Securities and Exchange Commission v. Nadel et al
Unopposed MOTION for leave to file Reply To TRSTE, Inc.'s And Wells Fargo Bank, N.A.'s (As Successor To Wachovia Bank, N.A.) Objection Relating To Laurel Mountain, N.C., Property by Burton W. Wiand. (Morello, Gianluca)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
SECURITIES AND EXCHANGE
Case No. 8:09-cv-87-T-26TBM
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 FUND, LLC, AND
RECEIVER’S UNOPPOSED MOTION FOR LEAVE TO
RESPOND TO TRSTE, INC.’S AND WELLS FARGO BANK, N.A.’S
OBJECTION AND OPPOSITION TO RECEIVER’S MOTION
TO APPROVE DETERMINATION AND PRIORITY OF CLAIMS
Burton W. Wiand, as Receiver (the “Receiver”), recently filed a motion relating to
claims determinations and the claims process (the “Motion”) (Doc. 675). TRSTE, Inc.
(“TRSTE”) and Wells Fargo Bank, N.A. (“Wells Fargo”), as successor to Wachovia Bank,
N.A. (“Wachovia”), 1 subsequently filed an objection and opposition (the “Objection”) to
TRSTE and Wells Fargo are collectively referred to as Wells Fargo because TRSTE
is simply a Wells Fargo “straw” that holds property in trust pending a mortgagor’s
the Motion (Doc. 690). The Objection relates to a loan made by Wachovia to Receivership
Entity Laurel Preserve, LLC, and secured by land in North Carolina commonly referred to in
this Receivership as the “Laurel Mountain Property.” Notably, the circumstances of this
Objection are very different from those of other objections filed to date (see Docs. 683, 689)
because no claim has ever been filed with respect to the loan and security interest underlying
this matter. As such, the Court can dispose of this Objection and Wells Fargo’s interest in
the Laurel Mountain Property in their entirety at this time as they are not part of the claims
Recognizing that its failure to file a claim is fatal for its interests in the Laurel
Mountain Property, Wells Fargo now claims there are several reasons why it did not do so
and why its interests should not be adversely affected. In essence, Wells Fargo claims the
Court and the Receiver lack jurisdiction over the Laurel Mountain Property and it complains
that it did not receive notice of the Receiver’s efforts to include the Laurel Mountain
Property in this Receivership. The Receiver respectfully seeks leave to file a reply to address
several issues raised by the Objection, including:
(1) its misplaced focus on notice of inclusion of the Laurel Mountain Property
in this Receivership, rather than on notice of relevant matters, which are the
receivership’s control of that property and the claims process. The reply will
show Wells Fargo’s focus is misplaced and that it ignores the fact that the
Receiver provided many instances of relevant notice to Wells Fargo regarding
this Receivership from early in 2009, including through communications with
Wells Fargo directly relating to the Laurel Mountain Property, Proof of Claim
Forms sent to Wells Fargo, and even a letter eight months ago from the
Receiver’s counsel to the same counsel for Wells Fargo and TRSTE that filed
satisfaction of its Wells Fargo loan in certain states. Wells Fargo’s own Deed of Trust
demonstrates the inconsequential nature of TRSTE (for example, it requires notice to
Wachovia but none to TRSTE, see Obj. Ex. 1 to Ex. A at 13 (Doc. 690-1)).
the Objection specifically informing her of the claims process and the effect of
Wells Fargo’s failure to file a claim;
(2) Wells Fargo’s incorrect assertion that the Receiver did not file appropriate
papers in the U.S. District Court for the Western District of North Carolina to
trigger the Court’s “complete control and jurisdiction” under 28 U.S.C. § 754
– the reply will show that he did (see, e.g., Case No. 1:09-mc-27-LHT
(3) Wells Fargo’s factually and legally wrong assertion that the Laurel
Mountain Property (and other receivership properties) is under the jurisdiction
of the Southern District of New York instead of this Court because of claimed
forfeiture proceedings – the reply will show no such proceedings have been
initiated per an arrangement between the Receiver and federal prosecutors,
and that the Laurel Mountain Property always has been and remains under this
The Motion addresses submitted claims and the claims process, but the Objection
does not address either item – instead, it addresses purported rights despite a failure to file a
claim. As such, the Receiver has not had an opportunity to address the issues raised in the
WHEREFORE, the Receiver respectfully seeks leave to file a ten-page response to
the Objection within seven days of an order on this motion.
LOCAL RULE 3.01(g) CERTIFICATION
Counsel for the Receiver has conferred with counsel for TRSTE and Wells Fargo.
TRSTE and Wells Fargo do not object to the Receiver having leave to reply.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 23, 2011, I electronically filed the
foregoing with the Clerk of the Court by using the CM/ECF system.
I FURTHER CERTIFY that on December 23, 2011, I mailed the foregoing
document and the notice of electronic filing by first-class mail to the following non-CM/ECF
Arthur G. Nadel
Register No. 50690-018
Federal Correctional Institution
P.O. Box 999
Butner, NC 27509
Gianluca Morello, FBN 034997
Michael S. Lamont FBN 0527122
Jared J. Perez, FBN 0085192
Wiand Guerra King P.L.
3000 Bayport Drive
Tampa, FL 33607
Tel: (813) 347-5100
Fax: (813) 347-5198
Attorneys for the Receiver, Burton W. Wiand
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