INITIAL REPORT: Feb. 19, 2019:
Former Butler County auditor Kay Rogers said “a litter of lies” continues to be told by PNC Bank executives and the U.S. Department of Justice regarding the existence of a $4 million loan, according to a nine-count civil lawsuit filed late last year.
But the Cincinnati attorney for the bank said in a motion to dismiss filed earlier this month that Rogers’ complaint lacks legal standing and several counts are beyond the statute of limitations.
“Rogers is using this civil lawsuit to collaterally attack her 2008 criminal conviction. This is improper, and her complaint should be dismissed in its entirety,” according to attorney Karen Giffen’s motion to dismiss.
Rogers was sentenced to two years in prison in 2011 after pleading guilty in 2007 to conspiracy to commit bank and mail fraud and filing a false income tax return. Rogers, a single mother of six, said she took a plea deal “against her inner will” to “protect her family from further embarrassment and public humiliation.”
Rogers was ordered to pay $4 million in restitution for a fraudulent loan taken out on behalf of the county. She claims in her lawsuit to be the only person ordered to repay the loan even though others were involved. This loan was to allow Dynus to operate Butler County’s fiber-optics system, which was built to spur economic development within the county.
However, Rogers has previously said the document she signed, presented to her by a former Dynus executive, was just an affirmation the county was good for the money. County commissioners control the county’s purse strings, and that executive said he intended to obtain their signatures. Commissioners never signed such a document.
In her civil suit filed in November 2018, Rogers, who is representing herself, also claims the loan does not exist, and bank employees allegedly “schemed to defraud and injure Rogers by creating and manufacturing false, deceptive and spurious bank documents … between PNC and Dynus.” She claims the bank “created phony, deceptive and fraudulent banking documents to purport the existence of a $4 million debt.”
She cites a purported September 2005 internal email between PNC executives that allegedly “confirms” the bank “restructured” Butler County transactions to “to elude any appearance of impropriety.” The email highlights a three-paragraph excerpt purportedly from a letter to National City from the Butler County Commission.
Rogers requested an emergency temporary restraining order from continuing restitution payments. The suit also alleges PNC committed fraud, civil conspiracy and invasion of privacy.
Giffen said Rogers’ claims of fraud, intentional infliction of emotional distress, two counts of invasion of privacy and civil conspiracy are beyond the statute of limitations. Also, she said Rogers’ fraud claim “failed to articulate an actionable claim for fraud.”
“Rogers has failed to plead fraud with the requisite degree of specificity,” according to the motion to dismiss. “Rogers’ complaint is completely devoid of any allegations regarding her justifiable reliance.”
Giffen said these allegations "are virtually identical" to five lawsuits filed by former Dynus owner Orlando Carter, who was convicted in 2009 for multiple counts of fraud, among other charges, and is serving a 15-year prison term. Carter has maintained his innocence.
RELATED: Federal magistrate dismisses $500 million Dynus lawsuit involving several Butler County officials (July 2018)
RELATED: Judge sentences Dynus Corp. owner to 15 years, says he’s ‘fundamentally dishonest’ (June 2010)
Carter in June 2018 filed from prison a $500 million federal lawsuit against Butler County, former House Speaker John Boehner, State Sen. Bill Coley, FBI agents and others. But 35 days later a federal magistrate dismissed all the claims “because it is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief.”