Securities and Exchange Commission v. Nadel et al

Filing 843

NOTICE by Burton W. Wiand re #840 Order, #842 Order on Motion for Miscellaneous Relief Notice Of Factual Development Regarding Sale Of Real Property Located In Graham, Alamance County, North Carolina (Attachments: #1 Exhibit 1)(Cohen, Jonathan)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
ARTHUR NADEL,
SCOOP CAPITAL, LLC,
SCOOP MANAGEMENT, INC.,
CASE NO.: 8:09-cv-0087-T-26TBM
Defendants,
SCOOP REAL ESTATE, L.P.,
VALHALLA INVESTMENT PARTNERS, L.P.,
VALHALLA MANAGEMENT, INC.,
VICTORY FUND, LTD,
VIKING IRA FUND, LLC,
VIKING FUND, LLC, AND
VIKING MANAGEMENT, LLC.
Relief Defendants.
_______________________________________/
NOTICE OF FACTUAL DEVELOPMENT REGARDING SALE OF REAL PROPERTY
LOCATED IN GRAHAM, ALAMANCE COUNTY, NORTH CAROLINA
Burton W. Wiand, as Receiver (the “Receiver”), by and through his undersigned counsel,
files this Notice in order to inform the Court of the following factual development in connection
with the sale of real property located in Graham, Alamance County, North Carolina (the “Rite
Aid Property” or “Property”), which this Court approved on May 8, 2012. (Docs. 840, 842)
1.

After a long and storied chronology of filings and motion practice relating to

objections raised by Wells Fargo Bank, N.A. (“Wells Fargo” or “Bank”), which the Receiver

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will not rehash here, the Court approved the sale of the Rite Aid Property for the negotiated price
of $2,400,000.00 on May 8, 2012. (Doc. 840, 842)
2.

In its Order approving the sale, the Court acknowledged the fact that the

requirements set forth in 28 U.S.C. § 2001(b) have been satisfied here – three independent,
disinterested appraisers performed appraisals of the Rite Aid Property and the terms of the sale
of the Property were published for a period of ten (10) days in a newspaper of general circulation
(“Notice of Sale”). Specifically, the Notice of Sale was consecutively published in The TimesNews (Burlington, North Carolina, Alamance County) from April 26 to May 5, 2012. See
Affidavit of Insertion of Advertisement, attached as Exhibit 1.

By the conclusion of the

publication period, no bids or offers of purchase were submitted to the Receiver. At that time,
the Receiver’s obligation to sell the Property became unconditional.
3.

On May 10, 2012 – five days after the conclusion of the publication period – the

Receiver received a telephone call from Tim Giambrone, Director of the National Retail Group
for Marcus & Millichap Real Estate Investment Services (“Giambrone”). Giambrone claimed
to have an unidentified client who may be interested in purchasing the Rite Aid Property.
Without providing any specifics or a firm written offer, Giambrone stated that his client – who is
aware of the pending sale, but has not reviewed the Property lease or other particulars – may be
willing to pay six figures above the approved sale price of $2,400,000.00 and may be able to
expedite closing.
4.

The Receiver informed Giambrone that a firm contract has been in place for some

time, that he is bound by the contract, and that the contract does not include any contingencies
beyond the buyer putting money down and the Court approving the sale.

The Receiver

additionally confirmed that both of these contingencies have been satisfied and that he is

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preparing to close on the Property on May 15, 2012. The Receiver asked Giambrone how he
learned of the Rite Aid Property and the pending sale. In response, Giambrone stated that Wells
Fargo had brought the Property to his attention.
5.

While the Receiver has not had the opportunity to investigate the facts leading up

to the telephone call he received from Giambrone, the eleventh-hour timing makes him skeptical
of the motivation behind the call. Further, he is skeptical of the ability of an unidentified and
uninformed buyer to close in three business days for a price exceeding the existing contract price
by six figures. Regardless, the Receiver made it clear to Giambrone that he is contractually
obligated to proceed with the sale as approved by the Court earlier this week. In closing, the
Receiver indicated that he would contact Giambrone in the event that the current contract falls
through.
6.

The Receiver is currently scheduled to close on the Rite Aid Property on May 15,

2012 for the approved contract price of $2,400,000.00. Significantly, the terms of the negotiated
sale were finalized with Trinet West, LLC (“Trinet”) – the only buyer to commit to a contract –
in October 2011 after years of actively marketing the Property. Since that time, Trinet has
patiently and eagerly waited to finalize the sale of the Property, which the Court approved on
May 8, 2012.
7.

The Receiver discloses the above-described factual development to ensure that the

Court is apprised of these recent developments and that the record accurately reflects the
circumstances leading up to the sale of the Rite Aid Property. While this factual development is
interesting, in light of the fact that: (1) the Court has approved the sale of the Property; (2) no
bids or firm offers were submitted by the conclusion of the publication period; and (3) Trinet
completed all of its terms of purchase, the Receiver is obligated to honor the executed contract

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and proceed with the sale of the Rite Aid Property for the approved contract price of
$2,400,000.00. It is the Receiver’s intention to complete the sale as approved by the Court.
Accordingly, the Receiver will proceed with closing on the Rite Aid Property on May 15, 2012.

Respectfully submitted,
/s/ Jonathan B. Cohen
Jonathan B. Cohen (FBN 0027620)
Sean P. Keefe (FBN 413828)
JAMES, HOYER, NEWCOMER
& SMILJANICH, P.A.
One Urban Centre, Suite 550
4830 West Kennedy Blvd.
Tampa, FL 33609
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for the Receiver, Burton W. Wiand

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 11, 2012, I electronically filed the foregoing with
the Clerk of the Court by using the CM/ECF system.

/s/ Jonathan B. Cohen
Attorney for the Receiver, Burton W. Wiand

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