Free Stipulation - District Court of Colorado - Colorado

Case 1:03-cv-01041-PSF-BNB

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Filed 09/19/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01041-PSF-BNB UNITED STATES OF AMERICA, Plaintiff, v. DAVID B. ST. GERMAIN, and RANDY OVERLEY, Defendants.

Plaintiff's and Defendant Overley's Stipulated Facts for Trial

The plaintiff United States of America and defendant Randy Overley, through their respective counsel, stipulate to the following facts for purposes of trial and in accordance with the Court's September 15, 2005, Order. 1. Mr. Overley's name is on the deed for the "Franktown property" referenced in the Court's April 4, 2005, Order on pending motions. 2. The address of the Franktown property is 975 North Castlewood Drive, Franktown, Colorado. 3. Mr. Overley is the owner of Creative Packaging and Design, located at 2731 W. Wolfensberg Road, Sedalia, Colorado.

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4. The Franktown property is located on about 12 acres. 5. The land was purchased from or through a realtor, Craig Mundt, in about April 1999. 6. The land was purchased from Mr. Mundt through a loan in the amount of about $67,000 issued by FirstBank of Castle Rock to Mr. Overley. 7. Sometime in spring 1999 Mr. St. Germain and Mr. Overley agreed to enter into an arrangement regarding the Franktown property. There is not agreement on the proper characterization the "arrangement" is subject to testimony. Among the terms were the following: a. Mr. Overley would obtain a loan of $330,000 to pay for the construction of the house on the property. b. If there were any cost overruns (costs exceeding the $330,000 loan), Mr. St. Germain was responsible for paying those costs. c. Between spring 1999 and about October 1999, primarily Mr. St. Germain arranged for contractors to begin construction of the house. Among other things, Mr. St. Germain arranged for the delivery of logs for the house, for the excavation and construction of the foundation, and

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selection of Shane Hand as the contractor who would erect the walls, roof structure and other components of the house. 8. On October 1, 1999, Mr. Overley closed on a "single close mortgage" in the amount of $330,000 through FirstBank. The mortgage loan was secured at least by the Franktown property. 9. Shortly after the mortgage loan closing, proceeds from the mortgage loan were used to pay off the land loan. The amount of the land-loan payoff was $67,138. 10. Mr. St. Germain was convicted in 1995 of 7 counts of bank

fraud, 1 count of conspiracy and 1 count of making false statements. He was sentenced to 1 year imprisonment and 5 years probation. 11. As part of his criminal sentence, Mr. St. Germain was ordered to

pay restitution in the amount of $600,000 jointly and severally with his criminal codefendant, Robert Coakley. The current balance of the restitution order is $320,000. 12. Mr. Overley was not involved in any way with Mr. St. Germain's

crimes for which St. Germain was originally prosecuted.

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13.

After his discharge from prison in 1996, Mr. St. Germain

returned to Massachusetts. 14. In 1997, Mr. St. Germain moved to Colorado and was placed

under the supervision of the United States Probation Office in Colorado. 15. In August 1999, Mr. St. Germain's roommate, Jeff Kob, notified

Michael Wilson, Mr. St. Germain's probation officer, that Mr. St. Germain was in violation of his probation conditions in several respects, including having a "no show" job with Creative Packaging and Design and Mr. Overley. 16. In October 1999, Probation Officers Wilson and Crooks

conducted research at the Douglas County Assessor's Office to determine additional facts about the Franktown property. 17. No later than December 1999, Mr. St. Germain began working at

the Grizzly Rose Nightclub. 18. After January 15, 2000, Mr. St. Germain contributed no time,

money or labor into the project. 19. Sometime after January 15, 2000, Mr. Overley determined that he

would complete construction of the Franktown property.

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20.

By January 2001, Mr. Overley had expended all monies available

under the mortgage loan. 21. 22. To date, Mr. Overley has expended money to finish the house. The FirstBank mortgage loan was refinanced in July 2003, and

the mortgage holder is no longer FirstBank. 23. As of January 2000, the finish work on the home had not been

completed. No landscaping had been done. The outdoor deck was not installed. The flooring had not been installed. The cabinets had not been installed. The parties do not agree on all items that were left to be finished in the home. 24. On May 10, 2000, Mr. Wilson petitioned the court to revoke Mr.

St. Germain's probation on multiple grounds, including obstruction of justice, making a false statement, and failure to obtain approval prior to involvement in any real estate transaction. The revocation petition listed Mr. St. Germain's involvement in the Franktown property as one of the his probation violations. 25. The parties agree that this Court may take judicial notice of all the

pleadings, orders and other papers filed in the criminal actions relating to Mr. St. Germain--Criminal Action No. 99CR408 (D. Colo.); Criminal Action No. 94-

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10213-01-MLW (D. Mass.). Mr. Overley contends that judicial notice is required under Fed. R. Evid. 201(b). 26. The Franktown house, as constructed, is different from how Mr.

St. Germain had originally envisioned it, in that more money was put into finish work and landscaping than Mr. St. Germain had originally contemplated. 27. Only Mr. Overley's name is listed as the borrower on the land

loan and the mortgage loan. Only Mr. Overley was liable on the loans. 28. mortgage loan. 29. St. Germain gave Randy Overley the proposed real estate Mr. Overley has made all the monthly mortgage payments on the

investment opportunities documents that Mr. Overley produced for his January 24, 2001 deposition, namely Trial Exhibits 15, 16 & 18 30. during 1999. 31. Although Randy Overley held title to two H-D motorcycles, St. Overley paid for the H-D motorcycle that St. Germain used

Germain used exclusively one of those motorcycles. 32. Although Randy Overley held a lease for a 1998 Dodge pick-up

truck, St. Germain used that vehicle almost exclusively during 1999.

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33. 34. Rose. 35. 36.

Overley had no ownership interest in Parker Place. Overley made a $75,000 payment for ownership of the Grizzly

Overley lost that $75,000 investment in the Grizzly Rose. Although a 1986 Corvette at one time was held in the name of

CPD, St. Germain owned that car. 37. In 1999, St. Germain performed the majority of the "general

contracting" duties associated with the construction of the Franktown house. Dated: September 19, 2005. HADDON, M ORGAN, M UELLER, JORDAN, M ACKEY & FOREMAN, P.C. UNITED STATES OF A MERICA BY ITS A TTORNEY, W ILLIAM LEONE UNITED STATES A TTORNEY

s/ Ty Gee Ty Gee 150 East 10th Avenue Denver, CO 80203 (303) 831-7364 facsimile (303) 832-2628 Attorneys for Defendant Randy Overley

s/ Christopher Alberto Christopher Alberto Special Assistant U.S. Attorney United States Attorney's Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3311 facsimile (617) 748-3969 Attorneys for Plaintiff

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Certificate of Service I hereby certify that on September 19, 2005, I electronically filed the foregoing Plaintiff's and Defendant Overley's Stipulated Facts for Trial with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Christopher Alberto, Esq. Special Attorney for the United States United States Attorney's Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 [email protected] And I hereby certify that I have mailed or served Plaintiff's and Defendant Overley's Stipulated Facts for Trial to the following non CM/ECF participant via U.S. Mail: David B. St. Germain 16300 Ledgemont Lane, Unit 2504 Addison, TX 75001 s/ Jennifer Bell

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