Securities and Exchange Commission v. Nadel et al

Filing 794

MOTION for leave to file (To File Reply To Opposition of Receiver, Wiand Guerra King, P.L. and The Securities and Exchange Commission to Motion of Wells Fargo Bank, N.A. (I) To Disqualify Receiver, (II) To Disqualify Wiand Guerra King, P.L. and (III) To Disallow All Fees Payable to the Receiver and His Counsel) by Wells Fargo Bank, N.A.. (Wirth, Steven)

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.
_______________________________________________/
MOTION AND MEMORANDUM OF LAW OF WELLS FARGO
BANK, N.A. FOR LEAVE TO FILE REPLY TO OPPOSITION OF
RECEIVER, WIAND GUERRA KING, P.L. AND THE SECURITIES
AND EXCHANGE COMMISSION TO MOTION OF WELLS FARGO
BANK, N.A. (I) TO DISQUALIFY RECEIVER, (II) TO DISQUALIFY
WIAND GUERRA KING P.L. AND (III) TO DISALLOW ALL
FEES PAYABLE TO THE RECEIVER AND HIS COUNSEL
Wells Fargo Bank, N.A. ("Wells Fargo"),1 a valid secured creditor and party in
interest herein, recently filed a motion seeking (i) to disqualify Burton W. Wiand as
Receiver, (ii) to disqualify the law firm of Wiand Guerra King P.L. ("WGK") as counsel
1

Wells Fargo is successor by merger to Wachovia Bank, N.A.

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to the Receiver, and (iii) to disallow, at minimum, all fees payable to the Receiver and
WGK for any work related to Wells Fargo in this case (Doc. No. 766) (the "Motion").
The Receiver, WGK, and the Securities and Exchange Commission (the "SEC" and
together with the Receiver and WGK, the "Respondents"), each filed lengthy briefs in
opposition to the Motion (Doc. Nos. 786, 788, and 790) and accompanying affidavits
(Doc. Nos. 787 and 789) (collectively, the "Oppositions"). For the reasons set forth
below, Wells Fargo respectfully seeks leave of this Court to file one consolidated twentypage reply to the Oppositions no later than Friday, March 23, 2012 at 5:00 p.m.
MEMORANDUM OF LAW
Wells Fargo seeks leave to file a reply to address the issues raised in the
Oppositions because it respectfully believes additional briefing will assist the Court in
resolving the Motion.

Wells Fargo would like the opportunity to respond to the

Respondents' significant misrepresentations regarding certain complicated factual issues,
and their misinterpretation of the law and cases cited in the Oppositions. The issues
Wells Fargo seeks to address include the Respondents':
(1) misrepresentation to the Court as to the time the directly adverse
conflict arose between the Receiver and his law firm, WGK, and Wells
Fargo and its affiliate – in fact, there are multiple specific letters from
the Receiver and WGK to Wells Fargo and its outside counsel
asserting adverse positions against the bank beginning in at least
September 2010;
(2) incorrect representations regarding the law and the Florida Rules of
Professional Conduct as they apply to receivers in SEC receivership
proceedings;
(3) failure to address cases from this Court regarding the applicability of
the Florida Rules of Professional Conduct to receivers in SEC receivership
proceedings;

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(4) attempts to minimize the extent of the significant conflicts of interest
in this case;
(5) incorrect contention that Wells Fargo waived, consented, or otherwise
acquiesced to the conflicts and ethical violations committed by the
Receiver and his law firm, WGK;
(6) incorrect contention that Wells Fargo's policy on conflicts of interest
has no application in this case; and
(7) misinterpretation of cases discussed in the Oppositions.
WHEREFORE, Wells Fargo respectfully seeks leave to file one consolidated
twenty-page reply to the Oppositions no later than Friday, March 23, 2012 at 5:00 p.m.
LOCAL RULE 3.01(g) CERTIFICATION
Counsel for Wells Fargo has conferred with Counsel for the Receiver, Counsel for
the Securities and Exchange Commission, and Counsel for Wiand Guerra and King, P.L.,
and each indicated that they opposed the relief requested in this motion.
Dated this 15th day of March, 2012 in Tampa, Florida.
Respectfully submitted,
AKERMAN SENTERFITT
/s/ Steven R. Wirth
L. Joseph Shaheen, Jr.
Florida Bar No.: 212385
Email: [e-mail]
Steven R. Wirth
Florida Bar No.: 170380
Email: [e-mail]
401 East Jackson Street, Suite 1700
Tampa, Florida 33602
Telephone: [phone]
Facsimile: [phone]
Counsel for Wells Fargo, N.A.

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CERTIFICATE OF SERVICE
I hereby certify that on March 15, 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.
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
de la Parte & Gilbert, P.A.
Richard A. Gilbert
Patrick A. McNamara
Eric D. Nowak
Post Office Box 2350
Tampa, Florida 33601-2350
/s/ Steven R. Wirth
Attorney

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