While attorneys for Auction Company of America objected last week in U.S. Bankruptcy Court, Southern District of Florida, to playing videos of the botched July 17 New River Marina auction, the U.S. Attorney’s Office is not waiting to examine them.
At the July 21 hearing, Heidi A. Feinman, trial attorney for U.S. Trustee’s Office, said she was obligated to bring any information to the U.S. Attorney’s Office that might indicate a criminal action occurred in a bankruptcy case.
“Pursuant to 28 USC §586(a)(3)(F), I am not required to wait for the court to make a factual finding that a crime has or has not occurred before determining whether the matter should be referred,” she said.
In a July 22 e-mail obtained by Soundings Trade Only, Feinman wrote to the lawyers involved in the case, “It is clear from yesterday’s hearing that something unusual occurred at last week’s auction in this case,” she said. “In order to completely understand what happened, I ask that each of you provide me with any information you may have regarding the auction. This would include any written statements, copies of documents, sound bites or other recordings. I would appreciate receiving them in the next 10 days.”
At least two tapes exist, according to comments in the July 21 court hearing. One was recorded by the auction company and one was recorded by counsel for the marina’s primary secured creditor.
Michael Goldberg of Akerman Senterfitt, counsel for Transworld Marine (Allied Richard Bertram Marine Group) which made the high bid of $13.4 million, was concerned that the unwitting bidder violated auction regulations by not having a financial affidavit and had no cashier’s check until 1:45 p.m. (to enter the auction). While all attorneys said the unwitting bidder behaved erratically during and after the auction, Goldberg did not believe the attorneys for the marina or the unsecured creditors committee was involved in anything criminal.
Judge John K. Olson agreed. “The principals of the debtor (Mary and Bob Wickman of New River Marina) are not responsible for this problem … no one is pointing fingers at impropriety by the debtor or the committee.”
Auction Company of America said it was unfair to play the videotapes, on the grounds of its “authenticity and for the purpose of throwing someone under the bus.”
Nichols’ 84 Marina LLC is the primary secured creditor that pushed for the bankruptcy auction in an effort to recoup his $13.3 million investment owed by New River Marina. His attorney’s filed a an emergency motion the day after the auction to enforce settlement and for sanctions, believing that a bankruptcy crime may have been perpetrated in connection with the auction sale of New River Marina.
“We want to know why the name of the (new) bidder was not announced and why it was late,” said Thomas M. Messana, of Messana, Weinstein & Stern, P.A., counsel for 84 Marina LLC.
Arthur Spector, of Berger Singerman, P.A., attorneys for New River Marina, filed for a continuance and for the auction results to be nullified, which Judge Olson granted. The continuance provides New River Marina with the opportunity to find another investor before a sale occurs or the foreclosure proceeds Aug. 15.
“My client doesn’t want to sell the property,” Spector said.
“The person who doesn’t want the sale to go forward is in charge of (this) process,” Messana retorted.
“I am extremely concerned about the representations seen to me,” Judge Olson said. “I would love to see the video, perhaps after claims of the auction are thoroughly fleshed out.”
The next status hearing is Tuesday.
— Lisa Hoogerwerf Knapp