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Laguna Commercial Capital, LLC, A Delaware Limited Liability Company v. Southeast Texas Ems

December 21, 2011

LAGUNA COMMERCIAL CAPITAL, LLC, A DELAWARE LIMITED LIABILITY COMPANY, PLAINTIFF,
v.
SOUTHEAST TEXAS EMS, LLC, A TEXAS LIMITED LIABILITY COMPANY; SEAN FITZGERALD, AN INDIVIDUAL; JASON BOEVER, AN INDIVIDUAL, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

E-FILED 12.21.11

FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF PRELIMINARY INJUNCTION

On December 12, 2011, plaintiff Laguna Commercial Capital, LLC ("LCC") filed an ex parte application for a temporary restraining order and order to show cause why a preliminary injunction should not issue. On December 14, 2011, the court granted Laguna's application in part and denied it in part, and ordered defendants to show cause by December 19, 2011, at 12 p.m. why a preliminary injunction should not issue. Defendants failed to respond to the court's order.

Having reviewed the evidence, arguments, and memoranda submitted by LCC in support of its motion for preliminary injunction, the court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. On or about June 23,2011, LCC and defendant Southeast Texas EMS LLC ("SETX"), by and through its representatives, Sean Fitzgerald ("Fitzgerald"), and Jason Boever ("Boever") (collectively, "Defendants"), entered into a written Accounts Receivable Purchase Agreement and Security Interest (the "SETX Factoring Agreement"), pursuant to which, among other things, LCC agreed to purchase accounts from SETX under an agreed-upon formula based upon SETX's eligible accounts receivable;

2. LCC will likely prove that on or about June 23, 2011, in order to induce LCC to consummate the transactions contemplated by the SETX Factoring Agreement, and as a condition of LCC entering into the SETX Factoring Agreement, Fitzgerald executed a Guarantee (the "Guarantee"), pursuant to which he unconditionally guaranteed all indebtedness and obligations of SETX in favor of LCC, including, but not limited to, SETX's repurchase, payment and performance obligations under the SETX Factoring Agreement;

3. Pursuant to the SETX Factoring Agreement, SETX granted LCC a security interest in various assets of SETX; on or about June 13, 2011, LCC perfected its security interest in SETX's assets by, among other things, filing a UCC-1 Financing Statement with the Texas Secretary of State bearing file stamp number 11-0017405079 (the "SETX UCC-l Financing Statement");

4. In addition, Fitzgerald granted LCC a security interest in various of his assets, which LCC perfected by filing a UCC-1 Financing Statement with the Texas Secretary of State bearing file stamp number 11-0031315085 (the "Fitzgerald UCC-l Financing Statement");

5. LCC factored SETX's healthcare accounts/receivables, which were of two types:

(a) Commercial Insurance Receivables ("CIR"), which were paid by commercial insurers; and (b) Governmental Program Receivables ("GPR"), which were paid by Medicare and/or Medicaid;

6. Under the SETX Factoring Agreement, SETX was to establish one or more lockbox and attendant collateral account(s) in SETX's name for the benefit of LCC that, with one exception described infra, were to be controlled solely by LCC;

7. Under the SETX Factoring Agreement, SETX was appointed to collect the accounts as LCC's s agent. It agreed to instruct all account debtors to make all payments to the lockbox(es) and collateral account(s), until all ofSETX's obligations to LCC were repaid in full;

8. Under the SETX Factoring Agreement, SETX agreed to receive and hold all remittances in trust for LCC;

9. With respect to the GPR, Medicare/Medicaid were to make payments into a bank account in SETX's name. The payments were then to be swept immediately into another account controlled by LCC so that LCC could use the payments to implement the terms of the SETX Factoring Agreement;

10. Although SETX received payment on the GPR in its name, the accounts and the proceeds thereof (including payments) were owned by LCC pursuant to the SETX Factoring Agreement;

11. On or about June 23, 2011, defendants (at LCC's instigation) established a lockbox and collateral account at SNB Bank of Austin for the CIR ("Lockbox Account");

12. Defendants established an account at SNB Bank of Austin for the GPR ("GPR Account") on ...


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