Free Motion to Amend/Correct - District Court of Colorado - Colorado

Case 1:04-cr-00153-LTB

Document 520

Filed 09/08/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00153-LTB-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. 2. 3. 4. 5. 6. GERALD P. SMALL, III, KELLI B. SMALL, a/k/a Kelli S. Burkhalter, ROBERT E. BICHON, ROBERT J. SIGG, CHARLES E. WINNETT, and CHAD E. HEINRICH Defendants. FLAGSTAR BANK, FSB'S AND IMPAC WAREHOUSE LENDING, GROUP, INC.'S MOTION TO AMEND THE FINAL ORDER OF FORFEITURE Flagstar Bank, FSB ("Flagstar") and Impac Warehouse Lending Group, Inc. ("Impac"), through the undersigned attorneys, submits this Motion to Amend the Final Order of Forfeiture and state as follows: 1. On February 18, 2005, this Court ("Federal Court") entered a criminal Judgment

against Chad Heinrich ("Mr. Heinrich"), directing Mr. Heinrich to make $22,400,000.00 in restitution to Flagstar and $12,632,080.64 in restitution to Impac ("Heinrich Judgment").

Case 1:04-cr-00153-LTB

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2.

On February 24, 2005, the Federal Court entered a criminal Judgment against

Charles Winnett ("Mr. Winnett"), directing Mr. Winnett to make $22,400,000.00 in restitution to Flagstar and $12,632,080.64 in restitution to Impac ("Winnett Judgment"). 3. On April 8, 2005, Flagstar and Impac entered into a Settlement, Release, and

Common Interest Agreement ("Settlement Agreement"), as Amended by a First and Second Amendment, for the sharing and collection of Proceeds relating to the fraud perpetrated by the Amerifunding Defendants and Twentieth Century Mortgage, Inc. ("TCM"). (See Ex. 1.) 4. On March 10, 2006, the United States, Impac, Flagstar, and other parties entered

into a Settlement and Distribution Agreement ("Distribution Agreement") whereby property shall be forfeited to the United States and proceeds paid out according to the Restitution Order entered at the sentencing of Gerald Small. 5. This Distribution Agreement directed $22,400,000 in restitution to Flagstar and

$12,632,080.64 in restitution to Impac. 6. On March 14, 2006, the Federal Court entered a criminal Judgment against Gerald

Small ("Mr. Small"), directing Mr. Small to make $22,400,000.00 in restitution to Flagstar and $12,632,080.64 in restitution to Impac ("Small Judgment"). 7. On April 17, 2006, the Court entered a Final Order of Forfeiture ("Forfeiture

Order") directing that the United States dispose of properties in accordance with the March 10, 2006 Distribution Agreement. 8. On July 12, 2007, Flagstar and Impac executed an Assignment of Judgments and

Stipulation for Distribution of Proceeds ("Assignment"). (See Ex. 2)

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9.

Pursuant to the Settlement Agreement and the Assignment, Impac assigned to

Flagstar any further rights, title, and interest held by Impac relating to, among other things, the Heinrich Judgment, the Winnett Judgment, and the Small Judgment ("Judgments"). 10. The Assignment states that all payments and proceeds from the Judgments be

remitted entirely to Flagstar. 11. Flagstar therefore respectfully requests that this Court Amend the Forfeiture

Order to state that the United States may dispose of properties and distribute proceeds in accordance with the July 12, 2007 Assignment, and in particular, amend the Forfeiture Order to direct $35,032,080.64 in restitution to Flagstar and $0 in restitution to Impac. 12. Counsel for Flagstar has discussed the relief requested with James Russell and

Matthew Kirsch of the United States Attorney's Office. The United States Attorney's Office does not object to the relief requested. Dated September 8, 2007 _s/Brian L. Duffy__________________ Brian L. Duffy #20783 GREENBERG TRAURIG, LLP The Tabor Center 1200 17th Street, Suite 2400 Denver, Colorado 80202 Facsimile: 303.572.6540 Telephone: 303.572.6500 email: [email protected] ATTORNEYS FOR IMPAC WAREHOUSE LENDING, GROUP, INC. s/Peter J. Korneffel, Jr. Peter J. Korneffel, Jr. #19836 BROWNSTEIN HYATT & FARBER, P.C. 410 Seventeenth Street Twenty-Second Floor Denver, Colorado 80202-4437 Phone: 303.223.1100 Fax: 303.223.1111 [email protected] ATTORNEYS FOR FLAGSTAR BANK, FSB

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CERTIFICATE OF SERVICE I hereby certify that on September 8, 2007, I caused to be electronically filed the foregoing FLAGSTAR BANK, FSB'S AND IMPAC WAREHOUSE LENDING, GROUP, INC.'S MOTION TO AMEND ORDER OF FORFEITURE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Mathew T. Kirsch Assistant United States Attorney [email protected] James Sandy Russell Assistant United States Attorney [email protected] s/Peter J. Korneffel, Jr.

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