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)

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.

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/
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: [e-mail]
Michael S. Lamont, FBN 0527122
Email: [e-mail]
WIAND GUERRA KING P.L.
3000 Bayport Drive, Suite 600
Tampa, FL 33607
Tel.: [phone]
Fax:
[phone]
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