Securities and Exchange Commission v. Nadel et al
MOTION for Settlement re: Ellen Schwab by Burton W. Wiand. (Attachments: # 1 Exhibit A - Executed Settlement Agreement)(Lamont, Michael)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
SECURITIES AND EXCHANGE
Case No. 8:09-cv-87-T-26TBM
SCOOP CAPITAL, LLC,
SCOOP MANAGEMENT, INC.
SCOOP REAL ESTATE, L.P.
VALHALLA INVESTMENT PARTNERS, L.P.,
VALHALLA MANAGEMENT, INC.
VICTORY IRA FUND, LTD,
VICTORY FUND, LTD,
VIKING IRA FUND, LLC,
VIKING FUND, LLC, AND
RECEIVER’S MOTION TO APPROVE SETTLEMENT
Burton W. Wiand, as Receiver, moves the Court for an order approving settlement of
Burton W. Wiand, as Receiver v. Ellen Schwab, Case No. 8:10-cv-130-T-17MAP (M.D. Fla)
(the “Schwab Action”) on the basis of the Settlement Agreement attached as Exhibit A.
MEMORANDUM IN SUPPORT
The Securities and Exchange Commission (the “Commission” or “SEC”) instituted
this action to “halt [an] ongoing fraud, maintain the status quo, and preserve investor assets . .
. .” (Dkt. 1, Compl., ¶ 7.) Burton W. Wiand was appointed by this Court as the Receiver for
Defendants other than Arthur Nadel and for Relief Defendants. (See Order Reappointing
Receiver (Dkt. 140).) Additionally, the Receivership was expanded to include Venice Jet
Center, LLC and Tradewind, LLC (Dkt. 17); Laurel Mountain Preserve, LLC, Laurel
Preserve, LLC, the Marguerite J. Nadel Revocable Trust UAD 8/2/07, and the Laurel
Mountain Preserve Homeowners Association, Inc. (Dkt. 44); The Guy-Nadel Foundation,
Inc. (Dkt. 68); Lime Avenue Enterprises, LLC, and A Victorian Garden Florist, LLC (Dkt.
81); Viking Oil & Gas, LLC (Dkt. 153); Home Front Homes, LLC (Dkt. 172); Traders
Investment Club (Dkt. 454); Summer Place Development Corp. (Dkt. 911); Respiro, Inc.
(Dkt. 916); and Quest Energy Management Group, Inc. (Dkt. 1024). All of the entities in
receivership are collectively identified herein as the Receivership Entities.
Pursuant to the Order Reappointing Receiver (Dkt. 984), the Receiver has the duty
and authority to:
Investigate the manner in which the affairs of the Receivership
Entities were conducted and institute such actions and legal proceedings, for
the benefit and on behalf of the Receivership Entities and their investors and
other creditors as the Receiver deems necessary . . . against any transfers of
money or other proceeds directly or indirectly traceable from investors in the
Receivership Entities; provided such actions may include, but not be limited
to, seeking imposition of constructive trusts, disgorgement or profits, recovery
and/or avoidance of fraudulent transfers under Florida Statute § 726.101, et.
seq. or otherwise, rescission and restitution, the collection of debts, and such
orders from this Court as may be necessary to enforce this Order.
Further, the Order Reappointing Receiver (at paragraph 6) authorizes the Receiver to
“[d]efend, compromise or settle legal actions . . . in which the Receivership Entities or the
Receiver is a party . . . with authorization of this Court . . . .”
By a Complaint filed January 14, 2010, the Receiver originally sued Ellen Schwab
(the “Defendant”) to recover sums received from the Receivership Entities with a view to
marshaling assets for an eventual distribution to investors with verifiable claims in an
equitable and appropriate manner. In total, the Defendant received $193,333.58 in “false
profits.” Pursuant to a court order, the claims asserted in the Schwab Action were compelled
to arbitration, and the Schwab Action was stayed pending completion of arbitration.
As shown by the attached Settlement Agreement, the Receiver and the Defendant,
subject to the approval of this Court, have agreed to settle the Schwab Action for
$125,000.00, to be paid in accordance with a set payment schedule.
In reaching this
agreement, the Receiver considered the risks and expense of arbitration. The Receiver
believes that the settlement provides a practical solution which results in the maximum
benefit to the Receivership. Further, the settlement reflected by the Settlement Agreement is
in the best interests of the Receivership, the investors in the Receivership Entities, and
Defendant, because resolution of the claim avoids protracted litigation, conserving
Receivership assets and judicial resources, and avoids the cost of litigation to Defendant.
WHEREFORE, the Receiver moves the Court to approve the settlement reflected by
the attached Settlement Agreement.
LOCAL RULE 3.01(g) CERTIFICATE OF COUNSEL
The undersigned counsel for the Receiver is authorized to represent to the Court that
the SEC has no objection to the Court’s granting this motion.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 5, 2013, I electronically filed the foregoing with
the Clerk of the Court by using the CM/ECF system.
s/Michael S. Lamont
Gianluca Morello, FBN 034997
Michael S. Lamont, FBN 0527122
WIAND GUERRA KING P.L.
5505 West Gray Street
Tampa, FL 33609
Tel: (813) 347-5100
Fax: (813) 347-5198
Attorneys for the Receiver, Burton W. Wiand
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