murray law v. fifth third-complaint

8/12/2019 Murray Law v. Fifth Third-Complaint

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MURRAY LAW, LLC1839Madison RoadCincinna& i, Ohio 45206

COURT OF COMMON PLEASHAMILTON COUNTY, OHIOO 'I 4 0 I 0 2 UPCASE NO.

(Judge

JOHN G. TKNKMAN7292 Country Club LaneWest Chester, Ohio 45069

KATHR'&'N L. KREKGER3638 Brentwood AvenueCincinnati, Ohio 45208

ear v t=&t EDULLI &1& UIUUUI IHAMILION OOUNTYFgtl Pu 7014TRACY W&NKLERCOMMON PLEAS COURTS

PAUL HM4ANNP.O. Box 52Rogers, Kentucky 4165

NANCY JIAMANNP.O. Box 52Rogers, Kentucky 4165

COMPLAINT FOR MONETARYDAMAGES WITH JURY DEMANDENDORSED HEREONPlaintiffs

vs.FIFTH TBIRD BANK38 Fountain square PlazaCincinnati, Ohio 45263

Also Serve Statutorv Anent:James R. Hubbard38 Fountain Square PlazaM13 tiIOAT76Cincinnati, Ohio 45263


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PNC BANK NATIONALASSOCI/I TIONc/o CSC-I,awyers Incorporating Service50 West E road Street, Suite 1800Columbus, Ohio 43215

U.S. BANK NATIONAL ASSOCIATION425 Walnut StreetCincinnati Ohio45202

DefendantsINTRODUCTION

I. This case arises out of the improper payment by Defendants of checks drawn onthe accounts of Plaintiffs. These checks were made payable to specific payees, were stampedfor depo.,it only but were never deposited in the accounts of the specified payees. Plaintiffsseek to rec over the amounts improperly paid, as well as other damages.

PARTIES2. Plaintiff, Murray Law, LLC ( Murray ), is an Ohio limited liability company

doing business in Hamilton County, Ohio.3. Plaintiff, John G. Tenkman ( Tenkman ), is a resident of Butler County, Ohio.4. Plaintiff, Kathryn L. Kreeger ( Kreeger ), is a resident of Hamilton County, Ohio.5. Plaintiff, Paul Hamann ( Hamann ) is a resident of Kentucky who banks with

Defendant, Fifth Third Bank in Hamilton County, Ohio.6. Plaintiff, Nancy Hamann ( Hamann ) is a resident of Kentucky who banks with

Defendant, Fifth Third Bank in Hamilton County, Ohio.


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7. Defendant, Fifth Third Bank ( Fifth Third ), is a national banking associationdoing business within Hamilton County, Ohio.

8. Defendant, PNC Bank ( PNC ), is a national banking association doing businessin Hamilton County, Ohio.

9. Defendant, U.S. Bank NA ( U.S.Bank ), is a national banking association doingbusiness i i Hamilton County, Ohio.

.IURISDICTION AND VENUE10. This Court has jurisdiction over this matter pursuant to R.C. tj 2305.01.11 Venue is proper with this Court pursuant to Civ. R. 3(B) as the claims for relief

arose in H unilton County, Ohio, two Plaintiffs reside in Hamilton County, Ohio, and Defendantsconduct business in Hamilton County, Ohio.

EACTUALBACKGROUND12. Plaintiffs were investors in Queen City Investments, QFC LLC, and other

affiliated r ntities, all owned and controlled by Glen Galemmo.13, In July 2013, Galemmo notified his investors, including Plaintiffs, that he has

ceased doing business. Subsequent investigations revealed that Galemmo was engaged in aPonzi schr me to defraud his investors, including Plaintiffs.

14. In January 2014, Galemmo pled guilty to criminal charges arising from theseactivities.

15. Plaintiff Murray maintained a checking account ending 4556 with Defendant FifthThird.

16. On February 8, 2013, Murray issued check 11126 in the amount of $50,700 madepayable to Queen City Investments.


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1A This check was endorsed for deposit only . Accordingly, it should have beendeposited in the Queen City Investments account.

18. Check 126was never deposited in this account, but rather was deposited in theaccount ol. a third party,

19. Plaintiff Tenkman maintained a checking account ending 0935 with DefendantPNC.

2f. On September 5, 2012, Tenkman issued check 6090in the amount of $150,000made payable to Queen City Investments.

21. This check was endorsed for deposit only . Accordingly, it should have beendeposited in the Queen City Investments account.

22. Check 6090was never deposited in this account, but rather was deposited in theaccount ol'a third party.

23. Plaintiff Kreeger maintained a checking account ending 6548 with DefendantFifth Third.

24. On September 11, 2011, Kreeger issued check 1466in the amount of $200,000made payable to QFC, LLC.

25. This check was endorsed for deposit only . Accordingly, it should have beendeposited in the QFC, LLC account. In addition, this check was stamped credited to theaccount o l'he within named payee absence of endorsement guaranteed 2781 U.S. Bank 2781 .

26. Check 1466was never deposited in this account, but rather was deposited in thcaccount o 1' third party.

27. Plaintiff Hamann maintained a checking account ending 3644 with DefendantFifth Third.


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28. On April 16, 2013, Hamann issued check II5428 in the amount of $50,000 madepayable to Queen City Investments Fund II.

29. This check was endorsed for deposit only . Accordingly, it should have beendeposited in the Queen City Investments Fund II account,

30. Check II5428 was never deposited in this account, but rather was deposited in theaccount o a third party.

31. Defendants improperly paid the above-referenced checks and improperlydeducted ihese sums from Plaintiffs'ccounts.

32. Had Defendants notified Plaintiffs of the improper payment of these checks,Plaintiffs would not have continued to invest with Queen City Investments, QFC or any of theiraffiliates.

COUNT ONE (OHIO U.C.C.VIOLATIONSI(As to Defendants Fifth Third and PNC)

33 Plaintiffs incorporate the allegations in the preceding paragraphs as if fullyrewritten 1ierein.

34 Plaintiffs'hecks were paid into accounts other than the accounts of the payeesshown on those checks. Plaintiffs'hecks were not paid as authorized by Plaintiffs, andconsequer tly the checks were not properly payable or properly paid.

35 In accordance with R.C. $ 1304.30 and other applicable statutes, Defendants FifthThird and PNC were required to re-credit or otherwise refund the atnounts of the checks set forthabove.

36 Plaintiffs have made demands for payment of Defendants Fifth Third and PNCprior to or contemporaneously with the filing of this Complaint.


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3 ,'. To date, neither Fifth Third nor PNC has compensated any Plaintiff.31'. Plaintiffs were injured when the Defendants Fifth Third and PNC refused to re-

credit their accounts otherwise compensate them for the amounts of the checks set forth above.39. Plaintiffs were further injured to the extent they made additional investments with

Queen Cily Investments, QFC or any of their affiliates subsequent to the date their checks wereimproperi y paid.

COUNT TWO &OHIO U.C.C VIOLATION)(As to Defendant U.S.Bank)

4f. Plaintiffs incorporate the allegations in the preceding paragraphs as if fullyrewritten herein.

41. Defendant U.S. Bank maintained checking accounts for Queen City Investmentand QFC I.LC.

42. Defendant U.S. Bank improperly paid the checks referenced herein despite thefact that they were deposited in accounts other than the payees'ccounts. By crediting checksissued by Plaintiffs to an unauthorized account, Defendant U.S. Bank proximately caused thePlaintiffs'ccounts to be wrongfully debited and came into thc possession of funds that theywere not iuthorized to possess, even temporarily.

43. Defendant U.S. Bank wrongfully exercised dominion over Plaintiffs'roperty in amanner inconsistent with Plaintiffs'ights.

44. Defendant U.S. Bank's actions proximately caused loss to Plaintiffs in the amountof the checks set forth above.


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45. In addition, U.S. Bank's actions caused Plaintiffs additional losses that would nothave been occurred had U.S. Bank notified Plaintiffs that the checks were deposited in anincorrect account.

COUNT THREE NKGLIKNCE(As to Defendant U.S.Bank)

4ti. Plaintiffs incorporate the allegations in the preceding paragraphs as if fullyrewritten herein.

4i'. Defendant U.S.Bank had a duty to conduct its banking affairs with ordinary care.4I:. Defendant U.S. Bank had a duty to formulate and follow a know your customer

policy concerning their customers and their customers'hecking accounts.4c'. Defendant U.S. Bank had a duty to take reasonable precautions to prevent their

customeri,'hecking accounts from becoming conduits for fraud and/or money launderingactivities.

50. Defendant U.S. Bank had a duty to inquire further into and repoit to the federalgovernment authorities suspicious banking activity and/or financial transactions to which theywere a pai ty. This reporting requirement includes making Suspicious Activity Reports ( SAR ).

51. The purpose of these duties and regulations are to prevent the sort of foreseeablemisuse of bank accounts to convert and launder funds that occurred in this case.

52. Defendant U.S. Bank breached the aforementioned duties and otherwise breachedits duty o care. But for U.S. Bank's breach of its duties, the fraud perpetrated by Queen CityInvestmer. t, QFC and their owners could not have been accomplished without detection.

53. Defendant U.S. Bank's negligence was a proximate cause of loss to Plaintiffs inthe amoun ts of their checks.


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5~k Defendant U.S Bank's negligence also caused loss to Plaintiffs who investedfunds after U.S. Bank should have notified them of'he attempt to deposit their checks into anincorrect account.

COUNT FOUR FAILURE TO ACT WITH ORDINARY CAREUNDER THK OHIO U.C.C.(As to All Defendants)

55. Plaintiffs incorporate the allegations in the preceding paragraphs as if fullyrewritten, ierein.

56. Defendants U.S. Bank, Fifth Third and PNC had a duty to conduct their bankingaffairs and specifically to handle checks and related documents in accordance with the standardsset forth iii the Ohio Uniform Commercial Code.

57 Defendants U.S. Bank, Fifth Third and PNC breached their duties under the OhioUniform Commercial Code.

58, These breaches were a proximate cause of the loss to Plaintiffs in the amount ofthe checks referenced herein.

59. In addition, Defendants'reaches proximately caused the loss of all amountsinvested b r Plaintiffs subsequent to the date they should have been notified of the irregularities.

COUNT FIVE BREACH OF DUTY TO ACT IN GOOD FAITHUNDER THK OHIO U.C.C.(As to Defendant U.S. Bank)

60. Plaintiffs incorporate the allegations in the preceding paragraphs as if fullyrewritten h ;':rein.

61. Defendant U.S. Bank had a duty under the Ohio Uniform Commercial Code to actin good faiih.


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6.'&. Defendant U.S. Bank failed to act in good faith when it accepted for deposit thechecks r& ferenced above, even though they were not deposited into the correct accounts, whichfailure proximately caused harm to Plaintiffs.

VtHEREFORE, Plaintiffs request that this Court award judgment against the Defendantsas follows:

(a) The face amount of all checks referenced herein improperly paid by Defendants;(b) All monies invested by Plaintiffs with Queen City Investment or QFC LLC or

their affiliates subsequent to the date of the referenced checks;(cl All consequential damages, attorney's fees, interest; and(d) Such other relief as this Court deems just and proper.

Respectfully submitted,

C 'h al eE. Reynolds (0019 35)Brian P. O'onnor (0086646)Allison S.King (0091036)SANTEN & HUGHES600 Vine Street, Suite 2700Cincinnati, Ohio 45202Tel: (513)721-4450/Fax: (513)[email protected]@[email protected] for Plaintiffs

JURY DEMANDPl iintiffs demand a trial by jury on all matters referenced herein.

Charles E. Reynolds


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PRAECIPE TO TIIE CLKRI& OF COURTSIn accordance with Civ. R. 4.3(B)(1),please serve the Defendant via certified mail, return

receipt requested, at the addresses listed in the caption.If service of process is returned with an endorsement of Refused or Unclaimed , the

undersigned WAIVKS notice of the failure of service by the Clerk and requests ordinary mailservice in accordance with Civ. R. 4.6(C) or (D) and Civ. R. 4.6(E)

Charles E. Reynolds533060.2

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murray law v. fifth third-complaint

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