Securities and Exchange Commission v. Nadel et al

Filing 730

NOTICE by Burton W. Wiand of Filing letter from the Receiver to the Court relating to matters between the Receivership in this case and Wells Fargo Bank, N.A. (Morello, Gianluca)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA T A M P A DIVISION SECURITIES AND EXCHANGE COMMISSION, Plaintiff, ARTHUR NADEL, SCOOP CAPITAL, LLC, SCOOP MANAGEMENT, INC., CASE NO.: 8:09-cv-0087-T-26TBM 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 FUND, LTD, VIKING IRA FUND, LLC, VIKING FUND, LLC, AND VIKING MANAGEMENT, LLC. Relief Defendants. ^ / NOTICE OF FILING Burton Wiand, as Receiver, hereby provides notice of filing the attached letter from the Receiver to the Court relating to matters between the Receivership in this case and Wells Fargo Bank, N.A. CERTIFICATE OF SERVICE I H E R E B Y C E R T I F Y that on February 2, 2012,1 electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system. I F U R T H E R C E R T I F Y that on February 2, 2012,1 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 FCIBUTNER LOW Federal Correctional Institution P.O. Box 999 Butner,NC 27509 s/ Gianluca Morello Gianluca Morello, FBN 034997 Email: Michael S. Lamont, FBN 0527122 Email: WIAND GUERRA KING P.L. 3000 Bayport Drive, Suite 600 Tampa, FL 33607 Tel.: (813)347-5100 Fax: (813)347-5198 Attorney for the Receiver, Burton W. Wiand 2 BURTON W. WIAND, R E C E I V E R APPOINTED I N S.E.C. V. Arthur Nadel et al. Case No. 8:09-cv-87-T-26TBM (M.D. Fla.) February 2, 2012 VIA C M / E C F F I L I N G The Hon. Richard A. Lazzara United States District Court, Middle District of Florida Sam M . Gibbons U.S. Courthouse 801 North Florida Avenue Tampa, FL 33602 Re: S.E. C. v. Arthur Nadel et al, Case No. 8:09-cv-87-T-26TBM (M.D. Fla.) Your Honor: I write as the court-appointed Receiver in this matter to inform the Court of a relationship between my law firm, Wiand Guerra King P.L. ("WGK"), and two related entities - Wells Fargo Bank, N.A., as successor by merger to Wachovia Bank, N.A. ("Wells Fargo Bank") and Wells Fargo Advisors, LLC, formerly loiown as Wachovia Securities, LLC ("Wells Fargo Advisors"). Although there is no clear set of Florida rules governing receivers' obligations under the circumstances described below, I believe it is appropriate to inform the Court of this relationship at this time. With respect to Wells Fargo Bank, WGK is counsel of record to that entity in a pending matter um-elated to any aspect of the Receivership. Nonetheless, WGK has discussed the situation with Wells Fargo Bank and is terminating that representation because of WGK's role in this Receivership and the current state of affairs between the Receivership and Wells Fargo Bank. Wells Fargo Advisors is a separate entity from Wells Fargo Bank, but they share a common parent. WGK has represented Wells Fargo Advisors in a number of matters, several of which are ongoing. None of those matters, however, relate to any aspect of the Receivership. Although other lawyers at WGK have represented Wells Fargo Bank and Wells Fargo Advisors, neither has ever been a client of mine, and my only role in connection with either occurred in one limited instance in approximately September 2009 when I was still a member of Fowler White Boggs, P.A. ("Fowler White"). In that instance, Wachovia Securities, LLC The Hon. Richard A. Lazzara United States District Court, Middle District of Florida February 2, 2012 Page 2 ("Wachovia Securities"), retained one of my colleagues at Fowler White to defend a FDSfRA arbitration. Because he was engaged only several months before the scheduled final arbitration hearing, I was asked to assist in the preparation and trial of the matter. On the first day of the arbitration hearing, however. Claimants' motion for postponement was granted and the matter was rescheduled to a later date. As a result, my involvement became unnecessary. In light of these facts and the current adversity between the Receivership and Wells Fargo Bank, I consulted with the staff of the Securities and Exchange Commission and have taken the following step. Going forward, James, Hoyer, Newcomer & Smiljanich, P.A. ("James Hoyer") will represent me in all Receivership matters involving Wells Fargo Bank. On December 27, 2011, this Court entered an Order granting my motion for leave to retain James Hoyer to prosecute claims by Receivership Entities against Wells Fargo Bank (Doc. 696). Since that time, James Hoyer has spent a great deal of time investigating the claims and preparing a complaint. That effort is almost complete, and I expect it to be filed in the very near future. As a result of those efforts, James Hoyer is now well informed about the various connections between Wells Fargo Banlc and this Receivership, including those arising from the various services Wells Fargo Bank provided to Arthur Nadel and his entities. James Hoyer is thus well positioned to effectively assume my representation in all Receivership matters relative to Wells Fargo Bank, and I have asked its lawyers to do so. I would also point out that while James Hoyer is representing me on a contingency basis in the lawsuit I will file against Wells Fargo Banlc {see Doc. 691), all other work undertaken in WGK's stead will be performed on an hourly fee basis at rates identical to those charged by WGK to the Receivership. As such, the financial impact to the Receivership will be no different. In fact, the Receivership may ultimately benefit because James Hoyer and I have agreed that i f James Hoyer is successful in its case against Wells Fargo Bank, any contingency fee it is awarded will be offset by the hourly fees it will have been paid to represent me in any other Receivership matters involving Wells Fargo Banlc. I am confident this limited substitution of counsel will not have any negative impact on the Receivership. M y efforts on behalf of the Receivership estate and defrauded investors will proceed unchanged, and I will continue to take all appropriate steps to recover assets so that victims with allowed claims can be compensated for the damages caused by the scheme underlying this matter. As always, I am of course happy to appear before Your Honor to address any questions the Court may have. The Hon. Richard A. Lazzara United States District Court, Middle District of Florida February 2, 2012 Page 3 Respectfully, Burton W. Wiand, as Receiver

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