Free Opposition (Other) - District Court of Colorado - Colorado

Case 1:04-cr-00153-LTB

Document 392

Filed 12/16/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 04-CR-00153-B UNITED STATES OF AMERICA, Plaintiff, v. GERALD SMALL., KELLI B. SMALL, aka Kelli S. Burkhalter, ROBERT E. BICHON, ROBERT J. SIGG, CHARLES E. WINNETT, and CHAD E. HEINRICH, Defendants.

PETITION OF JPMORGAN CHASE BANK, N.A., FOR ANCILLARY HEARING

JPMorgan Chase Bank, N.A., successor by merger to Bank One, N.A., successor by merger to Bank One, Colorado, N.A. ("JPMorgan") by and through its counsel, David S. Steefel, Esq., petitions this court for an ancillary hearing pursuant to Title 18, United States Code, Section 982(b)(1)(A), incorporating Title 21, United States Code, Section 853, and asserts its interest as an innocent third party with respect to property which has been forfeited to the United States, in the above-styled case, as follows: 1. JPMorgan asserts its interest in the property ordered forfeited to the United States

in this Court's Preliminary Order of Forfeiture dated October 14, 2005, commonly known as 591 Breckenridge Drive, Broomfield, Colorado, and legally described as Country Estates Filing No.

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3, Block 1, Lot 7; Parcel No. 1575-24-3-10-007; City and County of Broomfield, Colorado ("Property"). 2. JPMorgan is the beneficiary of that certain Deed of Trust, Assignment of Leases

and Rents, Security Agreement, and Financing Statement, granted by Kelli S. Burkhalter in favor of JPMorgan's predecessor-in-interest, Bank One, Colorado, N.A., dated September 8, 1999 ("First Deed of Trust"). The First Deed of Trust was recorded September 21, 1999, as Reception No. 1983542 in the official records ("Official Records") of the County of Boulder, State of Colorado. A true and correct copy of the First Deed of Trust is attached as Exhibit A to Exhibit 1 which is the Affidavit Of William J. Verbos In Support Of Petition For Ancillary Hearing ("Supporting Affidavit"). At the time of the transactions described herein, the Property was located in the County of Boulder. However, the County of Broomfield has since been formed and the Property is now located in the City and County of Broomfield. 3. The First Deed of Trust secures, among other things, the proceeds issued pursuant

to a Promissory Note ("First Note") dated September 8, 1999, in the original principal amount of $404,400.00, which was executed and delivered to JPMorgan's predecessor-in-interest, Bank One, Colorado, N.A., by Kelli S. Burkhalter. A true and correct copy of the First Note is attached to the Supporting Affidavit as Exhibit B. 4. There is presently due and owing under the First Note a principal balance of

$317,835.29, together with interest in the amount of $27,077.80, which accrues at a rate of 8.25% per annum or 0.0226% per diem from and after the date hereof, and late fees and other charges in the total amount of $1,067.50.

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5.

Ms. Burkhalter is currently in default of the First Note as a result of her failure to

make payments as provided therein. Ms. Burkhalter has been in default of the First Note since April 25, 2005. 6. JPMorgan is the beneficiary of that certain Deed of Trust, granted by Kelli S.

Burkhalter in favor of JPMorgan's predecessor-in-interest, Bank One, N.A., dated January 26, 2001 ("Second Deed of Trust"). The Second Deed of Trust was recorded February 13, 2001, as Reception No. 2118519 in the Official Records. A true and correct copy of the Supporting Affidavit as Exhibit C. 7. The Second Deed of Trust secures, among other things, the proceeds issued

pursuant to a Promissory Note ("Second Note") dated January 26, 2001, in the original principal amount of $312,000.00, which was executed and delivered to JPMorgan's predecessor-ininterest, Bank One, N.A., by Kelli S. Burkhalter. A true and correct copy of the Second Note is attached to the Supporting Affidavit as Exhibit D. 8. There is presently due and owing under the Second Note a principal balance of

$310,238.27, together with interest in the amount of $20,731.72, which accrues at a rate of 7.5% per annum or $63.75 per diem from and after the date hereof, and late fees and other charges in the total amount of $1,083.50. 9. Ms. Burkhalter is currently in default of the Second Note as a result of her failure

to make payments as provided therein. Ms. Burkhalter has been in default of the Second Note since April 27, 2005. 10. Pursuant to Title 18, United States Code, Section 982(b)(1)(A), incorporating

Title 21, United States Code, Section 853, the petitioner JPMorgan has a prior vested and superior interest in the Property. 3
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11.

The petitioner seeks relief from this Court's Preliminary Order of Forfeiture and

hereby requests that this Court hold a hearing ancillary to the criminal conviction of the abovenamed defendants at which the petitioner may testify and present evidence and witnesses on its own behalf pursuant to Title 18, United States Code, Section 982(b)(1)(A), incorporating Title 21, United States Code, Section 853. The petitioner hereby further requests that this Court amend its Preliminary Order of Forfeiture dated October 14, 2005, to recognize fully the interests of JPMorgan as set forth herein. Dated this 16th day of December, 2005. Respectfully submitted:

s/Matthew J. Smith________________________________ David S. Steefel, #9194 Matthew J. Smith, #32043 HOLME ROBERTS & OWEN LLP 1700 Lincoln Street, Suite 4100 Denver, Colorado 80203-4541 Telephone: (303) 861-7000 Facsimile: (303) 866-0200 E-Mail: [email protected] Attorney for Petitioner, JPMorgan Chase Bank, N.A.

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 16th day of December, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of the filing to the following email addresses: Michael F. Arvin [email protected] [email protected] Counsel for Gerald Small Lisa A. Christian [email protected] [email protected]; [email protected] Sean Connelly [email protected] [email protected]; [email protected] Walter L. Gerash [email protected] [email protected] Steven M. Feder [email protected] Counsel for Kelli Small

Matthew T. Kirsch [email protected] [email protected]; [email protected] Counsel for United States of America

Charles W. Elliott [email protected] [email protected] Counsel for Chad Heinrich

Robert T. McAllister [email protected] [email protected] Counsel for Gerald Small

Larry S. Pozner [email protected] [email protected]; [email protected] Counsel for Robert Sigg James F. Scherer [email protected]

Randy S. Reisch [email protected] [email protected] Counsel for Charles Winnett

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and I certify that on December 16, 2005, I mailed the foregoing to the following non-CM/ECF participants by regular mail: Iris Eytan Bell Hoffman, Reilly, Pozner & Williamson, L.L.P. 511 16th Street, #700 Denver, CO 80202 Dennis J. Jacobson Dennis J. Jacobson, Attorney at Law 333 South Allison Parkway, #300 Lakewood, CO 80226 Scott Robinson Scott H. Robinson, PC 1660 Lincoln, #3150 Denver, CO 80264 Stacey L. Ross Springer & Steinberg, P.C. 1600 Broadway, #1200 Denver, CO 80202 Peter Korneffel, Esq. 470 17th Street, Suite 2200 Denver, CO 80202 Counsel for Flagstar Bank, FSB Deanne Stodden, Esq. 999 18th Street, Suite 2201 Denver, CO 80202 Counsel for Countrywide Home Loans and Bank One Mortgage Electronic Registration Systems, Inc. 601 Fifth Avenue Scottsbluff, NE 69361 as Nominee for Aurora Loan Services, Inc. Security Title National Inc. 635 Eldorado Blvd., Suite 1112 Broomfield, CO 80021 TDF Mortgage Funding 635 Eldorado Blvd., Suite 1112 Broomfield, CO 80021 Amerijet Services, LLC 11906 Hangar Court Broomfield, CO 80020 Amerijet Services, Inc. 11705 Airport Way, #105 Broomfield, CO 80021 RSGT Development, Inc. 14149 Augusta Drive Broomfield, CO 80020 RSGT Development, Inc. 11705 Airport Way, #105 Broomfield, CO 80021 Robert Mendoza 5935 West 33rd Avenue Wheatridge, CO 80212 s/Tamara J. Corder

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