xritApi 6:6 ••• -•rr. Case No.: 09-062943 (191 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 KRETSCHMAR request judgment against BANYON INCOME FUND. LP. and BANYON USV1. LLC.. for compensaton damages, together with court costs and such further relief as the Court deems proper. # COUNT 49 - AIDING AND ABETTING FRAUD (against Michael Szfranskil 462. Plaintiffs incorporate the allegations contained in paragraphs I through 121 as if restated herein. 001. This is a claim for aiding and abetting fraud. 001. As described more fully above. the deals in which the Baryon Investors invested were bogus and Rothstein was operatinga Ponzi scheme through his firm, RRA, and through TD Bank. 001. Szfrunski knewof Rothstein's fraudulent scheme, 001. Szfranski acttvgly assisted, andprovided substantial assistance, to Rothstein in his financial exploitation of the Banvon Investors through fraud. Szfranski's assistance included, but was not limited to. verifying false bank statements and deal documents. 001. Szfranski's actions have directly caused injury and damage to the Banvon 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 IM KRETSCHMAR request jgdement against MICHAEL SZFRANSKI for compensatory_damages. together with court costs and such further relief as the Court deems proper. # COUNT SO - AIDING AND ABETTING FRAUD Digainit Onvx Capital Management) 468. Plaintiffs incorporate the allegations contained in paragraphs I through PI as if \\ c restated herein. s) 001. This is a claim for aiding and abetting fraud lu,B 470. As described more fully above, the deals in w ' tinyon Investors invested were bogus and Rothstein was operating a Ponzi scheme thrquitt s firm RRA and through TD Bank. 471. At all times material hereto. Szfransid_was acting in the scope of his employment as president of Onyx. 001. Onyx knew of Rothsteip's fraudulent scheme. 001. Onyx. through Szfransici. actively assisted. ant_provided substantial assistance, to Rothstein in his financial 'exploitation of the Banvon Investors through fraud. Onyx's assistance included, but w limited to. verifying false bank statements and deal documents. 4 7,t s acuons have directlycaused !rives EFORE. 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 KRETSCHMAR request judgment against ONYX CAPITAL MANAGEMENT for compensatory datnag s. toocther with court costs and such further relief as the Court deems proper. #### COUNT 51 - AIDING AND ABETTING FRAUD (against Berenfeld Spritzer Shechter Sheer, LLPI 475. Plaintiffs incorporate the allegations contained in paragraphs I through 121 as if restated herein. 001. This is a claim for aidino and abetting fraud. 001. As described more fully above the deals in which the Investors invested were bogus and Rothstein was operating a Pomi scheme throuti hi. nn. RRA, and through TD Bank. 001. Berenfeld knew of Rothstein's fraudulent scheme. 001. Berenfeld actively assisted, a provided substantial assistance, to Rothstein in his financial exploitation of the Banvon Inv,tors through fraud. Berenfeld's assistance included, but was not limited to. providpg false auditing documents relating to Banyon and RRA Investors, 480. Berenfeld's actions have directly caused injury and damage to the Banyori X C RE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DYNASTY TRUStD&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 KRETSCHMAR request judgment against BERENFELID SPRITZER SHECHTER SNEER LLP, for compensatory damages, together with court costs and such further relief as the Court deems proper. #### COUNT 52 — CONVERSION cagainst Scott Rothstein) 481. Plaintiffs incorporate the allegations contained in paragraphs I through 4-0;121 as if restated herein. 001. This is a claim for conversion. 001. As described more fully above, the deals in which the Banyon lay ors invested were bogus and Rothstein was operating a Ponzi scheme through his firm, through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised u uthorized dominion and control over the property of the Banyon Investors when he abs (>n with the Banyon Investors \$60,0140550,000.00 in funds. 001. Rothstein's conversion of the Banyon Investors funds has permanently deprived the Banyon Investors of their property. 001. Based upon Rothstein havittinitially fled the country alter emptying out the trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would he futile 001. Rothstein's actions have directly caused injury and damages to the Banyon Investors. \\v' WH (SR t, LINDA VON ALLMEN. as Trustee of the VON ALLMEN DYNASTY TRUST;; D \\ &L PARTNERS, LP.; DAVID VON ALLMEN, as Tntstee of the DAVID VON ALI-MEN LIVING TRUST; ANN VON ALLMEN, as Trustee of the ANN VON ALLMEN WING TRUST; and KRETSCI-IMAR request judgment against SCOTT ROTHSTEIN for compensatory damages, together with court costs and such further relief as the Court deems proper. property would he futile. 491. Based upon Rothstein having initially fled the country after emptying out the tnist accounts, any attempts by the Ba c sNt vectors to to make demand upon him for the return of their ., #### COUNT X1X53 - AIDING AND ABETTING CONVERSION (against Semilles,-Kersteth-rFrank Spinosa) 487. Pkii-tuitts-Mettrpta-mePlaintiff incorporates the allegations contained in paragraphs I through 4447121 as if restated herein. 001. This is a claim for aiding and abetting conversion. 001. 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. through TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised u 'Zed dominion and control over the property of the Banyon Investors when he itbsconded with theiwthe Banyon 111 Investors' \$60 04)4)550,000.00 in funds. 001. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of theirproperty. 001. 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 turnino theirproperty over to Rothstein under false pretenses. 001. 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, 12; 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 KRETSCHMAR request judgment against A. SPINOSA for compensatory damages, together with court costs and such further relief as the Court deems proper. #### COUNT 54 - AIDING AND ABETTING CONVERSION against Jennifer Kerstetter\] 494. Plaintiffs incorporate the allegations contained in paragraphs I through 121 as i£ restated herein. 001. This is a claim for aidiikg and abetting conversion. 001. As described more fully above. the deals in w h< 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. 001. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyan Investors of their property 001. 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 wowld be futile. 001. i ltz ' 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. 001. Kerstetter'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 IM KRETSCHMAR request judgment against JENNIFER KERSTETTER for compensatory damages together with court costs and such further'relief as the Court deems proper # COUNT XX55 - AIDING AND ABETTING CONVERSION. (against Roseanne Caretskv) 501. Plaintiffs incorporate the allegations contained in paragraphs I through 1417121 as if restated herein 001. This is a claim for aiding and abetting conversion. 001. As described more fully abovg, 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 nmneny of the Banyan Investors when he absconded with their \$60,1O45 001. R. 's •nyersion of the Banvon Investors' funds has permanently deprived the Banvon Dies ys 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. 506. Caretskv actively assisted, and provided substantial assistance. to Rothstein in they tempararily or Permanently depriving e Banyon In estors uf their Proceny by deceiving the Banvon Investors into turning its_property over to Rothstein under false pretenses. 001. Caretsky's actions have directly caused injury and damages to the Banton 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 KRETSCHMAR request jutigipent against ROSEANNE CARETSKY for compensatory damages. together with court costs and such further relief as the Court deems proper, # COUNT N-M56 - AIDING AND ABETTING CONVERSION (against 'I'D Bank. N.A.) 508. Plaintiffs incorporate the allegations contained in Paragraphs 1 through 40.712I as if restated herein. 001. This is a claim for aiding and abetting conversion. 001. A 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 \$60,009550.000.00 in funds. 001. Rothstein's conversion of the Banvon Investors' funds has permanently deprived the Banyan Investors of their property. 001. Based upon Rothstein having initially fled the country after emptying out the mist accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 001. At all times material hereto, Kerstetter was acting in the scope of her employment as an assistant manager of TD Bank 001. At all times material hereto. Carctsky was acting in the scope of her employment as an assistant vice president and branch manager of TD Bank. 001. TD Bank, through its employees while acting\_ within the scope of their employment, actively assisted, and provided suhstantial assistance. to Rothstein in either temporarily or permanently depriving the Banyon Investors of their property by allowing '4417 Rothstein to make unauthorized withdrawals of itra and by deceiving the Banyon Investors into turning its property over to Rothstein under ({else pretenses. 7 001. TD Bank's action Investors. v caused injury and damages to the Banyon WHEREFORE, LINDA ALLMEN, as Trustee of the VON ALLMEN DYNASTY TRUST:; D&L P TNERS LP:; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN L G TRUST: ANN VON ALLMEN. as Trustee of the ANN VON ALLMEN LIVING TRUSS. and KRETSCHMAR request judgment aoainst TD BANK N.A., for compensatory damages. together with court costs and such further relief as the Court deems proper. #### COUNT X-XI157 - AIDING AND ABETTING CONVERSION (against Debra 517. Plaintiffs incorporate the allegations contained in paragraphs I through .4447121 as if restated herein. 001. This is a claim for aiding and abetting conversion. 001. 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 chs." Bank. In furtherance of the Ponzi scheme Rothstein exercised u uthorized dominion and control over the property of the Banyon Investors when he absc nd with the Banyon Investors' \$60,0440550,000.00 in funds. 001. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their property. ti 001. Based upon Rothstein havit (11\\1 in' ' 1Ily - fled the country after emptying Out the trust accounts, any attempts by the Ban property would he futile. ors to make demand upon him for the return of their 001. 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. 001. 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 MICRETSCHMAR request judgment against DEBRA a compensatory damages, together with court costs and such further relief as the Coun deems proper. #### COUNT X-X11108 - AIDING AND ABETTING CONVERSION jagainst Irene Stayt 524. Plaintiffs incorporate the allegations contained in paragraphs I through 121 as if restated herein. 001. This is a claim for aiding and abetting conversion. 001. As described more fully above. the deals in which the Banvon Investors invested were bogus and Rothstein was oPerating a Ponzi scheme through his firm. RRA, and through TD Bunk. In furtherance of the Ponzi scheme Rothstein exercised unauthorized dominion and control over the property of the Banvon Investors when he absconded with the Banvon Investors' \$60,550.000.00 in funds. 001. Rothstein's conversion of the Banvon Investors' funds has permanently deprived the Banyon Investors of their pmperty 001. 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 proper-ty would be futile. 001. Stay actively assisted, and provided substantial assistance, to Rothstein in either temporarily or permanently depriviag the Banyon Investors of their property by deceiving the Banvon Investors into turning their property over to Rothstein under false pretenses, 001. Stay's actions have directly caused injury and damages to the Banvon Investors WHEREFORE. LINDA VON ALLMEN as Trustee of the VON AI.LMEN 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 KRETSCHMAR request judgment against IRENE STAY for compensatory damages, together with court costs and such further relief as the deems # COUNT 59 - AIDING AND ABETTING CONVERSION (against George G. Levin) Nam, 531. Plaintiffs incorporate the allegations contained phs I through 121 as if restated herein. t 533. As described more fully abov talSin which the Banyon Investors invested were bogus and Rothstein was operatin n heme through his firm. RRA. and through TD Bank. In furtherance of the P Rothstein exercised unauthorized dominion and rtv of the Banyon Investors in funds. 532. This is a claim for aiding and abettir v ion. 001. 1\\4 tein's conversion of the Banyon Investors' funds has permanently deprived the Banvon nves rs of their property. 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 he 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 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 Banvon Investors WHEREFORE, LINDA VON ALLMEN as Trustee of the VON ALLMEN DVNASTY TRUST: D&L PARTNERS. LP; DAVID VON ALLMEN. as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON ALLMEN. as Trustee of tite' ANN VON ALLMEN LIVING TRUST: and lie KRETSCHMAR recuest judgment ay instst GEORGE G. LEVIN for compensatory damages. together with court costs and such fullher relief as the Court 'deems proper. #### COUNT 60 - AIDING AND ABETTING.CONVERSION fagainst Franktrevel 538. Plaintiffs incorporate the allegations contained in paragraphs 1 through 121 as if restated herein 001. This ii_ft claim for aiding and abetting conversion. 001. As describttljnore fully above. the deals in which the Banyon Investors invested were bogus, and Rothstein was operating a Ponzi scheme through his firm, 12RA. and through TD sank. In furtherance of the Ponzi scheme. Rothstein exercised unauthorized dominion and control ovei the prorsrty of the Banvon Investors when he absconded with their \$60,550,000.00 in funds. 001. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banyon Investors of their Droperty. 001. 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. 001. Prcve 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 he paid out to investors over a predetermined schedule, and by deceiving the Banyon Investors into turning its property over to Rothstein under falsepretenses. 001. Preves actions have directly caused injury and dihiages to the Banyon Investors. WHEREFORE, LINDA VON ALLMEN as Trustee of -4 VON ALLMEN DYNASTY TRUST; D&L PARTNERS, LP; DAVID VON ALLMEN, as Trustee of the DAVID VON ALLMEN LIVING TRUST; ANN VON LL EN, as Trustee of the ANN VON ALLMEN LIVING TRUST; and KR MAR 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 jostainst Banyon Income Fund, LP, and Banyon USVI, LLC) 545. tiffs incorporate the allegations contained in paragraphs I through 121 as if restated herein. 001. This is a claim for aiding and abetting_conversion. 001. 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. 001. Rothstein's conversion of the Banvon Investors' funds has permanently deprived the Banyon Investors of their properly. 001. Based upon Rothstein having initially fled the country after emptying out the trust accounts, any attempts by the Banvon Investors to make demand upon him pr the return of their property would be futile. 001. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BIF. 001. At all times material hereto, Prcvc was abs • , he scope of his employment as the chief operating officer or agent of Banvon USVI and BW, 7 001. Banyon USVI and BIF, throuS?plovees while acting within the scope of their employment, actively assistedc Atnr tlet ed substantial assistance, to Rothstein in either temporarily or permanently deprivinglhcBanyon 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 Banvon Investors into turning its property over to Rothstein under false pretenses. 001. Banvon USV1's and BIF's actions have directly caused injury and damages to the Banvon 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 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 faaainst Michael Szfranski) 554. Plaintiffs incorporate the allegations contained in paragranhs 1 t gli I-1 as if restated herein. 001. This is a claim for aiding and abetting conversion. 001. As described more fully above, the deals in w haBanyon ' l 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 !misters when he absconded with their \$60550.000.00 in funds. 001. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banvon Investors of their property, 001. Based upon Rothstein having initially fled the country after emptying out the tryst accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 001. 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. 0 560. Szfranski's actions have directly caused injury and damages to the Banvon nvestors 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 KRETSCHMAR request judgment against MICHAEL SZFRANSKI for compensatory damages. tuether with court costs anti such further relief as the Court deems proper. #### COUNT 63- AIDING AND ABETTING CONVERSION (again« Oriyx CaPital Manatentent) • 561. Plaintiffs incorporate the allegations contained in paragraphs I through 121 as if restated herein. 001. This is a claim for aiding and abetting conversion. 001. 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 thmueh TD Bank. In furtherance of the Ponzi scheme, Rothstein exercised unauthorized dominion and control over thee's, of the Banvon Investors when he absconded with their \$60,550,000.00 in funds Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Buyon Investors of their property. 565. Based upon Rothstein having initially fled the country after emptvine out the trust accounts, any attempts by the Banvon Investors to make demand upon him for the return of their property would be futile. 001. At all times material hereto, S;franski was actin in the scope of his employment as president of Onyx. 001. Onyx. through its employees while acting within the scone 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 turniqg itsiroperty over to Rothstein under false pretenses. 001. 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 ALL -.%4\` as Trustee of the DAVID VON ALLMEN LIVING TRUST: ANN VON ALLMS Trustee of the ANN VON ALLMEN tiSv LIVING TRUST: and KRETSCHMAR request judgment against ONYX CAPITAL MANAGEMENT for compensator together with court costs and such further relief as the Court deems proper. #### COUNT 64 AID)ING AND ABETTING CONVERSION (against Berenfeld Spritzer Shechter Sheer, LLPI 569. Plaintiffs incorporate the allegations contained in paragraphs I through 121 as if restated herein. k 7.(I 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 control over the property of the Banyon Investors when he absconded with their 560.550.000.00 in funds. 572. Rothstein's conversion of the Banyon Investors' funds has permanently deprived the Banvon Investors of their property. 001. Based upon Rothstein having initially fled the country after emotvingballthe trust accounts, any attempts by the Banyon Investors to make demand upon him for the return of their property would be futile. 001. Berenfeld actively assisted. and provided substantial assistance. to Rothstein in either temporarily or permanently depriving the Banvon Investors of their property by providing false auditing documents relating to Banyon and RRA and by deceiving the Banvon Investors into turning its property over to Rothstein under fake intenses. 001. Berenfeld's actions have tee aused iniury and damages to the Banvon WHEREFORE, LINDA4brvSULMEN 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 KRETSCHMAR request judgment against BERENFELD SPRITZER SIIECHTER SHEER, LLP. for compensatory damages, together with court costs and such further relief as the Court deems proper, #### COUNT 65 - NEGLIGENT SUPERVISION gagainst TA Bank. N.A.j 576. Plaintiffs incorporate the allegations contained in Paragraphs I through 4444121 as if restated herein. 001. This is a claim for negligent supervision, 001. As described more fully above. Spinosa. Kerstetter and Carctsky 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. 001. In reliance on Kerstetter's and Careiskv's representations, on May 5. 2009. the Panvon Investors began sending payments to RRA's account at TD Bank. eventually funding a total of \$60,009550.000.00. 001. The Banvon Investors' reliance on Kerstetter's and Careisky's representations was reasonable and justified. 001. TD Bank owed a duty to the Banvon 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 uustaccountS-that they knew or reasonably should have known were being raided by Rothstein. 001. TD Bank breached its duties to the Banvon Investors because it had actual or constructive notice that its assistant manager and assistant vice president and branch manager were either fradulepilv 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. 001. As a direct and proximate result of TD Bank's failure to investigate or take corrective action against Kerstetter or Caretsky. the Banvon 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 KRETSCHMAR =Lieu\_ judgment against TD BANK N.A.. for compensator's, damages. together with court costs and such further relief as the Court deems Proper. # COUNT,XX4446 - FRAUDULENT MISREPRESENTATION !against Scott Rothstein? 584. Plaintiff incorporates the allegations contained in paragraphs I through 407121 as if restated herein. 001. This is a claim for fraudulent misrepresentation. 001. As described more fully above. Rothstein was operating a Ponziscbeme through his firm, RRA, and through TD Bank. 001. In furtherance of the Ponzi scheme. Rothstein knowin•l made material false statements and representations, including but not limited to representing that the settlement agreements purchased by investors were real, that they had bgen fully funded, and that they would be paid out to investors over a predetermined. chedule. 001. Rothstein intended Razorback to act on his knowingly false representations. 001. Razorback justifiably relied upon Rothstein's representations to its detriment. 001. 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 damaggs. together with court costs and such further relief as the Court deems propgr. #### COUNT KN-147 - FRAUD I=T MISREPRESENTATION (against MM Soinosai 591. Plaintiff incorporates the allegations contained in paragraphs I through 444121 as if restated herein. 001. This is a claim for fraudulent misrepresentation. 001. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA, and through TD Bank 001. 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 wr 0 . itten assurances concernin settlement accounts. 001. Spinosa intended Razorback to act on his knowingly false representations. 001. Razorback justifiably relied upon Spinosa's representationnb its detriment. 001. As a direct and proximate result of Spinosa 's false statements. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING., (''S/requests lodgment against A. SPINOSA for compensatory damages, togeth\*vith court costs and such further relief as the Court deems proper. # COUNT X-XA:168 - FRAUDULENT MISREPRESENTATION fazainst Jennifer Kerstetter) , \\41,0" 5 . cainti Pl ff incorporates the allegations contained in paragraphs I through 10;121 as if restated herein. 599. This is a claim for fraudulent misrepresentation. 001. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 001. 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. 001. Kerstetter intended Razorback to act on her knowingly false representations. 001. Razorback justifiably relied upon Kerstetter's representations to its detriment. 001. As a direct and proximate result of Kerstetter's false staterDents. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING. LLC. regPeSs judgment against JENNIFER KERSTETTER for compensatory damages together with court costs and such further relief as the Court deems proper, #### COUNT XXV4469 - FRAUDULENT MISREPRESENTATION (against Roseanne Cereal') 605. Plaintiff incorporates the air' c,a " i n's contained in paragraphs I 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 statenfents-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. 001. Razorback justifiably relied upon Caretsky's representations to its detriment. 001. As a direct and proximate result of Caretsky's false statements. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING. LLC. requests iudament against ROSEANNE CARETSKY for compensatory damages. together with court costs and such further relief as the Court deems Proper. # COUNT N-NVIII70 - FRAUDULENT MISREPRESENTATION (against TD Bank. N.A.1 612. Plaintiff incorporates the allegations contained in paragel through -144;121 as if restated herein. 001. This is a claim for fraudulent misreprese • 001. At all times material hereto. Spi • gin the scope of his employment as Regional Vice President of T.D. Bank. 001. At all times material hereto, Kerstetter was acting in the scope of her employment as an assistant manager of ID Bank, 001. At all times material hereto Caretsky was acting in the scope of her employment as an assistant vice presiele% and branch manager of TD Bank. 001. As described more fully above. Rothstein was operating a Pon' scheme through his firm. R A. and through TD Bank. In furtherance of the Ponzi scheme, TD Bank. through Spinosa. Kerstetter. and Caretsky. Icnowingly 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. 619. TD Bank, through Spinosa, Kerstetter, and Caretskv. intended Razorback to act on their knowingly false representations. 001. Razorback justifiably relied upon TO Bank's, through Spinosa's, Kerstetter's. and Caretsky's, representations to its detriment. 001. As a direct and \_proximate result of TD Bunk's. made th lanai% 1 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 NXIX71 - FRAUDULENT MI EEESENTATION (against Fronk-PpeveGeorge G. LevinI 622. Plaintiff incorporates the alleg • ns contained in paragraphs I through -147121 as if restated herein. 001. This is a claim forfraudulent misrepresentation. 001. As described more fully above, Rothstein was operating a Ponzi ccheme through his firm, RRA, and through TO Bank. 001. E In furtherance of the Ponzi scheme, Levin knowingly made material false statements resentalions includinc, but not limited to, representing that the settlement agreement4urchased by investors were real, that they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 001. Levin intended Razorback to act on his knowingly false representations. 001. Razorback justifiably relied upon Levin's representations to its detriment. 001. As a direct and proximate result of Levin's false statements, Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against [REDACTED]\ 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. 001. This is a claim for fraudulent [REDACTED] 001. As described more fully above, Rothstein was operating a Ponzi scheme through his firm, RRA, and through TD Bank. 001. 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. 001. Preve intended Razorback to act on his knowingly false representations. 001. Razorback justifiably relied upon Preve's representations to its detriment. 001. As a direct and proximate result of Preve's false statements, Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING, LLC, requests judgment against [REDACTED]\ PREVE for compensatory damages, together with court costs and such further relief as the Court deems proper. Amended Complaint #### COUNT XXX---N-F,GLIGEN:173 - FRAUDULENT MISREPRESENTATION (against Franli-Spinetinflanyon Income Fund, LP, and Banyon USVI, LLC) 636. Plaintiff incorporates the allegations contained in paragraphs I through 107121 as if restated herein. 001. This is a claim for fraudulent misrepresentation. 001. At all times material hereto, Levin was acting in the scope of his employment as the chief executive officer of Banyon USVI and BW. 001. At all times material hereto, Preve was acting in the seo employment as the chief operating officer or agent of Banyon USVI and 8W. 001. As described more fully above, Rothstein was operating.a Ponzi scheme through his firm, RRA, and through TD Bank. 001. In furtherance of the Ponzi scheme, Banyon USVI and BIF, through Levin and Preve, knowingly made material false stagnts and representations including, but not limited to, representing that the settlement nts purchased by investors were real, that they had been fully funded, and that they wofty be paid out to investors over a predetermined schedule. 001. Banyon USVI and BLF. through Levin and Preve, intended Razorback to act on their knowingly false representations. 643 orback 'ustiliabl relied upon Ban on USVI's and BIF's, throtpth Levin's and Preverepresentations 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. 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 ihrqugh 12I as if restated herein. 001. This is a claim for fraudulent misrepresentation, his firm, RRA. and through TD Bank. C) a.lc, 647. As described more fully above. Rothstein w 'ng a Ponzi scheme through 648. In furtherance of the Ponzi sche ski knowingly made material false statements and representations including. NI not limtted to. verifyina false bank statements and deal documents. 001. Szfranski intended Razorback to act on his knowingly false representations. 001. Razorback justifiably relied upon Szfranski's representations to its detriment. 001. As a direct and proximate result of Szfranski's false statements. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against MICHAEL SZFR6NSKI for compensatory damages, together with court costs and such further relief as the Court deems proper. #### COUNT 75 - FRAUDULENT MISREPRESENTATION (against Onyx Capital Management) 652. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein. 001. This is a claim for fraudulent misrepresentation. 001. At all times material hereto. Szfranski was acting in the scope of his employment as president of Onyx. 001. As described more fully above. Rothstein was operating a Ponzi scheme through his firm, RRA. and through TO Bank. 001. 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. 001. Onyx. through Szfranski. •• orback to act on its knowingly false representations. 001. Razorbackjustiliabl u n Onyx's, through Szfranski's. representations to its detriment. 001. As a direct and ximate result of Onyx's made through Szfranski's, false representations. Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment ajainst ONYX CAPITAL MANAGEMENT. for compensatory damages. together with court costs and such further relief as the Court deems proper. #### COUNT 76 - FRAUDULENT MISREPRESENTATION lanainst Berenfeld Spritzer Shechter Sheer. LLP1 660. Plaintiff incorporates the allegations contained in paragraphs I through 121 as if restated herein. 001. This is a claim for fraudulent misrepresentation. 001. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 001. 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. 001. Berenfeld intended Razorback to act on its knowingly false representations, 001. Razorback justifiably relied upon Berenfeld's representations to its detriment. 001. As a direct and proximate result of Berenfeld's tplse statements. Razorback has sustained damages WHEREFORE. RAZORBACK FUff6QING LLC, requests judgment against BERENFELD SPRITZER SHECHTER for compensatory 'damages. together with court costs and such further relief r c ) deems mover. C IN Lagainst n 66k laintiff incorporates the allegations contained in paragraphs I through I 2 I as if restated herein. # COUNT 77 - NEGLIGENT MISREPRESENTATION 668. This is a claim for negligent misrepresentation. 001. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 001. 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. 001. When making the false statements and representations. Spinosa either knew or reasonably should have known that they were false 001. Spinosa owed Razorback a duty of care because he knew or bad reason to know that Razorback was:lacing trust and confidence in him and relying on hint to inform it 001. Spinosa breached his duty to Razorback by making, false representations with the intention that Razorback rely on them 001. Razorback justifiably relied upon Spinosa's rewesentations to its detriment. 001. As a direct and_proximate result o nosa's false statements, Razorback has sustained damages. WHEREFORE. RAZORS NG. LLC. requests iudgment against MS SPINOSA for compensatory didnao hgsther with court costs and such further relief as the Coon deernspoper. # COUNT X XXI78 - NEGLIGENT MISREPRESENTATION (against Jennifer Kerstetter) 676. Plaintiff incorporates the allegations contained in Paragraphs I through -144121 as if restated herein. 001. This is a claim for negligent misrepresentation. 001. As described more fully above. Rothstein was operating a Ponzi scheme through his firm. RRA and through ID Bank. 001. In furtherance of the Ponzi scheme, Kerstetter made material false statements and representations including hut not limited to. supplying investors with false bank account statements. 001. When making the false statements and representations, Kerstetter either knew or reasonably should have known that they were false. 001. Kerstetter owed Razorback a duty of care because she 'new or had reason to know that Razorback was placing trust and confidence in her and relying on her to inform it 001. Kerstetter breached her duty to Razorback by making false representations with the intention that Razorback rely on them. 001. Razorback iustiliably relied upon Kerstetter's representations to its detriment. 001. As a direct and proximate res A t ocerstetter's false statements Razorback has sustained damages. WHEREFORE. RAZORBACKQWING LW, rea.tests jusigment against JENNIFER KERSTETTER for compensatory damages. together with court costs and such further relief as the Court deems proper, # COUNT XN-N4479 - NEGLIGENT MISREPRESENTATION (against Roseanne CaretskY1 685. Plaintiff incorporates the allegations contained in paragraphs I through 44;121 as if restated herein, 001. This is a claim for negligent misrepresentation 001. As described more kb above. Rothstein was operating a Ponzi scheme through his firm, RRA, and through TO Bank. 001. In furtherance of the Ponzi scheme, Caretsky made material false statements and representations including, but not limited to, suonlvikg investors with false bank account statements. 001. When making the false statements and representations. Kerstetter either knew or reasonably should have known that they were false. 690, Caretskv 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. Caretskv breached her duty to Razorback by making false representations with the intention that Razorback rely on them. 001. Razorback justifiably relied upon Caretskyl representations to its detriment. 001. As a direct and proximate result of Caretskv's false statements. Razorback has sustained damages. WHEREFO E. RAZORBACK FUNDING, LLC, requests judgment against ROSEANNE CARETSKY for compensatory damages. together with court costs and such further relief as the Court deems Droner. # COUNT XXXHIS0 - NEGLIGENT MISREPRESENTATION (against TD Bank, N.A.1 694. Plaintiff incorporates the allegations contained in paragraphs I through 44}}121 as if restated herein. 001. This is a claim for negligent misrepresentation. 001. At all times material hereto. Spinosa was acting in the scope of his employment as Regional Vice President of T.D. Bank. 001. At all times material hereto, Kerstetter was acting in the scope of her employment as an assistant manager of ID Bank. 001. 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, 001. A s described more fully above. Rothstein was operating a Pnnzi scli ell through his firm. RRA, and through TD Bank. 001. In furtherance of the Ponzi scheme. TD Bank. through Spinosa. Kerstetter, and Caretsky, made material false statements and representations ( . Deluding, but not limited to showing investors false statements of the amounts in RR trust accounts and providing .!.. . misleading and untrue written assurances concerning the settl iwilnt accounts. 001. When making the false statemenNitd representations, TD Bank, through SPinosa. Kerstetter. and Caretskv, either kne false. nahly should have known that they were 001. TD Bank owed Razo,tci duty ti 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. 001. TD ank breached its duty to Razorback by making false representations, through Spinosa, Ke r, and Caretsky, with the intention that Razorback rely on them. Razorback justifiably relied upon TD Bank's. through Spinosa's. Kerstetter's, and ese rimer) t "r d 705. As a direct and proximate result of TD Bank's representations, made through Spinosa. Kerstetter. and 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 #### COUNT XX,NIV - AND Alltgl: 14N-6-11tEACII OF FIDUCIARY DUTY COUNT 81 - NEGLIGENT MISREPRESENTATION (against ILFartii-SpiatimiGeorge C. Levin) 706, Plaintiff incorporates the allegations contained in paragraphs I through 404121 as if restated herein. 707. This is a claim for negligent misrepresentation. 001. As described more fully above. Rothstein was operatinn a Ponzi scheme through his firm, RRA, and through TD Bank. 001. In furtherance of the Ponzi sch yin made material fake statements and representations including, hut not limited t\*, representing that the settlement agreements purchased by investors were real. oat they had been fully funded, and that they would be paid out to investors over a predetermined schedule. 001. When making the false statements and representations, Levin either knew or reasonably should have known that they were false. 001. 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. 'h2.. 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. 001. As a direct and proximate result of Levin's false statements. Razorback has sustained damages. WHEREFORE, RAZORBACK FUNDING. LLC, requests judgment against LEVIN for compensatory damages, together with court costs and such further relief as the Court deems proper. #### COUNT 82 - NEGLIGEVII2ESIZEPRESENTATION (against Prevel 715. Plaintiff incorporates the allegations contained in Parts 1 through 121 as if restated herein. 001. This is a claim for negligent misrepresenta 001. As described more fully above. Rot.14e'r\\sts operating a Ponzi scheme through his tinn. RRA, and through TO Bank. 001. In furtherance of the Ponzi scheme, Preve made material false statements and representations including, but noLlinted to. renresenting 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. 001. When making the false statements and representations. Preve either knew or reasonably Should have known that they were false. 001. 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. 001. Preve breached his duty to Razorback by making false representations with the intention that Razorback rely on them. 001. Razorback justifiably relied upon Preve's representations to its detriment. 001. As a direct and proximate result of Preve's false statements. Razorback has sustained damages WHEREFORE, RAZORBACK FUNDING. LLC. requests judgment against PREVE for compensatory damages. together with court costs and such further relief as the Court deems proper. ### COUNT 83 - NEGLIGENT MISREPRESENTATION fatalist Banyan Weenie Fund. LP. and Banyan USVI, LLC) 724. Plaintiff incorporates the allegations contained in paragraphs I through 121 as if restated herein. 001. This is a claim for negligent misrepresentation. 001. At all times material hereto. Levin was acting in the scope of his employment as the chief executive officer of Banvon USV I and BW. 001. At all times material hereto. Preve was acting in the scope of his employment al the chief operating officer or agent of. Banvon USVI and BIF. 001. AS described mine fully above. Rothstein was operating a Ponzi scheme through his firm. RRA. and through TD Bank. 001. Jo- furtherance of the Ponzi scheme. Banyan 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. 001. When making the false statements and representations. Banvon USVI and BIF, through Levin and Preve, either knew or reasonably should have known that they were false. 001. Bannon 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 relyinion it to inform tha. 001. J3anvon USVI and BIF breached its duty to Razorback by making false representations. through Levin and Preve. with the intention that Razorback rely on thenL 001. Razorback justifiably relied upon Banyon USV1's and BIF's, through Levin's and Preve's, representations to its detriment. 001. As a direct and proximate result of Banyan USVI's and BIF's representations made through Levin and Preve Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING. LLC. requests lodgment against BANYON INCOME FUND. LP. and BANYON • USVI. LLC.. for canpensatory damages. together with court costs and such further relief as the Court deems proper. # COUNT 84 - NEGLIGENT MISREPRESENTATION fliainst Michael Szfraskil 735. Plaintiff incorporatesihe allegations contained in paragraphs 1 through 121 as if restated herein. 001. This is a claim for negligent mis presentation. 73 . C As described more fully above. Rothstein was operating a Ponzi scheme through his fir and through TD Bank. 738. Jn furtherance of the Ponzi scheme. Szfranski made material false statements and representations including, but not limited to. verifying false bank statements and deal documents. 001. When making the false statements and representations, Szfranski either knew or reasonably should have known that they were false. 001. 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. 001. Szfranski breached his duty to Razorback by making false representations with the intention that Razorback rely on them. 001. Razorback justifiably relied upon Szfranski's representations to its detriment. 001. 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 courtcosts and such further relief as the Court deems proper. # COUNT.85 - NEGLIGENT MISREPRESENTATION - jagainsi Out Capital Management) 744. Plaintiff incorporates the allegations contained in paragraphs 1 through 121 as if restated herein, 001. This is a claim for negligent misrepresentation. 001. At WI times material hereto. Szfranski was acting in the scope of his employment residen of t li. 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. 001. When making the false statements and representations. Onyx. through Szfranski, either knew or reasonably should have known that they were false. 001. Onyx owed Razorback a duty of care because it knew or had reason to know that, as an independent verifier; Razorback was olacing trust and confidence in it and relying on Onvx to inform it. 001. Onyx breached its duty to Razorback by making false representations. through Szfranski. with the intention that Razorback rely on them. 001. Razorback justifiably relied upon Onyx's. through Szfranskfs. representations to its detriment. 001. As a direct and proximate result Qnvx's representations, made through Szfranski, Razorback has sustained damages. WHEREFORE. RAZORBACK FUNDING. LLC. requests judgment against ONYX CAPITAL MANAGEMENT for enmpeasatory damages together with court costs and such further relief as the Court deems proper, # COUNT 86 - NEGLIGENT. MISREPRESENTATION {against Berenfeld Spritzer Shechter Sheer. LIP' 754. Plaintiff incorporates the allegations contained in paragraphs I through 121 as if restated ask 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 TI) Bank.