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)

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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. _______________________________________________/ 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. {23704849;1} 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; {23704849;1} 2 (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: 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. {23704849;1} 3 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 {23704849;1} 4

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