Securities and Exchange Commission v. Nadel et al

Filing 216

MOTION to Approve Settlement re: Robert Beale and Virginia Beale by Burton W. Wiand. (Attachments: # 1 Exhibit A - Executed Settlement Agreement re the Beale's)(Nelson, Carl)

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Securities and Exchange Commission v. Nadel et al Doc. 216 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. Case No. 8:09-cv-87-T-26TBM ARTHUR 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. I RECEIVER'S MOTION TO APPROVE SETTLEMENT Burton W. Wiand, as Receiver, moves the Court for an order approving settlement of a claim against Robert Beale and Virginia Beale ("the Beales") for recovery of sums received from one or more Receivership Entities in excess of investment ("false profits") on the basis ofthe 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. . Dockets.Justia.com . ." (Dkt. I, Compl., ir 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 J. 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. 170). Pursuant to the Order Reappointing Receiver (Dkt. 140), 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 andlor 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. Dkt. 140 at ir 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 mailng letters to eighty-one (81) 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 2 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 Beales seeking recovery of $32,590.47 in false profits. As shown by the attached Settlement Agreement, The Beales, subject to the approval of this Court, agreed to pay 90% ($29,331.42), which has been tendered to and is being held by the Receiver pending approval of this settlement. 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 Beales, because resolution of the claim avoids protracted litigation, conserving Receivership assets and judicial resources, and avoids the cost of litigation to The Beales. WHEREFORE, the Receiver moves the Court to approve the settlement reflected by the attached Settement 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 November 3, 2009, I electronically filed the foregoing with the Clerk of the Court by using the CMIECF system. I further certify that I mailed the 3 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 sl Carl R. Nelson Carl R. Nelson, FBN 0280186 Email: cnelson(ifowlerwhite.com Gianluca Morello, FBN 034997 Email: gianluca.morello(ifowlerwhite.com Maya M. Lockwood, FBN 0175481 Email: mlockwood(ifowlerwhite.com Ashley Bruce Trehan, FBN 0043411 Email: atrehan(ifowlerwhite.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 42394334vl 4

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