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IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF NORTH CAROLINA

Asheville Division

ROBERT W. NAGLE, )

)Plaintiff, ))

v. ) Civil Action No.))

BANK OF AMERICA, N.A., ))

Defendant. )

COMPLAINT

Plaintiff, by counsel, state as follows for their Complaint against Defendant Bank of

America, N.A. (the "Bank").

NATURE OF THE CASE

1. This case involves a real estate development marketed and sold to the Plaintiffand others by LR Buffalo Creek, LLC ("LR Buffalo Creek"), its parent company Land Resource,

LLC ("Land Resource") (together, the "Developers"), and the Bank, through an elaborate scheme

designed to artificially inflate the value of lots in a subdivision located in Lake Lure, North

Carolina known as Grey Rock ("Grey Rock").

2. The Developers accomplished this scheme, with the assistance of the Bank,through various negligent and/or intentional misrepresentations made directly and through

instrumentalities of interstate commerce, including direct mailings, telephone calls, electronic

mail, facsimile, and interstate commercial carriers.

3. The Developers and the Bank, through their agents, represented to Plaintiff thatGrey Rock would be a luxury resort with numerous amenities, as well as roads and utilities, to

serve the lots in the subdivision.

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4. At the same time the Developers and the Bank were making representationsconcerning the numerous amenities that would be built in the community, as well as the timing

of the construction of those amenities, the Developers knew that developing the community was

impossible because, among other reasons, they were negligently or intentionally permitting or

causing the distribution of funds needed to construct the required infrastructure to themselves

and to other entities, without consideration, thus rendering the Developers insolvent and unable

to meet their financial obligations.

5. The Developers ultimately collected approximately ninety million dollars($90,000,000) in revenues from the sale of approximately 435 lots in Grey Rock.

6. In 2008, LR Buffalo Creek, affiliated single purpose entities pursuing similardevelopments, and their parent company Land Resource, voluntarily filed for Chapter 11

bankruptcy protection in the United States Bankruptcy Court for the Middle District of Florida.

The various bankruptcy actions have been consolidated and converted into a Chapter 7

liquidation proceeding.

7. LR Buffalo Creek's business model, and that of its affiliated entities, was to selllots first and build infrastructure later, or not at all. This led to what Land Resource founder and

President J. Robert Ward has euphemistically called "trailing development obligations." Despite

generating approximately $90,000,000 in revenue from the sale of lots and despite its "trailing

development obligations," when LR Buffalo Creek filed for bankruptcy protection, it had only

$905.00 in cash to its name.

8. The Bank was enriched by this scheme to sell lots at inflated prices to the Plaintiffbecause, among other reasons, it received loan origination fees that were a percentage of the total

amount of each loan that the Bank made to individuals who purchased lots in Grey Rock; it

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received a stream of interest payments on the loans; its employees were compensated based on

loan volume; and its executives were compensated in part based on stock performance, which

was tied to the Bank's financial statements which, in turn, were enhanced by these loans, at least

in the short term.

9. The Bank also aided and abetted the commission of the various acts describedherein as it acted in concert with the Developers or pursuant to a common design, or the Bank

knew that the Developers' conduct constituted a breach of duty to the Plaintiff and they gave

substantial assistance or encouragement to the Developers.

10.

During the time period from 2005-2009, Bank of America promoted "The Bank

of America Net 5 Lot Loan" program and stated in its advertising materials as follows: "Found a

lot & plan to build? We'll help you make it happen!"

11. The Bank of America Net 5 Lot Loan program offered lot purchasers interest onlypayments for the first five years of the loan, with principal and interest payments thereafter at an

adjustable mortgage rate. The Bank of America Net 5 Lot Loan program offered a loan-to-value

ratio up to 95% for purchases and 90% for refinances.

12. The Bank utilized the Bank of America Net 5 Lot Loan program to induceindividuals to enter into loan agreements and purchase lots in Grey Rock as part of its aggressive

strategy to rapidly increase the volume of its lending business.

13. The Bank, through employees Mindy Johnson, Trey Ford, Stacee Peterson,Andrea Dickens, Rhonda Brooks, and Marie Sladky made numerous false statements within the

scope of their employment designed to induce consumers into entering into loan agreements with

the Bank and purchasing lots in Grey Rock and other similar developments.

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14. During the time period from 2005 through 2008, the Bank and its employeesknew that the Developers were not constructing the roads, utilities, infrastructure, and amenities

that it promised at Grey Rock. Nonetheless, the Bank's employees personally participated,

directly and indirectly, in inducing, soliciting, or attempting to encourage others to acquire lots in

Grey Rock. These individuals, by making the representations described herein, undertook a duty

to insure that such representations were accurate, yet they were not.

15. Further, the Bank, as a mortgage lender, had a duty under the North CarolinaMortgage Lending Act (since repealed) to disclose the true facts, not to misrepresent or conceal

material facts or make false promises likely to influence, persuade, or induce an applicant for a

mortgage loan or a mortgagor to take a mortgage loan, and not to pursue a course of

misrepresentation through agents or otherwise.

16. The Bank is liable for the actions of its agents because each of its employeescommitted acts within the scope and course of their duties at the Bank and while exercising the

functions of their employment at the Bank that caused injury to the Plaintiff. Each of the actions

of these agents was a means or method of doing that which the agent was employed by the Bank

to do, which was to engage in the business of selling loans to consumers.

17. Among other claims, the facts herein state a claim against the Bank for violationsof the Interstate Land Sales Full Disclosure Act. Specifically, 15 U.S.C. section 1701(5) defines

"developer" as "any person who,directly or indirectly, sells or leases, or offers to sell or lease, or

advertises for sale or lease any lots in a subdivision." 15 U.S.C. 1701(5) (emphasis added). In

turn, 15 U.S.C. section 1701(11) defines an "offer" as including "any inducement, solicitation,

or attempt to encourage a person to acquire a lot in a subdivision." 15 U.S.C. 1701(11)

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(emphasis added). Under the plain meaning of these definitions and the facts herein, the Bank is

liable for a violation of the statute.

18. The Bank provided consumers with loans to purchase lots in the Grey Rocksubdivision even though it knew these loans posed a high level of credit risk to the Bank because

it was participating in a highly competitive lending market, it was attempting to maximize its

short-term financial growth, and it was attempting to grow rapidly by making loans that were of

low quality but that offered the Bank a premium yield.

19. The Bank instituted a compensation system that was designed to incentivize itsloan officers to make such high-volume, high-yield loans in order to increase the bank's short-

term revenue and thus increase the appearance of profitability on its financial statements.

20. The Bank's executives were motivated to increase the volume of the Bank's loansreceivable and interest income on its financial statements because their compensation was

significantly tied to increases in the Bank's stock price, which was, in turn, significantly tied to

the Bank's reported earnings.

21. The Bank made short-term, high-yield loans that posed substantial long-termcredit risk to the Bank because its exit strategy was based on the premise that rapid real estate

price appreciation would continue to occur in the short term and thus provide a market that

would yield a third party purchaser to buy the lots from their customers (with funds from a third

party lender) or that market conditions would allow the refinance of those lots with funds from a

third party lender.

22. From 2004 through 2008, the Bank provided approximately 207 loans in GreyRock.

23. The Bank was aware that the developers of Grey Rock were using very aggressive

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sales tactics with elaborate launch events that included helicopter rides, boat rides, formal

dinners and sale boars that were used to create demand for lots and resulted in sales of between

50-100 lots in a day. The Bank participated in these launch events by setting up booths in tents

alongside the Developers to meet with prospective purchasers of lots in Grey Rock.

24. The Bank and its loan officers were competing with other Banks who wereloaning money to the purchasers of lots in Grey Rock and other similar developments, including

the National Bank of South Carolina, Wachovia Bank, BB&T, Carolina First Bank, and

SunTrust Bank and thus designed lending programs to compete with these banks for loans in

Grey Rock.

25. Land Resource and the Bank agreed that at the closing of each lot purchasefinanced by the Bank in Grey Rock, Land Resource would transfer the down payment made by

each lot purchaser into an account at the Bank to be used for the payment of the interest

payments on the bank's loan.

26. The Bank's loans to consumers had loan-to-value ratios of between 90% and 95%of the value of each lot, even assuming the appraisals used were actually accurate (they were

not). In addition to the financial motivations described herein, the specific actions of the Bank

detailed herein must also be understood in the context of underwriting guidelines promulgated by

various federal government financial institution supervisory agencies. Certain "Inter-agency

Guidelines for Real Estate Lending Policies" were promulgated for banks and other financial

institutions by the Federal Deposit Insurance Corporation, the Board of Governors of the Federal

Reserve, the Office of the Comptroller of the Currency, and the Office of Thrift Supervision.

Among the guidelines are the following:

Institutions should establish their own internal loan-to-value limits for real estateloans. These internal limits should not exceed the following supervisory limits:

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Loan category Loan-to-value limit (percent)

Raw land65

Land development 75

Construction:

Commercial, multifamily,1 and othernon residential

80

1- to 4-family residential85

Improved property85

Owner-occupied 1- to 4-family andhome equity2

27. Based on these requirements, the Bank decided to engage in a pattern and practiceof mischaracterizing loans on raw land as some other type of loan. By doing so, it was able to

maximize its short-term profit and boost its share price, all while evading the scrutiny of its

federal regulators.

28.

The Bank selected appraisers from the Bank's affiliated entity Homefocus and

other selected appraisers because it knew those appraisers would provide the inflated values

necessary to close the Bank's loan transactions with those customers, irrespective of the actual

value of each of the lots being appraised.

29. As a result of the actions of the Defendant and others, the sale prices of raw lots inGrey Rock were artificially inflated, thereby harming the Plaintiff and others.

1Multifamily construction includes condominiums and cooperatives.

2 A loan-to-value limit has not been established for permanent mortgage or home equity loans onowner-occupied, 1- to 4-family residential property. However, for any such loan with a loan-to-value ratio that equals or exceeds 90 percent at origination, an institution should requireappropriate credit enhancement in the form of either mortgage insurance or readily marketablecollateral.

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30. The Bank's use of inflated appraisals caused higher sales prices for lots in theGrey Rock subdivision which generated higher interest payments to the Bank on loans that it

made in the Grey Rock subdivision, higher fees to the Bank than if the lots had been appraised at

their true values, and higher commissions for its loan officers than if the lots had been appraised

at their true values. The Bank's use of inflated appraisals also artificially created the impression

that lot prices were continuing to increase in Grey Rock and thus caused consumers to continue

to purchase lots in Grey Rock.

31. In the aftermath of the taxpayer bailout of the Bank, the Bank named Brian T.Moynihan its Chief Executive Officer and began to embark on a series of policy changes within

the Bank designed to address the Bank's flawed compensation policies, risk management

problems, and lack of transparency in the home loan process.

32. In the Bank's 2009 Annual Report, the Bank stated that, "[w]hile we have alwayshad a 'pay for performance' culture, we have made important changes to our compensation

practices to more closely align pay with long-term financial performance and enable the

company to recover funds when risks go bad."

33. The Bank's "pay for performance" culture that existed during the Real EstateBoom caused the Bank's executives to institute compensation systems that compensated loan

officers to make as many loans as possible without regard to the credit risk of those loans.

34. The Bank's "pay for performance" culture caused the Bank to incentivize its loanofficers to make as many loans as possible by any means necessary, including by making false

statements and concealing material facts from consumers in order to convince them to enter into

loan agreements to purchase lots in Grey Rock.

35. The Bank and the Developers aided and abetted the commission of the various

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acts described herein as they acted in concert with each other, they acted pursuant to a common

design, or they each knew that the other's conduct constituted a breach of duty to the Plaintiff

and they gave substantial assistance or encouragement to the others.

PARTIES

36. Plaintiff Robert W. Nagle is an adult individual.37. Bank of America, N.A. has its corporate headquarters at 100 N. Tryon Street,

Charlotte, North Carolina and is a Developer, as that term is defined by the Interstate Land Sales

Full Disclosure Act ("ILSA"), 15 U.S.C. 1701, et, seq., of real property located in North

Carolina. Bank of America, N.A. may be served at its registered agent CT Corporation System,

150 Fayetteville Street, Box 101, Raleigh, North Carolina 27601.

MISREPRESENTATIONS TO PLAINTIFF BY SLADKY AND THE BANK

38. The Bank implemented a plan to wrongfully induce Robert Nagle to enter into aloan agreement to purchase Lot 460 in Grey Rock.

39. Land Resource sales agent Mark Ebert provided Robert Nagle with a list of loanofficers to provide financing for the purchase of Lot 460 and stated that the Bank was the best

option to finance the purchase of a lot at that time.

40. The Bank's loan officer Marie Sladky took information from Robert Nagle, duringan interstate telephone communication, which she used to complete the loan application for

Robert Nagle to obtain a loan to finance the purchase of Lot 460.

41. Mr. Nagle told Sladky that he had reservations about purchasing Lot 460 becausehe knew that banks did not loan money on raw land without at least 50% down; that he had never

heard of 5% down on raw land; and that he knew that interest-only loans and land loans were

considered the highest risk loans that a bank financed.

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42. Mr. Nagle asked Sladky if monies were being held back by the bank until thecommunity progressed. Sladky told Mr. Nagle that the developer was highly reputable and well

funded so the bank was releasing all funds at closing.

43. Sladky told Mr. Nagle that he was overly concerned and that since he had beenout of banking for over ten years, he was out of touch.

44. Further, Sladky stated that the Bank was the major lender in Grey Rock, the Bankdid their homework, and that because management felt secure enough to make these loans, he

should feel secure as well. Sladky told Mr. Nagle there was more than sufficient collateral in his

lot.

45. Mr. Nagle told Sladky that he thought that lots with a price tag of a quarter of amillion dollars seemed high for a new community. Sladky stated that North Carolina high-end

communities were expensive and land prices had been going up steadily. She stated that Lot 460

was worth more than Mr. Nagle was paying and he already had built-in equity; therefore he had

already made a profit.

46. Sladky told Mr. Nagle that lots similar to his would be priced higher within acouple months.

47. Sladky told Mr. Nagle that the Grey Rock buyers would be making a nice profitas the development progressed.

48. Mr. Nagle received his first set of closing documents less than two weeks afternegotiating the purchase of Lot 460 in Grey Rock. Many of the closing documents were

incorrect and referred to Lot 461, which he was not purchasing.

49. Mr. Nagle called Sladky and told her the closing documents were inaccurate andthat he was losing confidence in the Bank and wanted to back out of the purchase.

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50. At this time, Sladky reiterated what she said in the past, i.e., that this was a greatpurchase, that demand was high in Grey Rock, and that other buyers were lining up to buy. She

said how could Mr. Nagle go wrong buying in an HGTV community? She told me that Mr.

Nagle that he would regret it if he let the lot go.

51. Sladky asked Mr. Nagle to go ahead and sign everything and cross out Lot 461,put in the correct (Lot 460), and initial. Sladky said this way Mr. Nagle would be assured of the

incentives the developer was providing for closing. Mr. Nagle was sent corrected documentation

a few weeks later.

52.

Mr. Nagle did not receive his appraisal for approximately sixty days after closing.

When he did receive it, he discovered that the Bank appraised the wrong lot (Lot 461).

53. Mr. Nagle entered into a loan agreement to purchase Lot 460 in Grey Rock withthe Bank whereby he borrowed $233,410.50 at an annual percentage rate of 6.959% with total

finance charges over the 30 year term of the loan being estimated in the Federal Truth in Lending

Disclosure Statement to be $354,543.30. This loan was to be interest only for the first five years

of the loan and then became an adjustable rate loan at LIBOR plus 2.25% with principal and

interest payments due for the remaining 25 years of the loan term.

54. The Bank is legally responsible for the acts and omissions of its employeescommitted during the course and scope of their employment.

COUNT 1: VIOLATION OF 15 U.S.C 1703(a)(2)

55. The previous allegations are incorporated.56. The Bank is a "Developer" as defined in 15 U.S.C. 1701(5) because, as

described above, it directly and indirectly induced, solicited, or attempted to encourage the sale

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of lots in a subdivision and participated in the advertising of lots for sale in the subdivision

known as Grey Rock.

57. Grey Rock is a "Subdivision" as that term is defined by the Interstate Land SalesFull Disclosure Act ("ILSA").

58. The sale of the lots to the Plaintiff was not exempt from ILSA.59. As set forth more fully above, the Bank, as co-developers of the subdivision with

the Developers, with respect to the sale or offer to sell a lot or lots not exempt under ILSA,

employed a device, scheme, or artifice to defraud; obtained money or property by means of an

untrue statement of a material fact, or an omission to state a material fact necessary in order to

make the statements made (in light of the circumstances in which they were made and within the

context of the overall offer and sale) not misleading, with respect to any information pertinent to

the lot or subdivision; engaged in a transaction, practice, or course of business which operated or

would operate as a fraud or deceit upon a purchaser; and represented that roads, sewers, water,

gas, or electric service, or recreational amenities would be provided or completed by the

developer without stipulating in the contract of sale that such services or amenities would be

provided or completed.

60. As set forth more fully above, the Bank, as co-developers of the subdivision withthe Developers, made use of instrumentalities of interstate commerce including telephone and

fax communications, mailing, electronic mail, and internet communications to the Plaintiff and

others in furtherance of the scheme to defraud.

61. Defendant's violations of ILSA caused damages to Plaintiff.COUNT 2: VIOLATION OF THE NORTH CAROLINA

DECEPTIVE TRADE PRACTICES ACT

62. The previous allegations are incorporated herein.

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63. The Bank participated in unfair or deceptive acts or practices in a scheme to selllots at Grey Rock as set forth more fully above.

64. The sale of the lots at the subdivision was in or affecting commerce.65. As a direct and proximate result of the Bank's actions, the Plaintiff was damaged

in an amount to be determined at trial, with their damages to be trebled pursuant to N.C. General

Statute 75-16.

COUNT 3: NEGLIGENT MISREPRESENTATION

66. The previous allegations are incorporated herein.67. The Bank, through its employees, supplied false information to the Plaintiff and

omitted material facts from statements to the Plaintiff during the course of its business in the

process of a loan transaction in which the Bank had a pecuniary interest.

68. The Bank, through its employees, supplied this false information and omittedmaterial facts for the guidance of purchasers of lots in the Grey Rock subdivision.

69. The Plaintiff justifiably relied to their detriment upon the false informationprovided by the Bank's employees, in deciding to enter into a loan agreement with the Bank and

purchase a lot in the Grey Rock subdivision.

70. The Bank and its employees failed to exercise reasonable care or competence incommunicating information concerning the present and future value of the Plaintiff's lot and the

Grey Rock subdivision to the Plaintiff and the construction of infrastructure and amenities, in an

area which involved subject matter which required expertise and investigation beyond the scope

of the Plaintiff's knowledge, opportunity and capacity in the exercise of reasonable diligence and

involving subject matter within particular areas of expertise by the Bank, which was obligated to

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disclose and in the business of disclosing such information to persons in the position of the

Plaintiff.

71. The Bank undertook a duty to the Plaintiff when the Bank, in the course of itsbusiness, supplied false information to the Plaintiff for his guidance.

72. The Bank owed a duty to the Plaintiff and breached that duty by as alleged inmore detail above.

73. The Bank is liable for the actions of its employees, because the Bank expressly orimpliedly authorized their actions.

74.

The Bank is liable for the misrepresentations and omissions of their employees

because each of these misrepresentations and omissions were committed within the course and

scope of their employment and in furtherance of the Bank's business.

75. The Bank is liable for the misrepresentations and omissions of their employeesbecause the Bank ratified the actions of these employees.

76. The Bank's negligent misrepresentations proximately and legally caused andcontinue to cause the Plaintiff damages in an amount to be determined at trial.

COUNT 4: FRAUD

77. The previous allegations are incorporated herein.78. The Bank, through its employees, intentionally and falsely represented and

concealed material facts relative to the purchase of the Plaintiff's lot, as set forth more fully

above.

79. The Bank, through its employees, reasonably calculated that themisrepresentations and/or omissions listed in this Complaint, and other misrepresentations and/or

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omissions, would deceive the Plaintiff. Had the Plaintiff been aware of these misrepresentations

and/or omissions, the Plaintiff would not have purchased their lot in the Grey Rock subdivision.

80. The Bank, through its employees, made the aforementioned misrepresentationsand/or omissions of material fact with the intent of deceiving the Plaintiff.

81. The Plaintiff was deceived by the misrepresentations and omissions set forth inthis Complaint.

82. The Plaintiff could not discover the truth about the misrepresentations andomissions through the exercise of reasonable diligence.

83.

The Plaintiff was induced to forego additional investigation of his lot purchase by

the Bank's misrepresentations.

84. The Bank is liable for the actions of its employees because the Bank expressly orimpliedly authorized their actions.

85. The Bank is liable for the misrepresentations of their employees because theirmisrepresentations were committed within the scope and course of their employment and in

furtherance of the Bank's business.

86. The Bank is liable for the misrepresentations of their employees because theirmisrepresentations were ratified by the Bank.

87. The Bank proximately caused the Plaintiff harm and damages in an amount to bedetermined at trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff requests the following relief:

(a) That Plaintiff be awarded compensatory damages in an amount to be determined

at trial;

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(b) That Plaintiff be awarded treble damages under N.C. Gen. Stat. 75-16;

(c) That this Court award Plaintiff pre-judgment and post-judgment interest as

provided by law;

(d) That this Court award Plaintiff his attorneys' fees and costs of this action.

JURY DEMAND

Trial by jury is demanded as to all issues so triable.

This the 10th day of August, 2012.

ROBERT W. NAGLEBy Counsel

/s/Edward L. Bleynat, Jr.Edward L. Bleynat, Jr.[SB#16558]FERIKES & BLEYNAT, PLLC21 Broad StreetAsheville, NC 28801

Steven T. Webster(upon admissionpro hac vice)Webster Book, LLP300 N. Washington Street, Suite 404Alexandria, VA 22314Attorneys for Plaintiff