Securities and Exchange Commission v. Nadel et al

Filing 759

Unopposed MOTION for leave to file To File Reply To Receiver's Opposition (Doc. No. 755) by Wells Fargo Bank, N.A.. (Wirth, Steven)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION SECURITIES AND EXCHANGE COMMISSION Plaintiff, v. ARTHUR NADEL, SCOOP CAPITAL, LLC, SCOOP MANAGEMENT, INC., Defendants, CASE NO.: 8:09-0087-T-26TBM 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 VIKING MANAGEMENT, LLC. Relief Defendants. _______________________________________________/ UNOPPOSED MOTION OF WELLS FARGO BANK, N.A. FOR LEAVE TO FILE REPLY TO RECEIVER'S OPPOSITION TO MOTION OF WELLS FARGO BANK, N.A. (I) FOR DETERMINATION THAT THE FILING OF PROOFS OF CLAIM HEREIN IS NOT NECESSARY TO PRESERVE SECURED CREDITORS' VALID STATE LAW SECURITY INTERESTS IN, AND CLAIMS AGAINST, COLLATERAL IN THE RECEIVER'S POSSESSION OR, IN THE ALTERNATIVE, (II) FOR LEAVE TO FILE LATE CLAIMS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60(b) Wells Fargo Bank, N.A. ("Wells Fargo"),1 a valid secured creditor and party in interest herein, recently filed a motion (the "Motion") seeking a determination by this 1 Wells Fargo is successor by merger to Wachovia Bank, N.A. {23649188;2} Court that the filing of proofs of claim in this case is not necessary to preserve certain secured creditors' valid state law security interests in, and claims against, collateral in the Receiver's possession or, in the alternative, (ii) leave to file late claims pursuant to Federal Rule of Civil Procedure 60(b) (Doc. No. 740) (the "Motion"). The Receiver filed his opposition to the Motion (Doc. No. 755) (the "Opposition"). Wells Fargo seeks leave to file a reply to address various issues raised by the Opposition because it believes additional briefing will assist the Court with resolving the Motion. Specifically, Wells Fargo would like the opportunity to respond to the Receiver's interpretation of cases cited in the Opposition, and arguments raised in the Opposition. The issues Wells Fargo seeks to address include the Receiver’s: (1) incorrect contention that Wells Fargo was required to file a claim to preserve its security interests in, and claims against, certain receivership property; (2) misunderstanding of the receivership and bankruptcy cases discussed in the Opposition; (3) incorrect contention that applicable statutes of limitation do not apply to the Receiver; (4) incorrect representations about the law governing the untimely filing of proofs of claims, and that, in reality, applicable law authorizes the late filing of claims under these circumstances; and (5) incorrect representations that the untimely filing of Wells Fargo's claims will impact or otherwise prejudice the receivership estate when, in reality, no such delay or prejudice exists. WHEREFORE, Wells Fargo respectfully seeks leave to file a ten-page reply no later than Wednesday, June 29, 2012. {23649188;2} 2 LOCAL RULE 3.01(g) CERTIFICATION Counsel for Wells Fargo has conferred with Counsel for the Receiver and Counsel for the Securities and Exchange Commission, and each indicated that they did not oppose the relief requested in this motion. Dated this 27th day of February, 2012 in Tampa, Florida. Respectfully submitted, AKERMAN SENTERFITT /s/ Steven R. Wirth L. Joseph Shaheen, Jr. Florida Bar No.: 212385 Email: Steven R. Wirth Florida Bar No.: 170380 Email: 401 East Jackson Street, Suite 1700 Tampa, Florida 33602 Telephone: (813) 223-7333 Facsimile: (813) 223-2837 Counsel for Wells Fargo, N.A. {23649188;2} 3 CERTIFICATE OF SERVICE I hereby certify that on February 27, 2012, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which provided notice to all CM/ECF participants in this case, including: Gianluca Morello, Esq. Wiand Guerra King, P.L. 3000 Bayport Drive Suite 600 Tampa, FL 33607 Counsel for Receiver, Burton W. Wiand Terry A. Smiljanich, Esq. James, Hoyer, Newcomer & Smiljanich, P.A. One Urban Centre, Suite 550 4830 W. Kennedy Blvd. Tampa, FL 33609 Counsel for Receiver, Burton W. Wiand Scott A. Masel, Esq. Andre J. Zamorano, Esq. Securities & Exchange Commission Miami Branch Office, SERO 801 Brickell Ave., Suite 1800 Miami, FL 33131 I further certify that I mailed the foregoing document and the notice of electronic filing by first-class mail to the following: Arthur G. Nadel FCI BUTNER LOW Federal Correctional Institution P.O. Box 999 Butner, NC 27509 /s/ Steven R. Wirth Attorney {23649188;2} 4

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