Securities and Exchange Commission v. Nadel et al

Filing 772

RESPONSE in opposition re #765 MOTION to continue Hearing Scheduled for March 2, 2012 on Pending Motions filed by Securities and Exchange Commission. (Masel, Scott)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
CASE NO. 8:09-cv-87-T-26TBM
ARTHUR NADEL,
SCOOP CAPITAL, LLC,
SCOOP MANAGEMENT, INC.
Defendants,
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
Relief Defendants.
/
PLAINTIFF SECURITIES AND EXCHANGE COMMISSION’S
MEMORANDUM OPPOSING CONTINUANCE OF THE MARCH 2, 2012 HEARING
The Commission opposes Wells Fargo’s Motion to Continue the hearing scheduled for
March 2, 2012 (D.E. 765). Wells Fargo’s Motion to Disqualify the Receiver is not an emergency
filing, and, given the chronology of related events, this was appropriate. Wells Fargo’s Motion
to Continue, however, tries to imply urgency when Wells Fargo itself did not exhibit such
concern until this week. The Court can properly and pragmatically consider the Motion to
Disqualify at a later time when the parties have fully briefed it, while still enabling the
Receivership and this case to progress on other matters.

As explained in the Receiver’s response opposing this same motion (D.E. 767), Wells
Fargo has been aware for quite some time of its prior relationship with the Receiver and his firm,
as well as positions the Receiver has taken as to Wells Fargo, and the Receiver’s control of
property serving as collateral for Wells Fargo loans. There is nothing in Wells Fargo’s Motion
to Disqualify the Receiver (D.E. 766) requiring the Court to postpone a hearing on the broad
issues, among other things, of claims determination and jurisdiction (the latter raised previously
raised by Wells Fargo itself in an attempt to undercut the Receiver).1
WHEREFORE, the Commission opposes continuing the March 2, 2012 hearing and asks
the Court to deny Wells Fargo’s motion.

March 1, 2012

Respectfully submitted,
By:

s/ Scott A. Masel
Scott A. Masel
Senior Trial Counsel
Florida Bar No. 0007110
Direct Dial: [phone]
E-mail: [e-mail]
Lead and Trial Counsel
Attorney for Plaintiff
SECURITIES AND EXCHANGE
COMMISSION
801 Brickell Avenue, Suite 1800
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]

CERTIFICATE OF SERVICE
I hereby certify that on March 1, 2012, I electronically filed the foregoing with the Clerk
of the Court by using the CM/ECF system which will send a notice of electronic filing to the
following:
1

The Commission opposes disqualifying the Receiver, which can only hurt the interests of investors Nadel
scammed, through additional expense and loss of critical familiarity with the Receivership Estate, and we will
respond fully within the required time.

2

Burton W. Wiand, Esq.
Wiand Guerra King P.L.
3000 Bayport Drive, Suite 600
Tampa, FL 33607
Telephone: [phone]
Facsimile: [phone]
Court-appointed Receiver for Corporate Defendants
and Relief Defendants
Gianluca Morello, Esq.
Wiand Guerra King P.L.
3000 Bayport Drive, Suite 600
Tampa, FL 33607
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Counsel for Receiver Burton W. Wiand
Sean P. Keefe, Esq.
James, Hoyer, Newcomer, Smiljanich & Yanchunis, PA
Suite 550
4830 W Kennedy Blvd
Tampa, FL 33609
813/286-4100
Fax: [phone]
Email: [e-mail]
Counsel for Receiver Burton W. Wiand
Terry Alan Smiljanich , Esq.
James, Hoyer, Newcomer, Smiljanich & Yanchunis, PA
Suite 550
4830 W Kennedy Blvd
Tampa, FL 33609
813/286-4100
Fax: [phone]
Email: [e-mail]
Counsel for Receiver Burton W. Wiand
Maya M. Lockwood, Esq.
Wiand Guerra King P.L.
3000 Bayport Drive, Suite 600
Tampa, FL 33607
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Co-counsel for Receiver Burton W. Wiand

3

Louis Joseph Shaheen, Jr. . Esq.
Akerman Senterfitt
Suite 1700
401 E Jackson St
Tampa, FL 33602-5803
813-209-5016
Fax: [phone]
Email: [e-mail]
Counsel for Wells Fargo Bank, N.A.
Steven R. Wirth, Esq.
Akerman Senterfitt
Suite 1700
401 E Jackson St
Tampa, FL 33602-5803
813/223-7333
Fax: [phone]
Email: [e-mail]
Counsel for Wells Fargo Bank, N.A.
Ana T. Barnett, Esq.
Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, PA
Suite 2200
150 W Flagler St
Miami, FL 33130
305/789-3514
Fax: [phone]
Email: [e-mail]
Counsel for Wells Fargo Bank, N.A.
Julie Fishman Berkowitz, Esq.
Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, PA
Suite 2200
150 W Flagler St
Miami, FL 33130
305/789-3353
Fax: [phone]
Email: [e-mail]
Counsel for Wells Fargo Bank, N.A.
I further certify that on the same date I mailed the foregoing document and the notice of
electronic filing by U.S. Mail or as indicated below to the following non-CM/ECF participant:
Arthur G. Nadel
Register No. 50690-018

4

FCI Butner Low - Federal Correctional Institution
P.O. Box 999
Butner, NC 27509
Via U.S. Mail
s/ Scott A. Masel
Scott A. Masel, Esq.

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