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Home Source documents Court filing — D. Kan. No. 6:21-cr-10073 (Dkt. 221, D. Kan.)

Court filing — D. Kan. No. 6:21-cr-10073 (Dkt. 221, D. Kan.)

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         Case 6:21-cr-10073-EFM Document 221 Filed 10/15/24 Page 1 of 4




                         IN THE UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,

                               Plaintiff,

               v.                                             Case No. 6:21CR10073-001-EFM

MICHAEL R. CAPPS,

                               Defendant,

               and

SECURITY 1ST TITLE, LLC,

                               Garnishee.

            UNITED STATES OF AMERICA’S RESPONSE IN OPPOSITION TO
                  JOINT MOTION FOR DISTRIBUTION OF FUNDS

       The United States of America, by Kate E. Brubacher, United States Attorney for the

District of Kansas, and Kathryn E. Sheedy, Assistant United States Attorney, responds in

opposition to the Joint Motion for Distribution of Funds, Doc. 215, filed by Claimant Charles

Capps and Duaglo, LLC (hereinafter “Duaglo”) and Defendant Michael Capps’ Joinder in Support

of Joint Motion for Distribution of Funds and Waiver of Claim, Doc. 219.

       In support of its response, the United States represents as follows:

       1.      Duaglo lacks standing to request distribution of funds. Duaglo and Claimant Capps

filed a Joint Motion to Allow Intervention of Duaglo, LLC, Doc. 217, to which the United States

responded in opposition. Unless and until the Court grants Duaglo’s intervention request, Duaglo

is not a party to this proceeding and has no standing to request distribution of funds.
         Case 6:21-cr-10073-EFM Document 221 Filed 10/15/24 Page 2 of 4




       2.      As further explained in the United States’ Response in Opposition to Joint Motion

to Allow Intervention of Duaglo, LLC, Doc. 220, Duaglo’s acceptance of $155,027.04 to settle a

dispute relating to the priority of the interests of Duaglo, LLC and the United States in the

Governeour Street residence serves as an accord and satisfaction of Duaglo’s interest in the

property and bars further litigation of the same issue.

       3.      Even if the Court were to grant the Joint Motion to Allow Intervention of Duaglo,

LLC, Doc. 217, set aside the Statutory Warranty Deed wherein Duaglo relinquished any interest

it held in the Governeour Street residence, invalidated the Extension and Amendment of Contract

for Purchase of Property and Redemption Rights executed by Duaglo, and reinstated the original

sale contract between Duaglo and Defendant Capps, Duaglo would only be entitled to an additional

$12,681.55 over what was already paid to Duaglo from the closing of the sale. However, it now

requests “the balance” of $74,573.37, less $55,000 paid to Claimant Charles Capps, or $19,573.37.

Duaglo provides no legal basis for its claim to the additional $6,891.82 and none exists.

       4.      Disposition of the $74,573.37 held by Garnishee Security 1st Title, LLC, pursuant

to the Writ of Garnishment, Doc. 171, is not ripe for consideration by the Court. This garnishment

proceeding is governed by the Fair Debt Collection Practices Act, 28 U.S.C. § 3001 et seq.

On September 12, 2023, the Court heard oral arguments on Claimant Capps’ Objection to

Garnishment, Doc. 197, and the United States’ response in opposition thereto. See Doc. 203. The

Court has not yet decided the issues raised by the Objection. Pursuant to 28 U.S.C. §§ 3202 and

3205(c)(7), the Court will enter an order directing the garnishee as to the disposition of Defendant

Capps’ interest in the $74,573.37 held by Garnishee Security 1st Title, LLC, after deciding

Claimant Capps’ interest, if any, in the property.




                                                 2
         Case 6:21-cr-10073-EFM Document 221 Filed 10/15/24 Page 3 of 4




        5.      Claimant Capps, Duaglo, and Defendant Capps offer no legal support for their

request for distribution of $5,000 of the $74,573.37 held by Garnishee Security 1st Title, LLC, to

Claimant Capps for attorney fees and none exists.

        6.      Claimant Capps and Defendant Capps’ attempts to further argue and supplement

their positions previously considered by the Court at the hearing held on September 12, 2024, and

in supplemental briefing should be disregarded as procedurally improper.

        7.      The joinder of Defendant Capps to the request for distribution to Claimant Capps

and Duaglo and his wavier of any claim to the $74,573.37 held by Garnishee Security 1st Title,

LLC, amounts to yet another attempt by Defendant Capps to delay and frustrate the United States’

efforts to enforce the order of restitution against him. His disclaimer of interest directly contradicts

statements made at the outset of this dispute:

                Please note that, at the same instant Duaglo took an assignment of
                Mr. Capp’s redemption rights, the consideration for the agreement
                is the right of Michael Capps to remain in possession and the right
                to re-purchase the property. Therefore, Mr. Capps remains the
                owner in equity. It appears, in essence, that Mr. Capps mortgaged
                his residence to Duaglo to finance the redemption; and now is ready
                to realize on the sale of his homestead.

                This right to purchase and continuity of possession each establishes
                the continuity of title and possession required to claim a continuous
                homestead.

Exhibit A, Email from Ted. E. Knopp to AUSA Kathryn Sheedy on November 27, 2023.

        WHEREFORE, the United States respectfully requests that the Court deny the Joint Motion

for Distribution of Funds, Doc. 215, filed by Claimant Charles Capps and Duaglo and disregard

Defendant Michael Capps’ Joinder in Support of Joint Motion for Distribution of Funds and

Waiver of Claim, Doc. 219.




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         Case 6:21-cr-10073-EFM Document 221 Filed 10/15/24 Page 4 of 4




                                              Respectfully submitted,

                                              KATE E. BRUBACHER
                                              United States Attorney
                                              District of Kansas

                                              s/ Kathryn E. Sheedy
                                              KATHRYN E. SHEEDY
                                              Assistant United States Attorney
                                              Ks. S.Ct. No. 22867
                                              Federal Building, Suite 290
                                              444 SE Quincy
                                              Topeka, Kansas, 66683-3592
                                              PH: 785-295-2850
                                              FX: 785-295-2658
                                              E-mail: kathryn.sheedy@usdoj.gov
                                              Attorneys for the Plaintiff United States


                                  CERTIFICATE OF SERVICE

        I certify that on October 15, 2024, the foregoing was electronically filed with the clerk of
the court by using the CM/ECF system, which will send a notice to all parties receiving notices
electronically, including Defendant Michael R. Capps.

       I further certify that on this date the foregoing document and the notice of electronic filing
were served via U.S. mail upon the following non-CM/ECF participant: NONE.


                                                      s/ Kathryn E. Sheedy
                                                      KATHRYN E. SHEEDY
                                                      Assistant United States Attorney




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