caretsky actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 and his breaches of fiduciary duty. 1265. Caretsky's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against ROSEANNE CARETSKY for compensatory damages. together with court costs and such further relief as the Court deems proper. PaRe 199 of 289 EFTA01085128 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint COUNT LXIX157 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against TD Bank, N.A. 1266. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1267. This is a claim for aiding and abetting breach of fiduciary duty. 1268. At all times material hereto, Spinosa was acting in the scope of his employment as Regional Vice President of TD Bank. 1269. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 1270. At all times material hereto. Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 1271. TD Bank was aware that as trustee of the attorney trust account where D3's purported settlement funds were deposited, Rothstein had fiduciary duties of honesty. loyalty, and care to D3. TD Bank was also aware that as trustee of the attorney trust account containing the funds to which D3 had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to D3. 1272. TD Bank was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to D3. 1273. TD Bank. through its employees acting within the scope of their employment actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 and his breaches of fiduciary duty. 1274. TD Bank's actions have directly caused injury and damage to D3. Page 200 of 289 EFTA01085129 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against TD BANK. N.A. for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT LXX158 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Debra Villegas) 1275. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1276. This is a claim for aiding and abetting breach of fiduciary duty. 1277. Villegas was aware that as trustee of the attorney trust account where D3's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty and care to D3. Villegas was also aware that as trustee of the attorney trust account containing the funds to which D3 had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty. loyalty, and care to D3. 1278. Villegas was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to D3. 1279. Villegas actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 and his breaches of fiduciary duty. 1280. Villegas's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against DEBRA VILLEGAS for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 201 of 289 EFTA01085130 Razorback Funding, LLC, et aL, v. TD Bank N.A., et aL. Case No.: 09-062943 091 Amended Complaint COUNT LXXI159 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (aeainst Irene Stavl 1281. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1282. This is a claim for aiding and abetting breach of fiduciary duty. 1283. Stay was aware that as trustee of the attorney trust account where D3's purported settlement funds were deposited, Rothstein had fiduciary duties of honesty, loyalty, and care to D3. Stay was also aware that as trustee of the attorney trust account containing the funds to which D3 had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty. loyalty, and care to D3. 1284. Stay was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to D3. 1285. Stay actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 and his breaches of fiduciary duty. 1286. Stay's actions have directly caused injury and damage to D3. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against IRENE STAY for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 160 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against George G. Levin) 1287. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1288. This is a claim for aiding and abetting breach of fiduciary duty. Page 202 of 289 EFTA01085131 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1289. Levin was aware that as trustee of the attorney trust accounts where D3's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty and care to D3. Levin was also aware that as trustee of the attorney trust accounts containing the funds to which D3 had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty. loyalty, and care to D3. 1290. Levin was aware that Rothstein was financially exploiting the investors to their detriment. and was aware that Rothstein was breaching his fiduciary obligations to D3. 1291. Levin actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 and his breaches of fiduciary duty. 1292. Levin's actions have directly caused injury and damage to D3. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against GEORGE G. LEVIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 161 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Frank Preve) 1293. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1294. This is a claim for aiding and abetting breach of fiduciary duty. 1295. Preve was aware that as trustee of the attorney trust accounts where D3's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty and care to D3. Preve was also aware that as trustee of the attorney trust accounts containing the funds to which D3 had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty. loyalty, and care to D3. Pane 203 of 289 EFTA01085132 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 1296. Preve was aware that Rothstein was financially exploiting the investors to their detriment. and was aware that Rothstein was breaching his fiduciary obligations to D3. 1297. Preve actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 and his breaches of fiduciary duty. 1298. Preve's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB_LLC. requests judgment against FRANK PREVE for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 162 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Banvon Income Fund, LP, and Banvon USVI, LLC) 1299. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1300. This is a claim for aiding and abetting breach of fiduciary duty. 1301. At all times material hereto. Levin was acting in the scope of his employment as the chief executive officer of USVI and BIF. 1302. At all times material hereto, Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 1303. Banyon USVI and BIF were aware that as trustee of the attorney trust accounts where D3's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty. and care to D3. Banyon USVI and BIF were also aware that as trustee of the attorney trust accounts containing the funds to which D3 had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to D3. Page 204 of 289 EFTA01085133 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1304. Banyon USVI and BIF were aware that Rothstein was financially exploiting the investors to their detriment, and were aware that Rothstein was breaching his fiduciary obligations to D3. 1305. Banyon USVI and BIF, through its employees acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 and his breaches of fiduciary duty: 1306. Banyon USVI's and BIF's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB, LLC, requests judgment against BANYON INCOME FUND, LP, and BANYON USVI, LLC., for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 163 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Michael SzfranskiI 1307. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1308. This is a claim for aiding and abetting breach of fiduciary duty. 1309. Szfranski was aware that as trustee of the attorney trust accounts where the D3's purported settlement funds were deposited, Rothstein had fiduciary duties of honesty, loyalty, and care to D3. Szfranski was also aware that as trustee of the attorney trust accounts containing the funds to which D3 had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty. loyalty. and care to D3. 1310. Szfranski was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to D3. Pane 205 of 289 EFTA01085134 Razorback Funding, LLC,er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1311. Szfranski actively assisted. and provided substantial assistance. to Rothstein in his financial exploitation of D3 and his breaches of fiduciary duty. 1312. Szfranski's actions have directly caused injury and damage to D3. WHEREFORE, D3 CAPITAL CLUB, LLC, requests requests judgment against MICHAEL SZFRANSKI for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 164 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Onyx Capital Management) 1313. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1314. This is a claim for aiding and abetting breach of fiduciary duty. 1315. At all times material hereto, Szfranski was acting in the scope of his employment as president of Onyx. 1316. Onyx was aware that as trustee of the attorney trust accounts where D3's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty and care to D3. Onyx was also aware that as trustee of the attorney trust accounts containing the funds to which D3 had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty. loyalty, and care to D3. 1317. Onyx was aware that Rothstein was financially exploiting the investors to their detriment. and was aware that Rothstein was breaching his fiduciary obligations to D3. 1318. Onyx, through its employees acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 and his breaches of fiduciary duty. Page 206 of 289 EFTA01085135 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 ill% Amended Complaint 1319. Onyx's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC. requests requests judgment against ONYX CAPITAL MANAGEMENT for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 165 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Berenfeld Spritzer Shechter Sheer. LLP) 1320. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1321. This is a claim for aiding and abetting breach of fiduciary duty. 1322. Berenfeld was aware that as trustee of the attorney trust accounts where D3's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty, loyalty. and care to D3. Berenfeld was also aware that as trustee of the attorney trust accounts containing the funds to which D3 had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to D3. 1323. Berenfeld was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to D3. 1324. Berenfeld actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 and his breaches of fiduciary duty. 1325. Berenfeld's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against BERENFELD SPRITZER SHECHTER SHEER, LLP. for compensatory damages, together with court costs and such further relief as the Court deems proper. Page 207 of 289 EFTA01085136 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT 166 — BREACH OF FIDUCIARY DUTY (against Scott Rothstein) 1326. Plaintiff incorporates the allegations contained in paragraphs I through 4-07121 as if restated herein. 1327. This is a claim for breach of fiduciary duty. 1328. As trustee of the attorney trust account where D3's purported settlement funds were deposited, Rothstein had fiduciary duties of honesty, loyalty, and care to D3. Additionally, as trustee of the attorney trust account containing the funds to which D3 had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty. loyalty, and care to D3. 1329. Rothstein breached his fiduciary duties by raiding the RRA trust accounts for his personal use. 1330. Rothstein's actions have directly caused injury and damages to D3. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against SCOTT ROTHSTEIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT LXXI1167 - BREACH OF FIDUCIARY DUTY (against TD Bank, N.A.) 1331. Plaintiff incorporates the allegations contained in paragraphs I through 44-7121 as if restated herein. 1332. This is a claim for breach of fiduciary duty. 1333. At all times material hereto. Spinosa was acting in the scope of his employment as Regional Vice President of TD Bank. Page 208 of 289 EFTA01085137 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 fl91 Amended Complaint 1334. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 1335. At all times material hereto. Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 1336. In Florida. a bank assumes a fiduciary duty with its customer under special circumstances where the bank knows or has reason to know that the customer is placing trust and confidence in the bank and is relying on the bank to so counsel and inform him. Under the circumstances outlined above, whereby TD Bank knew that D3 was relying on Spinosa's assurances to D3 of the precautions in place to prevent improper withdrawals from its account, TD Bank was a fiduciary of D3 and owed D3 the fiduciary duties of honesty. loyalty, and care. Additionally. where TD Bank knew that D3 was relying on Kerstetter's representations to D3 that the settlement trust accounts had been funded. TD Bank was a fiduciary of D3 and owed D3 the fiduciary duties of honesty, loyalty, and care. In addition. TD knew that D3 was relying on Caretsky's representations that the RRA trust accounts contained substantial funds, TD Bank was a fiduciary of D3 and owed D3 the fiduciary duties of honesty. loyalty, and care. 1337. TD Bank breached its fiduciary duties through the actions of its employees by either ignoring or actively assisting and providing substantial assistance to Rothstein in its financial exploitation of D3. 1338. TD Bank's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against TD BANK. N.A. for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 209 of 289 EFTA01085138 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint GOUNT—LXMH—MDING-AND-ABE-rf-ING4zRAUD COUNT 168 - BREACH OF FIDUCIARY DUTY (against Frank-SpinesaGeorge G. Levin) 1339. Plaintiff incorporates the allegations contained in paragraphs 1 through 447121 as if restated herein. 1340. This is a claim for breach of fiduciary duty. 1341. By holding himself out as a co-investor, Levin became a fiduciary of D3 and owed D3 the fiduciary duties of honesty, loyalty, and care. 1342. Levin breached his fiduciary duties by either ignoring or actively assisting and providing substantial assistance to Rothstein in his financial exploitation of D3. 1343. Levin's actions have directly caused injury and damage D3. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against GEORGE G. LEVIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 169 - BREACH OF FIDUCIARY DUTY (against Frank Preve) 1344. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1345. This is a claim for breach of fiduciary duty. 1346. By holding himself out as a co-investor, Previn became a fiduciary of D3 and owed D3 the fiduciary duties of honesty, loyalty, and care. 1347. Preve breached his fiduciary duties by either ignoring or actively assisting and providing substantial assistance to Rothstein in his financial exploitation of D3. Page 210 of 289 EFTA01085139 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 1348. Preve's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against FRANK PREVE for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 170 - BREACH OF FIDUCIARY DUTY (against Banyon Income Fund. LP. and Banvon USVI, LLC) 1349. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1350. This is a claim for breach of fiduciary duty. 1351. At all times material hereto. Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 1352. At all times material hereto, Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 1353. Banyon USVI and BIF were fiduciaries of D3 and owed it the fiduciary duties of honesty. loyalty, and care. 1354. Banyon USVI and BIF breached their fiduciary duties through the actions of its employees by either ignoring or actively assisting and providing substantial assistance to Rothstein in its financial exploitation of D3. 1355. Banyon USVI's and BIF's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against BANYON INCOME FUND, LP. and BANYON USVI, LLC.. for compensatory damages, together with court costs and such further relief as the Court deems proper. Pane 211 of 289 EFTA01085140 Razorback Funding, LLC, er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 all Amended Complaint COUNT 171 - BREACH OF FIDUCIARY DUTY (against elSzfranslci 1356. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1357. This is a claim for breach of fiduciary duty. 1358. Szfranski, as an independent verifier. was a fiduciary of D3 and owed it the fiduciary duties of honesty. loyalty, and care. 1359. Szfranski breached his fiduciary duties by either ignoring or actively assisting and providing substantial assistance to Rothstein in his financial exploitation of D3. 1360. Szfranski's actions have directly caused injury and damage to D3. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 172 - BREACH OF FIDUCIARY DUTY (against Onyx Capital Management) 1361. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1362. This is a claim for breach of fiduciary duty. 1363. At all times material hereto, Szfranski was acting in the scope of his employment as president of Onyx. 1364. Onyx. as an independent verifier, was a fiduciary of D3 and owed it the fiduciary duties of honesty. loyalty, and care. Page 212 of 289 EFTA01085141 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1365. Onyx breached its fiduciary duties through the actions of its employees by either ignoring or actively assisting and providing substantial assistance to Rothstein in its financial exploitation of D3. 1366. Onyx's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against ONYX CAPITAL MANAGEMENT for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 173 - BREACH OF FIDUCIARY DUTY (against Berenfeld Spritzer Shechter Sheer, LLP) 1367. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1368. This is a claim for breach of fiduciary duty. 1369. Berenfeld, as an independent auditor, was a fiduciary of D3 and owed them the fiduciary duties of honesty. loyalty, and care. 1370. Berenfeld breached its fiduciary duties by either ignoring or actively assisting and providing substantial assistance to Rothstein in his financial exploitation of D3. 1371. Berenfeld's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against BERENFELD SPRTI LER SHECHTER SHEER. LLP, for compensatory damages. together with court costs and such further relief as the Court deems proper. Pane 213 of 289 EFTA01085142 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l9) Amended Complaint COUNT 174 - AIDING AND ABETTING FRAUD (against Frank Spinosa) 1372. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1373. This is a claim for aiding and abetting fraud. 1374. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1375. Spinosa knew of Rothstein's fraudulent scheme. 1376. Spinosa actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 through fraud. Spinosa's assistance included, but was not limited to supplying D3 with false bank account statements and misleading and untrue written assurances concerning the settlement accounts. 1377. Spinosa's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT lr-X-XI-V175 -AIDING AND ABETTTING FRAUD (against Jennifer Kerstetter) 1378. Plaintiff incorporates the allegations contained in paragraphs I through 4-07121 as if restated herein. 1379. This is a claim for aiding and abetting fraud. 1380. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. Page 214 of 289 EFTA01085143 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1381. Kerstetter knew of Rothstein's fraudulent scheme. 1382. Kerstetter actively assisted. and provided substantial assistance, to Rothstein in his financial exploitation of D3 through fraud. Kerstetter's assistance included, but was not limited to, providing false documentation to D3 that the RRA trust accounts contained substantial funds when they did not. 1383. Kerstetter's actions have directly caused injury and damage to D3. WHEREFORE. RAZORBACK FUNDING. LLC, requests judgment against JENNIFER KERS lb I 1ER for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT LX4C-V176 - AIDING AND ABETTING FRAUD (against Roseanne Caretskv) 1384. Plaintiff incorporates the allegations contained in paragraphs I through 444-7121 as if restated herein. 1385. This is a claim for aiding and abetting fraud. 1386. As described more fully above. the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1387. Caretsky knew of Rothstein's fraudulent scheme. 1388. Caretsky actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 through fraud by representing to D3 that the RRA trust accounts contained substantial funds, all the time knowing that the accounts contained, at most, minimal balances and that, to the extent the accounts were funded, that Rothstein routinely raided the accounts for his own use. 1389. Caretsky's actions have directly caused injury and damage to D3. Pane 215 of 289 EFTA01085144 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint WHEREFORE. D3 CAPITAL CLUB, LLC, requests judgment against ROSEANNE CARETSKY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT LXXVI177 - AIDING AND ABETTING FRAUD (against TD Bank, N.A.) 1390. Plaintiff incorporates the allegations contained in paragraphs I through 4-07121 as if restated herein. 1391. This is a claim for aiding and abetting fraud. 1392. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 1393. At all times material hereto Spinosa was acting in the scope of his employment for TD Bank. 1394. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 1395. At all times material hereto. Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 1396. TD Bank knew of Rothstein's fraudulent scheme. 1397. TD Bank. through Spinosa. Kerstetter, and Caretsky, actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 through fraud. TD Bank's assistance included. but was not limited to. providing false documentation to the D3 that the RRA trust accounts contained substantial funds when they did not and supplying investors with misleading and untrue written assurances concerning the settlement accounts. 1398. TD Bank's actions have directly caused injury and damage to D3. Page 216 of 289 EFTA01085145 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against TD BANK. N.A. for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT LXXVII178 - AIDING AND ABETTING FRAUD (against Debra Villegas) 1399. Plaintiff incorporates the allegations contained in paragraphs I through 4-07121 as if restated herein. 1400. This is a claim for aiding and abetting fraud. 1401. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1402. Villegas knew of Rothstein's fraudulent scheme. 1403. Villegas actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of all of the investor victims of Rothstein's Ponzi scheme, including D3 through fraud by furnishing false bank account statements and wire transfers to investors in order to induce them to invest despite having actual or constructive knowledge that the investments were a Ponzi scheme. 1404. Villegas's actions have directly caused injury and damage to D3. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against DEBRA VILLEGAS for compensatory damages. together with court costs and such further relief as the Court deems proper. Pane 217 of 289 EFTA01085146 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint COUNT I.XX-11-111179 - AIDING AND ABETTING FRAUD (against Irene Slav) 1405. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1406. This is a claim for aiding and abetting fraud. 1407. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1408. Stay knew of Rothstein's fraudulent scheme. 1409. Stay actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of all of the investor victims of Rothstein's Ponzi scheme, including D3 through fraud by furnishing false bank account statements and wire transfers to investors in order to induce them to invest despite having actual or constructive knowledge that the investments were a Ponzi scheme. 1410. Stay's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against IRENE STAY for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 180 - AIDING AND ABETTING FRAUD (against George G. Levin) 1411. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1412. This is a claim for aiding and abetting fraud. Page 218 of 289 EFTA01085147 Razorback Funding, LLC, et aL, v. TD Bank N.A., et al.. Case No.: 09-062943 (19) Amended Complaint 1413. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1414. Levin knew of Rothstein's fraudulent scheme. 1415. Levin actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 through fraud. Levin's assistance included, but was not limited to representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 1416. Levin's actions have directly caused injury and damage to D3. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against GEORGE G. LEVIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 181 - AIDING AND ABETTING FRAUD (against Frank Preve) 1417. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1418. This is a claim for aiding and abetting fraud. 1419. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 1420. Preve knew of Rothstein's fraudulent scheme. 1421. Preve actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 through fraud. Preve's assistance included, but was not limited to, representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. Page 219 of 289 EFTA01085148 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint 1422. Preve's actions have directly caused injury and damage to D3. WHEREFORE, D3 CAPITAL CLUB. LLC, requests judgment against FRANK PREVE for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 182 - AIDING AND ABETTING FRAUD (against Banyon Income Fund. LP. and Banvon USVI, LLC) 1423. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1424. This is a claim for aiding and abetting fraud. 1425. As described more fully above. the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. 1426. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 1427. At all times material hereto. Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 1428. Banyon USVI and BIF knew of Rothstein's fraudulent scheme. 1429. Banyon USVI and BIF, through Levin and Preve, actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 through fraud. Banyon USVI's and BIF's assistance included, but was not limited to. representing that the settlement agreements purchased by investors were real. that they had been fully funded. and that they would be paid out to investors over a predetermined schedule. 1430. Banyon USVI's and BIF's actions have directly caused injury and damage to D3. Page 220 of 289 EFTA01085149 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l9) Amended Complaint WHEREFORE. D3 CAPITAL CLUB, LLC. requests judgment against BANYON INCOME FUND. LP. and BANYON USVI. LLC.. for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 183 - AIDING AND ABETTING FRAUD (against Michael Szfranski) 1431. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1432. This is a claim for aiding and abetting fraud. 1433. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1434. Szfranski knew of Rothstein's fraudulent scheme. 1435. Szfranski actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 through fraud. Szfranski's assistance included, but was not limited to. verifying false bank statements and deal documents. 1436. Szfranski's actions have directly caused injury and damage to D3. WHEREFORE, D3 CAPITAL CLUB, LW, requests judgment against MICHAEL SZFRANSKI for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 184 - AIDING AND ABETTING FRAUD (against Onyx Capital Managementl 1437. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1438. This is a claim for aiding and abetting fraud. Page 221 of 289 EFTA01085150 Razorback Funding, LLC, et aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint 1439. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1440. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. 1441. Onyx knew of Rothstein's fraudulent scheme. 1442. Onyx. through Szfranski. actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 through fraud. Onyx's assistance included. but was not limited to, verifying false bank statements and deal documents. 1443. Onyx's actions have directly caused injury and damage to D3. WHEREFORE, D3 CAPITAL CLUB. LLC, requests judgment against ONYX CAPITAL MANAGEMENT for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 185 - AIDING AND ABETTING FRAUD (against Berenfeld Spritzer Shechter Sheer, LLP) 14.44. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1445. This is a claim for aiding and abetting fraud. 1446. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1447. Berenfeld knew of Rothstein's fraudulent scheme. 1448. Berenfeld actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 through fraud. Berenfeld's assistance included, but was not limited to. providing false auditing documents relating to Banyon and RRA. . Pane 222 of 289 EFTA01085151 Razorback Funding, LLC, et aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l9) Amended Complaint 1449. Berenfeld's actions have directly caused injury and damage to D3. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against BERENFELD SPRTI LER SHECHTER SHEER. LLP, for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 186 - CONVERSION (against Scott Rothstein) 1450. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as it restated herein. 1451. This is a claim for conversion. 1452. As described more fully above. the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with D3's $13.500.000.00 in funds. 1453. Rothstein's conversion of D3's funds has permanently deprived D3 of its property. 1454. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by D3 to make demand upon him for the return of its property would be futile. 1455. Rothstein's actions have directly caused injury and damages to D3. WHEREFORE. D3 CAPITAL CLUB. LW. requests judgment against SCOTT ROTHSTEIN for compensatory damages, together with court costs and such further relief as the Court deems proper. Page 223 of 289 EFTA01085152 Razorback Funding, LLC,et aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT I.XXIX187 - AIDING AND ABETTING CONVERSION (against Frank Spinosa) 1456. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1457. This is a claim for aiding and abetting conversion. 1458. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with D3's $13.500.000.00 in funds. 1459. Rothstein's conversion of D3's funds has permanently deprived D3 of its property. 1460. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by D3 to make demand upon him for the return of its property would be futile. 1461. Spinosa actively assisted, and provided substantial assistance. to Rothstein in either temporarily or permanently depriving D3 of its property by deceiving D3 into turning its property over to Rothstein under false pretenses. 1462. Spinosa's actions have directly caused injury and damages to D3. WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 224 of 289 EFTA01085153 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT LXXX188 - AIDING AND ABETTING CONVERSION (against Jennifer Kerstetter) 1463. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1464. This is a claim for aiding and abetting conversion. 1465. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with D3's $13.500.000.00 in funds. 1466. Rothstein's conversion of D3's funds has permanently deprived D3 of its property. 1467. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by D3 to make demand upon him for the return of its property would be futile. 1468. Kerstetter actively assisted. and provided substantial assistance, to Rothstein in either temporarily or permanently depriving D3 of its property by deceiving D3 into turning its property over to Rothstein under false pretenses. 1469. Kerstetter's actions have directly caused injury and damages to D3. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against JENNIFER KERS 1 EIIER for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 225 of 289 EFTA01085154 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT LXXXI189 - AIDING AND ABETTING CONVERSION (against Roseanne Caretskv) 1470. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1471. This is a claim for aiding and abetting fraud. 1472. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1473. Caretsky knew of Rothstein's fraudulent scheme. 1474. Caretsky actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of D3 through fraud. Caretsky's assistance included, but was not limited to, providing false documentation to D3 that the RRA trust accounts contained substantial funds when they did not. 1475. Caretsky's actions have directly caused injury and damage to D3. 1476. Caretsky's actions have directly caused injury and damages to D3. WHEREFORE. D3 CAPITAL CLUB. LLC, requests judgment against ROSEANNE CARETSKY for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT I.XXX14190 - AIDING AND ABETTING CONVERSION (against TD Bank, N.A.) 1477. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1478. This is a claim for aiding and abetting conversion. Page 226 of 289 EFTA01085155 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1479. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with D3's $13,500,000.00 in funds. 1480. Rothstein's conversion of D3's funds has permanently deprived D3 of its property, 1481. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by D3 to make demand upon him for the return of its property would be futile. 1482. At all times material hereto Spinosa was acting in the scope of his employment for TD Bank. 1483. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank. 1484. At all times material hereto, Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 1485. TD Bank, through its employees while acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving D3 of its property by allowing Rothstein to make unauthorized withdrawals of its funds and by deceiving D3 into turning its property over to Rothstein under false pretenses. 1486. TD Bank's actions have directly caused injury and damages to D3. Page 227 of 289 EFTA01085156 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE. D3 CAPITAL CLUB, LLC, requests judgment against TD BANK N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT LXXXIIII91 - AIDING AND ABETTING CONVERSION (against Debra Villegas) 1487. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1488. This is a claim for aiding and abetting conversion. 1489. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with D3's $13,500,000.00 in funds. 1490. Rothstein's conversion of D3's funds has permanently deprived D3 of its property. 1491. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by D3 to make demand upon him for the return of its property would be futile. 1492. Villegas actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving D3 of its property by deceiving D3 into turning its property over to Rothstein under false pretenses. 1493. Villegas's actions have directly caused injury and damages to D3. Page 228 of 289 EFTA01085157 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against DEBRA VILLEGAS for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 12-X-X-XIVI92 - AIDING AND ABETTING CONVERSION (against Irene Stay) 1494. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1495. This is a claim for aiding and abetting conversion. 1496. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with D3's $13.500.000.00 in funds. 1497. Rothstein's conversion of D3's funds has permanently deprived D3 of its property. 1498. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by D3 to make demand upon him for the return of its property would be futile. 1499. Stay actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving D3 of its property by deceiving D3 into turning its property over to Rothstein under false pretenses. 1500. Stay's actions have directly caused injury and damages to D3. Page 229 of 289 EFTA01085158 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint WHEREFORE. D3 CAPITAL CLUB_LLC, requests judgment against IRENE STAY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 193 - AIDING AND ABETTING CONVERSION (against George G. Levin) 1501. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1502. This is a claim for aiding and abetting conversion. 1503. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with their $13,500.000.00 in funds. 1504. Rothstein's conversion of D3's funds has permanently deprived D3 of its property. 1505. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by D3 to make demand upon him for the return of its property would be futile. 1506. Levin actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving D3 of its property by representing that the settlement agreements purchased by investors were real, that they had been fully funded, that they would be paid out to investors over a predetermined schedule, and by deceiving D3 into turning its property over to Rothstein under false pretenses. 1507. Levin's actions have directly caused injury and damages to D3. Page 230 of 289 EFTA01085159 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against GEORGE G. LEVIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 194 - AIDING AND ABETTING CONVERSION (against Frank Preve) 1508. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1509. This is a claim for aiding and abetting conversion. 1510. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with their $13,500.000.00 in funds. 1511. Rothstein's conversion of D3's funds has permanently deprived D3 of its property. 1512. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by D3 to make demand upon him for the return of its property would be futile. 1513. Preve actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving D3 of its property by representing that the settlement agreements purchased by investors were real, that they had been fully funded, that they would be paid out to investors over a predetermined schedule, and by deceiving D3 into turning its property over to Rothstein under false pretenses. 1514. Preve's actions have directly caused injury and damages to D3. Pane 231 of 289 EFTA01085160 Razorback Funding, LLC, et aL, v. TD Bank N.A., a al.. Case No.: 09-062943 ft% Amended Complaint WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 195 - AIDING AND ABETTING CONVERSION (against Banvon Income Fund, LP, and Banvon USVI, LLC) 1515. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1516. This is a claim for aiding and abetting conversion. 1517. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with its $13.500.000.00 in funds. 1518. Rothstein's conversion of D3's funds has permanently deprived D3 of its property. 1519. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by D3 to make demand upon him for the return of its property would be futile. 1520. At all times material hereto. Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 1521. At all times material hereto. Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 1522. Banyon USVI and BIF. through its employees while acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in either Page 232 of 289 EFTA01085161 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 ill% Amended Complaint temporarily or permanently depriving D3 of its property by representing that the settlement agreements purchased by investors were real, that they had been fully funded, that they would be paid out to investors over a predetermined schedule, and by deceiving D3 into turning its property over to Rothstein under false pretenses. 1523. Banyon USVI's and BIF's actions have directly caused injury and damages to D3. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against BANYON INCOME FUND. LP. and BANYON USVI. LLC.. for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 196 - AIDING AND ABETTING CONVERSION (against Michael Szfranski) 1524. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1525. This is a claim for aiding and abetting conversion. 1526. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with its $13,500,000.00 in funds. 1527. Rothstein's conversion of D3's funds has permanently deprived D3 of its property. 1528. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by D3 to make demand upon him for the return of their property would be futile. Page 233 of 289 EFTA01085162 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1529. Szfranski actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving D3 of its property by verifying false bank statements and deal documents and by deceiving D3 into turning its property over to Rothstein under false pretenses. 1530. Szfranski's actions have directly caused injury and damages to D3. WHEREFORE. D3 CAPITAL CLUB. LLC. requests judgment against judgment against MICHAEL SZFRANSKI for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 197 - AIDING AND ABETTING CONVERSION (against Onyx Capital Management) 1531. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1532. This is a claim for aiding and abetting conversion. 1533. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with its $13,500,000.00 in funds. 1534. Rothstein's conversion of D3's funds has permanently deprived D3 of its property. 1535. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by D3 to make demand upon him for the return of their property would be futile. Page 234 of 289 EFTA01085163 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1536. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. 1537. Onyx, through its employees while acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving D3 of its property by verifying false bank statements and deal documents and by deceiving D3 into turning its property over to Rothstein under false pretenses. 1538. Onyx's actions have directly caused injury and damages to D3. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against judgment against ONYX CAPITAL MANAGEMENT for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 198 - AIDING AND ABETTING CONVERSION (against Berenfeld Spritzer Shechter Sheer. LLP) 1539. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1540. This is a claim for aiding and abetting conversion. 1541. As described more fully above, the deals in which D3 invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with their $13.500,000.00 in funds. 1542. Rothstein's conversion of D3's funds has permanently deprived D3 of its property. Page 235 of 289 EFTA01085164 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1543. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by D3 to make demand upon him for the return of its property would be futile. 1544. Berenfeld actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving D3 of its property by providing false auditing documents relating to Banyon and RRA and by deceiving D3 into turning its property over to Rothstein under false pretenses. 1545. Berenfeld's actions have directly caused injury and damages to D3. WHEREFORE, D3 CAPITAL CLUB, LLC, requests judgment against BERENFELD SPRTI LER SHECHTER SHEER. LLP, for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 199 - NEGLIGENT SUPERVISION (against TD Bank N-A.) 1546. Plaintiff incorporates the allegations contained in paragraphs I through 407121 as if restated herein. 1547. This is a claim for negligent supervision. 1548. As described more fully above, Spinosa, Kerstetter. and Caretsky participated, with actual or constructive knowledge, in Rothstein's Ponzi scheme. Spinosa's, Kerstetter's. and Caretsky's participation included, but was not limited to, providing D3 with false information concerning the amounts deposited in RRA trust accounts and supplying investors with misleading and untrue written assurances concerning the settlement accounts. Page 236 of 289 EFTA01085165 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 1549. In reliance on Spinosa's. Kerstetter's, and Caretsky's representations, on October 21. 2009. D3 began sending payments to RRA's account at TD Bank. eventually funding a total of $13,500,000.00. 1550. D3's reliance on Spinosa's. Kerstetter's. and Caretsky's representations was reasonable and justified. 1551. TD Bank owed a duty to D3 to ensure that its employees were not actively defrauding depositors by making false representations in order to trick them into making unsafe deposits into trust accounts that they knew or reasonably should have known were being raided by Rothstein. 1552. TD Bank breached its duties to D3 because it had actual or constructive notice that its assistant manager and assistant vice president and branch manager were either fraudulently or negligently participating in a scheme which resulted in the unauthorized raiding of investors' deposits. and acted unreasonably by failing to investigate or take corrective action. 1553. As a direct and proximate result of TD Bank's failure to investigate or take corrective action against Spinosa, Kerstetter. or Caretsky. D3 has sustained damages. WHEREFORE. D3 CAPITAL CLUB_LLC. requests judgment against TD BANK N.A. for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 237 of 289 EFTA01085166 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT LXXXV200 - FRAUDULENT MISREPRESENTATION (against Scott Rothsteinl 1554. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1555. This is a claim for fraudulent misrepresentation. 1556. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1557. In furtherance of the Ponzi scheme. Rothstein knowingly made material false statements and representations. including but not limited to representing that the settlement agreements purchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 1558. Rothstein intended BFMC to act on his knowingly false representations. 1559. BFMC justifiably relied upon Rothstein's representations to its detriment. 1560. As a direct and proximate result of Rothstein's false statements, BFMC has sustained damages. WHEREFORE. BFMC INVESTMENT, LLC, requests judgment against SCOTT ROTHSTEIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT LXXXV1201 - FRAUDULENT MISREPRESENTATION (against Frank Spinosa) 1561. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1562. This is a claim for fraudulent misrepresentation. Page 238 of 289 EFTA01085167 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1563. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1564. In furtherance of the Ponzi scheme. Spinosa knowingly made material false statements and representations including, but not limited to, supplying investors with false bank account statements and misleading and untrue written assurances concerning the settlement accounts. 1565. Spinosa intended BFMC to act on his knowingly false representations. 1566. BFMC justifiably relied upon Spinosa's representations to its detriment. 1567. As a direct and proximate result of Spinosa's false statements, BFMC has sustained damages. WHEREFORE, BFMC INVESTMENT. LLC. requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 132XXX-VH202 - FRAUDULENT MISREPRESENTATION (against TD Bank, N.A.) 1568. Plaintiff incorporates the allegations contained in paragraphs 1 through 447121 as if restated herein. 1569. This is a claim for fraudulent misrepresentation. 1570. At all times material hereto. Spinosa was acting in the scope of his employment as Regional Vice President of TD Bank. 1571. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. Page 239 of 289 EFTA01085168 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1572. In furtherance of the Ponzi scheme, TD Bank. through Spinosa, knowingly made material false statements and representations including. but not limited to. supplying investors with false bank account statements and supplying investors with misleading and untrue written assurances concerning the settlement accounts. 1573. TD Bank, through Spinosa, intended BFMC to act on their knowingly false representations. 1574. BFMC justifiably relied upon TD Bank's. through Spinosa's representations. to their detriment. 1575. As a direct and proximate result of TD Bank's, made through Spinosa's, false statements. BFMC has sustained damages. WHEREFORE. BFMC INVESTMENT. LLC, requests judgment against TD BANK, N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 121OOWIR203 - FRAUDULENT MISREPRESENTATION (against David Boden) 1576. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1577. This is a claim for fraudulent misrepresentation. 1578. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1579. In furtherance of the Ponzi scheme. Roden knowingly made material false statements and representations including, but not limited to, making misleading and untrue assurances concerning the settlement agreements and accounts. Pane 240 of 289 EFTA01085169 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1580. Boden intended BFMC to act on his knowingly false representations. 1581. BFMC justifiably relied upon Boden's representations to its detriment. 1582. As a direct and proximate result of Boden's false statements. BFMC has sustained damages. WHEREFORE, BFMC INVESTMENT, LLC, requests judgment against DAVID BODEN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 12-1Oa-V-LX204 - FRAUDULENT MISREPRESENTATION (against Andrew Barnett) 1583. Plaintiff incorporates the allegations contained in paragraphs 1 through 4-0-7121 as if restated herein. 1584. This is a claim for fraudulent misrepresentation. 1585. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1586. In furtherance of the Ponzi scheme. Barnett knowingly made material false statements and representations including, but not limited to, supplying BFMC with false information about the identity of the defendant who was purportedly funding the settlement. 1587. Barnett intended BFMC to act on his knowingly false representations. 1588. BFMC justifiably relied upon Barnett's representations to its detriment. 1589. As a direct and proximate result of Barnett's false statements. BFMC has sustained damages. Page 241 of 289 EFTA01085170 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE, BFMC INVESTMENT. LLC, requests judgment against ANDREW BARNEY!' for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT X€205 - NEGLIGENT MISREPRESENTATION (against Frank Spinosa) 1590. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1591. This is a claim for negligent misrepresentation. 1592. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1593. In furtherance of the Ponzi scheme. Spinosa made material false statements and representations including, but not limited to, supplying investors with false bank account statements and misleading and untrue written assurances concerning the settlement accounts. 1594. When making the false statements and representations. Spinosa either knew or reasonably should have known that they were false. 1595. Spinosa owed BFMC a duty of care because he knew or had reason to know that BFMC was placing trust and confidence in him and relying on him to inform it. 1596. Spinosa breached his duty to BFMC by making false representations with the intention that BFMC rely on them. 1597. BFMC justifiably relied upon Spinosa's representations to its detriment. 1598. As a direct and proximate result of Spinosa's false statements. BFMC has sustained damages. Pane 242 of 289 EFTA01085171 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint WHEREFORE, BFMC INVESTMENT, LLC. requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XG1206 - NEGLIGENT MISREPRESENTATION (against TD Bank, N.A.) 1599. Plaintiff incorporates the allegations contained in paragraphs 1 through 447121 as if restated herein. 1600. This is a claim for negligent misrepresentation. 1601. At all times material hereto. Spinosa was acting in the scope of his employment as Regional Vice President of T.D. Bank. 1602. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1603. In furtherance of the Ponzi scheme. TD Bank, through Spinosa. made material false statements and representations, including, but not limited to. showing investors false statements of the amounts in RRA trust accounts and providing misleading and untrue written assurances concerning the settlement accounts.. 1604. When making the false statements and representations, TD Bank. through Spinosa, either knew or reasonably should have known that they were false. 1605. TD Bank owed BFMC a duty of care because it knew or had reason to know that BFMC was placing trust and confidence in her and relying on it to inform them. 1606. TD Bank breached its duty to BFMC by making false representations, through Spinosa, with the intention that BFMC rely on them. Page 243 of 289 EFTA01085172 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 1607. BFMC justifiably relied upon TD Bank's. through Spinosa's. representations to its detriment. 1608. As a direct and proximate result of TD Bank's representations, made through Spinosa. BFMC has sustained damages. WHEREFORE. BFMC INVESTMENT. LLC. requests judgment against TD BANK N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XGII207 - NEGLIGENT MISREPRESENTATION (against David Boden) 1609. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1610. This is a claim for negligent misrepresentation. 1611. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1612. In furtherance of the Ponzi scheme. Roden knowingly made material false statements and representations including, but not limited to, making misleading and untrue assurances concerning the settlement agreements and accounts. 1613. When making the false statements and representations. Boden either knew or reasonably should have known that they were false. 1614. Boden owed BFMC a duty of care by affirmatively and voluntarily undertaking to offer BFMC information. 1615. Boden breached his duty to BFMC by making false representations with the intention that BFMC rely on them. PaRe 244 of 289 EFTA01085173 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 1616. BFMC justifiably relied upon Boden's representations to its detriment. 1617. As a direct and proximate result of Boden's false statements. BFMC has sustained damages. WHEREFORE. BFMC INVESTMENT, LLC, requests judgment against DAVID BODEN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 208 - NEGLIGENT MISREPRESENTATION (against Andrew Barnett) 1618. Plaintiff incorporates the allegations contained in paragraphs I through +0-7121 as if restated herein. 1619. This is a claim for negligent misrepresentation. 1620. As described more fully above, Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1621. In furtherance of the Ponzi scheme. Barnett made material false statements and representations including, but not limited to. supplying BFMC with false information about the identity of the defendant who was purportedly funding the settlement. 1622. When making the false statements and representations. Bamett either knew or reasonably should have known that they were false. 1623. Barnett owed BFMC a duty of care by affirmatively and voluntarily undertaking to offer BFMC information. 1624. Barnett breached his duty to BFMC by making false representations with the intention that BFMC rely on them. 1625. BFMC justifiably relied upon Barnett's representations to its detriment. Page 245 of 289 EFTA01085174 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1626. As a direct and proximate result of Barnett's false statements. BFMC has sustained damages. WHEREFORE. BFMC INVESTMENT. LLC, requests judgment against ANDREW BARNETT for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XG141209 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Frank Spinosal 1627. Plaintiff incorporates the allegations contained in paragraphs I through 407121 as if restated herein. 1628. This is a claim for aiding and abetting breach of fiduciary duty. 1629. Spinosa was aware that as trustee of the attorney trust account where BFMC's purported settlement funds were deposited, Rothstein had fiduciary duties of honesty, loyalty, and care to BFMC. Spinosa was also aware that as trustee of the attorney trust account containing the funds to which D3 had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty. loyalty, and care to BFMC. 1630. Spinosa was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to BFMC. 1631. Spinosa actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of BFMC and his breaches of fiduciary duty. 1632. Spinosa's actions have directly caused injury and damage to BFMC. WHEREFORE. BFMC INVESTMENT. LLC, requests judgment against FRANK A. SPINOSA for compensatory damages, together with court costs and such further relief as the Court deems proper. Page 246 of 289 EFTA01085175 Razorback Funding, LLC, a aL, v. TD Bank N.A., a A. Case No.: 09-062943 091 Amended Complaint COUNT XCIV210 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against TD Bank. N.A.) 1633. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1634. This is a claim for aiding and abetting breach of fiduciary duty. 1635. At all times material hereto, Spinosa was acting in the scope of his employment as Regional Vice President of TD Bank. 1636. TD Bank was aware that as trustee of the attorney trust account where BFMC's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty, loyalty and care to BFMC. TD Bank was also aware that as trustee of the attorney trust account containing the funds to which BFMC had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty, loyalty. and care to BFMC. 1637. TD Bank was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to BFMC. 1638. TD Bank. through its employees acting within the scope of their employment actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of BFMC and his breaches of fiduciary duty. 1639. TD Bank's actions have directly caused injury and damage to BFMC. WHEREFORE. BFMC INVESTMENT. LLC, requests judgment against TD BANK N.A.. for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XCV211 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against David Boden) Page 247 of 289 EFTA01085176 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1640. Plaintiff incorporates the allegations contained in paragraphs I through 407121 as if restated herein. 1641. This is a claim for aiding and abetting breach of fiduciary duty. 1642. Boden was aware that as trustee of the attorney trust account where BFMC's purported settlement funds were deposited, Rothstein had fiduciary duties of honesty. loyalty, and care to BFMC. Boden was also aware that as trustee of the attorney trust account containing the funds to which BFMC had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to BFMC. 1643. Boden was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to BFMC. 1644. Boden actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of BFMC and his breaches of fiduciary duty. 1645. Boden's actions have directly caused injury and damage to BFMC. WHEREFORE, BFMC INVESTMENT, LLC, requests judgment against DAVID BODEN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT XCVI212 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Debra Villegasi 1646. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1647. This is a claim for aiding and abetting breach of fiduciary duty. Page 248 of 289 EFTA01085177 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1648. Villegas was aware that as trustee of the attorney trust account where BFMC's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty and care to BFMC. Villegas was also aware that as trustee of the attorney trust account containing the funds to which BFMC had an exclusive right to collect in the near future, Rothstein had fiduciary duties of honesty. loyalty, and care to BFMC. 1649. Villegas was aware that Rothstein was financially exploiting the investors to their detriment. and was aware that Rothstein was breaching his fiduciary obligations to BFMC. 1650. Villegas actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of BFMC and his breaches of fiduciary duty. 1651. Villegas's actions have directly caused injury and damage to BFMC. WHEREFORE. BFMC INVESTMENT. LLC. requests judgment against DEBRA VILLEGAS for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XCVII213 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY fgainst Irene Stay) 1652. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1653. This is a claim for aiding and abetting breach of fiduciary duty. 1654. Stay was aware that as trustee of the attorney trust account where BFMC's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty and care to BFMC. Stay was also aware that as trustee of the attorney trust account containing the funds to which BFMC had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty. loyalty, and care to BFMC. PaRe 249 of 289 EFTA01085178 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint 1655. Stay was aware that Rothstein was financially exploiting the investors to their detriment. and was aware that Rothstein was breaching his fiduciary obligations to BFMC. 1656. Stay actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of BFMC and his breaches of fiduciary duty. 1657. Stay's actions have directly caused injury and damage to BFMC. WHEREFORE, BFMC INVESTMENT_LLC, requests judgment against IRENE STAY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 214 - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (against Andrew Barnett) 1658. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1659. This is a claim for aiding and abetting breach of fiduciary duty. 1660. Barnett was aware that as trustee of the attorney trust account where BFMC's purported settlement funds were deposited, Rothstein had fiduciary duties of honesty. loyalty and care to BFMC. Barnett was also aware that as trustee of the attorney trust account containing the funds to which BFMC had an exclusive right to collect in the near future Rothstein had fiduciary duties of honesty. loyalty, and care to BFMC. 1661. Barnett was aware that Rothstein was financially exploiting the investors to their detriment, and was aware that Rothstein was breaching his fiduciary obligations to BFMC. 1662. Barnett actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of BFMC and his breaches of fiduciary duty. 1663. Barnett's actions have directly caused injury and damage to BFMC. Pane 250 of 289 EFTA01085179 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint WHEREFORE, BFMC INVESTMENT. LLC, requests judgment against ANDREW BARNEY!' for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 215 - BREACH OF FIDUCIARY DUTY (against Scott Rothstein) 1664. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1665. This is a claim for breach of fiduciary duty. 1666. As trustee of the attorney trust account where BFMC's purported settlement funds were deposited. Rothstein had fiduciary duties of honesty. loyalty, and care to BFMC. Additionally, as trustee of the attorney trust account containing the funds to which BFMC had an exclusive right to collect in the near future. Rothstein had fiduciary duties of honesty, loyalty, and care to BFMC. 1667. Rothstein breached his fiduciary duties by raiding the RRA trust accounts for his personal use. 1668. Rothstein's actions have directly caused injury and damages to BFMC. WHEREFORE, BFMC INVESTMENT, LLC, requests judgment against SCOTT ROTHSTEIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XCVIII216 - BREACH OF FIDUCIARY DUTY (against TD Bank, N.A.) 1669. Plaintiff incorporates the allegations contained in paragraphs 1 through 40-7121 as if restated herein. Page 25 l of 289 EFTA01085180 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1670. This is a claim for breach of fiduciary duty. 1671. At all times material hereto. Spinosa was acting in the scope of his employment as Regional Vice President of TD Bank. 1672. In Florida, a bank assumes a fiduciary duty with its customer under special circumstances where the bank knows or has reason to know that the customer is placing trust and confidence in the bank and is relying on the bank to so counsel and inform him. Under the circumstances outlined above, whereby TD Bank knew that BFMC was relying on Spinosa's assurances to BFMC of the precautions in place to prevent improper withdrawals from its account, TD Bank was a fiduciary of BFMC and owed BFMC the fiduciary duties of honesty, loyalty, and care. 1673. TD Bank breached its fiduciary duties through the actions of its employees by either ignoring or actively assisting and providing substantial assistance to Rothstein in its financial exploitation of BFMC. 1674. TD Bank's actions have directly caused injury and damage to BFMC. WHEREFORE, BFMC INVESTMENT. LLC, requests judgment against TD BANK N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT XGIX217 - AIDING AND ABETTING FRAUD (against Frank Spinosa) 1675. Plaintiff incorporates the allegations contained in paragraphs 1 through 40-7121 as if restated herein. 1676. This is a claim for aiding and abetting fraud. Pane 252 of 289 EFTA01085181 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint 1677. As described more fully above, the deals in which BFMC invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 1678. Spinosa knew of Rothstein's fraudulent scheme. 1679. Spinosa actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of BFMC through fraud. Spinosa's assistance included, but was not limited to. supplying BFMC with false bank account statements and misleading and untrue written assurances concerning the settlement accounts. 1680. Spinosa's actions have directly caused injury and damage to BFMC. WHEREFORE, BFMC INVESTMENT, LLC, requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 9218 - AIDING AND ABETTING FRAUD (against TD Bank, N.A.) 1681. Plaintiff incorporates the allegations contained in paragraphs I through 407121 as if restated herein. 1682. This is a claim for aiding and abetting fraud. 1683. As described more fully above, the deals in which Razorback invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1684. At all times material hereto Spinosa was acting in the scope of his employment for TD Bank. 1685. TD Bank knew of Rothstein's fraudulent scheme. 1686. TD Bank, through Spinosa, actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of BFMC through fraud. TD Bank's assistance Pane 253 of 289 EFTA01085182 Razorback Funding, LLC, a aL, v. TD Bank N.A., a al.. Case No.: 09-062943 091 Amended Complaint included, but was not limited to, providing false documentation to BFMC that the RRA trust accounts contained substantial funds when they did not and supplying investors with misleading and untrue written assurances concerning the settlement accounts. 1687. TD Bank's actions have directly caused injury and damage to BFMC. WHEREFORE. BFMC INVESTMENT. LLC. requests judgment against TD BANK N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 254 of 289 EFTA01085183 Razorback Funding, LLC, et aL, v. TD Bank N.A., et al.. Case No.: 09-062943 (19) Amended Complaint COUNT €1219 - AIDING AND ABETTING FRAUD (against David Bodenj 1688. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1689. This is a claim for aiding and abetting fraud. 1690. As described more fully above, the deals in which BFMC invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1691. Boden knew of Rothstein's fraudulent scheme. 1692. Boden actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of BFMC through fraud. Boden's assistance included, but was not limited to, making assurances to BFMC that there were safeguards in place to protect its deposits, all the time knowing that no such safeguards existed. 1693. Boden's actions have directly caused injury and damage to BFMC. WHEREFORE. BFMC INVESTMENT, LLC, requests judgment against DAVID BODEN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT €11220 - AIDING AND ABETTING FRAUD (against Debra Villegas) 1694. Plaintiff incorporates the allegations contained in paragraphs 1 through 447121 as if restated herein. 1695. This is a claim for aiding and abetting fraud. 1696. As described more fully above. the deals in which BFMC invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. Page 255 of 289 EFTA01085184 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1697. Villegas knew of Rothstein's fraudulent scheme. 1698. Villegas actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of all of the investor victims of Rothstein's Ponzi scheme, including BFMC, through fraud by furnishing false bank account statements and wire transfers to investors in order to induce them to invest despite having actual or constructive knowledge that the investments were a Ponzi scheme. 1699. Villegas's actions have directly caused injury and damage to BFMC. WHEREFORE. BFMC INVESTMENT. LLC, requests judgment against DEBRA VILLEGAS for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT GIII221 - AIDING AND ABETTING FRAUD (against Andrew-BarnettIrene Stavi 1700. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1701. This is a claim for aiding and abetting fraud. 1702. As described more fully above, the deals in which BFMC invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1703. Stay knew of Rothstein's fraudulent scheme. 1704. Stay actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of all of the investor victims of Rothstein's Ponzi scheme, including BFMC, through fraud by furnishing false bank account statements and wire transfers to investors in order to induce them to invest despite having actual or constructive knowledge that the investments were a Ponzi scheme. Page 256 of 289 EFTA01085185 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l9) Amended Complaint 1705. Stay's actions have directly caused injury and damage to BFMC. WHEREFORE, BFMC INVESTMENT. LLC. requests judgment against IRENE STAY for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 222 - AIDING AND ABETTING FRAUD (against Andrew Barnett) 1706. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1707. This is a claim for aiding and abetting fraud. 1708. As described more fully above, the deals in which BFMC invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 1709. Barnett knew of Rothstein's fraudulent scheme. 1710. Barnett actively assisted, and provided substantial assistance, to Rothstein in his financial exploitation of all of the investor victims of Rothstein's Ponzi scheme, including BFMC. through fraud. Barnett's assistance included, but was not limited to. supplying BFMC with false information about the identity of the defendant who was purportedly funding the settlement despite having actual or constructive knowledge that the settlements were part of a Ponzi scheme. 1711. Bamett's actions have directly caused injury and damage to BFMC. WHEREFORE. BFMC INVESTMENT. LLC, requests judgment against ANDREW BARNETT for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 257 of 289 EFTA01085186 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint COUNT CI-V223 - CONVERSION (against Scott Rothstein) 1712. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1713. This is a claim for conversion. 1714. As described more fully above, the deals in which BFMC invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of BFMC when he absconded with BFMC's $2,400,000.00 in funds. 1715. Rothstein's conversion of BFMC's funds has permanently deprived BFMC of its property. 1716. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by BFMC to make demand upon him for the return of its property would be futile. 1717. Rothstein's actions have directly caused injury and damages to BFMC. WHEREFORE. BFMC INVESTMENT, LLC, requests judgment against SCOTT ROTHSTEIN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT CV224 - AIDING AND ABETTING CONVERSION (against Frank Spinosa) 1718. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1719. This is a claim for aiding and abetting conversion. Pane 258 of 289 EFTA01085187 Razorback Funding, LLC,er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1720. As described more fully above, the deals in which BFMC invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of BFMC when he absconded with D3' s $2,400,000.00 in funds. 1721. Rothstein's conversion of BFMC's funds has permanently deprived BFMC of its property, 1722. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by BFMC to make demand upon him for the return of its property would be futile. 1723. Spinosa actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving BFMC of its property by deceiving BFMC into turning its property over to Rothstein under false pretenses. 1724. Spinosa's actions have directly caused injury and damages to BFMC. WHEREFORE, BFMC INVESTMENT, LLC, requests judgment against FRANK A. SPINOSA for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT CVI22S - AIDING AND ABETTING CONVERSION (against TD Bank, N.A.) 1725. Plaintiff incorporates the allegations contained in paragraphs I through 407121 as if restated herein. 1726. This is a claim for aiding and abetting conversion. 1727. As described more fully above, the deals in which BFMC invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. In Pane 259 of 289 EFTA01085188 Razorback Funding, LLC, a aL, v. TD Bank N.A., a A. Case No.: 09-062943 (19) Amended Complaint furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of BFMC when he absconded with BFMC $2.400.000.00 in funds. 1728. Rothstein's conversion of BFMC' s funds has permanently deprived BFMC of its property. 1729. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by BFMC to make demand upon him for the return of its property would be futile. 1730. At all times material hereto Spinosa was acting in the scope of his employment for TD Bank. 1731. TD Bank, through its employees while acting within the scope of their employment, actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving BFMC of its property by allowing Rothstein to make unauthorized withdrawals of its funds and by deceiving BFMC into turning its property over to Rothstein under false pretenses. 1732. TD Bank's actions have directly caused injury and damages to BFMC. WHEREFORE, BFMC INVESTMENT, requests judgment against TD BANK N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT €V11226 - AIDING AND ABETTING CONVERSION (against David Baden) 1733. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1734. This is a claim for aiding and abetting conversion. Page 260 of 289 EFTA01085189 Razorback Funding, LLC, a aL, v. TD Bank N.A., a A. Case No.: 09-062943 (19) Amended Complaint 1735. As described more fully above, the deals in which BFMC invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with BFMC's $2,400,000.00 in funds. 1736. Rothstein's conversion of BFMC's funds has permanently deprived BFMC of its property, 1737. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by BFMC to make demand upon him for the return of its property would be futile. 1738. Boden actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving BFMC of its property by deceiving BFMC into turning its property over to Rothstein under false pretenses. 1739. Boden's actions have directly caused injury and damages to BFMC. WHEREFORE, BFMC INVESTMENT, LLC, requests judgment against DAVID BODEN for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT CVIII227 - AIDING AND ABETTING CONVERSION (against Debra Villegas) 1740. Plaintiff incorporates the allegations contained in paragraphs I through 447121 as if restated herein. 1741. This is a claim for aiding and abetting conversion. 1742. As described more fully above, the deals in which BFMC invested were bogus and Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. In Pane 261 of 289 EFTA01085190 Razorback Funding, LLC, et aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (01 Amended Complaint furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with BFMC's $2.400.000.00 in funds. 1743. Rothstein's conversion of BFMC's funds has permanently deprived BFMC of its property. 1744. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by BFMC to make demand upon him for the return of its property would be futile. 1745. Villegas actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving BFMC of its property by deceiving BFMC into turning its property over to Rothstein under false pretenses. 1746. Villegas's actions have directly caused injury and damages to BFMC. 1747. WHEREFORE. BFMC INVESTMENT. LLC. requests judgment against DEBRA VILLEGAS for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT C1X228 - AIDING AND ABETTING CONVERSION (aeainst Andrew-BarnettIrene Stay) 1748. Plaintiff incorporates the allegations contained in paragraphs 1 through 447121 as if restated herein. 1749. This is a claim for aiding and abetting conversion. 1750. As described more fully above, the deals in which BFMC invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over the property of D3 when he absconded with BFMC's $2,400,000.00 in funds. Page 262 of 289 EFTA01085191 Razorback Funding, LLC,er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1751. Rothstein's conversion of BFMC's funds has permanently deprived BFMC of its property. 1752. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by BFMC to make demand upon him for the return of its property would be futile. 1753. Stay actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving BFMC of its property by deceiving BFMC into turning its property over to Rothstein under false pretenses. 1754. Stay's actions have directly caused injury and damages to BFMC. 1755. WHEREFORE, BFMC INVESTMENT, LLC, requests judgment against IRENE STAY for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 229 - AIDING AND ABETTING CONVERSION (against Andrew Barnett) 1756. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 1757. This is a claim for aiding and abetting conversion. 1758. As described more fully above, the deals in which BFMC invested were bogus and Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control over the property of BFMC when he absconded with BFMC's $2,400,000.00 in funds. 1759. Rothstein's conversion of BFMC's funds has permanently deprived BFMC of its property. Page 263 of 289 EFTA01085192 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1760. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by BFMC to make demand upon him for the return of its property would be futile. 1761. Barnett actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriving BFMC of its property by deceiving BFMC into turning its property over to Rothstein under false pretenses. 1762. Barnett's actions have directly caused injury and damages to BFMC. WHEREFORE, BFMC INVESTMENT. LLC, requests judgment against ANDREW BARNETT for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT OO30 - NEGLIGENT SUPERVISION (against TD Bank. N.A.1 1763. Plaintiff incorporates the allegations contained in paragraphs 1 through 447121 as if restated herein. 1764. This is a claim for negligent supervision. 1765. As described more fully above. Spinosa participated, with actual or constructive knowledge, in Rothstein's Ponzi scheme. Spinosa's participation included, but was not limited to. providing BFMC with false information concerning the amounts deposited in RRA trust accounts and supplying investors with misleading and untrue written assurances concerning the settlement accounts. 1766. In reliance on Spinosa's representations, on October 15, 2009. BFMC wired $2,400,000.00 to RRA's TD Bank account. 1767. BFMC's reliance on Spinosa's representations was reasonable and justified. Page 264 of 289 EFTA01085193 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1768. TD Bank owed a duty to BFMC to ensure that its employees were not actively defrauding depositors by making false representations in order to trick them into making unsafe deposits into trust accounts that they knew or reasonably should have known were being raided by Rothstein. 1769. TD Bank breached its duties to BFMC because it had actual or constructive notice that its assistant manager and assistant vice president and branch manager were either fraudulently or negligently participating in a scheme which resulted in the unauthorized raiding of investors' deposits, and acted unreasonably by failing to investigate or take corrective action. 1770. As a direct and proximate result of TD Bank's failure to investigate or take corrective action against Spinosa, BFMC has sustained damages. WHEREFORE, BFMC INVESTMENT. LLC, requests judgment against it BANK N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT GX-1231 • CIVIL CONSPIRACY Jagainst Scott Rothstein) 1771. Plaintiffs incorporate the allegations contained in paragraphs 1 through 447121 as if restated herein. 1772. This is a claim for civil conspiracy. 1773. As described more fully above, Rothstein. Spinosa. Kerstetter. Caretsky. Roden, Villegas. Barnett. Stay. Preve. and-Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIF. and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so, Rothstein acted with full knowledge and awareness that the activities of his and the other co-conspirators were designed to give the false impression of the existence of legitimate Page 265 of 289 EFTA01085194 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint investment opportunities when in fact the investments were no more than his own blatant fabrications. 1774. Rothstein. Spinosa, Kerstetter, Caretsky, Boden, Villegas, Barnett, Stay, Preve, and—Szfranski, Levin. TD Bank, Onyx, Banyon USVI, BIF, and Berenfeld acted in their respective roles, as described supra. according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors including Plaintiffs. 1775. The overt acts of Rothstein, Spinosa, Kerstetter, Caretsky, Roden, Villegas, Barnett, Stay, Preve, and Szfranski, Levin, TD Bank, Onyx, Banyon USVI, BIF, and Berenfeld were contrary to law, as stated above. 1776. There was a meeting of the minds between and among Rothstein. Spinosa, Kerstetter. Caretsky. Boden. Villegas. Barnett. Stay. Preve. Szfranski, Levin. TD Bank. Onyx Banyon USVI, BIF, and Berenfeld, and other individuals and entities, both known and unknown, to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts aroximately caused and continues to cause Plaintiffs damages. 1777. Rothstein and his co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE. RAZORBACK FUNDING. LLC;; D3 CAPITAL CLUB. LLC; • BFMC 1NVESTEMENTINVESTMENT, LLC;; LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST,: D&L PARTNERS. LP,; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against SCOTT Pane 266 of 289 EFTA01085195 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint ROTHSTEIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT GX-H232 - CIVIL CONSPIRACY (against TD Bank, N.A.) 1778. Plaintiffs incorporate the allegations contained in paragraphs 1 through 40-7121 as if restated herein. 1779. This is a claim for civil conspiracy. 1780. At all times material hereto. Spinosa was acting in the scope of his employment as Regional Vice President of T.D. Bank. 1781. At all times material hereto. Kerstetter was acting in the scope of her employment as an assistant manager of T.D. Bank. 1782. At all times material hereto, Caretsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 1783. As described more fully above. TD Bank. acting through its employees. and Rothstein. Boden. Villegas. Barnett. and-Stay. Preve. Szfranski. Levin. Onyx. Banyon USVI BIR and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so, TD Bank acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. 1784. TD. through its employees, and Rothstein, Roden, Villegas. Barnett, anti—Stay. Preve, Szfranski, Levin. Onyx, Banyon USVI, BIR and Berenfeld acted in their respective roles, Pane 267 of 289 EFTA01085196 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint as described supra, according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors, including Plaintiffs. 1785. The overt acts of TD Bank. Rothstein, Spinosa. Kerstetter. Caretsky, Boden, Villegas, Barnett, Stay, Preve, Szfranski, Levin, Onyx, Banyon USVI, BIF, and PreveBerenfeld were contrary to law, as stated above. 1786. There was a meeting of the minds between and among TD Bank, through its employees. fed-Rothstein. Roden. Villegas. Barnett. Stay. Preve. Szfranski, Levin. Onyx Banyon USVI, BIF, and Berenfeld, and other individuals and entities, both known and unknown, to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts aroximately caused and continues to cause Plaintiffs damages. 1787. TD Bank's and its co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE. RAZORBACK FUNDING. LLC;; D3 CAPITAL CLUB. LLC;. BFMC 1NVESTEMENTINVESTMENT, LLC;; LINDA VON ALLMENT as Trustee of the VON ALLMEN DYNASTY TRUST;; D&L PARTNERS. LP;; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against TD BANK. N.A., for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT CMII233 - CIVIL CONSPIRACY (against Frank Spinosa) 1788. Plaintiffs incorporate the allegations contained in paragraphs 1 through 447121 as if restated herein. Page 268 of 289 EFTA01085197 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1789. This is a claim for civil conspiracy. 1790. As described more fully above. Rothstein. Spinosa. Kerstetter. Caretsky. Boden Villegas, Barnett, Stay, Preve, and Szfranski, Levin, TD Bank. Onyx, Banyon USVI. BIF, and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so. Spinosa acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. 1791. Rothstein, Spinosa, Kerstetter, Caretsky, Boden, Villegas, Barnett, Stay, Preve, and Szfranski. Levin, TD Bank. Onyx. Banyon USVI. BIF, and Berenfeld acted in their respective roles, as described supra, according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors including Plaintiffs. 1792. The overt acts of Rothstein, Spinosa, Kerstetter, Caretsky, Boden, Villegas, Barnett, Stay. Preve, and-Szfranski, Levin. I'D Bank, Onyx. Banyon USVI. BIF. and Berenfeld were contrary to law, as stated above. 1793. There was a meeting of the minds between and among Rothstein. Spinosa Kerstetter, Caretsky, Boden, Villegas, Barnett. Stay, Preve, Szfranski, Levin. TD Bank. Onyx, Banyon USVI, BIF, and Berenfeld, and other individuals and entities, both known and unknown, to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. Page 269 of 289 EFTA01085198 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint 1794. Spinosa's and his co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE. RAZORBACK FUNDING. LLC-; D3 CAPITAL CLUB. LLC-• BFMC R4-V-ES-T-EMENTINVESTMENT, LLC;; LINDA VON ALLMEN, as Trustee of the VON ALLMEN DYNASTY TRUST,: D&L PARTNERS. LP,; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against FRANK SPINOSA for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT CXIV234 - CIVIL CONSPIRACY (against Jennifer Kerstetter) 1795. Plaintiffs incorporate the allegations contained in paragraphs I through 4-0-7121 as if restated herein. 1796. This is a claim for civil conspiracy. 1797. As described more fully above. Rothstein. Spinosa. Kerstetter. Caretsky. Boden Villegas, Barnett, Stay. Preve. and-Szfranski. Levin, TD Bank, Onyx. Banyon USVI, BIF, and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so. Kerstetter acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. 1798. Rothstein. Spinosa. Kerstetter, Caretsky, Boden, Villegas, Barnett, Stay. Preve, and—Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIF. and Berenfeld acted in their Page 270 of 289 EFTA01085199 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint respective roles, as described above supra. according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors, including Plaintiffs. 1799. The overt acts of Rothstein, Spinosa, Kerstetter, Caretsky, Boden, Villegas, Barnett, Stay, Preve, and-Szfranski, Levin. TD Bank. Onyx. Banyon USVI, BIF. and Berenfeld were contrary to law, as stated above. 1800. There was a meeting of the minds between and among Rothstein. Spinosa Kerstetter, Caretsky, Boden, Villegas, Barnett. Stay, Preve, Szfranski, Levin. TD Bank, Onyx, Banyon USVI, BIF, and Berenfeld, and other individuals and entities, both known and unknown, to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. 1801. Kerstetter's and her co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE, RAZORBACK FUNDING, LLCT; D3 CAPITAL CLUB, LLC; • BFMC IN-V-ESTEMENTINVESTMENT. LLC-; LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST-; D&L PARTNERS. LPT.; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against JENNIFER KERS lbl 1 ER for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT CXV235 - CIVIL CONSPIRACY (against Roseanne Caretskv) Page 271 of 289 EFTA01085200 Razorback Funding, LLC, a aL, v. TD Bank N.A., a A. Case No.: 09-062943 (19) Amended Complaint 1802. Plaintiffs incorporate the allegations contained in paragraphs I through 4-0-7121 as if restated herein. 1803. This is a claim for civil conspiracy. 1804. As described more fully above, Rothstein. Spinosa, Kerstetter, Caretsky, Boden, Villegas, Barnett, Stay, Preve, ao€1-Szfranski, Levin, TD Bank, Onyx, Banyon USVI, BIF, and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so. Caretsky acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. 1805. Rothstein. Spinosa. Kerstetter. Caretsky, Boden. Villegas, Barnett. Stay. Preve, and—Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIF. and Berenfeld acted in their respective roles, as described supra. according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors, including Plaintiffs. 1806. The overt acts of Rothstein. Spinosa, Kerstetter. Caretsky, Boden. Villegas Barnett. Stay. Preve. and-Szfranski. Levin. TD Bank. Onyx. Banyon USVI. SW. and Berenfeld were contrary to law, as stated above. 1807. There was a meeting of the minds between and among Rothstein, Spinosa, Kerstetter. Caretsky, Boden Villegas, Barnett. Stay, Preve. Szfranski, Levin, TD Bank Onyx, Banyon USVI. BIF. and Berenfeld, and other individuals and entities, both known and unknown, Page 272 of 289 EFTA01085201 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. 1808. Caretsky's and her co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE, RAZORBACK FUNDING. LLC-; D3 CAPITAL CLUB, LLC-; BFMC INVESTEMENTINVESTMENT, LLC-; LINDA VON ALLMEN- as Trustee of the VON ALLMEN DYNASTY TRUST:: D&L PARTNERS. LP:: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against ROSEANNE CARETSKY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT CXVI236 - CIVIL CONSPIRACY (against David Boden) 1809. Plaintiffs incorporate the allegations contained in paragraphs I through 407121 as if restated herein. 1810. This is a claim for civil conspiracy. 1811. As described more fully above, Rothstein, Spinosa, Kerstetter, Caretsky, Boden, Villegas, Barnett, Stay, Preve, and-Szfranski. Levin. TD Bank, Onyx. Banyon USVI, BIF, and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so. Boden acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. Page 273 of 289 EFTA01085202 Razorback Funding, LLC, a aL, v. TD Bank N.A., a A. Case No.: 09-062943 (19) Amended Complaint 1812. Rothstein. Spinosa. Kerstetter. Caretsky, Boden. Villegas, Barnett. Stay. Preve, and—Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIR and Berenfeld acted in their respective roles, as described supra. according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors, including Plaintiffs. 1813. The overt acts of Rothstein. Spinosa, Kerstetter. Caretsky. Boden, Villegas Barnett. Stay. Preve. and-Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIR and Berenfeld were contrary to law, as stated above. 1814. There was a meeting of the minds between and among Rothstein, Spinosa, Kerstetter. Caretsky, Roden, Villegas, Barnett, Stay, Preve. Szfranski, Levin, TD Bank. Onyx, Banyon USVI. BM. and Berenfeld, and other individuals and entities, both known and unknown, to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. 1815. Boden's and his co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE. RAZORBACK FUNDING. LLC-: D3 CAPITAL CLUB. LLC;: BFMC INV-ES-TEMENTINVESTMENT. LLC-: LINDA VON ALLMEN- as Trustee of the VON ALLMEN DYNASTY TRUST;; D&L PARTNERS, LP;: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against DAVID BODEN for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 274 of 289 EFTA01085203 Razorback Funding, LLC, et aL, v. TD Bank N.A., et al.. Case No.: 09-062943 (19) Amended Complaint COUNT CXVII237 - CIVIL CONSPIRACY (against Debra Villegasi 1816. Plaintiffs incorporate the allegations contained in paragraphs I through 447121 as if restated herein. 1817. This is a claim for civil conspiracy. 1818. As described more fully above. Rothstein. Spinosa. Kerstetter, Caretsky, Boden, Villegas, Barnett, Stay, Preve, arid-Szfranski, Levin, TD Bank, Onyx, Banyon USVI, BIF, and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so. Villegas acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. 1819. Rothstein. Spinosa, Kerstetter. Caretsky, Boden, Villegas, Barnett, Stay, Preve and—Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BE and Berenfeld acted in their respective roles, as described supra. according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors, including Plaintiffs. 1820. The overt acts of Rothstein. Spinosa, Kerstetter. Caretsky, Boden. Villegas Barnett, Stay. Preve. and-Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIF, and Berenfeld were contrary to law, as stated above. 1821. There was a meeting of the minds between and among Rothstein. Spinosa. Kerstetter, Caretsky, Boden, Villegas, Barnett. Stay. Preve, Szfranski, Levin. TD Bank. Onyx, Banyon USVI. BIF. and Berenfeld, and other individuals and entities, both known and unknown Pane 275 of 289 EFTA01085204 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. 1822. Villegas's and her co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE, RAZORBACK FUNDING. LLC-: D3 CAPITAL CLUB, LLC-; BFMC INVESTEMENTINVESTMENT, LLC-; LINDA VON ALLMEN- as Trustee of the VON ALLMEN DYNASTY TRUST:: D&L PARTNERS. LP:: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against DEBRA VILLEGAS for compensatory damages together with court costs and such further relief as the Court deems proper. COUNT GXV-111238 - CIVIL CONSPIRACY (against Andrew Barnett) 1823. Plaintiffs incorporate the allegations contained in paragraphs 1 through 4O7121 as if restated herein. 1824. This is a claim for civil conspiracy. 1825. As described more fully above, Rothstein, Spinosa, Kerstetter, Caretsky, Roden, Villegas, Barnett, Stay, Preve, and-Szfranski. Levin. TD Bank. Onyx. Banyon USVI, BIF, and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so. Villegas acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. Page 276 of 289 EFTA01085205 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 1826. Rothstein. Spinosa. Kerstetter. Caretsky, Boden. Villegas, Barnett. Stay. Preve, and—Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIF. and Berenfeld acted in their respective roles, as described supra. according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors, including Plaintiffs. 1827. The overt acts of Rothstein. Spinosa, Kerstetter. Caretsky. Boden. Villegas Barnett. Stay. Preve. and-Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIF, and Berenfeld were contrary to law, as stated above. 1828. There was a meeting of the minds between and among Rothstein, Spinosa, Kerstetter. Caretsky, Roden, Villegas, Barnett, Stay, Preve. Szfranski, Levin, TD Bank. Onyx, Banyon USVI. BIF. and Berenfeld, and other individuals and entities, both known and unknown, to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. 1829. Barnett's and his co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE. RAZORBACK FUNDING. LLC-: D3 CAPITAL CLUB. LLG. BFMC INVES-TEMENTINVESTMENT. LLC-: LINDA VON ALLMEN- as Trustee of the VON ALLMEN DYNASTY TRUST;; D&L PARTNERS, LP,: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN KRETSCHMAR request judgment against ANDREW BARNETT for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 277 of 289 EFTA01085206 Razorback Funding, LLC, a aL, v. TD Bank N.A., a A. Case No.: 09-062943 (19) Amended Complaint COUNT GNIX2,39 - CIVIL CONSPIRACY (against Frank Preve) 1830. Plaintiffs incorporate the allegations contained in paragraphs 1 through 40-7121 as if restated herein. 1831. This is a claim for civil conspiracy. 1832. As described more fully above. Rothstein. SpinozaSpinosa, Kerstetter. Caretsky, Boden. Villegas. Barnett, Stay, Preve, and-Szfranski, Levin. TD Bank. Onyx. Banyon USVI BIF. and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so, Preve acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. 1833. Rothstein. SpinozaSpinosa. Kerstetter. Caretsky. Roden, Villegas. Bamett. Stay Preve and-Szfranski. Levin, TD Bank, Onyx, Banyon USVI, BIF. and Berenfeld acted in their respective roles, as described supra, according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors, including Plaintiffs. 1834. The overt acts of Rothstein. SpinozaSpinosa. Kerstetter. Caretsky. Boden Villegas, Barnett, Stay, Preve, and-Szfranski. Levin. TD Bank. Onyx, Banyon USVI. BIF. and Berenfeld were contrary to law, as stated above. Pane 278 of 289 EFTA01085207 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1835. There was a meeting of the minds between and among Rothstein SpifteatSpinosa. Kerstetter. Caretsky. Boden. Villegas. Barnett. Stay. Preve. Szfranski. Levin TD Bank. Onyx, Banyon USVI, BIF, and Berenfeld, and other individuals and entities, both known and unknown, to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. 1836. Preve's and his co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE. RAZORBACK FUNDING. LLC;; D3 CAPITAL CLUB. LLC; • BFMC INVESTEMENTINVESTMENT, LLC;; LINDA VON ALLMEN; as Trustee of the VON ALLMEN DYNASTY TRUST;: D&L PARTNERS. LP;: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against FRANK PREVE for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 240 - CIVIL CONSPIRACY (against Irene Stav) 1837. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 1838. This is a claim for civil conspiracy. 1839. As described more fully above. Rothstein. Spinosa. Kerstetter. Caretsky. Boden Villegas, Barnett, Stay. Preve, Szfranski, Levin. TD Bank. Onyx, Banyon USVI, BIR and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so, Stay acted with full knowledge and awareness that the activities of Rothstein and the Pane 279 of 289 EFTA01085208 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. 1840. Rothstein. Spinosa. Kerstetter, Caretsky, Boden, Villegas, Barnett, Stay, Preve, Szfranski, Levin. TD Bank, Onyx, Banyon USVI. BIF, and Berenfeld acted in their respective roles, as described supra. according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors. including Plaintiffs. 1841. The overt acts of Rothstein, Spinosa, Kerstetter, Caretsky, Boden, Villegas, Barnett, Stay, Preve, Szfranski, Levin, TD Bank, Onyx, Banyon USVI, BIF, and Berenfeld were contrary to law, as stated above. 1842. There was a meeting of the minds between and among Rothstein. Spinosa Kerstetter, Caretsky, Boden, Villegas, Barnett. Stay, Preve, Szfranski, Levin. TD Bank, Onyx. Banyon USVI, BIF, and Berenfeld, and other individuals and entities, both known and unknown, to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. 1843. Stay's and her co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE, RAZORBACK FUNDING, LLC; D3 CAPITAL CLUB, LLC; BFMC INVESTMENT. LW; LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN Pane 280 of 289 EFTA01085209 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (I.9) Amended Complaint LIVING TRUST; and DEAN KRETSCHMAR request judgment against IRENE STAY for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 241 - CIVIL CONSPIRACY (against Michael Szfranski) 1844. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 1845. This is a claim for civil conspiracy. 1846. As described more fully above. Rothstein, Spinosa. Kerstetter. Caretsky, Boden, Villegas. Barnett. Stay. Preve, Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIF. and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so, Szfranski acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. 1847. Rothstein, Spinosa, Kerstetter, Caretsky, Boden, Villegas, Barnett. Stay, Preve, Szfranski, Levin, TD Bank, Onyx, Banyon USVI, BIF, and Berenfeld acted in their respective roles, as described supra. according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors, including Plaintiffs. 1848. The overt acts of Rothstein, Spinosa, Kerstetter, Caretsky, Boden, Villegas, Barnett, Stay, Preve, Szfranski, Levin, TD Bank, Onyx, Banyon USVI, BIF, and Berenfeld were contrary to law, as stated above. Page 281 of 289 EFTA01085210 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 091 Amended Complaint 1849. There was a meeting of the minds between and among Rothstein. Spinosa, Kerstetter. Caretsky. Boden. Villegas. Barnett. Stay. Preve. Szfranski. Levin. TD Bank. Onyx Banyon USVI, BIF, and Berenfeld, and other individuals and entities, both known and unknown, to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. 1850. Szfranski and his co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE. RAZORBACK FUNDING, LLC; D3 CAPITAL CLUB, LLC: BFMC INVESTMENT, LLC; LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS. LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN ICRETSCHMAR request judgment against MICHAEL SZFRANSKI for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 242 - CIVIL CONSPIRACY (against Onyx Capital Management) 1851. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 1852. This is a claim for civil conspiracy. 1853. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. 1854. As described more fully above, Onyx, through Szfranski, and Rothstein, Spinosa, Kerstetter. Caretsky, Boden, Villegas, Barnett. Stay, Preve. Levin, TD Bank, Banyon USVI, BIF, Page 282 of 289 EFTA01085211 Razorback Funding, LLC,a aL, v. TD Bank N.A., a A. Case No.: 09-062943 (19) Amended Complaint and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so. Onyx acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. 1855. Rothstein. Spinosa. Kerstetter. Caretsky, Boden. Villegas, Barnett. Stay. Preve, Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIF. and Berenfeld acted in their respective roles, as described supra, according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors, including Plaintiffs. 1856. The overt acts of Rothstein. Spinosa, Kerstetter, Caretsky, Boden. Villegas Barnett. Stay. Preve, Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIF, and Berenfeld were contrary to law, as stated above. 1857. There was a meeting of the minds between and among Onyx, through Szfranski, and Rothstein. Spinosa, Kerstetter. Caretsky, Boden. Villegas, Barnett. Stay. Preve, Levin, TD Bank. Banyon USVI, BIF. and Berenfeld, and other individuals and entities, both known and unknown, to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. 1858. Onyx's and its co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE. RAZORBACK FUNDING. LLC; D3 CAPITAL CLUB. LLC: BFMC INVESTMENT. LLC: LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY Page 283 of 289 EFTA01085212 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint TRUST; D&L PARTNERS. LP: DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST: and DEAN ICRETSCHMAR request judgment against ONYX CAPITAL MANAGEMENT for compensatory damages, together with court costs and such further relief as the Court deems proper. COUNT 243 - CIVIL CONSPIRACY (against George G. Levin 1859. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 1860. This is a claim for civil conspiracy. 1861. As described more fully above, Rothstein. Spinosa, Kerstetter, Caretsky, Boden, Villegas, Barnett, Stay, Preve, Szfranski, Levin, TD Bank, Onyx, Banyon USVI, BIF, and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so. Levin acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. 1862. Rothstein, Spinosa, Kerstetter. Caretsky, Boden. Villegas, Barnett, Stay, Preve Szfranski, Levin. TD Bank. Onyx. Banyon USVI. BIF. and Berenfeld acted in their respective roles, as described supra. according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors, including Plaintiffs. Page 284 of 289 EFTA01085213 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1863. The overt acts of Rothstein. Spinosa, Kerstetter. Caretsky. Roden. Villegas Barnett. Stay. Preve. Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIF. and Berenfeld were contrary to law, as stated above. 1864. There was a meeting of the minds between and among Rothstein, Spinosa, Kerstetter. Caretsky, Boden Villegas, Barnett. Stay, Preve. Szfranski, Levin, TD Bank, Onyx Banyon USVI. BIF. and Berenfeld, and other individuals and entities, both known and unknown to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. 1865. Levin's and his co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE. RAZORBACK FUNDING. LLC; D3 CAPITAL CLUB. LLC; BFMC INVESTMENT. LLC: LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against GEORGE G. LEVIN for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 244 - CIVIL CONSPIRACY (against Banyon Income Fund, LP, and Banyon USVI, LLC) 1866. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 1867. This is a claim for civil conspiracy. Pane 285 of 289 EFTA01085214 Razorback Funding, LLC,er aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1868. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BM. 1869. At all times material hereto, Preve was acting in the scope of his employment as the chief operating officer or agent of Banyon USVI and BIF. 1870. As described more fully above, Banyon USVI and BIF, through its employees and Rothstein. Spinosa. Kerstetter. Caretsky, Boden, Villegas. Bamett. Stay, Szfranski, TD Bank. Onyx. and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so, Banyon USVI and BIF acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. 1871. Rothstein. Spinosa. Kerstetter. Caretsky. Roden. Villegas, Barnett. Stay. Preve Szfranski, Levin, TD Bank, Onyx, Banyon USVI, BIF. and Berenfeld acted in their respective roles, as described supra, according to a predetermined and commonly understood and accepted jan of action all for the purpose of obtaining substantial funds from investors, including Plaintiffs. 1872. The overt acts of Rothstein. Spinosa, Kerstetter. Caretsky, Boden. Villegas Barnett. Stay, Preve, Szfranski, Levin, TD Bank, Onyx, Banyon USVI, BIF. and Berenfeld were contrary to law, as stated above. 1873. There was a meeting of the minds between and among Banyon USVI and BIF, through its employees, and Rothstein. Spinosa. Kerstetter. Caretsky, Boden. Villegas. Barnett, Stay Szfranski, TD Bank. Onyx. and Berenfeld, and other individuals and entities, both known Pane 286 of 289 EFTA01085215 Razorback Funding, LLC, a aL, v. TD Bank N.A., a al.. Case No.: 09-062943 (l9) Amended Complaint and unknown, to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. 1874. Banyon USVI's and BIF's and their co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE. RAZORBACK FUNDING. LLC; D3 CAPITAL CLUB. LLC; BFMC INVESTMENT, LLC; LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST: D&L PARTNERS. LP: DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN KRETSCHMAR request judgment against BANYON INCOME FUND. LP, and BANYON USVI, LLC., for compensatory damages. together with court costs and such further relief as the Court deems proper. COUNT 245 - CIVIL CONSPIRACY (against Berenfeld Spritzer Shechter Sheer, LLP) 1875. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein. 1876. This is a claim for civil conspiracy. 1877. As described more fully above, Rothstein, Spinosa, Kerstetter, Caretsky, Roden, Villegas, Barnett. Stay, Preve, Szfranski, Levin, TD Bank, Onyx, Banyon USVI, BIF, and Berenfeld knowingly acted in concert to market and implement the illegal Ponzi scheme. In doing so. Berenfeld acted with full knowledge and awareness that the activities of Rothstein and the other co-conspirators were designed to give the false impression of the existence of legitimate investment opportunities when in fact the investments were no more than blatant fabrications by Rothstein. Pane 287 of 289 EFTA01085216 Razorback Funding, LLC,a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (19) Amended Complaint 1878. Rothstein. Spinosa. Kerstetter, Caretsky, Boden. Villegas, Barnett. Stay. Preve, Szfranski, Levin. TD Bank. Onyx. Banyon USVI. BIF. and Berenfeld acted in their respective roles, as described supra, according to a predetermined and commonly understood and accepted plan of action all for the purpose of obtaining substantial funds from investors, including Plaintiffs. 1879. The overt acts of Rothstein. Spinosa, Kerstetter, Caretsky. Boden, Villegas Barnett. Stay. Preve, Szfranski. Levin. TD Bank. Onyx. Banyon USVI. BIF. and Berenfeld were contrary to law, as stated above. 1880. There was a meeting of the minds between and among Rothstein, Spinosa, Kerstetter. Caretsky, Roden, Villegas, Barnett, Stay, Preve. Szfranski, Levin, TD Bank, Onyx, Banyon USVI. BE and Berenfeld, and other individuals and entities, both known and unknown, to commit the unlawful acts alleged herein. This conspiracy to commit these unlawful overt acts proximately caused and continues to cause Plaintiffs damages. 1881. Berenfeld's and its co-conspirators' conduct has directly caused injury and damage to Plaintiffs. WHEREFORE. RAZORBACK FUNDING. LLC: D3 CAPITAL CLUB. LLC: BFMC INVESTMENT. LLC: LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and DEAN ICRETSCHMAR request judgment against BERENFELD SPRITZER SHECHTER SHEER, LLP. for compensatory damages. together with court costs and such further relief as the Court deems proper. Page 288 of 289 EFTA01085217 Razorback Funding, LLC, a aL, v. TD Bank N.A., a aL. Case No.: 09-062943 (l91 Amended Complaint DEMAND FOR JURY TRIAL Plaintiffs hereby demands a trial by jury as to all issues so triable by right. CONRAD & SCHERER. LLP Attorneysfor Plaintiffs 633 South Federal Highway, 8th Floor Fort Lauderdale. Florida 33301 Tel: Fax: BY: WILLIAM R. SCHERER 1882. Florida Bar No.: 169454 Page 289 of 289 EFTA01085218