Securities and Exchange Commission v. Nadel et al

Filing 1221

REPLY to Response to Motion re 1209 MOTION for miscellaneous relief, specifically Determination that Wells Fargo Bank, N.A.'s Failure to Comply with this Court's Claims Administration Process Extinguished Its Purported Interests in Receivership Properties filed by Burton W. Wiand. (Keefe, Sean)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
ARTHUR NADEL, et al.,
Defendants.

CASE NO.: 8:09-cv-0087-T-26TBM

SCOOP REAL ESTATE, L.P., et al.
Relief Defendants.
/
RECEIVER’S REPLY BRIEF IN SUPPORT OF HIS MOTION (I) FOR
DETERMINATION THAT WELLS FARGO BANK, N.A.’S FAILURE TO COMPLY
WITH THIS COURT’S CLAIMS ADMINISTRATION PROCESS EXTINGUISHED
ITS PURPORTED INTERESTS IN RECEIVERSHIP PROPERTIES, AND
(II) FOR RELEASE OF PROCEEDS OF SALE OF SARASOTA PROPERTY, AND
INCORPORATED OPPOSITION TO WELLS FARGO BANK, N.A.’S
REQUEST FOR ORAL ARGUMENT
In his Motion (I) For Determination that Wells Fargo Bank, N.A.’s Failure to Comply
with this Court’s Claims Administration Process Extinguished Its Purported Interests in
Receivership Properties, and (II) For Release of Proceeds of Sale of Sarasota Property
(“Motion for Determination”) (Dkt. 1209), the Receiver argues that because Wells Fargo
Bank, N.A. (“Wells Fargo” or “the Bank”) refused to file timely claims related to its
purported interests in the Laurel Mountain and Sarasota Properties1 (collectively “the
Properties”), it is barred from pursuing those interests. In addition, the Receiver argues that

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 Wells Fargo is servicer on a first priority secured loan held by Bank of America (“BoA”) and a second priority
secured lender on the Sarasota Property.   

Wells Fargo’s request for relief under Federal Rule of Civil Procedure 60(b) should be
denied because it is untimely and because the Bank failed to meet its burden of establishing
excusable neglect.
In its response, Wells Fargo argues that: (1) a proof of claim form is not required to
preserve a secured creditor’s rights; (2) the Receiver is attempting to “destroy” the Bank’s
property rights in violation of the Fifth Amendment’s public takings clause; (3) its Rule 60(b)
request was timely because it was filed before the Court’s March 2, 2012 Order approving
the Receiver’s Motion to Approve Determination and Priority of Claims, Pool Receivership
Assets and Liabilities, Approve Plan of Distribution, and Establish Objection Procedure; and
(4) its failure to timely file proofs of claims was excusable neglect because the Receiver did
not send enough claims packets to the Bank.
ARGUMENT
The Receiver’s Motion for Determination relates solely to Wells Fargo’s conduct
after the Receivership was created. The manner in which the Bank governed itself preReceivership is, therefore, not at issue here2. As this Court has already determined, all
parties—both secured and unsecured—were required to comply with the Court’s
unambiguous claims administration process. (Dkt. 1174). Among the purposes of the claims
administration process was to give parties an opportunity to preserve all interests in
Receivership Property, not just to receive cash distributions as the Bank suggests. Adherence
to this claims process’ clear provision that failure to comply with the Claims Bar Date

2

As the Receiver already stated, should the Court allow Wells Fargo to file belated claims, or determine that, as
a secured creditor, it did not need to file claims, the Receiver reserves his right to approve or reject such claims
on their merits. Only then will Wells Fargo’s conduct pre-Receivership, including its status as an investor in
two of the Receivership Entities, be relevant to these proceedings.

2 

extinguished interests in Receivership Property, does not violate the Fifth Amendment’s
public takings clause. Government action is required to trigger that constitutional protection,
and contrary to the Bank’s assertions, the Receiver’s efforts to derive as much value as
possible from the Properties to satisfy the Receivership Entities’ liabilities to their creditors
are those of a private actor acting on behalf of private Receivership Entities to pay private
parties. As such, there is no government action in this dispute and thus no violation of the
Fifth Amendment.
Similarly, Wells Fargo’s request for relief under Fed. R. Civ. P. 60(b) should be
denied because it is untimely. Even if Wells Fargo’s request for relief is timely, the Bank has
failed to satisfy its burden of establishing “excusable neglect” under Rule 60(b). The
Receiver mailed a claims packet to Wells Fargo at the exact address the Bank provided on its
loan invoices. (Dkt. 713-10). The packet included a Proof of Claim form which neither
specified which Wells Fargo loan the form was related to, nor limited the Bank’s ability to
identify any of its purported interests in Receivership Property. (Id.) The packet also
contained a Notice which unequivocally explained that a non-investor asserted creditor, like
the Bank, had to submit to the Receiver by the Claim Bar Date the amount the non-investor
was owed, and amounts already received from a Receivership Entity, and legible copies of all
documents underlying the claim – as it applied to non-investor asserted creditors like the
Bank who received blank Proof of Claim forms, the Notice said nothing about such asserted
creditors receiving multiple forms.
Crucially, Wells Fargo does not dispute that it was aware that the Properties were part
of the Receivership Estate and that it had knowledge of the Claims Bar Deadline. In fact, the

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Bank does not even dispute that it received a claims form packet. Instead, Wells Fargo, for
the first time, argues it was excused from filing timely Proofs of Claim for the Properties
because it did not have enough copies of the claims forms and because the Receiver mailed
the claims packet to Wells Fargo’s loan department address in Georgia, rather than in
Virginia. As demonstrated below, the record refutes this argument because the Receiver, in
compliance with the Court’s Order governing the claims administration process, mailed the
claims packet to the exact address Wells Fargo provided on its own loan invoices. Notably,
this argument also ignores that the Receiver specifically wrote to Wells Fargo giving it an
opportunity to file a late claim along with an explanation for its failure to file a claim. [cite
to docket] The Bank never responded, which defeats its argument that it did not file claims
because it never received proper notice.
I.

WELLS FARGO WAS REQUIRED TO COMPLY WITH THE CLAIMS BAR
DATE AND ITS FAILURE TO DO SO PRECLUDES IT FROM
PRESERVING ITS PURPORTED SECURITY INTERESTS
A. Wells Fargo Needed to File Proofs of Claim To Preserve Any Interests In
Receivership Properties.
Secured and unsecured creditors were required to comply with this Court’s order

governing the claims administration process. (Dkt. 1174). A Proof of Claim was required to
preserve a secured creditor’s interest in Receivership Property, whether those interests are
property rights in the collateral or to participate in cash distributions. Further, the burden
rests on the creditor “to protect its rights pursuant to the framework clearly set forth in the
conduct of this receivership.” (Id. at p.7). Wells Fargo failed to do this and its status as a
purported secured creditor did not relieve it of its obligation to comply with this Court’s
process. As a result, its interests in any Receivership Properties are extinguished. (Id.)

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(describing the claims process in this Receivership as “unambiguous” and clearly requiring
“that claimants follow a particular procedure or suffer their claims forever barred.”).
Wells Fargo’s arguments that it only needed to file Proofs of Claims if it wished to
participate in a cash distribution of Receivership proceeds, but not to enforce its purported
security interests, is a distinction without a difference. The Court’s Order establishing a
procedure to administer claims and Proof of Claim forms and setting the deadline for filing
Proofs of Claim directed that each “entity that asserts a claim against the Receivership arising
out of or related in any way to the acts, conduct, or activities of Receivership Entities must
submit an original, written Proof of Claim ….” (Dkt. 391).
Nothing in this Order suggests that the claims administration process was limited only
to parties who wished to receive cash distributions. Moreover, the Order does not exclude
parties wishing to preserve rights to any collateral that may be part of the Receivership
Estate. Rather, the Order applies to any entity which intended to preserve any interest in
Receivership Property, not just to receive cash distributions. Consequently, since Wells
Fargo failed to submit Proofs of Claim for the Properties, its purported interests have been
extinguished, and as such, the Bank is not entitled to release of the Laurel Mountain Property
or to receive any cash distributions from the proceeds of the sale of the Properties.
B. The Takings Clause of the Fifth Amendment Is Not Relevant in Federal Equity
Receiverships
Wells Fargo argues that the Receiver’s Motion for Determination seeks to “destroy”
the Bank’s purported security interests in the Properties in violation of the Fifth
Amendment’s Takings Clause. (Dkt. 1216 at 7-9). This argument ignores the nature of the
Receiver’s relevant efforts and does not rely on any relevant authority.

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Wells Fargo’s Takings Clause argument means that every time court-appointed
receivers recover property for their receivership estates, it constitutes government action that
triggers the Fifth Amendment. However, receivers across the country routinely recover
properties from non-parties for the benefit of their receivership estates with court approval,
yet there is not a single case supporting the Bank’s position. This is because the Takings
Clause is not implicated because there is no government action.
A Fifth Amendment “taking” “is a direct government appropriation or physical
invasion of private property.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 125 S.Ct.
2074, 161 L.Ed.2d 876 (2005) (emphasis added). Thus, without government action, there can
be no taking. Cranley v. Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003).
Critically, federal receivers are considered private parties who stand in the shoes of the
private entities placed in receivership – and not of the Government – when pursuing efforts
on behalf of those entities to pay their creditors. See United States v. Beszborn, 21 F.3d 62,
68 (5th Cir.1994) (Receiver acts as a “private, non-governmental entity, and is not the
Government” when pursuing litigation on behalf of a receivership entity for the benefit of its
creditors and shareholders); see also U.S. v. Stanford, 805 F.3d 557, 568 (5th Cir. 2015)
(same). Therefore, since the Receiver’s recovery of property on behalf of Receivership
Entities for the benefit of their creditors does not constitute government action, the Fifth
Amendment is not triggered here.
Wells Fargo’s reliance on United States v. Security Indus. Bank, 459 U.S. 70, 75-78
(1982) is misplaced. There, the Court considered whether a Bankruptcy Code provision (11
U.S.C.A. § 522(f)(2)) authorizing the avoidance of certain liens to the extent they impair the

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debtor's exemptions, should apply to liens which existed before the effective date of the
Code. The Court held that it should not because there was “substantial doubt whether the
retroactive destruction of the appellees' liens in this case comports with the Fifth
Amendment.” Id. at 78. The Court adopted the principle that “[n]o bankruptcy law shall be
construed to eliminate property rights which existed before the law was enacted in the
absence of an explicit command from Congress.” Id. at 81. The absence of retroactive
application of any legislative enactments sharply distinguishes the instant case from Wells
Fargo's sole authority – indeed, in this case, there is no legislative action whatsoever that
would trigger the Fifth Amendment. See also In re Persky, 134 B.R. 81 (E.D. N.Y. 1991)
(bankruptcy statute permitting trustee to sell certain jointly owned property free and clear of
nondebtor-co-owner's interest therein could not be applied retroactively to interest which
had vested and matured prior to statute's effective date and was unconstitutional violation of
takings clause.) Further, implicit in that decision was the assumption that there was no
unconstitutional taking effected by § 522(f) as to liens created after the effective date of the
statute; in other words, contrary to the Bank’s argument, security interests can be eliminated
even by Congress. See United States v. Rodgers, 461 U.S. 677, 697, note 24 (“If there were
any Takings Clause objection to [Internal Revenue Code] § 7403, such an objection could
not be invoked on behalf of property interests that came into being after enactment of the
provision.”).
Moreover, “the Takings Clause is implicated only when the taking in question is for a
public use[.]” Scott v. Jackson, 297 Fed.Appx. 623, 625–26 (9th Cir.2008) (emphasis
added); see also Bennis v. Michigan, 516 U.S. 442 (1996). Here, the Receiver is a private

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actor who has administered and managed Receivership assets for eventual distribution to
injured, private investors, not for public use. As such, since there is no public use, there can
be no taking. See Crocker v. United States, 37 Fed.Cl. 191, 196, aff'd, 125 F.3d 1475, 1476
(1997) (holding that a takings claim “must not be that the Government's conduct in and of
itself violated law, but that the effect of a valid exercise of sovereign immunity resulted in
the taking of private property for public use, but without payment.”).
In any event, Wells Fargo received sufficient notice of the claims administration
process (see, infra, Section II. B) that, to the extent the Takings Clause is even triggered here,
the Bank’s constitutional rights have not been violated. See Georgia v. City of Chattanooga,
264 U.S. 472, 483, 44 S.Ct. 369, 68 L.Ed. 796 (1924) (In the eminent domain context, the
federal constitution's due process clause is satisfied so long as property “owners [have]
reasonable notice and [the] opportunity to be heard before the final determination of judicial
questions that may be involved in the condemnation proceedings-e.g., ... whether the taking
is for a public purpose.”); see also Bickerstaff Clay Products Co., v. Harris County, Ga. Ny
and Through Bd. Of Com’rs, 89 F.3d 1481, 1491 (11th Cir. 1996) (“A property owner cannot
claim a violation of the Clause unless the state provides the landowner no procedure (such
as an action for inverse condemnation) for obtaining just compensation.”) (emphasis added)
(citing Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 195
(1985)). Wells Fargo was aware of the claims administration process, received a claims
packet, and had numerous communications with the Receiver regarding the Properties before
the Claims Bar Date expired. Wells Fargo was, therefore, given an opportunity to protect its
purported interests in the Properties, and assert its Takings Clause argument, by filing Proofs

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of Claim with the Receiver. The Bank chose not to do that. Wells Fargo cannot elect to sit
on its hands throughout the claims administration process and then later assert that its
constitutional rights have been compromised when it did nothing to protect its own purported
interests in Receivership Properties in spite of receiving adequate notice as to these
proceedings. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 545–548 (1985)
(The essential requirements of “due process” are notice and an opportunity to be heard).
Accordingly, the Receiver taking possession of Laurel Mountain and the sale proceeds of the
Sarasota Property free and clear of any liens or encumbrances does not violate the Fifth
Amendment.
II.

WELLS FARGO’S REQUEST FOR RELIEF UNDER FEDERAL RULE 60(b)
SHOULD BE DENIED.
A. The Bank’s Rule 60 Motion Should Be Denied Because it is Untimely.
The Order establishing a Deadline for Filing Proofs of Claims (Doc. 391) was entered

on April 21, 2010, and set a Claim Bar Date of September 2, 2010. Federal Rule of Civil
Procedure 60(c)(1) authorizes courts to reopen judgments for reasons of ‘mistake,
inadvertence, surprise, or excusable neglect,’ but only on motion made within one year of the
relevant judgment. Wells Fargo argues that under this Rule, the relevant judgment is the
March 2, 2012 Order (Dkt. 776) which granted the Receiver’s Motion to (1) Approve
Determination and Priority of Claims, (2) Pool Receivership Assets and Liabilities, (3)
Approve Plan of Distribution, and (4) Establish Objection Procedure (“Claims Determination
Motion”). This argument is wrong.
Wells Fargo erroneously asserts that, in the Court’s Order denying BB&T’s motion
for turnover of sale proceeds of Receivership Property (Dkt. 1174) (the “BB&T Order”), the

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Court previously determined that “Rule 60’s one-year clock started to tick when the Court
entered its March 2012 Order on the Receiver’s [Claims Determination Motion]” and that
“the Court has already considered, and rejected the Receiver’s position that the time started
to run before March 2012.” (Dkt. 1216, pp.14-15). This mischaracterizes the BB&T Order.
In the dispute with BB&T , the parties did not litigate whether, under Rule 60(c)(1), BB&T’s
one-year window began on the Claims Bar Date or on the date of the March 2012 Order
because BB&T did not satisfy either deadline. Therefore, the Court did not squarely
address which date applied and its Order does not specifically find that the Rule 60(c)(1)
one-year window could not have started before the March 2012 Order. As previously noted,
failure to file a claim by the Claims Bar Date forever barred that claim, and the March 2012
Order simply re-confirmed that bar. (Dkt. 776, at ¶8).
Finally, while the March 2, 2012 Order also provided the dispute between the
Receiver and Wells Fargo over the Bank’s purported interests in the Properties would be
resolved by a later order after the Court resolved Wells Fargo’s motion to disqualify the
Receiver, that Order did not exempt Wells Fargo from either the claims process, the Claims
Bar Date, or the Order governing the claims process.
Therefore, for purposes of the Court’s Rule 60 analysis, the March 2, 2012 Order is
not the applicable judgment. Rather, the correct date is the Claims Bar Date, which was
September 2, 2010. As such, the Bank had until September 2, 2011 to request Rule 60
relief, and because it did not file its motion until February 8, 2012, its motion is untimely and
should be denied.
B. Wells Fargo Has Failed to Meet its Burden of Showing Excusable Neglect.

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On June 4, 2010, the Receiver mailed a claims packet to Wells Fargo at Wachovia
Commercial Loan Services, P.O. Box 740502, Atlanta, Georgia, 30374-0502. (Id.) This was
the same address that Wells Fargo provided the Receiver on its loan invoices for both the
Rite-Aid and Laurel Mountain Properties. (Dkt. 1210-1). The packet included a Proof of
Claim form which was blank and did not otherwise indicate that it was to be used for a
specific loan.
Under Rule 60(b), the burden is upon the party moving to have the judgment set aside
to plead and prove excusable neglect. See In re Worldwide Web Systems, Inc. 328 F.3d
1291, 1294 (11th Cir. 2003). Wells Fargo still offers almost no evidence to support a finding
of excusable neglect, but instead, argues that the Receiver is to blame for the Bank’s failure
to file timely claims. Specifically, Wells Fargo now argues that it did not file claims for the
Properties because it only received one claims packet, which the Receiver mailed to an
address in Atlanta, Georgia, and as such, did not receive adequate notice. As shown below,
this explanation does not satisfy Wells Fargo’s burden under Rule 60. First, the Bank’s new
argument is not even relevant to the issue of excusable neglect because it offers no
evidentiary support, such as affidavits or declarations, stating that the reason the Bank did not
file claims is because it only received one claims packet. Second, the Receiver complied
with the Court’s notice requirements by, among other things, sending Wells Fargo a claims
packet to the mailing address which the Bank provided to the Receiver. (Dkt. 1216, pp. 1516). Therefore, the Receiver provided Wells Fargo with proper notice that the Properties
were part of the Receivership Estate and that, to preserve its interests in the Properties, the
Bank had to file any and all claims by the Claims Bar Date.

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1. The Bank has not presented record evidence of excusable neglect.
Wells Fargo’s new argument that it did not receive proper notice is not evidence of
“excusable neglect.” Wells Fargo offers no affidavits or declarations from any Bank
employees affirming that the reason it did not file Proofs of Claim forms on either of the
Properties is because it only received one copy of the claims packet. In fact, this explanation
is noticeably absent in the Bank’s only declaration that it filed in support of its previous
request for Rule 60 relief. (Dkt. 740, Ex. E.). In that declaration, Elizabeth A. Ryan, a Wells
Fargo mortgage analyst, declared that the reason Wells Fargo did not file claims on the
Properties was because “in [her] experience a secured lender is not required to file a Proof of
Claim and can simply stand upon its state law property interest as evidenced by its mortgage
and security interest.” (Id. at ¶ 5). She further declared that she presumed that “Wells Fargo
could stand upon its Mortgage and secured position and no Proof of Claim was required.”
(Id.). While Ms. Ryan did declare that she (as opposed to Wells Fargo) did not receive notice
of the Receivership Action until April 2011, she did not state that Wells Fargo did not
receive notice or that the Bank did not file a claim related to the Properties because it only
received one claims packet.
2. The Receiver provided Wells Fargo and BoA adequate notice of the claims
administration process and Claims Bar Date.
Contrary to Wells Fargo’s assertions, the Receiver certainly did provide the Bank
with adequate and sufficient notice of the claims administration process and the Claims Bar
Date. The Court’s Order establishing the claims administration process specifically states
that notice is “sufficient and reasonably calculated to provide notice to all creditors if” mailed
to the last known address, published in The Wall Street Journal and The Sarasota Herald-

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Tribune, and made available on the Receiver’s website. (Dkt. 391, p. 2). The Receiver
complied with all of these requirements.
Wells Fargo confirmed it had notice that the Laurel Mountain Property was part of
the Receivership when it began sending the Receiver its invoices for the Laurel Preserve loan
in May 2009. (Dkt. 1210-1). Thereafter, the Receiver and Wells Fargo continued to
communicate regarding the Properties through 2010 and he provided a Proof of Claim form
(which identified Laurel Mountain Preserve, LLC as a Receivership Entity) to both Wells
Fargo and BoA. The Receiver mailed a claims packet to Wells Fargo’s Commercial Loan
Services Department at the address that Wells Fargo provided on its loan invoices for both
the Laurel Mountain and Rite-Aid loans. Finally, the Bank confirmed that it was aware of
the Claims Bar Date and understood the claims administration process when it timely filed a
claim related to the Rite-Aid Property.
The Bank’s argument that it could only file one claim because it only received one
claims packet is meritless. (Dkt. 1216, pp.15-16). First, the claim form itself provided space
for entities with more than one interest in any Receivership Entity, which allowed the Bank
to use one claim form for all of its purported interests in the Properties. (Dkt. 713-14, p.12).
Second, as the claims packet made clear, copies of the claim form were available at
www.nadelreceivership.com. (Id. at p. 2 ). Third, Wells Fargo could easily photocopy the
blank claims form it received.
Relatedly, Wells Fargo’s argument that the Receiver was required to send a claims
packet for each of the Bank’s purported interests in the Properties is also misplaced. (Dkt.
1216, p. 16). While the claim packet states that if you have multiple accounts, a Proof of

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Claim form would be mailed for each account, this language clearly applied only to multiple
investor accounts, rather than creditors claiming an interest in one of the Receivership
Entities. (See Id. at p. 8) (“Investors who, according the Receiver’s records, have multiple
accounts will receive a Proof of Claim Form for each account.”). For non-investor claims,
the claims packet clearly states:
If you were not an investor, but believe you are or may be a creditor of
one or more of the Receivership Entities, you must provide to the Receiver
by the Claim Bar Date (1) the amount you contend you are owed from any
Receivership Entity; (2) any amounts received from any Receivership
entity; and (3) legible copies of all documents on which you base your
claim (i.e., all invoices for services or goods provided, loan documents,
etc.) or, if any such documents are not available, a detailed explanation as
to why such documents are not available.
(Id.).
Indeed, Wells Fargo’s position that it did not file timely claims for the Properties
because it only received one claims packet is also belied by the fact that it refused to file
claims even after the Receiver wrote to the Bank that the Claims Bar Date had passed, but
that if “[Wells Fargo] believes there are circumstances that justify its failure to file a Proof of
Claim, it remains free to submit one and an explanation for the delay and any other materials
or information which it deems appropriate.” (Doc. 713-8). That letter also explained that if
Wells Fargo did not file a claim, “then its interest will not be considered by the Receiver, and
the Court….” Id. Wells Fargo never responded to that letter or filed a claim; that the Bank
remained silent establishes that it was responsible for its failure to file timely Proofs of
Claims—not the Receiver.
Notably, Wells Fargo does not argue that it (or BoA) did not receive a claims packet
or that it was unaware that the Properties were part of the Receivership Estate. Rather, Wells

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Fargo objects to the adequacy of the Receiver’s notice because he mailed the claims packet
to the Bank’s Commercial Loan Services Department it Atlanta, Georgia, rather than its
office in Roanoke, Virginia. But the Bank ignores that its own loan invoices for the Laurel
Preserve loan clearly provide the address of: Wachovia Commercial Loan Services as P.O.
Box 740502, Atlanta, Georgia, 30374-0502. (Dkt. 1210-1). As Wells Fargo concedes, this is
precisely the address where the Receiver mailed the claims packet. (Dkt. 1216, p. 13).
The Bank’s assertion that providing notice at the address its own loan invoices disclose was
inadequate is frivolous. If Wells Fargo did not have adequate procedures to preserve its
interests in Receivership Property, then that is the fault of the Bank, not the Receiver.
Florida Physician's Insurance Co., Inc. v. Ehlers, 8 F.3d 780, 784 (11th Cir.1993) (“failure
to establish minimum procedural safeguards for determining that action is being taken does
not constitute excusable neglect”); North Central Illinois Laborer's District Council v. S.J.
Groves & Sons Co., Inc., 842 F.2d 164, 167–68 (7th Cir.1988) (district court did not abuse
discretion in refusing to set aside judgment when filing or clerical error resulted in failure of
in-house counsel to discover plaintiff's service of process); Picucci v. Town of Kittery, 101
F.R.D. 767 (D. Me. 1984) (insufficiencies relating to office procedures of counsel may not
form basis of “excusable neglect” under Rule 60(b)).
Wells Fargo also contends that the claims packet mailed to Bank of America related
to its Sarasota Property loan (which Wells Fargo acts as servicer) did not provide it with
adequate notice because it was sent to BoA’s loan department in Wilmington, Delaware,
rather than Wells Fargo Home Mortgage office in Baltimore, Maryland. This argument

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ignores the numerous communications between the Receiver and counsel for Wells Fargo
and BoA related to the Sarasota Property which establish that the Bank had adequate notice.
Again, the Court granted the Receiver possession of, and title to, the Sarasota
Property on Jan. 28, 2010. (Dkt. 327). The next day, the Receiver mailed to both Wells
Fargo and BoA a Notice of Filing which included the Order granting him title to the Sarasota
Property. (Dkt. 756-3). Three days later, the Receiver filed the same Notice of Filing in
BoA’s foreclosure action it had filed on the Sarasota Property. (Dkt. 756-2). On June 4,
2010, the Receiver mailed the claims packets to both BoA and Wells Fargo.
In keeping with this Court’s Order, the Receiver provided more than adequate notice
to the Bank of his possession of the Laurel Mountain and Sarasota Properties, the existence
of the Claims Bar Date, and the requirement to file a claim before that deadline to preserve
any purported interests in Receivership Property. See Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950) (“An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is notice reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.”). The Bank’s arguments that, despite
communicating with the Receiver about the Properties and receiving the claims packet it
nevertheless did not receive adequate notice, is also incompatible with this simple fact—it
filed a claim on the Rite-Aid Property. In doing so, the Bank demonstrated it understood the
Court’s unambiguous claims administration process and was fully aware of the Claims Bar
Deadline.

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The Bank’s argument that the Receiver did not provide it with proper notice is
without merit. The Receiver has demonstrated that he complied with the Court’s notice
requirements and provided Wells Fargo with a claims packet at the address the Bank
provided. Accordingly Wells Fargo has failed to meet its burden of establishing excusable
neglect under Rule 60(b).
RECEIVER’S OPPOSITION TO WELLS FARGO’S REQUEST
FOR ORAL ARGUMENT
The issues pending before the Court do no warrant oral argument. The Receiver
respectfully submits that the relevant issues before the Court have been thoroughly briefed.
Any further argument will not provide any additional clarity and will be a waste of
Receivership assets. However, should the Court determine that oral argument is necessary,
the Receiver will be fully prepared to present his arguments as to why the Court should grant
his Motion for Determination.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January, 11, 2016, I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system.
Respectfully submitted,
JAMES HOYER, P.A.
/s/ Sean P. Keefe
Sean P. Keefe (FBN 413828)
One Urban Centre, Suite 550
4830 W. Kennedy Blvd.
Tampa, FL 33609
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
Attorney for the Receiver, Burton W. Wiand

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