Securities and Exchange Commission v. Nadel et al

Filing 648

MOTION to Approve Settlement re: Mayfair Associates (179) and Betty Bry Schwab, as Trustee of the Betty Bry Schwab Revocable Trust (226) by Burton W. Wiand. (Attachments: #1 Exhibit A - Executed Settlement Agreement)(Morello, Gianluca)

SETTLEMENT AGREEMENT
WHEREAS, by orders dated January 21, 2009, June 3, 2009, January 19, 2010,
and September 23, 2010 the Court in Securities & Exch. Comm'n v. Arthur Nadel, et al.
Case No. 8:09-cv-87-T-26TBM (M.D. Fla.) (the "SEC Receivership Action"), appointed
Burton W. Wiand as Receiver (the "Receiver") for 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 Ftmd, LLC; and Viking Management, LLC; and all of their subsidiaries,
successors, and assigns (collectively, the "Receivership Entities"); and
WHEREAS, the Receiver sued Mayfair Associates ("Mayfair") and Betty Bry
Schwab, as Trustee of the Betty Bry Schwab Revocable Trust ("B. Schwab Trust") in
actions styled Burton W. Wiand, as Receiver v. Mayfair Associates, Case No. 8:10-cv179-T-17MAP (M.D. Fla), and Burton W. Wiand. as Receiver v. Betty Bry Schwabs as
Trustee of the Betty Bry Schwab Revocable Trust, Case No. 8:10-cv-226-T-17MAP
(M.D. Fla) (the "Schwab Actions"), respectively, seeking the retum of certain funds
received from or at the direction of one or more of the Receivership Entities in excess of
their investment in one or more of the Receivership Entities (the "Settled Claims"); and
WHEREAS, in addition to Mayfair and B. Schwab Trust, the Receiver believes
that additional parties against whom the Settled Claims could be asserted are Betty Bry
Schwab in her individual capacity, Roger Schwab in his individual capacity, and Roger
Schwab as Trustee of the Roger Schwab Revocable Trust ("R. Schwab Trusf) (Mayfair,
B. Schwab Trust, R. Schwab Tmst, Roger Schwab, and Betty Bry Schwab are
collectively referred to as the "Defendants"); and

EXHIBIT

A-

WHEREAS, Roger Schwab, as Trustee of the James Schwab Revocable Trust ("J.
Schwab Trusf) and as Trastee of the Gella Schwab Revocable Trust ("G. Schwab
Trusf), also invested in one or more Receivership Entities and incurred a loss of
approximately $172,750 and $107,750, respectively, as measured by the difference
between the amount invested and the amoimt returned; and
WHEREAS, on or about August 11, 2010, the J. Schwab Trust and G. Schwab
Trust submitted Proof of Claim Forms in cormection with the claims process instituted in
the SEC Receivership Action relating to investments in one or more Receivership Entities
(collectively the "Schwab Claim"); and
WHEREAS, Roger Schwab, as Trustee of the J. Schwab Trust and of the G.
Schwab Trust, represents and warrants that he has the express authority of the J. Schwab
Trust and G. Schwab Trust to enter into this Agreement on their behalf; and
WHEREAS, the Defendants, the J. Schwab Trust, and the G. Schwab Trast
without admitting liability, wish to resolve these matters amicably; and
WHEREAS, any resolution of the Schwab Actions and the Schwab Claim by
agreement of the Receiver and the Defendants, the J, Schwab Trust and the G. Schwab
Trust is subject to approval by the Court presiding over the SEC Receivership Action (the
"SEC Receivership Court");
NOW, THEREFORE, and subject to the approval ofthe SEC Receivership Court,
the Defendants have agreed to pay and the Receiver has agreed to accept a total of
$35,000, to be paid within 14 days after approval of this settlement by the SEC
Receivership Court, and a waiver by the J. Schwab Trust and G. Schwab Trust of any and

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all claims any of them has or may have against the Receiver and/or Receivership Entities,
including, but not limited to, the Schwab Claim, in full settlement ofthe Settled Claims.
Upon receipt and clearing of this full settlement payment, the Receiver, on behalf
of the Receivership Entities and their employees, agents, representatives, beneficiaries,
and assigns, shall be deemed to have released and forever discharged the Defendants,
Roger Schwab, as Trustee of the J. Schwab Trust, and as Trustee of the G. Schwab Trust
of and from any and all claims asserted, or which could have been asserted, in the
Schwab Actions, as well as any and all other claims, demands, rights, promises, and
obligations arising from or related in any way to the Defendants', the J. Schwab Trust's,
and the G. Schwab Trust's investment in any product, fund, entity, or venture established,
operated, or controlled by Arthur Nadel and Receivership Entities.
In further consideration of the release of claims described above, the Defendants
warrant that $85,579.93 is the approximate amoimt of money or value the Defendants
received from Receivership Entities in excess of their investment, and the Defendants, the
J. Schwab Tmst, and the G. Schwab Trast agree to waive and do hereby waive any claim
that they have, had, or hereafter may have against the Receiver and/or the Receivership
Entities.
In fiirther consideration of the Receiver's release of claims as described above,
Defendants, the J. Schwab Trust, and the G. Schwab Tmst, jouitly and severally, agree to
indemnify and hold harmless the Receiver and the Receivership Entities of and from any
claim that may arise between or among Defendants, the J. Schwab Tmst, and the G.
Schwab Trust in connection with this settlement.

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The Receiver, the Defendants, the J. Schwab Trust, and the G. Schwab Trust
understand and agree that, subject to the approval of the SEC Receivership Court, the
payment of the aforesaid total sum and waivers of claims are in full accord and
satisfaction of and in compromise of disputed claims, and the payment and waiver are not
an admission of liability, which is expressly denied, but are made for the purpose of
terminating a dispute and avoiding litigation.
After execution of this Settlement Agreement by all parties, the Receiver will
promptly move the SEC Receivership Court for approval of this settlement. If the SEC
Receivership Court approves the settlement, following receipt and clearing of the
payment called for above, the Receiver will promptly move the Court to dismiss the
Schwab Actions with prejudice. To the extent necessary, the Defendants, the J. Schwab
Tmst, and the G. Schwab Tmst agree to assist the Receiver in seeking the SEC
Receivership Court's approval of this settlement and following any such approval, in
securing the dismissal of the Schwab Actions. The Defendants, the J. Schwab Tmst, and
the G. Schwab Tmst understand and agree that each party shall bear their own individual
costs and attorney fees incurred in the resolution of this matter.
In the event Defendants fail to make any payment hereunder as provided by this
Settlement Agreement, Defendants hereby consent to the immediate entry of a joint and
several Judgment upon the filing of an affidavit from the Receiver certifying failure of
payment. Defendants acknowledge and agree that such Judgment will be for the total
amount of money Defendants received from the Receivership Entities in excess of then
investment as stated above, less any payments, plus interest at the legal rate from the date
of this agreement.

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The Receiver, the Defendants, the J. Schwab Trust, and the G. Schwab Trust
agree this Settlement Agreement shall be governed by and be enforceable under Florida
law in the United States District Court for the Middle District of Florida, Tampa
Division.
Counsel for the Receiver is expressly authorized to sign this agreement on behalf
ofthe Receiver. The Receiver, the Defendants, the J. Schwab Trust, and the G. Schwab
Trust also agree that electronically transmitted copies of signature pages will have the full
force and affect of original signed pages.
.

In wibMs? whereof theparties have set their hand^s of thedates indicated

Roger Schwab, individually and as
Tmst^^of the Roger Schwab Revocable
Trust

f . Wiand, as Receiver
/6f the Receivership Entities

Date:

as Trustee of the James Schwab Revocable Trust

as Trustee of the Gella Schwab Revocable Trust

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Is Authorized Representative of Mayfair Associates

Betty Br^chwab/mdividually
and as Trustee of the Betty Bry Schwab Revocable Trust
Date

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