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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA Charlotte Division 3:13 cv 316 UNION FIRST MARKET BANK, Plaintiff, v. DONALD A. BLY, II, Defendant.

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COMPLAINT

Plaintiff, Union First Market Bank (“Union Bank”), by counsel, for its Complaint against Defendant Donald A. Bly, II (“Bly”) for Breach of Promissory Note and Declaratory Judgment, states as follows: 1.

Union Bank is a banking corporation duly organized and validly existing pursuant to the laws of the Commonwealth of Virginia with its principal place of business in the Commonwealth of Virginia.

2.

Bly is a resident and domiciliary of the State of North Carolina.

3.

The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1322 because the amount in controversy exceeds $75,000.00 and the matter involves citizens from different states.

4.

The Court has personal jurisdiction over the Defendant because he resides in, is a domiciliary of and transacts business in the State of North Carolina.

5.

Venue is proper pursuant to 28 U.S.C. § 1391 because Bly is a resident and domiciliary of this judicial district and division.

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6.

On or about May 7, 2011, Bly executed a Promissory Note in the original principal amount of $1,995,555.56 in favor of Union Bank (the “Note”). A copy of the Note is attached hereto, marked Exhibit “1” and incorporated herein as if fully set forth.

7.

The Note is in default, it not having been paid at maturity, as provided for therein.

8.

Union Bank is the present holder of the Note.

9.

By letter dated August 8, 2011, Union Bank made demand for payment in full under the Note from Bly (the “Demand Letter”). A copy of the Demand Letter is attached hereto, marked Exhibit “2” and incorporated herein as if fully set forth. COUNT I: BREACH OF PROMISSORY NOTE

10.

Union Bank incorporates by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.

11.

Bly failed to make payment as demanded and as a direct and proximate result thereof is in default under the Note and is liable to Union Bank as follows: Principal:

$1,995,555.56

Interest:

From April 30, 2013 at the Default Rate of 18% per annum based on a year of 360 days as provided for in the Note

Plus attorneys’ fees and collection expenses incurred by Union Bank as provided for in the Note. COUNT II: DECLARATORY JUDGMENT 12.

Union Bank incorporates by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.

13.

During the course of communications with Bly after Union Bank’s issuance of the Demand Letter, Bly engaged legal counsel to represent him and, through said

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legal counsel, asserted (a) that Union Bank had a fiduciary relationship with Bly and/or owed Bly fiduciary duties or obligations with respect or in any way related to the Note based primarily upon a trust account with Union Bank (the “Trust Account”) that Bly pledged as collateral for the Note; (b) that Union Bank breached or violated such fiduciary duties or obligations to Bly; and (c) that Union Bank’s alleged breaches or violations of such fiduciary duties or obligations to Bly render the Note unenforceable and subject Union Bank to liability for damages to Bly. 14.

Bly, through his legal counsel, has threatened to initiate legal action against Union Bank for its alleged breaches or violations of fiduciary duties and obligations to Bly and thereby invalidate the Note and subject Union Bank to some alleged “damages” that Bly purportedly incurred.

15.

Union Bank does not owe Bly any fiduciary duties or obligations with respect or in any way related to the Note. Even if such fiduciary duties or obligations existed, Union Bank denies that it has breached or violated any such duties or obligations to Bly. Further, even if such fiduciary duties or obligations existed and were breached or violated by Union Bank in any way, Union Bank denies that Bly has been or could be damaged in any way by such alleged breaches or violations.

16.

There is an immediate, real and justiciable controversy existing between the parties regarding (a) the existence of any fiduciary duties or obligations that Union Bank may owe Bly with respect or in any way related to the Note, and (b) if any such fiduciary duties or obligations exist, whether Union Bank has

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breached or violated such duties or obligations, and (c) if such fiduciary duties or obligations existed and were breached or violated by Union Bank, whether Bly has been or could be damaged in any way by such alleged breaches or violations. 17.

To resolve this controversy, Union Bank is entitled to a declaratory judgment, pursuant to 28 U.S.C. § 2201 and Fed. R. Civ. P. 57, that: (a) Union Bank did not owe or have any fiduciary duties or obligations to Bly with respect or in any way related to the Note; and/or (b) that Union Bank did not breach or violate any fiduciary duties or obligations to Bly; and/or (c) that Bly has not been damaged in any way by Union Bank’s alleged breach or violation of any fiduciary duties or obligations to Bly.

WHEREFORE, Union First Market Bank prays the Court enter judgment as follows: 1.

On Count I, that Union First Market Bank have and recover of the Defendant Donald A. Bly, II damages in an amount of $1,995,555.56, interest thereon from April 30, 2013, at the Default Rate of 18% per annum based on a year of 360 days as provided for in the Note, until paid, and attorneys’ fees and collection costs as provided under the Note;

2.

On Count II, declaring that (a) Union First Market Bank did not owe or have any fiduciary duties or obligations to Defendant Donald A. Bly, II with respect or in any way related to the Note; and/or (b) that Union First Market Bank did not breach or violate any duties or obligations to Defendant Donald A. Bly, II; and/or (c) that Defendant Donald A. Bly, II has not been damaged in any way by Union First Market Bank’s alleged breach or violation of any duties or obligations to Defendant Donald A. Bly, II.

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3.

Awarding such other costs of this action as may be taxed against Defendant Donald A. Bly, II; and

4.

Granting Union First Market Bank such other and further relief as the Court shall deem just and proper.

This the 24th day of May, 2013. TROUTMAN SANDERS LLP

By:__/s/ D. Kyle Deak__________________ D. Kyle Deak N.C. State Bar No. 35799 434 Fayetteville Street, Suite 1900 Raleigh, North Carolina 27601 Telephone: (919) 835-4133 Fax: (919) 829-8725 [email protected]

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Jonathan L. Hauser, Esquire VSB No. 18688 TROUTMAN SANDERS LLP 222 Central Park Avenue, Suite 2000 Virginia Beach, VA 23462 Phone: (757) 687-7768 Fax: (757) 687-1505 [email protected] Pro Hac Vice Admission to be Filed Robert A. Angle, Esquire VSB No. 37691 TROUTMAN SANDERS LLP P.O. Box 1122 Richmond, VA 23218 Phone: (804) 697-1200 Fax: (804) 697-1339 [email protected] Pro Hac Vice Admission to be Filed Attorneys for Union First Market Bank

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