Motion for Summary Judgment in ASCENTIUM CAPITAL LLC, et al vs. IMC CAPITAL LLC, et al| Trellis.Law

On October 03, 2019 a Motion,Ex Parte was filed involving a dispute between Ascentium Capital Llc, and Imca Capital Llc, Imc Capital Llc, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
5/19/2020 5:29 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO.,TEXAS
Temieka Davis DEPUTY

Cause N0. DC- 1 9- 1 6 1 77

ASCENTIUM CAPITAL LLC, § 1N THE DISTRICT COURT

Plaintiﬁ’, g

V. g
95th JUDICIAL DISTRICT

IMC CAPITAL, LLC F/K/A g
IMCA CAPITAL, LLC, §

Defendant. g DALLAS COUNTY, TEXAS

PLAINTIFF’S RESPONSE AND OBJECTIONS T0 DEFENDANT’S MOTION FOR SUMMARY
JUDGMENTl

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Plaintiff Ascentium Capital LLC (“Ascentium” 0r “Plaintiff”), and pursuant

t0 TEX. R. CIV. P. 166a, ﬁles this its Response and Objections t0 Defendant’s Motion for Summary

Judgment (the “Response”) against Defendant IMC Capital, LLC f/k/a IMCA Capital, LLC

(“IMC”), and for same would respectfully show the Court the following:

I. OBJECTIONS T0 IMC’s SUMMARY JUDGMENT EVIDENCE

1. In support 0f its Motion for Summary Judgment (the “Motion”), IMC offers an

insufﬁcient “Business Records Affidavit,” along with various documents referenced therein, and

an afﬁdavit 0f its counsel, Ryan van Steenis.2 A summary judgment afﬁdavit must contain facts
that would be admissible in evidence at a conventional trial 0n the merits.3

1
AlthoughIMC claims it seeks summary judgment under Tex. R. CiV. P. 166a, its brieﬁng implies it seeks a n0-
evidence summary judgment pursuant to Tex. R. CiV. P. 166a(i). In an abundance 0f caution, this Response addresses
both traditional and no-evidence summary judgment.
2
See the Motion at pp. 2, see also the Motion, Exhibit 1, Exhibit l-A, Exhibit l-B, Exhibit 1-C, Exhibit 1-D, Exhibit
l-E, and Exhibit 3.
3
TeX. R. CiV. P. 166a(f); United Blood Servs v. Longoria, 938 S.W.2d 29, 30 (TeX. 1997).

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 1
2. In a summary-judgment motion, supporting and opposing afﬁdavits must “be made

0n personal knowledge, shall set forth facts as would be admissible in evidence, and shall show

afﬁrmatively that the afﬁant is competent t0 testify t0 the matters stated therein.”4 Hence, for a

summary-judgment afﬁdavit t0 have probative value, the afﬁant must swear the facts in

the afﬁdavit reﬂect his personal knowledge.5 However, the mere recitation that an afﬁdavit is

based 0n personal knowledge is insufﬁcient, as the afﬁdavit must afﬁrmatively show a basis for

the personal knowledge.6 An afﬁdavit must be direct, unmistakable, and unequivocal as t0 the facts

sworn t0, so that perjury can be assigned upon it.7 The afﬁdavit must in some way show that the

afﬁant is personally familiar with the facts so that he 0r she could personally testify as a witness.8

Statements represented in the afﬁdavit need factual speciﬁcity such as place, time, and exact

nature 0f the alleged facts.9 “The key is whether the afﬁdavit clearly shows the afﬁant is testifying

from personal knowledge.”10 Such an afﬁdavit and the exhibits thereto must be incorporated by

reference in and ﬁled with a summary judgment response; otherwise, it will not constitute

competent summary judgment evidence.“

3. Here, IMC has proffered the “Business Records Affidavit” (the “Afﬁdavit”) 0f

Greg Cohen (the “Afﬁant”), who fails t0 state any afﬁliation whatsoever with IMC. Rather, the

Afﬁdavit merely recites that the Afﬁant is “in possession 0f the business records 0f IMC Capital,

4
TEX. R. CIV. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (TeX. 1996) (per curiam); CA Partners
P. 166a(f);
v. Spears, 274 S.W.3d App. Houston [14th Dist] 2008, pet. denied).
51, 63 (Tex.
5
Kerlin v. *553 Arias, 274 S.W.3d 666, 668 (Tex.2008) (per curiam).
6
Kerlin, 274 S.W.3d at 668.
7
Burke v. Satterﬁeld, 525 S.W.Zd 950, 955 (Tex. 1975).
8
Slater v. Metro Nissan ofMontclair, 801 S.W.Zd 253, 254 (Tex. App.—F0rt Worth 1990, writ denied).
9
Southtex 66 Pipeline C0., Ltd. v. Spoor, 238 S.W.3d 538, 543 (Tex. App.—Houst0n [14th Dist] 2007, pet. denied)
(citing Brownlee v. Brownlee, 665 S.W.Zd 111, 112 (Tex.1984)).
1°
David Hittner & Lynne Liberate, Summary Judgments in Texas State and Federal Practice, 46 Hous. L. Rev. 1379,
1438 (2010).
11
See Speck v. First Evangelical Lutheran Ch, 235 S.W.3d 81 1, 816 (Tex. App.—Houst0n [lst Dist] 2007, n0
pet); Sugarland Bus. Ctr., Ltd. v. Norman, 624 S.W.Zd 639, 642 (Tex. App.—Houst0n [14th Dist] 1981, no writ).

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 2
LLC.” The Afﬁdavit fails t0 provide whether the Afﬁant has any personal knowledge 0f the

documents he attempts t0 categorize as business records 0f IMC and does not provide any basis

whatsoever for that knowledge. Therefore, Ascentium objects t0 the following statements in the

Afﬁdavit as inadmissible and incompetent summary judgment evidence because they lack any

factual 0r legal basis for the records they seek t0 introduce:

I am in possession 0f the business records 0f IMC Capital, LLC

(“IMC”). Attached are the following business records 0f IMC:

Exhibit l-A: Master Discounting Agreement dated November 21,

2013

Exhibit l-B: Lease between and among IMC, Shepherd Lane

Dental Associates, P.C. and Harry Blanek dated June 26, 2015

Exhibit 1-C: Assignment dated June 30, 2015

Exhibit l-D: Payment History Report from Ascentium Capital

LLC, dated December 28, 2018 (received by IMC from Ascentium

0n July 12, 2019)

Exhibit l-E: Demand Letter from Ascentium t0 IMC dated

February 5, 201912

Due t0 the Afﬁant’s failure t0 provide a factual basis t0 establish the authenticity 0f these

documents 0r his own personal knowledge, they are inadmissible and should be stricken.

II. SUMMARY 0F THE RESPONSE

4. IMC, in an attempt t0 forego its contractual obligation t0 repurchase a lease

agreement pursuant t0 a Master Discounting Agreement (the “Agreement”), now seeks summary

12
See the Motion, Exhibit 1, p. 1-2 (emphasis in original).

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 3
judgment 0n Ascentium’s claim for breach 0f contract. IMC’S argument teeters exclusively 0n its

disregard 0f an ongoing lawsuit initiated by the lessee and guarantor 0f the subject lease against

several defendants involving fraud in execution 0f contracts. In doing so, IMC willfully ignores

the terms 0f its agreement with Ascentium and that the vendor 0f subject lease is a named

defendant in the pending litigation, which alone creates a genuine issue 0f material fact.

5. Contrary t0 IMC’S arguments, the evidence in this case shows that Ascentium i_s

the partv that is entitled t0 iudgment as a matter 0f law. IMC defaulted under the terms 0f the

Agreement, which obligated it t0 repurchase a certain Lease Agreement N0. 2 1 58258, among other

contracts, when it breached any representation 0r warranties made t0 Ascentium. Despite formal

demand by Ascentium, IMC has failed and refused t0 comply with its contractual obligations under

the Agreement, a breach that has caused Ascentium t0 incur damages in the amount 0f $60,432.83,

plus pre-judgment interest, court costs, post-judgment interest, and reasonable and necessary

attorney’s fees and expenses.

6. Therefore, the Court should deny IMC’S Motion for Summary Judgment (the

“M0ti0n”) because Ascentium, alone, has provided more than a scintilla 0f evidence establishing

that IMC breached the Agreement by failing t0 satisfy its obligation t0 repurchase the disputed

lease because, as indicated by the ongoing lawsuit ﬁled by the Lessee and Guarantor, it was subject

t0 a claim 0f fraud and was not a bona ﬁde lease.” Further, the Court should deny IMC’S Motion,

t0 the extent is intended t0 operate as a traditional motion for summary judgment, because

Ascentium has provided clear, direct and consistent documentation and testimony evidencing

IMC’s liability under the Agreement.

13
The term “bona ﬁde,” although not deﬁned in the Agreement, means “made in good faith; Without fraud 0r
deceit.” Bona Fide, Black’s Law Dictionary (1 1th ed. 2019).

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 4
III. BASIS FOR RESPONSE

7. Ascentium’s Response is supported by the pleadings on ﬁle in the above-referenced

style and cause pending in the 95th Judicial District Court of Dallas County, Texas, and the

following evidence:

Exhibit
A
Description
The Afﬁdavit 0f Jerry Noon, Senior Vice President of Portfolio Servicing at
‘
Ascentium Capital, LLC
A-l A true and correct copy of the Master Discounting Agreement dated
November 2 1 20 1 3
,

A-2 A true and correct copy of the Assignment of the IMC Lease
A-3 A true and correct copy 0f the Lease Agreement between IMC Capital, LLC
and Shepherd Lane Dental Associates, P.C., bearing the number 2158259
dated June 26, 201 5, along With all attachments, schedules, amendments, and
addenda thereto
A-4 A true and correct copy of the Payment History
A-5 A true and correct copy of the Notice 0f Default and Acceleration dated
December 11, 2018
A-6 A true and correct copy of the letter dated February 5, 2019 sent to IMC by
Ascentium requesting IMC’s compliance With the IMC Lease and Agreement
A-7 A true and correct copy of the formal demand letter dated March 27, 2019
sent to IMC by Ascentium demanding that it adhere to its contractual
obligations under the Agreement
w The Original Petition, Application for Temporary Restraining Order,
Temporary and Permanent Injunction, ﬁled on December 5, 2018, bearing
cause number DC- 1 8— 1 8 1 78
C Defendant’s Responses to Plaintiff s Interrogatories
D Defendant’s Responses to Plaintiff s Requests for Admissions
E Declaration of Owen C. Babcock
E-l A true and correct copy 0f a printout 0f the search results for management 0f
“Complete Dental Supply LLC” obtained from the Texas Secretary 0f State’s
System for Business Organizations on May 19, 2020.
E-2 A true and correct copy 0f a printout 0f the Statement of Change of Registered
Ofﬁce/Agent of “Complete Dental Supply LLC” dated February 28, 2014 and
obtained from the Texas Secretary of State’s System for Business
Organizations on May 19, 2020.

Plaintiff respectﬁllly requests that the Court take judicial notice of the pleadings, motions, and

orders 0n ﬁle in cause number DC-19-16177 currently pending 0n the Court’s docket. As such,

PLAINTIFF’S RESPONSE T0 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 5
Ascentium incorporated by reference its First Amended Motion for Summary Judgment and all

exhibits, afﬁdavits, and evidence attached thereto as if fully set forth herein.

IV. RELEVANT FACTS

8. On 0r about November 2 1 ,
20 1 3, Ascentium entered into t0 the Master Discounting

Agreement (the “Agreement”) with IMC, whereby Ascentium agreed t0 purchase from IMC certain

contracts, the payments 0f rent 0r debt service due thereunder and the equipment and other property

covered by such contracts pursuant t0 the Assignment attached t0 the Agreement.”

9. On 0r about June 26, 2015, IMC entered into Lease Agreement N0. 2158259 (the

“Lease”) with Shepherd Lane Dental Associates, P.C. (“Lessee”), whereby IMC agreed t0 ﬁnance

the purchase 0f certain equipment from a vendor 0f the Lessee’s choosing, Complete Dental Supply

15
(“CDS”), t0 the Lessee for use in Lessee’s business operations. The Lease was personally

guaranteed by Harry Blanek (“Guarantor”).16 Pursuant t0 the Lease, ﬁnancing was provided t0

CDS, which then purportedly provided the leased equipment.

10. In accordance with the terms 0fthe Agreement, the Lease was subsequently assigned

t0 Ascentium pursuant t0 an Assignment between IMC and Ascentium. 17

11. Despite the performance under the Lease, Lessee and Guarantor defaulted 0n their

payment obligations t0 Ascentium under the Lease by failing t0 make the payment due 0n

November 28, 2018 and all payments when due thereafter. As a result 0f such default, Ascentium

began the collection process by initially sending a Notice 0f Default and Acceleration t0 the Lessee

and Guarantor 0n December 11, 2018.18 Thereafter, Ascentium discovered that various lease

14
See Exhibit A; Exhibit A- 1; Exhibit A-3.
15
See Exhibit A-3.
16
See Exhibit A-3.
17
See Exhibit A; Exhibit A-2.
18
See Exhibit A; Exhibit A- 1; Exhibit A-3; Exhibit A-4; Exhibit A-5.

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 6
agreements were already part 0f an existing lawsuit by Lessee and Guarantor against numerous

third parties, including CDS, alleging that such leases were procured by fraud.” While the IMC

Lease is not explicitly referenced in the existing lawsuit by the Lessee and Guarantor, the facts

indicate that the basis 0f such lawsuit is that certain leases, such as the IMC Lease, are allegedly

enforceable obligations, which the Lessee and Guarantor were induced into entering by fraud.”

12. Regardless 0f their merits, 0r potential lack thereof, the existence 0f these claims 0f

fraud alone Violate the following representations and warranties made by IMC t0 Ascentium in the

Agreement:

6.0 Representations Warranties and Certain Covenants as t0 Contracts
and Collateral.

6.1 With respect t0 each Contract sold and assigned t0 ASCENTIUM
CAPITAL pursuant to this Master Agreement, Seller hereby represents and
warrants t0 ASCENTIUM CAPITAL as 0f the date such Contract is sold
and assignedASCENTIUM CAPITAL,
t0 and (where applicable) agrees
with ASCENTIUM CAPITAL, as follows:

6. 1 .1 The Contract resulted from a bona ﬁde lease 0r secured ﬁnancing 0f
the Collateral described therein for business 0r commercial use;

6.1.2 The Contract represents a valid and enforceable obligation for the
aggregate gross payments, amounts and other obligations 0f the Obligor
under the Contract in accordance with the terms 0f the Contract subject t0
applicable bankruptcy, insolvency and other laws for the relief 0f debtors;

6. 1 .9 A11 0f the Collateral described in the Contract has been delivered t0
the location stated in the Contract, was new at the time 0f such delivery
unless otherwise disclosed t0 ASCENTIUM CAPITAL in writing and
approved by ASCENTIUM CAPITAL in writing, and has been
unconditionally accepted by the Obligor in a condition satisfactory t0 the
Obligor.

6. 1 .11 The Contract and payments due thereunder (including, without
the
limitation, the scheduled rental 0r debt service payments thereunder used t0
calculate the Purchase Price for the Contract) are unconditionally due and

19
See Exhibit B.
2°
See Exhibit B; Exhibit C; Exhibit D.

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 7
payable without set—off, abatement, counterclaim 0r defense of any kind
whatsoever, and except as speciﬁcally provided in the Contract the Obligor
has n0 right under the Contract 0r otherwise t0 terminate the Contract 0r t0
return the Collateral prior t0 the expiration 0f the initial term of the
Contract.”

13. In the event that IMC failed t0 adhere t0 its representations and warranties, the

Agreement also provides Ascentium the right t0 request that IMC repurchase the Lease for a set

value. Speciﬁcally, the Agreement provides:

10.0 Breaches and Remedies.

10.1 0f Seller's warranties and representations set forth herein with
If any
respect t0 a Contract shall be untrue, 0r Seller shall have failed t0 discharge
any covenant 0f Seller hereunder with respect t0 such Contract, then Seller
shall,upon demand by ASCENTIUM CAPITAL and regardless 0f whether
0r not such Contract is then in default, purchase from ASCENTIUM
CAPITAL the Contract(s) t0 which such misrepresentation 0r breach
pertains, for cash in an amount equal t0 the Repurchase Price for such
Contract as 0f the date 0f such repurchase by Seller.”

14. After an informal request for repurchase was provided t0 IMC 0n

February 5, 2019,23 Ascentium issued formal demand 0n March 27, 2019 that IMC pay all amounts

due and owing t0 Ascentium under the Lease pursuant t0 the Agreement.” In breach 0f the

Agreement, IMC has refused and failed, and continues t0 refuse and t0 fail, t0 repay Ascentium all

sums owed pursuant t0 the Lease and Agreement.”

15. As 0f December 28, 2018, IMC continues t0 owe Ascentium the sum 0f $60,432.83

in repurchase obligations pursuant t0 the Agreement, exclusive 0f interests, costs, and attorney’s

fees.26 Therefore, as a direct result 0f the breaches detailed herein, Ascentium has been injured in

21
See Exhibit A; Exhibit A- 1.
22
See Exhibit A- 1 , 111 0.
23
See Exhibit A-6.
24
See Exhibit A-7.
25
See Exhibit A; Exhibit A- 1; Exhibit A-3; Exhibit A-4.
26
See Exhibit A; Exhibit A- 1; Exhibit A-3; Exhibit A-4.

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 8
an amount not less than $60,432.83, exclusive 0f pre-judgment and post-judgment interest

according at the highest rate allowed by law, costs, and attorneys’ fees.”

V. SUMMARY JUDGMENT STANDARD

16. The movant for summary judgment ﬁling a traditional motion must establish that

n0 genuine issue 0f material fact exists and that the movant is entitled t0 judgment as a matter 0f

law.” A movant seeking afﬁrmative relief by summary judgment must prove each element 0f its
cause 0f action as a matter 0f law.” “Evidence is conclusive only if reasonable people could not

differ in their conclusions, a matter that depends 0n the facts 0f each case.”30 Only if the movant

meets its summary judgment burden does the burden shift t0 the non-movant t0 produce evidence

31
demonstrating the existence 0f a genuine issue 0f material fact precluding summary judgment.

17. The evidence raises a genuine issue 0f fact when reasonable and fair-minded jurors

could differ in their conclusions in light 0f all the summary judgment evidence.” T0 determine if

the non-movant has raised a fact issue, courts review the evidence in the light most favorable t0

the non-movant, crediting favorable evidence if reasonable jurors could d0 so, and disregarding

contrary evidence unless reasonable jurors could not.” Courts indulge every reasonable inference

and resolve any doubts in the non-movant’s favor.“

18. A no-eVidence motion for summary judgment places the burden 0n the nonmovant
t0 present summary judgment evidence that raises a genuine issue 0f material fact.” The burden

27
See Exhibit A; Exhibit A- 1; Exhibit A-3; Exhibit A-4.
28
See TeX. R. CiV. P. 166a(c); Provident Life & Accident Ins. C0. v. Knott, 128 S.W.3d 21 1, 215-16 (TeX. 2003).
29
Rhone-Poulenc, Inc. v. Steel, 997 S.W.Zd 217, 223 (TeX. 1999).
3°
City ofKeller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005) (footnote omitted).
31
Steel, 997 S.W.Zd at 222-23.
32
See Goodyear Tire & Rubber C0. v. Mayes, 236 S.W.3d 754, 755 (TeX. 2007) (per curiam).
33
See Fielding, 289 S.W.3d at 848 (citing City ofKeller, 168 S.W.3d at 827).
34
See Sw. Elec. Power C0. v. Grant, 73 S.W.3d 21 1, 215 (TeX. 2002) (citing Sci. Spectrum, Inc. v. Martinez, 941
S.W.Zd 910, 911 (Tex. 1997)).
35
TEX. R. CIV. P. 166a(i); Espalin v. Children’s Med. Ctr. ofDallas, 27 S.W.3d 675, 682 (TeX. App.—Dallas 2000,
n0 pet).

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 9
0n the nonmovant is only t0 present enough evidence t0 be entitled t0 a trial, which is just more

than a scintilla 0f evidence t0 raise a genuine issue 0f material fac t-36 More than a scintilla 0f

evidence exists when the evidence “rises t0 a level that would enable reasonable and fair-minded

”37
people t0 differ in their conclusions.

VI. ARGUMENT & AUTHORITY

19. In what amounts t0 a no-eVidence motion for summary judgment, IMC brings forth

faulty allegations that the underlying Lessee and Guarantor’s ﬁling 0f a lawsuit based upon fraud

in the execution 0f several contracts similar t0 that forming the basis for this suit is insufﬁcient t0

trigger its obligation t0 repurchase said lease. Throughout various pleadings, IMC has stressed t0

the Court that Ascentium lacks any basis t0 demand IMC satisfy its obligation t0 repurchase the

Lease because Lease is not included in the Shepherd Lane Lawsuit, which, according t0 IMC,

makes “n0 claims related t0 the SLD Lease?” However, what IMC has failed t0 make clear is that

the vendor 0f the equipment contemplated by the Lease, CDS, is a named defendant in the

Shepherd Lane Lawsuit, which is wholly controlled by the primary defendant and tortfeasor

complained 0f therein, Masoud “Jerry” Ghaffar (“Ghaffar”).39

20. Instead, IMC has proffered, without citation t0 any portion 0f the Agreement 0r

accusation 0f such by Ascentium, the idea that it must only purchase obligations that are invalid

0r unenforceable, wherein lies IMC’S fundamental misunderstanding 0f this dispute. Simply put,

IMC represented that the Lease was a bona ﬁde lease not subject t0 any claims 0r defenses. This,

as shown by the existence 0f the Shepherd Lane Lawsuit, was not the case. Therefore, IMC’S

36
Id.
37
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (TeX. 1997).
38
See Defendant’s Motion, at p. 4.
39
See Exhibit B; see also Exhibit E-l.

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 10
Motion should be denied and Ascentium is entitled t0 judgment as a matter 0f law.

A. BREACH 0F CONTRACT

16. T0 prevail 0n a claim for breach 0f contract, a claimant must prove that:

a. There is a valid, enforceable contract(s) between the parties;

b. Plaintiff is a proper party t0 sue for the contracts;

c. The plaintiffperformed, tendered performance 0f, 0r was excused from performing

its contractual obligations;

d. The defendant breached the contracts; and

e. The defendant’s breach caused the Plaintiff injury.“

17. The attached summary judgment evidence and pleadings herein conclusively

establish that Ascentium has met all the elements 0f breach 0f contract as a matter 0f law and,

therefore, IMC cannot be entitled t0 summary judgment as a matter 0f law.

A. The Agreement is a valid, enforceable contract between Ascentium and IMC

18. The Agreement is a valid, enforceable contract between Ascentium and IMC for

the sale 0f the Lease and the repurchase obligation 0f the same upon the occurrence 0f a breach 0f

the Agreement 0r Lease.“ Therefore, Ascentium has supplied more than a scintilla 0f evidence t0

satisfy Element 1 and has established the same as a matter 0f law.

B. Ascentium is the Proper Party t0 Sue 0n the Agreement.

19. Ascentium is the proper party t0 sue 0n the Agreement because it is a party t0 the

Agreement.“ Therefore, Ascentium has supplied more than a scintilla 0f evidence t0 satisfy

4°
Winchek v. American Express Travel Related Servs., 232 S.W.3d 197, 202 (TeX. App.—H0ust0n [lst Dist] 2007,
n0 pet); Zuniga v. Wooster Ladder C0., 119 S.W.3d 856, 862 (Tex. App.—San Antonio 2003, n0 pet).
41
See Exhibit A; Exhibit A- 1; Exhibit A-3.
42
See Exhibit A; Exhibit A- 1.

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 11
Element 2 and has established the same as a matter 0f law.

C. Ascentium Fully Performed Under the Agreement.

20. Ascentium fully performed its obligations under the Agreement by purchasing the

Lease.“ IMC then became obligated t0 re-purchase the Lease when it violated the representations

and warranties set forth in the Agreement.44 Therefore, Ascentium has supplied more than a

scintilla 0f evidence t0 satisfy Element 3 and has established the same as a matter 0f law.

D. IMC Defaulted Under the Terms offhe Agreement by Failing t0 Timely Repurchase the Lease.

21. IMC defaulted under the terms 0f the Agreement by failing t0 adhere t0 its

warranties and representations and by further failing t0 repurchase the IMC Lease as required.“

IMC became obligated t0 repurchase the IMC Lease upon request by Ascentium and notiﬁcation

0f a claim the IMC Lease was the subject 0f a claim 0f fraud, which is directly contrary t0 the

representations and warranties made by IMC.“ Speciﬁcally, IMC represented that the obligations

in the Lease “are unconditionally due and payable without set-off, abatement, counterclaim 0r

defense 0f any kind whatsoever. .
..” and that the Lessee and Guarantor had “n0 right under the

Contract 0r otherwise t0 terminate the Contract 0r t0 return the Collateral prior t0 the expiration of

the initial term 0f the Contract.”47 Nothing in IMC’S representations are conditioned 0n a

requirement that the set—off, abatement, counterclaim 0r defense actually be established 0r even

asserted, it just has t0 exist.“ Rather, IMC represented that the obligations under the Lease were

unconditionally due.” By the very terms 0f the Agreement, the mere existence 0f a claim 0f fraud

43 A- 1;
See Exhibit A; Exhibit Exhibit A-3.
44 A- 1;
See Exhibit A; Exhibit Exhibit A-3.
45
See Exhibit A; Exhibit A- 1; Exhibit A-3; Exhibit A-4; Exhibit B.
46
See Exhibit A; Exhibit A- 1; Exhibit B; Exhibit E.
47
See Exhibit A; Exhibit A- 1.
48
See Exhibit A; Exhibit A- 1.
49
See Exhibit A; Exhibit A- 1.

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 12
involving the execution 0f the Lease is sufﬁcient t0 trigger IMC’S obligation t0 repurchase the

Agreement. T0 require Ascentium t0 either ﬁrmly establish 0r actually be sued in relation t0 the

claimed fraud is nonsensical and contrary t0 the clear intent 0f the contracting parties. Such intent

0n the part 0f Ascentium is established by the competent testimony 0f Jerry Noon, its Vice

President 0f Asset Management.”

22. The clear language 0f the Agreement dictates that IMC represented that the Lease

was not subj ect t0 any defense 0r counterclaim. Certainly, IMC cannot now assert that fraud, which

is explicitly listed as an afﬁrmative defense in TEX. R. CIV. P. 94, is not such a defense 0r potential

counterclaim.

23. IMC argues at length that the Shepherd Lane Lawsuit is irrelevant t0 the issues

before the Court, without caring t0 attempt t0 determine why it is relevant. In the Shepherd Lane

Lawsuit, the Lessee and Guarantor, an 85-year 01d retired dentist, sued Ghaffar and his entities,

amongst others, for a variety 0f claims, including fraud and conversion.“ According t0 the Lessee

and Guarantor, Ghaffar:

improperly used [Guarantor’s] good name, his excellent credit
and reputation t0 charge hundreds 0f thousands 0f dollars t0
[Guarantor], lied t0 [Guarantor] in order t0 get him t0 guaranty
hundreds 0f thousands 0f dollars’ worth 0f business and personal
credit. .. when he had n0 idea as t0 what was being asked t0 d0; lied
t0 [Guarantor] in order t0 get him t0 either sign leases for one 0r
more 0f Defendants’ ofﬁces and/or sign guarantys for such
lease(s).52

24. This conduct falls squarely within that 0f which IMC represented was not present

in connection with the Lease — making the subj ect 0f the Shepherd Lane Lawsuit relevant t0 these

5°
See Exhibit A.
51
See Exhibit B.
52
See Exhibit B, 11
5.04.

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 13
proceedings 0n its face. Beyond just the mere assumption that the Lease, which was executed in

connection with the Lessee’s dental practice during the time period in which the Guarantor claims

he was defrauded, is implicitly included in the Shepherd Lane Lawsuit, the vendor is a named

Detendant.53 Inexplicably, Ghaffar is also the registered agent and President 0f CDS.54

25. The purpose 0f including a buy-back provision in the Agreement is t0 protect

Ascentium, who has purchased contracts without the beneﬁt 0f knowledge and access t0 how such

original contractual relationships are formed. Instead, it may only rely 0n the representations and

documents provided by IMC, which include a Service Invoice from CDS describing the equipment

contemplated by the Agreement and a document showing approval 0f the Lessee’s ﬁnancing

application, which lists Ghaffar as the contact, indicating that IMC in fact dealt with Ghaffar, not

the Guarantor — the precise situation complained 0f in the Shepherd Lane Lawsuit.55 Therefore,

Ascentium has supplied more than a scintilla 0f evidence t0 satisfy Element 4 and has established

the same as a matter 0f law.

E. IMC ’s
Breach offhe Agreement Caused Ascentium ’s
Damages.

26. IMC’ s breach 0f the Agreement caused Ascentium t0 suffer damages in the amount

ofno less than $60,432.83, plus pre-judgment interest at the highest rate allowed by law from April

25, 2019, until judgment, post-judgment interest as allowed by law, court costs, and reasonable

and necessary attorney’s fees and expenses.56 Because 0f the claim 0f fraud surrounding the Lease,

Ascentium has n0 option for collection, other than by making demand upon IMC to fulﬁll its

obligation under the Agreement. Therefore, Ascentium has supplied more than a scintilla 0f

53
See Exhibit B, ﬂ 2.16.
54
See Exhibit E-l.
55
See Exhibit A-3.
56
See Exhibit A; Exhibit A- 1; Exhibit A-3; Exhibit A-4.

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 14
evidence t0 satisfy Element 5 and has established the same as a matter 0f law.

VII. CONCLUSION AND REQUEST FOR RELIEF

27. Defendant is not entitled t0 summary judgment because Plaintiffhas produced more

than a scintilla 0f evidence in support 0f the existence 0f a valid contract, its performances under

such contract, and IMC’S breach thereof. As a result, Plaintiff’s summary judgment evidence is

sufﬁcient t0 entitle it t0 summary judgment and, at a minimum, t0 create a genuine issue 0f material

fact such that IMC’S Motion must be denied.

WHEREFORE, Plaintiff prays that the Court deny Defendant’s Motion for Summary

Judgment and grant t0 Plaintiff any other relief, at law 0r in equity, t0 which the Court deems

Plaintiffjustly entitled.

Respectfully Submitted,

PADFIELD & STOUT, L.L.P.
420 Throckmorton Street, Suite 12 1 0
Fort Worth, Texas 76 1 02
(817) 338-1616 phone
(817) 338-1610 fax

/s/ Owen C. Babcock
Mark W. Stout
State Bar I.D. # 24008096
mstout@padﬁeldstout.com
Matthew B. Fronda
State Bar I.D. #24086264
mfronda@padﬁeldstout.com
Owen C. Babcock
State Bar I.D. #24104585
obabcock@padﬁeldst0ut.com

Attorneysfor Plaintiﬁ’

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 15
CERTIFICATE 0F SERVICE

I certify that 0n May 19, forwarded a true and correct copy 0f the foregoing
2020, I

Defendant through their attorney, Ryan van Steenis 0f record Via e-service.

Owen C. Babcock
/s/

Owen C. Babcock

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 16
EXHIBIT A
Cause No. DC-19-16177

ASCENTIUM CAPITAL LLC, IN THE DISTRICT COURT

Plaintiﬁ‘,

V. 95th JUDICIAL DISTRICT
wowommomtmwowomm

IMC CAPITAL, LLC FfK/A
IMCA CAPITAL, LLC,

Defendant. DALLAS COUNTY, TEXAS

AFFIDAVIT 0F JERRY NOON

STATE OF TEXAS §

COUNTY OF HARRIS g

BEFORE ME, the undersigned ofﬁcial, on this day personally appeared Jerry Noon, known

to me to be a credible person and who, after having been by me ﬁrst duly sworn, on his oath

deposed and stated the following:

1. My name is Jerry Noon. I am over the age of eighteen (18) years and I am qualiﬁed
to make this afﬁdavit. I have personal knowledge of the facts stated herein based upon the

performance of my duties as the Vice President of Asset Management at Ascentium Capital LLC

(“Ascentium”), Plaintiff in the above-referenced case.

2. I am a custodian of records for Ascentiurn. Attached hereto as Exhibit "A-3” is the

Lease Agreement No. 2158259 (the “IMC Lease”) entered in t0 by Shepherd Lane Dental

Associates, P.C. (“Lessee”), and guaranteed by Harry Blanek (“Guarantor”), With IMC Capital,

LLC f/k/a IMCA Capital, LLC (“IMC”). Ascentium acquired Exhibit A-3 and incorporated it into

its permanent business records as a result of Ascentium’s purchase of the IMC Lease from IMC.

These records are kept in the regular course of business on behalf of Ascentiurn, and along with the

AFFIDAVIT OF JERRY NOON PAGE 1
electronic records provided upon assignment, are Ascentium’s primary source 0f business records

for this account. The accuracy 0f business records received from IMC is relied upon by Ascentium

in purchasing and collecting this account. These records are trustworthy and relied upon because

the original lessor was required t0 keep careful records 0f the account at issue in this case by law

and/or suffer business loss.

3. Attached hereto as Exhibit "A-l” through “A-2” and Exhibit “A-4” through “A-7”

are records held by Ascentium. The said records are kept in the regular course 0f business, and it

is the regular course 0f business 0f Ascentium for an employee 0r representative 0f Ascentium,

with knowledge 0f the act, event, condition, opinion 0r diagnosis recorded, t0 make the record 0r

t0 transmit information thereof t0 be included in such record; and the records were made at 0r near

the time 0r reasonably soon thereafter. The records attached hereto are the originals 0r exact

duplicates 0f the originals.

4. Attached hereto and incorporated by reference herein as Exhibit “A-l” is a true and

correct copy 0f Master Discounting Agreement dated November 21, 2013 (the “Agreement”).

5. Attached hereto and incorporated by reference herein as Exhibit “A-2” is a true and

correct copy 0f the Assignment 0f the IMC Lease from IMC t0 Ascentium.

6. Attached hereto and incorporated by reference herein as Exhibit “A-4” is a true and

correct copy 0f the payment history for the account related t0 the IMC Lease.

7. Attached hereto and incorporated by reference herein as Exhibit “A-S” is a true and

correct copy 0f the Notice 0f Default for the IMC Lease, dated December 11, 2018.

8. Attached hereto and incorporated by reference herein as Exhibit “A-6” is a true and

correct copy 0f the informal demand letter dated February 5, 2019 provided t0 IMC requesting its

compliance with IMC Lease and Agreement.

AFFIDAVIT OF JERRY NOON PAGE 2
9. Attached hereto and incorporated by reference herein as Exhibit “A-7” is a true and

correct copy 0f the formal demand letter dated March 27, 2019 provided t0 IMC demanding

compliance with the TIMC Lease and Agreement.

10. On 0r about November 21, 2013, Ascentium entered into t0 the Agreement with

IMC, whereby Ascentium agreed t0 purchase from IMC certain lease agreements, equipment

ﬁnance agreements, notes, security agreements, contracts and instruments, the payments 0f rent 0r

debt service due thereunder and the equipment and other property covered by such lease

agreements, notes, security agreements, contracts and instruments pursuant t0 the Assignment

attached t0 the Agreement.

11. On 0r about June 26, 2015, IMC entered into the IMC Lease with Lessee, whereby

IMC agreed t0 ﬁnance the purchase 0f certain equipment t0 the Lessee for use in Lessee’s business

operations. The IMC Lease and Lessee’s obligations thereunder were personally guaranteed by the

Guarantor.

12. In accordance with the terms 0f the Agreement, the IMC Lease was subsequently

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