Securities and Exchange Commission v. Nadel et al
Filing
653
MOTION to Approve Settlement re: EFG Bank and John or Jane Doe by Burton W. Wiand. (Attachments: #1 Exhibit A - Executed Settlement Agreement)(Lamont, Michael)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
CaseNo. 8:09-cv-87-T-26TBM
ARTHURNADEL,
SCOOP CAPITAL, LLC,
SCOOP MANAGEMENT, INC.
Defendants,
SCOOP REAL ESTATE, L.P.
V A L H A L L A INVESTMENT PARTNERS, L.P.,
V A L H A L L A 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
Burton W. Wiand, as Receiver v. EFG Bank and John or Jane Doe, Case No.: 8:10-cv-242T-17MAP (M.D. Fla.) (the "EFG Bank Action") 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 . .
. ." (Dkt. 1, Compl, ^ 7.) Burton W. Wiand was appointed by this Court as the Receiver for
Defendants other than Arthur Nadel and for Relief Defendants. (See Order Reappointing
Receiver (Dkt. 140).) Additionally, the Receivership was expanded to include Venice Jet
Center, LLC and Tradewind, LLC (Dkt. 17); Laurel Mountain Preserve, LLC, Laurel
Preserve, LLC, the Marguerite J. Nadel Revocable Trust UAD 8/2/07, and the Laurel
Mountain Preserve Homeowners Association, Inc. (Dkt. 44); The Guy-Nadel Foundation,
Inc. (Dkt. 68); Lime Avenue Enterprises, LLC, and A Victorian Garden Florist, LLC (Dkt.
79); Viking Oil & Gas, LLC (Dkt. 153); Home Front Homes, LLC (Dkt. 172); and Traders
Investment Club (Dkt. 454). A l l of the entities in receivership are collectively identified
herein as the Receivership Entities.
Pursuant to the Order Reappointing Receiver (Dkt. 493), the Receiver has the duty
and authority to:
2.
Investigate the manner in which the affairs ofthe 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 ยง 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.
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Further, the Order Reappointing Receiver (at paragraph 6) authorizes the Receiver to
"[d]efend, compromise or settle legal actions . . . in which the Receivership Entities or the
Receiver is a party . . . with authorization of this Court. . . ."
By a Complaint filed January 20, 2010, the Receiver sued EFG Bank and John or
Jane Doe (the "Defendant") to recover sums received from the Receivership Entities with a
view to marshaling assets for an eventual distribution to investors with verifiable claims in an
equitable and appropriate manner.
Specifically, the Receiver sought recovery of "false
profits" (as defined in the complaint) of $39,209.50.
As shown by the attached Settlement Agreement, the Receiver and the Defendant,
subject to the approval of this Court, have agreed to settle the EFG Bank Action for
$39,209.50, to be paid within 30 days after approval of this settlement by the SEC
Receivership Court.
In reaching this agreement, the Receiver considered the risks and
expense of litigation.
The settlement reflected by the Settlement Agreement is in the best interests of the
Receivership, the investors in the Receivership Entities, and Defendant, because resolution of
the claim avoids protracted litigation, conserving Receivership assets and judicial resources,
and avoids the cost of litigation to Defendant.
WHEREFORE, the Receiver moves the Court to approve the settlement reflected by
the attached Settlement Agreement.
LOCAL RULE 3.01(g) 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.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on September 21, 2011,1 electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system.
I FURTHER CERTIFY that on September 21, 2011,1 mailed the 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
FCI BUTNER LOW
Federal Correctional Institution
P.O. Box 999
Burner, NC 27509
s/ Michael S. Lamont
Gianluca Morello, FBN 034997
Email: gmorello@wiandlaw.com
Michael S. Lamont FBN 0527122
Email: mlamont@wiandlaw.com
Wiand Guerra King P.L.
3000 Bayport Drive
Suite 600
Tampa, FL 33607
Tel: (813) 347-5100
Fax:(813) 347-5198
Attorneys for the Receiver, Burton W. Wiand
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