Securities and Exchange Commission v. Nadel et al

Filing 1165

MOTION for leave to file Reply in Support of Motion for Turnover by Branch Banking & Trust Co. Successor to Colonial Bank NA. (Garbett, David)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CASE NO.: 8:09-cv-0087-T-26TBM
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
vs.
ARTHUR NADEL, SCOOP CAPITAL,
LLC, SCOOP MANAGEMENT, INC.,
Defendants,
SCOOP REAL ESTATE, L.P.,
VALHALLA INVESTMENT PARTNERS, L.P.,
VALHALLA MANAGEMENT, INC.,
VICTORY FUND, LTD,
VIKING IRA FUND, LLC,
VIKING FUND, LLC, AND
VIKING MANAGEMENT, LLC,
Relief Defendants.
/
BB&T’S MOTION FOR LEAVE TO FILE REPLY
IN SUPPORT OF MOTION FOR TURNOVER
Secured Creditor, Branch Banking & Trust Company (“BB&T”), pursuant to Middle
District Local Rule 3.01(d), seeks leave to submit a reply memorandum in support of its Motion
for Turnover of Sale Proceeds of Fairview Property Subject to Mortgage Interest (“Motion”)
(Doc. Nos. 1159-1160), not to exceed 10 pages to address the issues identified below. The Court
granted such leave to Wells Fargo Bank, N.A. (“WFB”) on its similar motion for relief with
respect to its belatedly-submitted secured proofs of claim—relief to which the Receiver did not
object. The Court should grant the same leave to BB&T despite the Receiver’s objection.

G A R B E T T, S T I P H A N Y, A L L E N & R O Z A , P. A . , AT T O R N E Y S AT L A W
80 SOUTHWEST EIGHTH STREET, SUITE 3100, MIAMI, FLORIDA 33130 • TELEPHONE [phone]

CASE NO.: 8:09-cv-0087-T-26TBM
MEMORANDUM OF LAW
Local Rule 3.01(d) permits a party to request leave to submit a reply in support of a
motion. BB&T’s reply, not to exceed 10 pages, will address the following in response to his
opposition to the Motion (Doc. No.1163):
(a)

The Receiver’s failure to address BB&T’s primary position that the Receiver’s

knowledge and reporting of BB&T’s secured claim prior to the deadline obviated the need to
submit a formal claim;
(b)

The Receiver’s contention that BB&T has not satisfied his burden of proof on the

Motion;
(c)

The Receiver’s contention that the order dated March 2, 2012 precludes relief

sought in the Motion;
(d)

The Receiver’s contention that the Court’s prior rulings denying the Elendow and

Fulcrum claims is dispositive of the issues;
(e)

The Receiver’s contention that the Court may not consider bankruptcy cases

holding that a secured creditor need not file a claim to preserve its lien interest;
(f)

The Receiver’s contention that the one-year limit in Rule 60(c) precludes relief

for excusable neglect and should be calculated from the date of the March 2, 2012 order;
(g)

The Receiver’s contention that the estate would be prejudiced if the Court honors

the secured claim because the Receiver would not be able to use the segregated proceeds to pay
unsecured creditors;
(h)

BB&T’s agreement with the Receiver that if the Court honors the claim, it should

order turnover of $248,941.73, the principal balance of the Fairview Loan as of the date of the
Receivership, and not the full amount held by the Receiver ($267,720.59).
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G A R B E T T, S T I P H A N Y, A L L E N & R O Z A , P. A . , AT T O R N E Y S AT L A W
80 SOUTHWEST EIGHTH STREET, SUITE 3100, MIAMI, FLORIDA 33130 • TELEPHONE [phone]

CASE NO.: 8:09-cv-0087-T-26TBM
On February 8, 2012, WFB filed a similar motion seeking relief with respect to latesubmitted secured claims. See Doc. No. 740. The Receiver opposed the relief, Doc. No. 755,
but did not oppose WFB’s motion for leave to file a reply. Doc. No. 759. The Court granted
leave to WFB to submit a reply limited to 10 pages. Doc. No. 760. BB&T requests the same
relief here.
CONCLUSION
The Court should grant BB&T leave to file a reply not to exceed 10 pages in support of
the Motion.
LOCAL RULE 3.01(g) CERTIFICATION
Counsel to BB&T has conferred with counsel to Receiver, who opposes the relief sought.
GARBETT, STIPHANY, ALLEN & ROZA, P.A.
Counsel to BB&T
80 S.W. 8th Street – Suite 3100
Miami, Florida 33130
Telephone: [phone]
Fax: [phone]
David S. Garbett, FBN 356425
Elizabeth B. Dombovary, FBN 891711
Email: [e-mail]
Email: [e-mail]
By: /s/ David S. Garbett_____
David S. Garbett

CERTIFICATE OF SERVICE
I certify that on March 25, 2015 , I electronically filed the foregoing with the Clerk of the
Court using CM/ECF. I also certify that the foregoing document is being served this day on all

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G A R B E T T, S T I P H A N Y, A L L E N & R O Z A , P. A . , AT T O R N E Y S AT L A W
80 SOUTHWEST EIGHTH STREET, SUITE 3100, MIAMI, FLORIDA 33130 • TELEPHONE [phone]

CASE NO.: 8:09-cv-0087-T-26TBM
counsel of record identified on the below Service List authorized to receive electronic notice via
transmission of Notices of Electronic Filing generated by CM/ECF.
By: /s/ David S. Garbett
SERVICE LIST
Arthur G. Nadel
FCI BUTNER LOW
Federal Correctional Institution
P.O. Box 999
Butner, NC 27509

Terry A. Smiljanich, Esq.
James, Hoyer, Newcomer & Smiljanich,
P.A.
One Urban Centre, Suite 550
4830 W. Kennedy Blvd.
Tampa, FL 33609
Counsel to Receiver, Burton W. Wiand

Gianluca Morello, Esq.
Wiand Guerra King, P.L.
3000 Bayport Drive
Suite 600
Tampa, FL 33607
Counsel for Receiver, Burton W. Wiand

Scott A. Masel, Esq.
Andre J. Zamorano, Esq.
Securities & Exchange Commission
Miami Branch Office, SERO
801 Brickell Ave., Suite 1800
Miami, FL 33131

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G A R B E T T, S T I P H A N Y, A L L E N & R O Z A , P. A . , AT T O R N E Y S AT L A W
80 SOUTHWEST EIGHTH STREET, SUITE 3100, MIAMI, FLORIDA 33130 • TELEPHONE [phone]