Electroni ly Filed 11/14/2013 02:43:52 PM ET z IN THE CIRCUIT COURT OF THE s 17" JUDICIAL CIRCUIT IN AND FOR = BROWARD COUNTY, FLORIDA & (CIVIL DIVISION) NICOLE MURPHY, CASE NO. 11-010614 CACE 25 Plaintiff, vs. BANK OF AMERICA CORPORATION, a Delaware corporation; MAXINE POTTER, an individual, TROY STRATOS, an individual; and LESLIE ZIGEL, Defendants. DEFENDANT BANK OF AMERICA’S MOTION FOR SUMMARY JUDGMENT This case involves the ex-wife of a wealthy celebrity who entrusted her substantial divorce settlement to an alleged con man. Specifically, Plaintiff claims that Defendant Troy Stratos used a series of lies to convince her to deposit millions of dollars in a joint checking account that he used to purchase luxury cars and expensive real estate, Regardless of whether Plaintiff is telling the g 3 z Z 5 5 3 $ g 8 2 z 5 a 3 8 2 = g 3 g 4 5 truth about Stratos, Plaintiff's claim that Bank of America, N.A. (erroneously sued as Bank of America Corporation) conspired with Stratos by intentionally preventing Plaintiff from receiving notice that Stratos was depleting the account is false. In fact, because the undisputed evidence demonstrates that the Bank never concealed any information from Plaintiff or prevented her from accessing information related to the account, the Bank is entitled to judgment as a matter of law. In addition, Plaintiff's claims against the Bank are time-barred. UNDISPUTED FACTS Plaintiff Nicole Murphy (“Plaintiff”) is the ex-wife of the actor Eddie Murphy. Following her divorce from Mr. Murphy, Plaintiff appointed Troy Stratos as her personal financial advisor. Courthouse Tower ., GONZALEZ. & PORTUONDO, PA. 15° Foor 44 West Flgler Sst, Miami, FL33150 (505) 379-0400{Plaintiff's Deposition Transcript (“PT”) at 31:20-22, attached hereto as Exhibit A.] Plaintiff had known Stratos as a teenager and was Stratos’ teenage girlftiend for approximately three years. [PT at 22:20-23:3,] Plaintiff performed no investigation of Stratos before appointing him as her fina advisor. [PT at 32:12-15,] Moreover, no written agreement regarding Stratos’ services exists. [PT at 36:14-20.] Instead, Plaintiff claims that Stratos agreed to “take care of everything” for her “out of the goodness of his heart.” [PT at 32:1-11 and 33:9-34:10.] For example, Plaintiff claims that Stratos agreed to pay all of Plaintiff's bills with his own money. [PT at 41:21-23.] Stratos also agreed to buy property in Florida with his own money and put Plaintiff's name on title. [PT at 52:3-20,] Plaintiff considered this a gift and never intended to repay Stratos. [PT at 265:23-266:10,] After appointing Stratos as her financial advisor, Plaintiff and Stratos created a trust by visiting an attorney near Sacramento, California, [PT at 54:7-55:1.] Plaintiff understood the trustees of the trust would be herself and Stratos. [PT at 56:12-18.] For that reason, the name selected for the trust was the Granite TN Revocable Trust, with the “TN” standing for Troy and Nicole (hereafter the “Trust”). [PT at 56:19-24.] One of the documents Plaintiff and Stratos executed to create the Trust is entitled the “Certification Of Trust Of The Granite TN Revocable Trust.” [PT at 167:6-24 and Defendant’s Deposition Exhibit (“Depo Ex.”) 2, attached hereto as Exhibit B.] Signed under penalty of perjury by both Plaintiff and Stratos, it states in pertinent part that: All of the trustees are required to sign in order to exercise the powers of the trustee under the trust, except that any cotrustee may, from time to time, delegate to the other cotrustee routine acts of trust administration and may establish bank or other accounts for the trust that will honor the signature of one or of either cotrustee. [Depo Ex. 2 at § 12 (emphasis added).] 2 Courthouse Tower ., GONZALEZ. & PORTUONDO, PA. 15° Foor 44 West Flgler Sst, Miami, FL33150 (505) 379-0400After creating the Trust, Plaintiff and Stratos opened a checking account at Bank of America by visiting a branch in March 2006. [PT at 85:12-86:9.] During this visit, Plaintiff and Stratos were assisted by an employee named Maxine Potter and signed several documents to establish an account on behalf of the Trust. [PT at 91:21-92:2 and Affidavit of Michelle Diaz-Sandoval at $¥ 2-3.] Specifically, Plaintiff and Stratos signed a Certificate of Trust that states they each have “full authority to open accounts, sign and endorse checks or other orders for payment of money, make withdrawal by electronic funds transfer . .. execute and deliver wire transfer agreements, enter into agreements with respect to the investment of funds, and otherwise transact business with Bank of America, N.A. (the ‘Bank’), on behalf of the trust.” [PT at 176:17-177:3 and Depo Ex. 3, attached hereto as Exhibit C.]_ The Certificate of Trust makes it clear that the Bank was authorized to act on the instructions of either Plaintiff or Stratos. Specifically, the Certificate of Trust states: If there is more than one trustee, each of the undersigned certify that the undersigned constitute all of the trustees of the aforesaid trust and agree that any one of the undersigned trustees shall be authorized to take any action or execute and deliver any agreement in the name of the trust. [Depo Ex. 3 (emphasis added); Affidavit of Michelle Diaz-Sandoval at 42] Plaintiff and Stratos also executed a signature card and acknowledged receipt of the Deposit Agreement and Disclosures (“Deposit Agreement”) governing the Trust account, [PT at 184:6-10 and Depo Ex. 4, attached hereto as Exhibit D; see also Affidavit of Michelle Diaz-Sandoval at 3.] Among other things, the Deposit Agreement states that the Bank “may pay out funds from your account if the check, item, or other withdrawal instruction is signed or approved by any one of the persons authorized to sign on the account.” [Depo Ex. 5, attached hereto as Exhibit E.] The Deposit Agreement also states that “if you do not notify us in writing of suspected problems or unauthorized transactions within 60 days after we send your statement or ER, GONZALEZ. & PORTUONDO, P.A. [Courthouse Tower 28° Flor, 44 West Flagler Stee, Miami, FL33130 _(305)379-0400items or otherwise make them available, you agree that you cannot make a claim against us related to the unreported problems or unauthorized transactions regardless of the care or lack of care we may have exercised in handling your account.” [Depo Ex. 5 and Affidavit of Michelle Diaz-Sandoval at § 4.] After the Trust account ws opened, Plaintiff deposited millions of dollars into the account. {PT at 44:12-45:7.] Approximately a year after the account was established, however, Plaintiff. began receiving calls from creditors indicating that she had outstanding debts that were unpaid. [PT at 278:13-279:1,] This brought about Plaintiff"s understanding that Stratos had defrauded her of the entirety of the trust account by mid-2007. [PT at 279:2-280: ] In 2006 or 2007, Plaintiff was also contacted by representatives from the FBI, who told Plaintiff they were investigating Stratos for fraud, [PT at 105:18-106:14.] After Plaintiff discovered that Stratos had withdrawn money from the Trust account without her permission, she did not contact the Bank for an explan ion, [PT at 264:1-21,] Plaintiff also made no effort to remove Stratos as a signatory on the Trust account or limit his access to the Trust account, [PT at 265:2-12.] In fact, Plaintiff never informed the Bank that Stratos had made any fraudulent withdrawals. [PT at 188:6-23.] The Bank never concealed any information from Plaintiff or prevented her from accessing information related to the Trust account. [PT at 98:13-19.] In fact, monthly account statements. were mailed by the Bank to Plaintiff's home address in California at least as early as July 2007. [PT at 280:8-282:23 and Depo Ex. 15, attached hereto as Exhibit F; see also Affidavit of Michelle Diaz-Sandoval at § 5.] 4 Courthouse Tower ., GONZALEZ. & PORTUONDO, PA. 15° Foor 44 West Flgler Sst, Miami, FL33150 (505) 379-0400ARGUMENT Plaintifi’s amended complaint alleges a single cause of action against the Bank conspiracy to commit fraud.! Under Florida law, the elements of civil conspiracy include (1) an agreement between (wo or more parties; (2) to do an unlawful act; (3) the doing of some overt act in furtherance of the conspiracy and (4) damage to the plaintiff. Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla, 3d DCA 1997) (citations omitted). Here, the undisputed facts demonstrate that there was no agreement between the Bank and Stratos to defraud Plaintiff, let alone was there an overt act carried out by the Bank in the furtherance of this phantom conspiracy. In addition, Plaintiff's claims against the Bank are time-barred, 1, The Undisputed Facts Demonstrate That The Bank Did Not Engage In Any Conspiracy To Defraud Plaintiff Plaintiff claims that the Bank conspired with Stratos by intentionally preventing Plaintiff. from receiving notice that Stratos was depleting the Trust account, According to Plaintiff, the Bank participated in the conspiracy by allowing Stratos to make “unrestricted suspicious fund transfers and transactions” without Plaintiff's permission and without Plaintiff receiving notice of them. The undisputed facts demonstrate that this allegation is false. Instead, the Trust account was administered in accordance with the documents Plaintiff signed. Those documents, which include a Certificate of Trust that bears Plaintiff’s notarized signature, make it clear that either trustee could withdraw funds from the Trust account. Specifically, either trustee had authority to “sign and endorse checks,” “make withdrawals by electronic funds transfer,” “execute and deliver wire transfers,” or “otherwise transact business” " Plaintiff's breach of fiduciary duty claim against the Bank was dismissed by the Court on September 13, 2011 and Plainti?’s negligence claims against the Bank were dismissed by Plaintiff when the amended complaint was filed on November 29, 2012. ER, GONZALEZ. & PORTUONDO, P.A. [Courthouse Tower 28° Flor, 44 West Flagler Stee, Miami, FL33130 _(305)379-0400with the Bank on behalf of the Trust. [Depo Ex. 3, attached hereto as Ex. C.] In other words, the Trust account was treated like any other joint account that permits one signatory to make deposits or withdrawals without notice or permission from the other. Plaintifi’s response is that she was told otherwise and never read the documents she signee. Specifically, Plaintiff claims that when the Trust account was opened, Maxine Potter told her that no money could be withdrawn from the account without Plaintiff's permission. Setting aside the fact that Ms. Potter denies making this statement, Plaintiff testified that she could not recall anything else Ms. Potter said to her, nor did Plaintiff communicate with any other Bank employees, [PT at 87:8-89:1 and 91:12-20.] This precludes Plaintiff from arguing that the Bank prevented Plaintiff from reading the Certificate of Trust before she signed it in the presence of a California notary on March 8, 2006. Accordingly, regardless of what Plaintiff was allegedly told, Florida law binds Plaintiff to the terms of the documents governing the Trust account as a matter of | law. See Rocky Creck Retirement Properties, Inc. v. Estate of Fox ex rel. Bank of America, N.A., 19 So.3d 1105, 1109 (Fla. 2d DCA 2009) (“Florida law has long held that a party to a contract is ‘conclusively presumed to know and understand the contents, terms, and conditions of the contract.””) (citation omitted). Spring Lake NC, LLC v. Holloway, 110 So.3d 916 (Fla. 24 DCA 2013), illustrates this point. In Spring Lake, a 92-year old woman with a fourth grade education signed a standard resident admission and arbitration agreement. It was undisputed that the woman could barely spell, had memory problems and was often confused. As a result, the trial court ruled that the contract was unenforceable because the woman could not possibly have understood it. Reversing the trial court, the Court of Appeal noted that although the trial court “correctly assessed” the woman’s ability to understand the document, her “limited abilities are not a basis to prevent the 6. ER, GONZALEZ. & PORTUONDO, P.A. [Courthouse Tower 28° Flor, 44 West Flagler Stee, Miami, FL33130 _(305)379-0400enforceability of this contract.” Instead, under Florida law, a party who signs a contract without reading it is bound by its terms regardless of the party's level of sophistication. Id. at 917; see also Allied Van Lines, Ine. v. Bratton, 351 S0.2d 344, 347 (Fla. 1977) (“No party to a written contract in this state can defend against its enforcement on the sole ground that he signed it without reading it.”). This is true even if the party is physically unable to read the agreement. See Estate of Etting ex rel. Etting v. Regents Park at Aventura, Inc., 891 $0.24 558, 558-59 (Fla. 3d DCA 2004) (holding that the fact that the decedent was legally blind when she signed an arbitration agreement did not render the agreement invalid). Moreover, even if the documents governing the Trust account were ignored, there is no evidence that the Bank reached an agreement with Stratos to defraud Plaintiff or actively participated in any conspiracy. For this independent reason, Plaintiff's conspiracy claim against the Bank is legally infirm. See James v. Nationsbank Trust Co. Nat'l Assoc., 639 So.2d 1031, 1033 (Fla. Sth DCA 1994) (affirming summary judgment in bank's favor because mortgagors failed to establish bank’s involvement in a conspiracy even assuming the bank had knowledge that its loan aided a fraud); see also Menendez v. Beech Acceptance Corp., 521 So.2d 178, 180 (Fla. 3d DCA 1988) (some proof of both knowledge of a conspiracy and participation by the alleged tortfeasor must be shown in order to survive summary judgment); Trautz v. Weisman, 809 F.Supp. 239, 246 (S.D.N.Y.1992) (mere knowledge of a conspiracy is insufficient; there must be an actual knowing participation)? ? Although Plaintiff’s amended complaint alleges that Maxine Potter was a “knowing” conspirator who received “fees and kickbacks” from Stratos, there is no evidence to support this specious claim. a Courthouse Tower ., GONZALEZ. & PORTUONDO, PA. 15° Foor 44 West Flgler Sst, Miami, FL33150 (505) 379-04002 Plaintiff's Claims Against The Bank Are Also Time-Barred Due To Plaintiff's Failure To Abide By The Conditions Precedent Set Forth In The Deposit Agreement And Florida Law Setting aside the fact that there is no evidence to support Plaintiff's conspiracy claim, Plaintiff's claims against the Bank are also time-barred. It is undisputed that Plaintiff began receiving calls from creditors indicating that she had outstanding debts that were unpaid in mid-2007, which brought about Plaintiff's understanding that Stratos had defrauded her of the entirety of the Trust account. [PT at 278:13-280:4.] In 2006 or 2007, Plaintiff was also contacted by representatives from the FBI, who told Plaintiff they were investigating Stratos for fraud. [PT at 105:18-106:14.] Nevertheless, Plaintiff never notified the Bank and made no effort to remove Stratos as a signatory or limit his access to the Trust account, [PT at 265:2-12.] In fact, Plaintiff never informed the Bank that Stratos had made any fraudulent withdrawals. [PT at 188:6-23,] Instead, Plaintiff said nothing to the Bank and waited almost four years before filing this suit. Accordingly, Plaintiff's claims are barred by the terms of the Deposit Agreement, which require Plaintiff to notify the Bank of suspected problems with the Trust account no later than 60 days after discovering them. Bank of America, N.A. v. Putnal Seed and Grain, Inc., 965 So.2d 300 (Fla. 1st DCA 2007), is directly on point, In Putnal Seed, Putnal’s bookkeeper fraudulently obtained cash from deposits she made into Putnal’s account at Bank of America, When Putnal leaned of the fraud, it requested reimbursement and the Bank refused because Putnal failed to comply with the Deposit ‘Agreement by notifying the Bank of any “problems or unauthorized transactions” within 60 days. Reversing summary judgment in Putnal’s favor, the Court of Appeal held that the Deposit Agreement was enforceable and “creates a condition precedent which Putnal must comply with 8 Courthouse Tower ., GONZALEZ. & PORTUONDO, PA. 15° Foor 44 West Flgler Sst, Miami, FL33150 (505) 379-0400before it may seek reimbursement.” Id. at 301; see also Parent Teacher Ass'n, Public Sch. 72 v. Mfrs. Hanover Trust Co., 138 Misc.2d 289, 524 .¥.S.2d 336, 340 (N-Y.Ciy.Ct.1988) (“Conditions precedent and shortened periods of limitation ... have been routinely accepted in the banking relationship, usually without extensive analysis. Such provisions are not only compatible with statute and case law; they are in accord with public policy by limiting disputes in a society where millions of bank transactions occur every day.” Pursuant to Putnal Seed, Plaintiff's claims are time-barred since she failed to notify the Bank of any unauthorized transactions at all, let alone within 60 days of iscovering them. Moreover, even if the 60-day notification period in the Deposit Agreement did not apply, Florida law imposes a condition precedent requiring the reporting of unauthorized transactions within a year of a bank statement being sent or made available, See Fla, Statutes § 674.406(6) (a customer is precluded from asserting a claim against a bank if she fails to report an unauthorized transaction within one year of a statement being sent or made available to the customer ithout regard to care or lack of care of either the customer or the bank”). Here, it is undisputed that statements regarding the Trust account were mailed to Plaintiff's home in Californ at least as early as July 2007. [PT at 280:8-282:23 and Ex. 15; see also Affidavit of Michelle Diaz-Sandoval at § 5.) Accordingly, because Plaintiff never notified the Bank that anything was wrong and did not file this suit until May 2011, Plaintiff's clain against the Bank are time-barred no matter what the scenario, See Lowenstein v. Barnett Bank of South Florida, N.A., 720 So.24 596, 597 (Fla. 34 DCA 1998) (“As mandated by section 674.406, the customer had an obligation to examine bank statements and notify the bank within one year of any claimed errors. The customer’s failure to timely discover and report the forgeries bars his claim as a matter of law.”) (citations omitted). ER, GONZALEZ. & PORTUONDO, P.A. [Courthouse Tower 28° Flor, 44 West Flagler Stee, Miami, FL33130 _(305)379-0400cor SI The Bank should never have been made a party to this lawsuit, As the undisputed facts, demonstrate, the Bank did not engage in any conspiracy with Stratos, let alone a conspiracy to hide information from Plaintiff in order to. permit Stratos to misappropriate Plaintiff's funds. Moreover, Plaintiff's claims against the Bank are time-barred no matter what the scenario. Accordingly, the Bank is entitled to judgment as a matter of law. LIEBLER, GONZALEZ & PORTUONDO, P.A. Attorneys for Bank of America Corporation Courthouse Tower - 25" Floor 44 West Flagler Street Miami, FL 33130 (305) 379-0400 service@leplaw.com By-/s/Mare T. Parrino MARC T. PARRINO Florida Bar No, 0018197 Michael A. Garabed, Esquire Co-Counsel for Bank of America, Corporation REED SMITH LLP 355 South Grand Ave, Suite 2900 Los Angeles, CA 90071 ‘Tel.: 213.457.8000 Fax: 213.457.8080 mgarabed@reedsmith.com (Admitted Pro Hae Vice) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished via Electronic Mail this 14" day of November, 2013, to: Attached Service List. {s/Mare T, Parrino MARC T. PARRINO -10- Courthouse Tower ., GONZALEZ. & PORTUONDO, PA. 15° Foor 44 West Flgler Sst, Miami, FL33150 (505) 379-0400RVICE LIST Scott A. Weires, Esquire Richard Hack Murdoch, Weires & Neuman, PLLC 401 E Las Olas Blvd, Suite 130-381 14 SE 4" Street Fort Lauderdale, FI Boca Raton, Florida 33432 rickywriten@hotmail.com sweires@mwnlegal.com Attorneys for Plaintiff Douglas F. Eaton Eaton & Wolk, P.L. One Biscayne Tower 2 South Biscayne Blvd., Suite 3100 Miami, Florida 33131 deaton@eatonwolk.com cgarcia@eatonwolk.com Attorneys for Troy Stratos James M. Williams, Esquire Alanah O. Hebert, Esquire Gauthier, Houghtaling & Williams, LLP 3500 N. Hullen Street Metairie, Louisiana 70002 imw@ghwlegal.com lacey@ghwlegal.com danielle@ghwlegal.com Co-Counsel for Plaintiff (Admitted Pro Hac Vice) Daniel Davillier, Esquire Davillier Law Group, LLC 1010 Common Street, Suite 2150 New Orleans, Louisiana 70112 ddavillier@davillierlawgroup.com Co-Counsel for Plaintiff Barry Postman, Esquire Jacob Auerbach, Esquire Cole, Scott, & Kissane, P.A. 1645 Palm Beach Lakes Blvd., 2 Floor West Palm Beach, FL 33401 jacob.auerbach@esklegal.co1 Attorneys for Leslie Zigel ole Courthouse Tower ., GONZALEZ. & PORTUONDO, PA. 25° Foot, 4 West Flagler Steet, Miami, FL 3130, (605) 379-0400EXHIBIT A10 at 32 13 14 15 16 17 18 19 20 21 22 23 24 25 NICOLE vs. BANK 0) Delawa. STRATO! HACK, BIGEL, Shorth. state Taking INTHE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION CASE.NO. 11-010614 CACE 25 MURPHY, Plaintiff, F AMERICA CORPORATION, a re corporation; TROY 8, an individual; RICHARD an individual; and LESLIE an individual, Defendants, 5355 Town Center Road Boca Raton, Florida Tuesday, May 14, 2013 9:30 acm. VIDEOTAPED DEPOSITION OF NICOLE MURPHY Taken before MARIANNE TERTAN, and Reporter and Notary Public in and for the of Florida at Large, pursuant to Notice of Deposition in the ebove causes Certified Shorthand Reporters, Ine. ‘Miami 305-374-6545 Fort Lauderdale 954-925-6545190 1 12 13. 1a 15 16 17 is 19 20 ai 22 23 24 25 APPEARANCES: JAMES M. WILLIAMS, ESQ. of the firm Gauthier, Houghtaling @ Williams, LLP SCOTT A. WEIRES, ESQ. of the firm Buckingham, Doolittle & Burroughs, LLP DANIEL DAVILLIER, ESQ. of the Davillier Law Group, LLC on behalf of the Plaintiff MICHAEL A. GARABED, ESQ. of the firm Reed Smith, DLP on behalf of the Defendant Bank of America S. JONATHAN VINE, ESQ. of the firm Cole Scott « Kissane, P.A. on behalf of the Defendant Zigel DOUGLAS F. EATON, ESQ. of the firm Baton & Wolk, P.L. on behalf of the Defendant Stratos ALSO PRESENT: Richard Hack, Procse Joe Langsam, Videographer TN DEX WITNESS EXAMINATION BY PAGE NO. NICOLE MURPAY MR..GARABED 4 Certified Shorthand Reporters, f ‘Miami 305-374-6845 Fort Lauderdale 984-925-654510 1 12 13 14 1s 16 17 18 19 20 21 22 23 24 EXHIBIT Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's ‘Miami 305-374-6545 EXHIBITS (Exhibits Attached) PAGE NO. Exhibit 1 159 Exhibit 2 166 Exhibit 3 176 Exhibit» 4 183 Exhibit <5 185 Exhibit 6 195 Exhibit 7 199 Exhibit 8 204 Exhibit 9 210 Exhibat 10 217 Bxhibit 11 222 Exhibit 12 233 Exhibit 13 237 Certified Shorthand Reporters, Inc. Fort Lauderdale 954-925-654510 cet a2 13 14 16 a 1g 19 20 21 THE VIDEOGRAPHER: This is the case of Nicole Murphy, Plaintiff, versus Bank of America Corporation, a Delaware corporation, Troy Stratos, an individual, Richard Hack, an individual and Leslie Zigel,; an individual, Defendants. This is in the Circuit Court of the 17th Judicial Circuit in and for Broward county, Florida, Case No. 11-10614 cacE 25. This Gs the deposition of Nicole Murphy. Today is Tuesday, May the 14th, the year 2013, starting time 9:32 a.m. Will He claimed that he was so wealthy 1 thought that he knew what he was doing, so that was it QQ. Just)so I'm Clear, you didn't ask him forcany references, for example? AS Ne Q. Do_you remember ever typing his name into Google? ied Shorthand Reporters, Ine. 305-374-6545 Fort Lauderdale 954-925-654533 1 AL Iodon't<¥ecalas 2 Qs. Do.you recall doing that at any point in 3 | time? 4 A. After I-realized my money was gone, yes. 5 ° That was the first time you recall 6| typing his name into Google? 7 A, That's when Iorecall checking up on 8 | troy. 9 Q.. What.was your agreement with Mr. Stratos 10 pas far as how he was going to be compensated for 11 | taking care of everything? 42 A. He basically said he was just doing this 13 | out of the goodness of his heart because we were 14| friends. There was no -- he wasn't -- you know, he 15 | was\making sure that Twas okay, so that Was our 16] agreement... He wanted to make Sure Iwas okay. He 11 | wanted to make sure that T built my money up. And 18 | he claimed that he was connected with some royal 19 | family in the Middle East andche's connected with 20 |these people with the oilomoney.and heccan make 21| sure that my money would build up interest over 22] there, as well. Well, he was going to match my 23|money that was in the trust. So my understanding 24| that my money was going to be at Bank of America in 25 | this trust and not move and he was going to match Certified Shorthand Reporters, Ine. Miami 308-374-6545 Port Lauderdale 954-925-65454 18 16. qT 18 13 20 21 22 23 24 34 that amount with his money and draw interest from whatever his oil money was and put it in my account. But from what I understood my money was to stay in that account, my trust account, because that's why I opened the trust Just.so0 I'm clear, Mr. Stratos; you agreed with Mr. Sttatos that he would serve as your financial advisor for no pay, correct? A. 1 don't recall ever saying that 1 would pay him. I-don't recall that at all. Q. > Prior to you making Mr. Stratos your personal and financial advisor, had you ever hada financial advisor in your life? A. There was one while I was married, Mark ually Lansman, and then when -- I remember Troy a tookvme to 4 Financial advisor. I cannot recall the namé, though. I can't thinkof hiscname, right now. He's in LA, but«Troy took mecto that individual. © And then Troy talked me into coming away from them and basically following his lead and that's when he took me to Ms, Potter to open my trust account and that he was going to take care of everything Q. So while you were married you recall an individual named Mark Lansman serving as your Certified Shorthand Reporters, Inc. Miami 305-374-6545 Fort Lauderdale 954-925-6845,10 lL 12 13 14 45 16 17 18 19 36 Troy talked me into coming away from them. He talked me into moving, you know, away from that company. Q. Tsee. “So you actually did hire those folks at some point? A. < Correct. Q. Do you remember how long you were with that financial advisor before Mr. Stratos? A. I can't recall that. Q. Do you.recall asking that person who served as your finanéial advisor just prior to Mrs Stratos about Mr.Stratos at all? A. No, I_don't recall. Q. Did you ever have any kina of written agreement with Mr. Stratos regarding his services as financial advisor? AL Towant to say there was something written up but 1 don't. know. I tried to find ity I don't know where it iscat, and I don’t recall what was exactly on that paper. This might be a good time for me to ask you about the efforts you've made toctry tovcollect any relevant documents in this cas As far.as you know, have you provided all.of your written communications with Mr, Strates to your attorneys? Miami 305 ified Shorthand Reporters, Ine. Fort Lauderdale 954-925-654510 1 12 1B 14 16 17 18 19) 20 21 22 a Mr. Stratos was your financial advisor you had two different personal assistants? A Correct. ©. You mentioned in your agreement with Mr. Stratos that he agreed to take care of your personal bills. Do you remember that? a Yes. Q Did-he, in fact, take care of any of your personal bills? A. I-thought he was but it turned out he was using my money to do it. Q.. Se as\far as you know he was paying your personal bills but it was with money that you had deposited in the trust? A,< As far as I know Proy was supposed to be paying my personal bills\and my money in the trust was supposed to be staying in the trust and not moving. «That's why I Troy talked | about investing in property and buying some houses 1} or whatever, But me personally, I wasn’t trying to 8| buy a house. But he claimed he was going to buy a 9 | house somewhere in ¥lofida and he was going to put 1o}my name on it, aswell. But he made it like he was 11 | baying dt with his money, not my money a2 Q.. “So you understood from Mr. Stratos that 13} he was going to buy a property in Florida with his 14 | own personal money, correct? 15 A... Correct. 16. Q. And he was going to put your namevon the 17 | titie? 18 AL Yes. 19 @. Why would he do tnat? 20 AL I don't know. 21 Q.< Do you recall ever asking why? 22 A. roy was so loaded and we're friends or 23 whatever, that’s how Troy @ould talk, like, I'm 24] going to get you this house. 25 Q. So it Would bé like a gift\as far as you Certified Shorthand Reporters, ine. Miami 305-374-6545 Fort Lauderdale 954-925-65455a 1fbiiis? 2 A. Troy supposedly was paying those credit 3}card bills. It was ancAm Ex. 4 Q. So your American Express bills would go 5| directly lo Troy during that period? Correé 1 Q. Do you recall signing documents to § | create the trust? 9 A. Well, obviously, Thad to sign documents 10| to open the trust, yes. 1. Now, I want to be clear. I'm not 12 | talking about opening the account at Bank of 13] America. Right now I'm just talking about creating 14| the legal entity ofthe trust. Do you recall 15 | signing any documents to do that? 16. A. Twant De‘you remember “the years you were living in Calabasas? A. 2 knew “you were going to ask me that. I’m guessing, like, in '06 or "07. I'm not sure. What did the conversation with the 16] .B.2) about them investigating Mr. Stratos for 17 | €zaud cause you to do, if anything, with respect to 18 | che trust account? 19 A. Well, caused Mr. Anthony Delfre to keep 20 |erying to search out information about Mr. Stratos. So you had already retained Mr. Delfre 22| by the time the F.B.1I. approached you? 23 A Wait a minute. Let me back up. I think 24]so. I think Idia. 25 0. When the F.BsI. first came to speak with Certified Shorthand Reporters, Ine. 305-374-6545 Fort Lauderdale 954-925-6545167 appears on page six. 2 MR. WILLIAMS: Mike, can we teke a break 3 whenever it is convenient? 4 MR. GARABED: “After this document. 5 | BY MR. GARABED: 6 If you look at page six, Exhibit 2, 7} there's a line for Nicole Mitchell Murphy and 8 | there's a signature above that line. Do you see 9| that signature? 10 A. Yes. an Q> Is that your signature? 12 A. Yess 13 Q. And it°appears on the last page, in a | fact, that the signatures were notarized on 15 | February 27, 2006. Do you recall ever appearing in 16] front of acnotary with Mr. Stratos to sign any 17 | documents? 16 Ao Lots of times with hime 19 ©. On more than one o€rasion you remember 20} that? 21 A 22 Q. . And the notary, yow would have to 23.provide some kind of ID te the notary? 24 AS” Correct 25 Q Do you recall where you were when you jed Shorthand Reporters, Ine. Miami 305-374-6545 Port Lauderdale 954-925-654510 aL 12 13 14 15 176 BY MR. GARABED: QO. Ms. murphy, do you know an individual named Miguel Angel Ramirez? oe esl Q. Whois Mrs Ramirez? A.A friend of Troy Stratos Q. Did youcever meet him? A. Yes, I did. Q.. Lf you look at wxbibit 4) Mr. Ramirez is designated as a successor trustee, on page two if you want to refer to it. Do you know why hé was named? A. No, Ido not. (Defendant's Exhibit Jwas marked for identification.) BY MR» GARABED: @. Next document £m going to show you is Exhibit 2. Tt is a one-page document. Do you recall seeing Exhibit 3 before today? a No» I don't remember it. Near the bottom of the page there's a signature line for Nicole Ronnette Mitchell Murphy with a signature above it. Is that your signature? A. Yess QO.

This has aCdate om il of March.7, 2006 19} Does that refresh your memory at all about when the 20 | trust account was opened? 21 MR. WILLIAMS: Well, hold on. “There's 22 another date at Lhe Lop that says 2/27 23 MR. GARABED: That's the date the trust 24 was created, if you refer te these other 25 documents. 1d Reporters, Ine. Miami 305.374.6845 Fort Lauderdale 954-928-654510 rr 12 13 14 16 7 18 24 25 188 A, 1 don't remember. Q. Docyou know if anybody did that on your behalf? a I'm not sure. I'm not sure if Anthony did, who did. Q. If you look at page 43 for me, there's a section there entitled Protecting Your Account. The first paragraph of that section, it reads, Your role is extremely important in the prevention of wrongful use of your account. If you find that your records and ours disagree or if you suspect any problem or unauthorized activity on your account (such asa missing deposit or forged or altered check or other withdrawal order) call us immediately at the number for customer service on your Statement. If you fail to notify us in a timely manner your rights may be limited Do you see that? re is Q: _Po-you recall ever calling Bank of America to notify the bank about these erroneous or fraudulent withdrawals made by Mr. Stratos Iodon't.remember me calling. Qs And do yow know Gf anybody called for you? Certified Shorthand Reporters, Ine. Miami 305-374-6545 Fort Lauderdale 954-925-654510 qn 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE CERCULT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION CASE NO, 11-010614 CACE 25 NICOLE MURPHY, Plaintifg, vs. BANK OF AMERICA CORPORATION, a Delaware corporation; TROY STRATOS, an individual; RICHARD HACK, an individual; and LESLIE ZIGEL, an individual, Defendants. VOLUME IT 5355 Town Center Road Boca Raton, Florida Thursday, May 16, 2013 9:35 a.m. CONTINUED VIDEOTAPED DEPOSITION OF NICOLE MURPHY Taken before MARTANNE TERTAN, Shorthand Reporter and Notary Public in and for the State of Florida at Large, pursuant to Notice of Taking Deposition in the above cause 244 Certified Shorthand Reporters, Inc. Miami 305-374-6545 Fort Lauderdale 954-925-654510 a. 12 13 14 15 16 17. 18 19 20 21 22 23 24 25 245 APPEARANCES: JAMES M. WILLIAMS, ESQ. ef the firm Gauthier, Houghtaling & Williams, LLP SCOTT A. WEIRES, ESQ of the firm Buckingham, Doolittle § Burroughs, LLP on behalf of the Plaintiff MICHAEL A, GARABED, =SQ. of the firm Reed Smith, LLP on behalf of the Defendant Bank of America S. JONATHAN VINE, ESQ. of the firm Cole Scott & Kissane, P.A. on behalf of the Defendant Zigel DOUGLAS F. EATON, ESQ. of the firm Eaton & Wolk, P.L. on behalf of the Defendant Stratos ALSO PRESENT: Richard flack, Pro se Leslie Zigel, Esq. Joe Langsam, Videographer INDEX witness EXAMINATION BY PAGE NO. NICOLE MURPHY MR. GARABED 253 MR. VINE 290 NR. HACK 420 Certified Shorthand Reporters, Ine, ‘Miami 305-374-6545 Fort Lauderdale 954-925-654510 a 12 13 14 15 26 1 18 19 20 21 22 23 24 25 EXHIBIT Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's Defendant's 246 EXHIBITS (Exhibits Attached) PAGE NO. Exhibit 14 276 Exhibit 15 280 Exhibit 16 328 Exhibit 17 352 Exhibit 18 354 Exhibit 19 355 Exhibit 20 358 Exhibit 21 377 Exhibit 22 399 Exhibit 23 403 Exhibit 24 404 Miami 305-374-6545 Certified Shorthand Reporters, Inc. Fort Lauderdale 954-925-654510 a1 12 13 14 15 16 17. 19 20 24 22 23 24 25 247 THE VIDEOGRAPHER: This is the continuation of the deposition of Nicole Murphy. Today is Thursday, May the 16th, the year 2013, starting time 9:35 a.m. Will the attorneys please state their appearance? MR. GARABE Michael Garabed for Bank of America. MR. VINE: Jonathan Vine with the law firm-of Cole, Scott 4 Kissane Yepresenting Leslie Zigel. MR. WILLIAMS: Can we also get, while we're on Mr. Zigel's counsel, there's an attorney who is participating by phone. Can you make your appearance for the record so we have you identified? MR. EATON: I gave it to the court reporter. It is on the record. MR. WILLIAMS: Yeah, but I want to hear her make an appearance. MR.OVINE: And she does not represent Leslie Zigel. MR. WILLIAMS: Got it, I was wrong. She represents Troy Stratos. $o I'll ask for it after Mr. Baton makes his appearance. Certified Shorthand Reporters, Inc. Miami 308-374-6545, Fort Lauderdale 954-925-654510 com 12 13 1a 15 16 17 18 19 20 21 22 23 24 25 248 MR. EATON: Sage, can you hear us? MR. WILLIAMS: Can you make your appearance for the record, please? MS. KAVENY: Sage Kaveny. MR. WILLIAMS: With what law firm? Who do you represent, et cetera? MS. KAVENY: For Troy Stratos. MR. WILLIAMS: You are an attorney, ma'am? MS. KAVENY: No, I'ma law clerk. MR. WILLIAMS: She's your law clerk, Mr. Eaton? MR. EATON: No, she's a law student who is taking the Bar. She is working with David Weiner, who is Troy Stratos' co-counsel. MR. WILLIAMS: I thought you told me that your co-counsel was going to be on the phone. This is a woman who i8 not licensed to practice law in the state of Florida. MR. EATON: She has passed law school. She is taking the Bar. She works for David Weiner's office. David Weiner is my co-counsel. She has every right to attend. MR. WILLIAMS: I'm uncomfortable having anon -- I mean, this is a lawyer who hasn't Certified Shorthand Reporters, Ine. Miami 305-374-6845 Fort Lauderdale 954-925-654510 qn 12 13 14 15 16 17. 18 a9 20 21 22 23 24 249 passed the Bar. I just want the record to be clear. We have to address this. You Galled someone on the phone, 1 asked you who it was. You said, "It is my go-counsel." I've now asked her to make an appearance, you resisted that a little bit. MR. EATON: I didn't resist it. MR. WILLIAMS: We can't talk at the same time. The court reporter can't transcribe simultaneous speech. She has now made her appearance and after some questioning by me revealed she is a law Clerk and not a lawyer licensed to practice law. So she is not your co-counsel, she works for your co-counsel. So if Mr. Weiner can't participate then I'm uncomfortable having this woman listening in ona depo. MR. EATON: Well, she's going to appear and that's that. MR.OWILLIAMS: No, we can't allow her to participate. MR. EATO! There's no basis not to allow her, Mr. Williams. MR. WEIRES: Hold on. She's tantamount Certified Shorthand Reporters, Ine, ‘Miami 305-374-6545 Fort Lauderdale 954-925-654510 qn 12 13 14 16 17 18 29 20 21 22 23 24 25 250 to a member of the public at this point. She's not supervised, she doesn't have a supervising attorney here. MR. VINE: There's no rule -- well, 1 don't know about a case in Louisiana, so don't give me that face. MR. WILLIAMS; I'm practicing law in Florida, allright, Mr. Vine? MR. VINE: There's no rule in Florida about attending a deposition. MR. WILLIAMS: We're not going to allow it. MR. VINE: Are you aware of the rule? MR. WILLIAMS: We're not going to allow a member of the public -- MR. WETRES: Yeah. MR. VINE: What rule? MR. WEIRES: First of all, there's no rule that allows the public to sit in on a deposition. MR. EATON: We'll call the judge. MR. WEIRES:( The point is whether or not a member of the public can sit in on a deposition, we've already asked that this be held confidential and we have an agreement Certified Shorthand Reporters, Inc. Miami 305-374-0545 Fort Lauderdale 954-925-654510 a 42 13 14 15 16 17. 1s 19 20 21 22 23 24 25 251 from the other side that it will not be presented to the Court without motion and our opportunity to object. So clearly, this ds something that we believe should be something that should be kept carefully confidential. Sowe're mot going to allow members of the public in here without a court order. There may be no rule that says we can't preclude them, but there's also no rule that Says you can allow them. $0, this is probably a case Jaw issue. If you guys want to do the research quickly and show us the case that allows members of the public to sit an on a deposition -~ MR. EATON: No, we're going to call Judge Phillips. She's not a member of the public. She is an employee of Troy Stratos’ counsel and she has a right to be here. MR. WILLIAMS: Ma'am, we'll get back to you. We're going to call Judge Phillips. MR.OEATON! Let's call Judge Phillips right now. The number is (954)831-7554. (Whereupon a call is put in to Judge Phillips" chambers.) MR. PATON: Hello. This is Doug Eaton Certified Shorthand Reporters, Ine. ‘Miami 305-374-6545 Fort Lauderdale 954-925-654514 15 16 17. 18 19 20 21 22 23 24 28 calling on the case of Nicole Murphy versus Bank of America for Stratos. We're currently in the deposition of the Plaintiff and we're having a dispute in which we need assistance of Judge Phillips to resolve. If you could please have her contact us at -- -- -- -~at your earliest possible convenience, we're most appreciative. Thanks so much. MR. WEIRES: Let us know when she calls. MR. EATON: Let's go ahead. THB VIDEOGRAPHER: We're now back on the record. MR. EATON: Doug Eaton on behalf of Troy Stratos. MR. RACK: Richard Hack, Defendant Pro Se. MR. WEIRES: Stott Weires for the Plaintiff Nicole Murphy. MR. WILLIAMS: And James Williams for the Plaintiff Nicole Murphy. ‘Thereupon-- NICOLE MURPHY was duly administered the following oath: po you swear or affirm that the testimony you are about to give in this cause will be the truth, the whole Certified Shorthand Reporters, Inc. ‘Miami 308-374-6845 Fort Lauderdale 954-925-654510 q1 12 13 14 15 16 41. 18 29 20 21 22 23 24 truth and nothing but the truth? THE WITNESS: Yes. DIRECT EXAMINATION (Continued) BY MR. GARABED: Q.<. Good morning, Ms. Murphy. A. Good morning. Q. This is the second day of your deposition. Same rules apply today as applied to the first day. Do you understand that? A. Yes. Q.> T'monot going to go over them again unless you have a question about the procedures. De you have any questions about the procedures? A. Ne. Q. You understand you just took an oath, correct? A. S¥es. Q. _ It is the same oath you took at your last session. bo you understand that? AL Yes. @. And that's the same oath you would take in a court of law. Do you understand? A. Yes. Certified Shorthand Reporters, Ine. ‘Miami 305-374-6545 Fort Lauderdale 954-925-6545210 qt 12 13 14 15 16 18 19 20 21 22 23 24 25 264 @. After you had made the discovery that Mr. Stratos had withdrawn money from the trust, account without your permission, did you contact Maxine Potter for an explanation? A. Me personally? No. Q.. Do you know if anyone else did that for you? A. I season a aie Sa s ‘ene dpsed aa stay am 8 rit ri he og nf eee ey et hyn al ne pe co cs ed aa paste Oe 22-26 Gaeta green) aired ol Ret pn yn eT Agena: etapa ae ete ‘Stet fat ery ope ean iran ne ee ees ros ong aed Sir ‘elas esr pnt ing Umer en te phan et nd a bce erent elec of nd eer a br Bulk of Ari NA.“ on Wl of Ay to ee ptt ae! abel ‘Seno atrovent opted aed rnc A a Bot nea De ‘apa rt mpi fre ma ey ey beni em coos Toh pe ae ube de endear 3 SSS Saas Se eet sommes nea ho ede et te wae are Ae nn of ese ean) eset denen rt beady in fea er eee ea ce of ‘Aesop nal oo rtp oro eta oa ara evr ef te aa es tf tog ee ‘rai ori dp ee Ba tid Mw eS core ‘Tre nda! agente realy he ack ewig he min eer ay amend oh Tk Aemen it wld et [ala S i init adi pry apy re yeaa ev ie uo yn ay dag LEE pen ny tr Goo sane logy fl coanet—_t Agale SB ts ears cmt acs a Si at Moipaeatteleananee Dace Leeaase = ork reece ams ee eee Mtge eed Pisa ane (DEFENDANT'S: EXHIBITEXHIBIT DBankof America. 2 Business Bhomorauparen a cuecpan Sigmar Cor Account Member 003769007736 _ Di resnporary Signature Card ‘Aczoust Type BUSINESS ECONOMY GHKG ‘Acsoont Tie. HE GRANITE TH REVOC (pTD 07/27/2008 _ ‘TROY STRATOS OR WICOLE MURPHY TRUSTEES "Tax Wentietion Number —S8-0609078 By sosiog bel, Peer hath noun and thal be goers be erm ad endtcns thin the folowing rou wanended om iat {Unet aeDepst perenne the Diese Gmc ot esd Uw Meleus Fa ot Bain At, fre ‘Shnowbdps rca ee Gace y sging baw, Dn cera Sata ee below med praesent CAPE ONT mt {TSEV ihe resen aner conocer cade ter eres entring ts unease iar wath epee te name fh ‘ero tun ad geal sod Sobsiote Form W9 erealen, ‘Sahesiooe Form W-2. Corinica Cedar ponalias of paforys | erty Woe (1) The mummy shown wu fs form isthe corset Saxpeyer Wentiicaton wember (orl om welt fore xembr te be lnwed te se), and (3} Jem ne! avec re hacky (bocevses{A] fem axemps tam bechep withalding, or (B}Thavs ust hoa setitied by We Inereni Raves Service aoe etic er el rn stk opr one waa or (6th es ‘Sotiied mo that fom me henger eect Yo backup satbhelding, wel [3] Nam w U.E, person Qntlecing # U.8.resldnnt alon). ‘Coraioetom semrecttons ‘Youn ees etre eva h oe Dey he Sh you are carey ace aha with nat wderparig inte et (Erde yor erin oat iaraons or Fe W) Deeampe eck cepteal) “Tas hyena gv Ser, dosnt ea ya cae 9 py Fegan secur cb ar erat aed nt ‘Home {typed er printed) ‘Title (if applicable) ‘Sigenture riley SkneoS __ Trustee, BRitere. Meaney _ Tede tee 3h a e v 8 _AIMUDopostt Coach Cord Request Provided Dat the nexoun ferenced abore eligible to receive avamtedtllr machine cards andor Check Cars, (as authored ty the resolutions ano earedocaments andlor other ogrecmen'a which watorise his as Werey regent the muses oso ard tury ofthe ‘enthoriedsgners on this ceoun. igre Beak itormation Curtemer 1 Nene THE GRANITE REVOCABLE THUET view Inormation Customer 2 Name TROYD STRATOS vscovrm Review Intermation APPROVED EXISTING reams Dae enor Parking GanierNane _LAB OLAS. 5890 Aceodatae Name MAXINE A POTTER ‘Aceci'e Phone Maer 247642008 coor ons DEFENDANT'S: EXHIBITEXHIBIT EDeposit Agreement and Disclosures jective December 1, 2005 Bank of America y qTable of Contents Changes to Agreement Charging an Account Closing an Account Fees PDIC Assessments, Governing Law Information About Customers Information You Give Us Bank of America's Privacy Policy for Consumers Diselosing Information nae CCedit Reports and Orhor inquires Revording and Monitoring Telephone Calls Release of faformation. ‘Sharing Information with Actes Ownership of Accounts Joint Accounts “Payable on Death” Accounts [Business and Other Nonpersonel Accouats, ‘Transfering Ownership Checking and Savings Accounts. ‘Checking and Savings Accounts Eligibility for Imerest Checking ‘Account Conversions ‘Transaction Limits for Sevings Accounts Time Deposit Account Interest on Your Funds... Inerest-Bearing Checking and Savings Accounts ‘Time Depocits Balance Information Balance Waivers Combined Balances to 10 u u Y ir 15 16 17 7 18Statements and Notices 19 Foreign nstuments oo Qoenendl suena a9 Ieentfying he Account s 32 nee So Lost Che 32 Overpayments and Rever 53 ‘When Funds Are Available For Withdrawal .......21 Returned Items. “ 53 Substnte Chev 34 Substitute Checks and Your Rights.......00.0..25 ‘Third-Party Endorsements 55 Insufficient Funds = Overdrafts oo ccwnn27 Processing Transactions -WithdraWalson.85 ‘Overdraft and Returned Kem Fess Check CASHING son 88 Overdraft Protetion Pans Cheek Legon : 36 ‘Chock and tem Processing Orders 36 Electronic Banking Services, < 30 Collection Items... S sain ST GanerlInfoemtiohoonsuigner nnn 30 Cheek Stock and tk 58 ‘cess (D/Oriine [0 30 Converting Checks to Eecronie Debits. 38 Onlie Baring and Bil Payment Services 32 raring CREO 38 Eletonic Banking Diselesies eine Sd Facsimile Signature 9 Fortign Currency x t ATM Safety TIPS 38 “rozzing” Your Ascoum on ems Retting from Voluntary Diselosure 60 Funds Transfer Services : 39 Large Cash Withraals Fed 40 Aulile Signatures Senging Funds Tanafes 40 Paying Checks atd Othe Hamas nono oen 6h Reesiving Funds Frater 42 Returned tem, Sst [ACH Debits und Credits 43 Sarmple Signstire a Stle-Daed and Postated Checks on evnsnsn2 Protecting Your Account ... a Substnte Cesk, indemnified Copies Cellule oe Cones Telephones 43 ‘and Image Replacement Copies a Change of Ades. at api Ne ere Ae Fingerpit on cae Baamining Statcient and Reporting Problemy 44 {Additional Terms and Services. “ Helping 10 Prevent Fenner ‘Automat Tranafr Service 6 Business Days 3 Processing Transactions - Deposits and Check and Depot Sip Fors oa Cashed items : 47 Check Copies eS ‘Accepting tome for Depa onan oa Check Safskeeping Service 65 Collection ier a8 ‘Config Claims About Your Aesouet 96 Clieei-Encodes Deposits “8 Cato Time foe Resspt of Orders. 66 Demand Drafts. : “9 Death or Incompetence “62 Deposit Dalvery end Preparation 8 Indermifcnton a Limitation of Linbiiy or Deposit Exton Corti 30 Legal Prosser & Endorsing Cheeks fe 0 Notice of Withdrawal _ @Power of dttomey, Right of Setof Stop Payment Orders end Posdating Orders Sub ACCOUNES ness vn ‘Treasury Management Serves, Unclaimed Property... ‘Waiver and Severability. Tax Information Resolving Disputes General Terms Weleome to Bank of America, and hank you for opening tn account, Please read this entre agreement carflly 50 you understand your rights and obligations for your deposit 'sccount relationship with us, Pease resin tis agreement {and al changes to this agreement for fature reference ‘We have banking eeners in many state. This ‘agreement describes our deposit accounts and some related services that ave avilable tour banking eemers inthe ‘Hae or states listed inthe Schedule of Fees for your secount. Some necounts and services doseribe in this publication may not be avallable at ll of our baaking cen- tem, We may discontinue any account o service any ‘ime without notice. ‘Throughoot this agreement, the words “you,” "your" and “yours” refer to each account owner "ey" us ard our" refer io Bank of America, NA, "Banking eemer" refers to branch of Bunk of Amevice ter apeenets my apy her wr you ‘obtain for us Binding Contract “This Deposit Agreement and Diseases, he applic able Schedule of Pes tnd the signature card or other ‘goaunt epening documents fer your account ace part ‘ofthe binding contact between you and us (the “Agreement” for your deposit relationship with us. Wien _yot open a deposit account with us, you agree to the terms and conditions described in this Agreement. Our deposit relationship with you is that of debtor and creditor. This ‘Agreement and the deposit relsionship do not create x fiduciary, qusisidutary or special relationship between ‘We provide copy ofthis Agreement to you when Yow open your aceount. You may obtain the curentver- sion ofthis Agreement at our banking centers or by cll Ing the number for Customer Serve on your satement.Changes to Agreement Wein ange thi aroma ay time, We may audd new tems and conditions and we may delete o a existing terms and conditions, We generally send you audvanoe naice of an adverse change, (See Nosces i the Statements and Notices seolion.). Ifa change is not sdverse to you, however, we may make the change at sny time without advange notice, Ifyou do not agree with the change, you may close your account. However, if you ‘continue to use your account or keep it open, you accept and agree tothe change, ‘The euzent version ofthis ‘Agreement supersedes al rior versions and contains the terms goveming your account. ‘Charging an Account ‘We may deduct fes, overdrafts and ether amouns {you owe us under this Agreement from your aceounts with ts or our affine, except tht this provision does not apply to any consumer credit covered bythe Federal Truth in Lending law. We may make these deductions ul any time without prior notice to you or request from you. If ‘there are not enough finds in your account to cover the amounts you owe us, we may everdraw your account. You agree to pay immediately all amounts you owe us. We may use deposits you or others make to your account (Gocluding deposits of payroll and government benefits to pry fue, overdrafts ad other amounts you owe ws. Some {zovernmest payments (suchas Social Security, Supplemestal Security Income, Veterans and other federal or state benefits) may be proiected from attachment, levy for other legal process under federal or state law. I such protections would otherwise apply to deductions we make for amounts you owe us, to the extent that you may do $0 by contract, you waive these protections and agree that we ‘may use thete finds fo pay amounts you owe 1. Closing an Account ‘You or we may clase your checking or savings account a any tae without advance notice, excep hat we may require you to give ws seven ays advance notice when you mend to close your savings of interest-bearing checking account by withérawing your funds, (See Notice of Wahdrawal in te Additonal Terms and Services section) You or we may close your time deposit account a maturity without advance notice. If your account reaches a ero balance, we may consider your scsount closed. This Agreement continues to govern matters ‘elated to your account even after your account closes, Ife decide to close your account, we may’ "freeze" it we fizeze" your account, we may return depois, checks and other items that we receive afer itis “fozen". Aer we ‘lose your becount, we ay mails cheek 10 you at the address we curently show for your statement. [Fyou oF We lose your account, We may ether return deposits, checks and other tems that we receive afer your account is closed ‘or we may reopen the account and accept te depos or ‘debit for you, even if doing so overdraws your aocourt, ‘without beng linble o you. You agree to pay immediatly all amounts you owe us Fees ‘A schedule of some fees associated with our persona epost accounts i provided inthe Personal Schedule of Fees, A schedule of some Tees associated with some of our business deposit accounts fr small business customers is ‘provided in the Business Schedule of Fees, The schedule ‘hat apps to your acoourt is part ofthe binding contract bberweon you and us. You agre to pay for our services in seeordance with the Fees that we tell you apply to your sceount ‘The foes for many of our produets snd services may ‘vary from state to sate or between regions within sate The foes for your account are based om the sale region where we open of, if we transfer your account to another location, where we curently mainzain your xecount Fees ae not determined by your state of residence‘Your account fees and terms may difer from those of other customers with the same type of account, based on ‘ur asscssment of your overall relationship with us. We send you a notice if your acount fes or terms vary fom the information described inthis Agreement From time to time we may list fees for some non account services (Such as wire ransfrs, cashiers checks, travelers cheoks, bond redempion and soon) inthe Schedule of Fes. These fees may vary fom sate 10 state. The fees you pay for non-account services will Be thase charged by usin the state where you purchase he serve ‘We may change these non-aceount fees al any time without oli. You can get eurrent information about non-account serviees and the fees that apply to them at any banking, ‘cencr or by calling the mumber for Customer Service on your statement FDIC Assessments For same busines accounts we may charge «Federal Deposit insurance Corporation FDIC") assessment based fo the rate the FDIC charges vs, The FDIC assessment ‘may include deposi insurance charges, Financing cospor tion (FICO) bond interest and other eharges provided by Jao, This charge ie variable, We may change iat any Gime without noice, Please se the Sahedle of Fees for your Governing Law ‘Your and our rights and obligations under this ‘Agreement are govemed by and interpreted according to the ls ofthe sate where we open your account and fed- cra law, Ifstate and federal la are inconsistent, or if state la is preempted by federal law, federal law governs. Information About Customers For our current privacy practices, please se the informa- tion on out website st wiwbankofameric.com, Information You Give Us ‘When you open a deposit account with us, you give us information about yourself and confirm that is erect ‘We ener the information ita our records, We may rely 6 that information until you notify us of a change and we have had a reasonable time to act onthe new information, All financial insintions are required by lw elude ing the USA PATRIOT Act, obtain verily and record information tha identities each eustomer who opens an ‘oeount with that nancial institaton, Bank of America’s Privacy Policy for Consumers ur privacy policy for consumers is described in our publication, Privacy Poly for Consumers. We provide ‘bur privacy policy te consumers wo open a personal ‘account with us. The privacy policy desries our genera), polity on handling customer information ae coma some examples of when we disclose information, Disclosing Information ‘This seetion applies to both business and personel accounts. We may disclose information about your accounts wo erect reporting agencies and to other persons lor agencies who in our judgment, have alginate pur- ose for obtaining information, From time to time, subject to any applicable financial privacy Jaws or oter laws oF regulations, we may provide Information on you an your account: ‘to acooum information services, such 8s (ChexSystems, ines ‘+ to anyone who we reasonably believe is conducting 4 legitimate credit inquiry, including inquiries to verify the existence o condition ofan sceount for a tite party such as lender, merchant or ere buremsin response to any subpoena, summons, court ‘dniniseaive ord, o oer legal process which we believe requires our compliance; + In connection with eolletion of indebiedness orto ‘repo losses ineured by wk in compliance with any upreement between us and 2 professional, egulatry or ciseplinary body, + in-conneetion with potential sales of businesses; + (0 omofllysolected service providers swho help us meet your needs by asisting usin providing or offering our products or services; and + as may be required under applicable laws or regulations. Account Information Serves. (Fwo clase your secount because of your unsatisfactory handling, we gencmly ‘epot wm ecount information services such as ChexSystens, In. your name, address, Taxpayer Idenfcation Number (TIN), diver’ Tcense umber and the date and reason the sccount wa else, The account information sence may ‘ply his nfrsnation o others. This may adversely impact your ability to establish an account at any nancial nsteaton Tor upto five yeas fom the date ofthe report, Credit Reports and Other Inquiries ‘We may make any inguiies that we consider appro priate to heip us determine Hf we should open, maintain or lose your account. This may include verification of employment and ere cepors or other repos from sccount information services and credit reporting agencies. Ifyou ask, we wil tell you whetber we requested a credit report and, ifwe did request a report, we will el you the name, address and telephone numberof the repor- ing agency. Recording and Monitoring Telephone Calls ‘We may record or monitor telephone calls between you and us. We need not remind you oF our recording of ‘monitoring before each call unless required todo so by law. Release of Information We offer you several convenient, cime-saving meth: ‘ds by which you can obtain information on your accounts ‘We have adopted reasonable security measures for each method, but we cannot ensure against unauthorized Inquiries, You agree thal we are not responsible forthe release of information anyone who has yxined posses sion of your ATM card, Check Cand or other code or scezss device or whe hss leamed your identifying charae- ‘erste suchas personal identification number (PIN), aseount number cr soca security’ number, even if you have not authorized them t obtain the informatio, Sharing Information with Affiliates ‘Accounts Held by Consumers. You agoe tht we may share information tat we have abou you an your accounts ‘mong the Bunk of America family of companies, Please refer toon publication, “Bank of Americ Privacy Pliey for Consumers” for infomation shout te eatogorics of inft- mation we may shre among the Bank of America family of ‘armpaies and how you my tll ws nto hare certain pes of information among our fly of companic. Accounts Hed by Businesses. We may shar informs tion about our experiences with you with Bank of Amice ‘Corporation and ts subsidiares and alist companies (Bank of America Ait"), We may also share informae tion tat you have provided tows on apliations or ha we receive fom outside sources among the Bank of America ‘Aiiiaes. However, individuals may tll us nota sbare information about them fom applications or ouside sources compiled for purposes of detrminingoiiiliy fo ere, Jnrence or other services by ether ealing us 1/585 41,5000 berwoen the hows of 7:00 ad 11200 pam. your loca ue or by nosfying us at orw-bankofumerea.comprivacy, Please provide your ful name, set addres, social sorurty ner an tclepione number. Please allow 6 to 8 weeks fr this lesion bosom fly electiveOwnership of Accounts ‘We may determine ownership of accounts from the infor- mation in our records. We may rely on information you ive us. Changes you ask us to make fe your account are rot effective until we have had «reasonable time to act on the new information, Joint Accounts more than ne person's name appears inthe tile of ‘an account (wilnout a fiduciary, beneficiary or other desig nation), the account isa joint account. ll persons whose ‘ames appear on ajint account are coowners of the account, regurless of whose money i deposited or who sakes the deposits, Buch co-owner aots as the agent of ‘ich other va-owner, Bach co-oyner authorizes each other {orowner to operat the account without the eontent of sry other co-ownee, This includes authority to: add additonal persons as co-owners; deposit funds end withdraw or tans Fer funds from the zecoun; endorse for depsit othe joint socount on behalf of any other €o-owner an ite payable ‘0 another co-owner; instruct us to stop payment on any item dram on the a2zount by any co-owner obtain an [ATM Card or Check Card draw upon any overt oF ‘other line of eedit connected to the account; obtain infor- ‘mation about the account, including transsctions conducted by other co-owners; pledge the tecount as security for any debts; and close the account. We may rely onthe instruc- tions of any co-owner without Hability lo any other Each co-owner is jointly and severally lable tous for: all fees and charges assessed agsins! he account all mounts owed 19 us on the account, such as overdrafts; and all cost, loses or labltes related to this Agreement or the account, ‘All joint accounts are presumed to be joint aceourts with the right of survivorship untess the applicable sate Jaw does not pet this presunaption oF we have otherwise greed with you in writing thatthe ageount is owned in another capacity. Ifthe signature eard you signed when ‘you opened your account dicates the capacity in which ‘your account eld, we may rely on thet designation. 3 Right of survivorship means that when a co-owner des, the balance in the account belongs tothe surviving co: owner(s) subject to our right to charge the aecount for any amount the deceased co-owner oF a surviving eo ‘owner owes us, The applicable state law may impose Obligations onthe surviving co-owmer, such as an obligae tion to pay claims against or expenses of the deceased co- ‘owner's estate. When we are notified ofthe death of a co-owner, some sate Is may require ws to notify the applicable tax agency orto hold funds o- both ‘A joint secounts governed by the applicable prov- ‘sions ofthe lw inthe sate where we open your account ‘You are solely esponsible or meeting the requiremens for establishing your aceount as a oint account with ight ‘of survivoeship “Payable on Death” Accounts. ‘You may designate an account tobe payable on your ‘ath to a designated payable on death ("POD") of i-irust- for CITE") payee or payees. Regardless of how i is dsig- nated, an account wiichis payable on your death (or the ‘death of the last surviving co-owner) © one oF more named payees is a POD or ITF account. A POD or ITF aceount may be alternatively desribed inthe aeeount dacumenta- tion as “payable an deat,” "POD," ust for. “TTF, “as trustee for." “ATF,"“wansfer on doth," “TOD.” & “Toten Tras,” or olerwise Daring your lifetime a POD or ITF acount belongs 10 you. You ray close the account, remove or adda payee, ‘change the account ype or account ownership, and with raw all or put ofthe account balance. Upon the death of. the owner or, ifthere are co-owners, upon the death ofthe las surviving co-owner, any sums remaining on deposit belong tothe then-survivin (if any) payets), subject to ‘our right to charge the account for any amour the \eveased owner, co-ovmer or payee owes us. The alice: ble state law may als impose ebtigations on she surviving payee, such as an obligation to pay claims ageinst or expenses ofthe devetsed owner's or co-owners ental. A payee will acquie an iterest i the aecnunt only afer te death of all account owners and then ony ifthe payee is alive °‘A POD or ITP accounts governed by the applicable provisions ofthe law inthe sate where we open your account, Some state laws ray require you to include cer ‘ain words in the account ile to ereate a POD or ITF account. You are solely tesponsibie for meeting the quirements for establishing your account a8 » POD or TTF account. IF the applicable requirements are not met, ‘ve may teat your account as though the payee or payecs have no interest in the account. Business and Other Nonpersonal Accounts Ifthe account owners corporation, wnincorported sssocation, limited Liability company, limited lability part neeship, fdaciay, partnership, sole proprietorship orother entity holding an account in any capacity other than an individual capacity, each person signing the signature card for other account documents represents and apres that they’ are fully authorized to execute all document in their sated capacity; have fumished all documents necessry to demonstrate that authority; and will furnish any other doc tumenis in such form as we may request from time 1 time, ‘We may refuse to recognize any resolution affecting the sceount that is not on our form or that appears tou o be ‘ncaraplete or improperly exceuted, ‘Transferring Ownership ‘Yous account i for your use only. Ownership of your avcount is transferable only on our records. You may not transfer or assign ownership of your aecount to another party without our written conseat, Even if we consent, we ‘may require that you close the account and that the new ‘account holder open a new azcount in their name. We may refs t acknowledge or accept attempted pledges or assignments of an account or purported security interests in Checking and Savings Accounts Checking and Savings Accounts We offer «variety of personal and business checking and savings accounts. Personal accounts are described in the Persona Sehedul of Fees. Business acount for ‘small business customers ave described inthe Businese Schedule of Fes. The Business Schedule of Fees does nok apply to customers with Commercial aecouns Eligibility for Interest Checking Unless a checking account i described in the ‘Schedule of Fees as an interest-bearing checking secount, itdoes not eam interest, Under federal rgulations,eigi- bility for incerest checking counts is generally eestited ‘to individuals inching soe propriios), estan nonprofit ‘organizations, siate or local governmental ents, and legal entities here one oF more individuals bole the entre heneficial interest the funds, We may citer close ‘or convert an interest-bearing account to a noninterest ‘bearing secount if we believe that th account holder is not eligible to hold an interest-bearing checking aecoust ‘Account Conversions ‘We may either close or convert your account another type of account when we consider it appropriate oF ‘necessary todo So. For example, we may close, revoke privileges, or convert your account to another type oF accourtif we think snother typeof acoount would beter Sut the way you use your account, if you make frequent ‘transactions on a savings account, if your account fte= ‘quently has debits apsinst uncollected funds, if your account has excessive deposit activity orifyou use « personal account for business purposes. I we convert your account, we send you information abou! your new aesount‘Transaction Limits for Savings Accounts ‘This Agreement and federal regulation limit you tix transactions each monthly statement eyele (or each month if you havea quarterly statement cycle) from among the following + Preauthorized transfers from your savings account (Gocluding transfers for overdrat protection) + Telephone transfers from your savings account Telephone transfers include instractions to tanster funds sent to us by Tasiaile or data wansmssion + Online banking or bill payment service transfers trom your savings account + Of the six, ifobecks or debit cards are allowed on your savings account, no more than three checks or point of sale transactions. ur practice i to monitor the auraber of limited tans actions. If you are counting the mumber of ransactions you make each statement cycle, please note that we count an item on the date we post it to your savings account. ‘This date may be diferent than the date you authorize, transfer o write the item, which means the item may not ‘be counted util later slatement cycle, you exceed the iransaction limits on more than an ‘casional bass, we may revoke your privileges on that account or we may convert your account to another type of sceoont, Your funds may no longer earn interest afer we convert your account “These transaction limits do not apply to withdrawals ‘rom your savings account and transfers fo your other Bank of America deposit accounts made at one of our banking comers, by mai or at an ATM. ‘A fee may spply to some withdrawal or transfers. Time Deposit Account A tcge deposit account is neither transferable nor negotiable ‘This account allows you fo ear interest on finds you leave on deposit fora spite period of ime, called a er, ‘We offer terms that ange from seven days up 0 ten your,