Securities and Exchange Commission v. Nadel et al

Filing 991

DECLARATION of Gianluca Morello re 990 Response in Opposition to Motion by Burton W. Wiand. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Morello, Gianluca)

EXHIBIT C

BURTON W. WIAND, RECEIVER
SEC v. Arthur Nadel, et al., Case No. 8:09-cv-87-T-26TBM
United States District Court, Middle District of Florida

December 9, 2011
Elendow Fund, LLC
c/o Eric Waldman
1309 South 3rd Street
Bozeman, MT 59715
Re:

Account Name: Elendow Fund, LLC
Fund Name: SCP
Claim Number: 458

Dear Mr. Waldman:
I am writing to you as the Court-appointed Receiver in the above matter. On December
7, 2011, I filed a Motion to (1) Approve Determination and Priority of Claims, (2) Pool
Receivership Assets and Liabilities, (3) Approve Plan of Distribution, and (4) Establish
Objection Procedure (the “Motion”). A copy of this Motion is available on my website at
www.nadelreceivership.com. If you are unable to access this website, you may contact Mary
Gura at [phone] to request a copy of the Motion. The Court has not yet entered a ruling
on the Motion. The Court may set a hearing on the Motion before issuing a decision. You are
welcome to attend this hearing, but your attendance is not required to preserve your claim or any
objection you may have to the determination of your claim. If the Court sets a hearing, I will
provide notice of the hearing on my website. It is your responsibility to monitor this website if
you would like to know whether a hearing is set in this matter. If you are unable to do so, you
may contact Ms. Gura to discuss other possible arrangements.
To minimize the disclosure of claimants’ financial affairs, I assigned each account a
claim number rather than identify each account by the name of the associated individual(s) or
entity.1 The claim number for the above account is Claim Number 458. My recommended
determination of your claim is set forth in the Exhibits attached to the Motion and is addressed in
the body of the Motion. My recommended determination of your claim will include an Allowed
Amount. The Allowed Amount is the amount to which I have determined the relevant claim is
entitled. The Allowed Amount, however, is not indicative of the amount you may ultimately
receive. Rather, I have proposed that each investor claimant holding an allowed claim with a
1

Although no receivership entities maintained separate investor accounts, the purported
statements they created and distributed referred to fictitious “accounts.” For ease of reference, I
used the term “account” in the Motion and its Exhibits although no such accounts actually
existed.

3000 BAYPORT DRIVE | SUITE 600 | TAMPA, FL 33607
TELEPHONE [phone] | FAX [phone] | www.nadelreceivership.com

December 9, 2011
Page 2

positive Allowed Amount ultimately receive a percentage of their Allowed Amount on a pro rata
basis.
I have also proposed a procedure through which you will have the opportunity to dispute
my determination of your claim. If the Court approves the procedure I have proposed, you will
be required to serve on me a written objection within twenty days of the date that I mail you a
letter informing you of the Court’s Order on the Motion. You do not need to object to my
determination of your claim until after a Court ruling on the Motion.
In the Motion, I have also set forth a proposed plan of distribution which contemplates an
interim distribution to be made on a pro rata basis and subject to certain exceptions discussed in
the Motion. At this time and if the Court grants my Motion in its entirety, I anticipate an interim
distribution of at least $18 million. It is my hope to seek the Court’s permission for this interim
distribution shortly after the objection period set forth above and in the Motion has passed.
However, my plans for an interim distribution may be delayed by any objections which may be
made to my claim determinations or plan of distribution. In addition, the amount of your
recovery (if you have an allowed claim with a positive Allowed Amount) will depend on the
outcome of any possible objections I receive during the objection process.
I have tried to make the claims process as simple and unintrusive as possible. I have
carefully considered each claim and believe that all claims have been afforded fair and equitable
treatment. My goal, of course, is to maximize the amount of distributions to victimized
investors with Allowed Claims. If you have any questions or wish to informally discuss your
claim determination, please feel free to call or email Jordan D. Maglich at [phone],
[e-mail].
Sincerely yours,

Burton W. Wiand
MML/car
Enclosures
Copies Provided To:

3000 BAYPORT DRIVE | SUITE 600 | TAMPA, FL 33607
TELEPHONE [phone] | FAX [phone] | www.nadelreceivership.com