Securities and Exchange Commission v. Nadel et al
Filing
209
MOTION to Approve Settlement re: the Irrevocable Trust of Ben Montgomery Cart by Burton W. Wiand. (Attachments: #1 Exhibit A - Settlement Agreement re: Ben M. Cart, Trustee)(Nelson, Carl)
Securities and Exchange Commission v. Nadel et al
Doc. 209
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
v.
ARTHUR
Case No. 8:09-cv-87-T-26TBM
NADEL, SCOOP CAPITAL, LLC, SCOOP MANAGEMENT, INC.
Defendants,
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 VIKING MANAGEMENT,
Relief Defendants.
/
RECEIVER'S MOTION TO APPROVE SETTLEMENT
Burton W. Wiand, as Receiver, moves the Court for an order approving settlement of
a claim against the Irrevocable Trust of Ben Montgomery Cart (the "Trust") for recovery of
sums received from one or more Receivership Entities in excess of investment ("false
profits") 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 J ongoing fraud, maintain the status quo, and preserve investor assets. .
Dockets.Justia.com
. ." (Dkt. 1, CompL., ii 7.) Burton W. Wiand was appointed by this Court as the Receiver for
Defendants and Relief Defendants and Venice Jet Center, LLC; Tradewind, LLC; Laurel
Mountain Preserve, LLC; Laurel Preserve, LLC; the Marguerite 1. Nadel Revocable Trust
UAD 8/2/07; the Laurel Mountain Preserve Homeowners Association, Inc.; The Guy-Nadel
Foundation, Inc.; Lime Avenue Enterprises, LLC; and A Victorian Garden Florist, LLC
(collectively, the "Receivership Entities"). (See Order Reappointing Receiver (Dkt. 140).)
Burton W. Wiand was appointed by this Court as the Receiver for Home Front Homes, LLC
(Dkt. l70).
Pursuant to the Order Reappointing Receiver (Dkt. l40), the Receiver has the duty
and authority to:
2. 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 § 726.1 0 l, 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.
Dkt. l40 at ii 2.
The Receiver's investigation has revealed a number of investors who received "false
profits" (returns greater than their investments) ("profiteers") to the detriment of those
investors who lost money as a result of their investment. The Receiver began recovery
efforts by mailing letters to eighty-one (8 l) domestic and three (3) foreign profiteers,
inquiring whether they agreed with the Receiver's calculated amount of false profits and
whether they would return the transfers voluntarily to expedite the process and to avoid
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litigation. The Receiver, with the approval of the Commission, believes it is appropriate to
accept 90% of the amount claimed in consideration of payment before the commencement of
litigation to recover the false profits.
One of
the letters was sent to the Trust seeking recovery of$7,743.38 in false profits.
As shown by the attached Settlement Agreement, Ben M. Cart as Trustee of the Trust,
subject to the approval of this Court, has agreed to pay 90% ($6,969.00) to be paid no later
than ten (10) days after approval of this settlement by the SEC Receivership Court. By this
motion, the Receiver seeks approval of this settlement.
The settlement reflected by the Settlement Agreement is in the best interests of the
Receivership, the investors in the Receivership Entities, and the Trust, because resolution of
the claim avoids protracted litigation, conserving Receivership assets and judicial resources,
and avoids the cost of litigation to the Trust.
WHEREFORE, the Receiver moves the Court to approve the settlement reflected by
the attached Settlement Agreement.
LOCAL RULE 3.01(2) 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. The undersigned counsel is
unable to contact Arthur Nadel, who is incarcerated in New York and is not represented by
counsel in this action.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 16,2009, I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system. I further certify that I mailed the
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foregoing document and the notice of electronic filing by first-class mail to the following
non-CM/ECF participants:
Arthur G. Nadel Register No. 50690-018 York MCC New Metropolitan Correctional Center 150 Park Row New York, NY 10007
s/ Carl R. Nelson Carl R. Nelson, FBN 0280186 Email: cnelson(ffowlerwhite.com Gianluca Morello, FBN 034997 Email: gianluca.morello(ffowlerwhite.com Maya M. Lockwood, FBN 0175481 Email: mlockwood(ffowlerwhite.com Ashley Bruce Trehan, FBN 0043411 Email: atrehan(ffowlerwhite.com FOWLER WHITE BOGGS P.A. P.O. Box 1438
Tampa, FL 33601
Tel: (813) 228-7411 Fax: (813) 229-8313
Attorneys for the Receiver, Burton W. Wiand
42376245vl
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