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Second Amended Complaint Leslie A. WHITTINGTON, Terry R. Sloan, Linnea J...., 2013 WL 10945133... 2013 WL 10945133 (N.C.Super.) (Trial Pleading) Superior Court of North Carolina. Superior Court Division Twenty-Eighth Judicial Circuit Buncombe County Leslie A. WHITTINGTON, Terry R. Sloan, Linnea J. Dallman, Jeffrey D. Efird, Melissa Efird, Jennifer F. George, Pamela J. Hawes, Jane S. Jones, Queen C. Miller, Patricia Ream, Richard Ream, Donglas Watkins, Jeanne West Watkins, David West, Mary West, Sandra Hoskin, Carroll C. Bridges, Phyllis Rae Bridges, Harold R. Parris, Wylma H. Parris, Victoria B. Henson, Rhonda Blankenship, and Carroll D. Blankenship, Plaintiffs, v. MORGAN STANLEY SMITH BARNEY, William Kimbrough, and Hometrust Banking Partnership F/k/a Home Trust Bank, Defendants. No. 2012CVS01206. January 19, 2013. (ury Trial Demanded) Second Amended Complaint John B. Veach III, N.C. Bar No. 26385, H. Naill Falls Jr., Johanna S. Fowler, N.C. Bar No. 24679, Falls & Veach, 20 Cedarcliff Road, Asheville, North Carolina 28803, Telephone: (828) 277-6001, Facsimile: (828) 277-6088, tv @fallsveach.com, [email protected]. By and through their undersigned counsel, Plaintiffs submit this Second Amended Complaint, which differs from the Amended Complaint in that two additional Plaintiffs, Carroll D. Blankenship and Rhonda Blankenship are added to the case, as follows: A. Nature of the Action 1. This action arises out of the Plaintiffs' collective losses of millions of dollars in a ponzi scheme operated by William Bailey through a company called Southern Financial Services in Asheville, North Carolina (the “Southern Financial Ponzi Scheme”). Because Southern Financial Services was not a bank, Mr. Bailey deposited Plaintiffs' monies and that of other investors in accounts at Defendants' Morgan Stanley Smith Barney (“MSSB”) and Home Trust Bank (“Home Trust”). Defendants facilitated the operation of the Southern Financial Ponzi Scheme by failing to act on obvious “red-flags,” which were apparent to Defendants from Mr. Bailey's handling of the accounts. 2. Beginning in early 2002 and culminating with the collapse of the Southern Financial Ponzi Scheme in late 2010, Mr. Bailey moved millions of dollars back and forth through accounts at Defendants' offices. These transactions earned Defendants lucrative fees and commissions. 3. The Southern Financial Ponzi Scheme collapsed on November 30, 2010, when Mr. Bailey bounced three kited checks worth $4.8 million in the account at Home Trust Bank. These checks had been shuttled back and forth between the Home Trust and MSSB accounts. At this time at least one Plaintiff went to MSSB's Asheville office and requested the return of her money held in the MSSB accounts of Southern Financial. She was told that the computers were turned off, her money was gone, and she should expect a call from MSSB's lawyer in New York City. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 Leslie A. WHITTINGTON, Terry R. Sloan, Linnea J...., 2013 WL 10945133... 4. The United States Attorney for the Western District of North Carolina instituted federal criminal charges against Mr. Bailey on or about February 4, 2011, On or about February 18, 2011, in this Court, Mr. Bailey pled guilty to charges of securities fraud, mail fraud and filing false income tax returns. He awaits sentencing and faces up to 43 years in prison. 5. Plaintiffs bring this action seeking monetary damages and restitution from Defendants because they permitted Mr. Bailey to continue his operations through the use of their business and professional services while knowingly disregarding his banking and check writing activities, which were clearly suspicious and raised multiple “red-flags.” Defendants knowingly disregarded these suspicious financial activities of Mr. Bailey while providing him an imprimatur of legitimacy to Plaintiffs, thus furthering Plaintiffs' disastrous losses, as will be shown more fully herein. Defendants knowingly disregarded that Mr. Bailey's banking activities had all the earmarks of a Ponzi scheme facilitated through accounts held by Defendants. B. Parties 6. Plaintiffs Phyllis Rae Bridges, Carroll C. Bridges, Leslie A. Whittington, Jennifer F. George, David West, Mary West, Pamela Jean Hawes, Sandra Hoskin, Linnea J. Dallman, Jeffrey D. Efird, Melissa Efird, Harold R. Parris and Wylma H. Parris are citizens and residents of the State of North Carolina, County of Buncombe. Melissa Efird LLC is an entity set up by Mr. Bailey through Southern Financial. The West Family LLC and The West Family Real Estate Investment Trust also are entities set up by Mr. Bailey through Southern Financial. Mary West is the Trustee of the West Family Real Estate Investment Trust. 7. Plaintiff Victoria B. Henson is a citizen and resident of the State of North Carolina, County of Haywood. 8. Plaintiffs Jeannie West Watkins and Douglas Watkins are citizens and residents of Sharp County, Arkansas, 9. Plaintiff Terry R. Sloan is a resident of Anderson, Anderson County, South Carolina. 10. Plaintiffs Queen C. Miller and Jane S. Jones are citizens and residents of Aiken County, South Carolina. Jane S. Jones is the trustee of the Queen C. Miller Irrevocable Trust set up by Mr. Bailey through Southern Financial Services. 11. Plaintiffs Patricia Ream, Richard Ream and Pamela J. Hawes are citizens and j residents of Transylvania County, Brevard, North Carolina. 12. Plaintiffs Carroll D. Blankenship and his wife Rhonda Blankenship are citizens and residents of Oconee County, Seneca, South Carolina. 13. Defendant Morgan Stanley Smith Barney LLC is a limited liability company with offices throughout the United States. It is a Delaware corporation with its principal place of business in New York, New York. It has numerous offices in North Carolina, including its office on Charlotte Street, Asheville, North Carolina, which is the subject of this action. 14. Defendant Home Trust Bank is a member of a mutual multi-bank partnership spanning the State of North Carolina. It has four offices in Asheville, North Carolina, including the location at 11 Woodfin Street, Asheville, North Carolina where Mr. Bailey's primary contacts with the Bank occurred. According to published reports, Home Trust Bank's participation in the fraud scheme resulted in an after-tax charge of $2.7 million and the Bank absorbed the loss for a profit of $5.7 million in 2010. 15. Defendant William Kimbrough is a Financial Advisor, First Vice President, Senior Investment Management Consultant, and Ceritified Financial Planner employed by Defendant Morgan Stanley Smith Barney at its office located on 500 College Street, Asheville, North Carolina. Upon information and belief, he is a citizen and resident of Asheville, Buncombe County, North Carolina. At all times relevant to this action, Mr. Kimbrough was the Morgan Stanley Smith Barney financial advisor/ brokerage account representative for the Southern Financial Services financial management accounts at Morgan Stanley Smith Barney. He worked closely with Mr. Bailey in this regard. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Leslie A. WHITTINGTON, Terry R. Sloan, Linnea J...., 2013 WL 10945133... C. Jurisdiction and Venue 16. Plaintiffs are citizens of North Carolina, South Carolina and Arkansas. Defendant Smith Barney is a Delaware corporation with offices in Asheville, North Carolina. Defendant Home Trust Bank is a North Carolina banking partnership with its principal bank office in Asheville, North Carolina. Defendant Kimbrough is a citizen and resident of Asheville, North Carolina. Venue properly lies in this Court because this action concerns acts and omissions which have primarily occurred and continue to occur in Asheville, Buncombe County, to the detriment of Plaintiffs. D. Factual Allegations 1. Plaintiffs' Dealings With Bailey and Southern Financial 17. Bailey held himself out to the public as an experienced investment advisor.Through Southern Financial he offered investment services, trust formation, 1031 exchange programs, alternative IRA programs and other related financial services. Plaintiffs and other investors were told that Southern Financial maintained accounts at Home Trust and MSSB and that their investments would be held or facilitated through these companies. For example, Southern Financial customers knew that real estate related transactions would generally be handled through Home Trust and that securities investments and money market accounts were being handled by MSSB. 18. Unknown to Plaintiffs at the time they engaged Mr. Bailey and Southern Financial, and on all occasions when Plaintiffs entrusted funds to Mr. Bailey and his company, Mr. Bailey was carrying on a criminal enterprise, and he did not intend to invest Plaintiffs* assets appropriately, but, rather, intended to misappropriate Plaintiffs' funds and/or use them in an unauthorized and unlawful manner. 19. In early 2011, Plaintiffs learned that Mr. Bailey had stolen all of the money that Plaintiffs transferred to him. It is unlikely that Plaintiffs will be able to recoup any of their investments. 20. As of the discovery of the Bailey Ponzi Scheme, Plaintiffs had advanced funds and entrusted to Mr. Bailey and Southern Financial, and thus Defendants, millions of dollars. Those funds consisted of approximately the following: (a) From an initial investment of approximately $95,000 made from 2002 to 2010, Plaintiffs Phyllis Bridges and Carroll Bridges have lost their entire life savings of $150,000; (b) From an initial investment of $1,263,000 made in 2006, Plaintiffs Leslie A. Whittington and Jennifer F. George have lost approximately $742,000; (c) From an initial investment of $6 million made in 2009, Plaintiffs David West, Jeanne West Watkins, Douglas Watkins, and Mary West, collectively, have lost virtually the entire sum of $6 million; (d) From an initial investment of $20,000 made in 2002, Plaintiff Linnea Dallman has lost approximately $ 20,000; (e) From investments of $600,000 made in 2009-2010, Plaintiffs Jeffrey D. Efird, Melissa Efird have actual and projected future losses of approximately $1.5 million; (f) From investments made from 1994 until 2001, totaling approximately $1.3 million, Plaintiff Terry R.
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