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 D

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

March 8, 2012
Elendow Fund, LLC
c/o Eric Waldman
1309 South 3rd Street
Bozeman, MT 59715
Re:

Account Name:
Fund Name:
Claim Number:

Elendow Fund, LLC
SCP
458

Dear Mr. Waldman:
I am writing to you as the Court-appointed Receiver in the above matter. On March 2,
2012, the Court entered an Order granting my 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”) as it relates to the above claim. A copy of this
Motion and Order are 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 and Order.
The Court has approved my recommended determination of the above claim. This
determination is set forth in the Exhibits attached to the Motion and is addressed in the body of
the Motion. If you wish to dispute this claim’s determination, its priority, or the plan of
distribution, you MUST serve me with a written objection no later than March 28, 2012. All
objections must be served on me at Burton W. Wiand, as Receiver c/o Maya M. Lockwood, Esq.,
Wiand Guerra King P.L., 3000 Bayport Drive, Suite 600, Tampa, FL 33607, and should not be
filed with the Court. Proper service may be accomplished by sending your objection by one of
the following means: (1) U.S. mail to the above address; (2) hand delivery to the above
individual at the above address; (3) facsimile to the above address at [phone]; or (4)
overnight or other express delivery to the above address. Service by mail is completed upon
mailing, service by facsimile is completed upon transmission, and service by hand delivery is
completed upon receipt of delivery.
Your objection must clearly state the nature and basis of the objection, and provide all
supporting statements and documentation that you wish me and, if we are unable to resolve your
objection, the Court to consider. Please also include your claim number, name, and telephone
number with your objection.

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

March 8, 2012
Page 2

Failure to properly and timely serve an objection to the determination of your claim,
its priority, or plan of distribution shall permanently waive your right to object to or
contest the determination of your claim, its priority, and plan of distribution and your final
claim amount shall be set as the Allowed Amount determined by me and approved by the
Court as set forth in the Exhibits attached to the Motion.
By submitting an objection, you reaffirm your submission to the jurisdiction of the
United States District Court for the Middle District of Florida. If you serve an objection, you are
entitled to notice of court filings or proceedings, but only with respect to the adjudication of your
particular objection and the claim to which it is directed.
I may attempt to settle and compromise any claim or objection subject to the Court’s final
approval. At such times as I deem appropriate, I will file with the Court: (1) my further
determination of a claim with any supporting documents or statements I consider are appropriate;
(2) any unresolved objections, with supporting statements and documentation, as served on me
by claimants; and (3) any settlements or compromises that I wish the Court to rule upon.
The Court may make a final determination based on the submissions identified above or
may set the matter for hearing and, following the hearing, make a final determination. If you
dispute my determination of your claim, you will have the burden to prove that your position
should prevail. I will provide you notice of the hearing if the Court sets a hearing on your
particular objection.
As noted above, the Court approved my 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, I anticipate an interim distribution of at least $18 million to
claimants with Class 1 allowed claims with a positive Allowed Amount. I will make every effort
to make a prompt distribution. However, depending on the nature of any timely objection I
receive, this proposed interim distribution may have to be modified or delayed until any
objection warranting such delay is resolved. If you have an allowed claim with a positive
Allowed Amount, your recovery will depend on the outcome of any possible objections I receive
during the objection process and also will depend on the total Allowed Amount of all allowed
claims. We will not be able to determine the total amount of all allowed claims until after the
resolution of any objections.
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.

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

March 8, 2012
Page 3

If you have any questions, please feel free to call or email Jordan D. Maglich at (813)
347-5115, [e-mail].
Sincerely yours,

Burton W. Wiand
MML/car
Copies Provided To:

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