6:21-cv-00164-JFH Document 2 Filed in ED/OK on 06/09/21 Page 1 of 10
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`21-cv-164-JFH
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`6:21-cv-00164-JFH Document 2 Filed in ED/OK on 06/09/21 Page 2 of 10
`6:21-cv-00164-JFH Document 2 Filed in ED/OK on 06/09/21 Page 2 of 10
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`Ardmore, Oklahoma 73401. Consequently, for diversity jurisdiction purposes, Women’s Health is a
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`citizen of the State of Oklahoma. Women‘s Health and may be served with apprOpriate process by
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`serving its registered agent, Justin R. Landgraf, at 7 East Main, Ardmore, Oklahoma 73401.
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`3.
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`Defendant Henry Ramirez (“Dr. Ramirez”) is an Oklahoma resident and may be
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`served with appropriate process at 1222 Buckingham, Ardmore, Oklahoma 73401. For diversity
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`jurisdiction purposes, Dr. Ramirez is a citizen of the State of Oklahoma.
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`11. JURISDICTION & VENUE
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`4.
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`This Court has jurisdiction over this dispute pursuant to 28 U.S.C. § 1332(a) because
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`this is a civil action for damages with an amount in controversy exceeding the sum of $75,000.00,
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`exclusive of interest and costs, and is between citizens of different states.
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`5.
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`Venue is proper in this Court under 28 U.S.C. § 1391(1)) because Defendants reside
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`and regularly transact business in the Eastern District of Oklahoma. Venue is also proper under
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`28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claim
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`occurred within this judicial district.
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`III. RELEVANT FACTS
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`A.
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`Facts Relevant to Eguipment Finance Agreement #2183813
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`6.
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`Women’s Health signed and executed Equipment Finance Agreement No. 2183813
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`(“Agreement #1”). A true and correct copy of Agreement #1, including all exhibits, schedules, and
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`addenda thereto, is attached hereto and incorporated herein by reference as Exhibit “A.”
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`7.
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`Pursuant to the terms of Agreement #1, Women’s Health was required to pay
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`Plaintiff six (6) equal payments each in the amount of $99.00 followed by sixty (60) equal,
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`consecutive monthly payments in the amount of $2,265.67, with the first such installment payment
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`due on the Commencement Date as defined in Agreement #1. As set forth in Agreement #1,
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`PAGE 2 OF 10
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`6:21-cv-00164-JFH Document 2 Filed in ED/OK on 06/09/21 Page 3 of 10
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`Women’s Health granted to Ascentium a security interest
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`in the Collateral
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`(as defined in
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`Agreement #1) and all proceeds to secure Women’s Health obligations under Agreement #1.
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`8.
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`Concurrent with the execution of Agreement #1 and as an inducement for and
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`consideration of Ascentium to enter into Agreement #1, Women’s Health and Dr. Ramirez signed
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`and entered into a guaranty agreement as shown on the first page of Agreement #1, whereby Dr.
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`Ramirez unconditionally guaranteed to Ascentium the payment and performance of all of Women’s
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`Health’s obligations under Agreement #1 and all related documents executed by Women’s Health.
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`9.
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`Pursuant to the Agreement, Defendants granted to Ascentium a first priority security
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`interest in the subject equipment, including additions, attachments, accessories and all substitutions
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`and proceeds thereof. Ascentium, or its predecessors in interest, duly perfected its security interest
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`in the subject equipment by filing a UCC-l Financing Statement with the Oklahoma Secretary of
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`State. A true and correct copy of the UCC-l Financing Statement filed by Ascentium for the
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`equipment contemplated by the Agreement is attached hereto and incorporated by reference for all
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`purposes as Exhibit “A-l.” Ascentium has obtained all of the equipment in Defendants’ possession
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`and will dispose of it in a commercially reasonable manner. Any net proceeds will be accounted for
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`and credit given to the Defendants in accordance with the terms of Agreement #1.
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`10.
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`Defendants have failed to honor their payment obligations under Agreement #1 and
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`are in default thereunder. Afier accounting for all lawful offsets, payments, and credits, the schedule
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`balance owed by Defendants under Agreement #1 is $126,484.03.
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`B.
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`Facts Relevant to Eguipment Finance Agreement #2211356
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`11.
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`Women’s Health signed and executed Equipment Finance Agreement No. 2211356
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`(“Agreement #2”). A true and correct copy of Agreement #2, including all exhibits, schedules, and
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`addenda thereto, is attached hereto and incorporated herein by reference as Exhibit “B.”
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`PAGE 3 OF 10
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`6:21-cv-00164-JFH Document 2 Filed in ED/OK on 06/09/21 Page 4 of 10
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`12.
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`Pursuant to the terms of Agreement #2, Women‘s Health was required to pay
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`Ascentium three (3) equal payments in the amount of $99.00 each, followed by sixty (60) equal,
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`consecutive monthly payments in the amount of $4,379.21, with the first such installment payment
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`due on the Commencement Date as defined in Agreement #2. As set forth in Agreement #2,
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`Women’s Health granted to Ascentium a security interest in the Collateral (as defined in Agreement
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`#2) and all proceeds to secure Women’s Health obligations under Agreement #2.
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`l3.
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`Concurrent with the execution of Agreement #2 and as an inducement for and
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`consideration of Ascentium to enter into Agreement #2, Dr. Ramirez signed and entered into a
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`guaranty agreement as shown on the first page of Agreement #2, whereby Dr. Ramirez
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`unconditionally guaranteed to Ascentium the prompt payment and performance of all of Women’s
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`Health’s obligations under Agreement #2 and all related documents executed by Women’s Health.
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`14.
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`Pursuant to the Agreement, Defendants granted to Ascentium a first priority security
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`interest in the subject equipment, including additions, attachments, accessories and all substitutions
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`and proceeds thereof. Ascentium, or its predecessors in interest, duly perfected its security interest
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`in the subject equipment by filing a UCC-l Financing Statement with the Oklahoma Secretary of
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`State. A true and correct copy of the UCC—l Financing Statement filed by Ascentium for the
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`equipment contemplated by the Agreement is attached hereto and incorporated by reference for all
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`purposes as Exhibit “8-1.” Ascentium has obtained all of the equipment in Defendants’ possession
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`and will dispose of it in a commercially reasonable manner. Any net proceeds will be accounted for
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`and credit given to the Defendants in accordance with the terms of Agreement #2.
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`15.
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`Defendants have failed to honor their payment obligations under Agreement #2 and
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`are in default thereunder. After accounting for all lawful offsets, payments, and credits, the balance
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`owed by Defendants under Agreement #2 is $120,346.45.
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`PAGE 4 OF I0
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`6:21-cv-00164-JFH Document 2 Filed in ED/OK on 06/09/21 Page 5 of 10
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`C.
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`Facts Relevant to Eguipment Finance Agreement #2228018
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`16.
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`Women’s Health signed and executed an Equipment Finance Agreement, agreement
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`No. 2228018 (“Agreement #3”). A true and correct copy of Agreement #3, including all exhibits,
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`schedules, and addenda thereto,
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`is attached hereto and incorporated herein by reference as
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`Exhibit “C.”
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`17.
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`Pursuant to the terms of Agreement #3, Women’s Health was required to pay
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`Ascentium three (3) equal payments in the amount of $99.00 each, followed by fifty-seven (57)
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`equal, consecutive monthly payments in the amount of $5,026.19, with the first such installment
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`payment due on the Commencement Date as defined in Agreement #3. As set forth in Agreement
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`#3, Women’s Health granted to Ascentium a security interest in the Collateral (as defined in
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`Agreement #3) and all proceeds to secure Women’s Health’s obligations under Agreement #3.
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`18.
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`Concurrent with the execution of Agreement #3 and as an inducement for and
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`consideration of Ascentium to enter into Agreement #3, Dr. Ramirez signed and entered into a
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`guaranty agreement as shown on the first page of Agreement #3, whereby Dr. Ramirez
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`unconditionally guaranteed to Ascentium the payment and performance of all of Women’s Health’s
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`obligations under Agreement #3 and all related documents executed by Women’s Health.
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`19.
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`Pursuant to the Agreement, Defendants granted to Ascentium a first priority security
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`interest in the subject equipment, including additions, attachments, accessories and all substitutions
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`and proceeds thereof. Ascentium, or its predecessors in interest, duly perfected its security interest
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`in the subject equipment by filing a UCC-l Financing Statement with the Oklahoma Secretary of
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`State. A true and correct copy of the UCC-l Financing Statement filed by Ascentium for the
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`equipment contemplated by the Agreement is attached hereto and incorporated by reference for all
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`purposes as Exhibit “C-l.” Ascentium has obtained all of the equipment in Defendants’ possession
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`PAGE 5 OF 10
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`6:21-cv-00164-JFH Document 2 Filed in ED/OK on 06/09/21 Page 6 of 10
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`and will dispose of it in a commercially reasonable manner. Any net proceeds will be accounted for
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`and credit given to the Defendants in accordance with the terms of Agreement #3.
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`20.
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`Defendants have failed to honor their payment obligations under Agreement #3 and
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`are in default thereunder. After accounting for all lawfiil offsets, payments, and credits, the schedule
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`balance owed by Defendants under Agreement #3 is $143,178.59.
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`D.
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`Facts Relevant to Eguigment Finance Agreement #2228019
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`21.
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`Women’s Health signed and executed an Equipment Finance Agreement, agreement
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`No. 2228019 (“Agreement #4”). A true and correct copy of Agreement #4, including all exhibits,
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`schedules, and addenda thereto,
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`is attached hereto and incorporated herein by reference as
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`Exhibit “D.”
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`22.
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`Pursuant to the terms of Agreement #4, Women’s Health was required to pay
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`Ascentium three (3) equal payments in the amount of $99.00 each, followed by fifty-seven (57)
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`consecutive monthly payments in the amount of $4,105.67, with the first such installment payment
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`due on the Commencement Date as defined in Agreement #4. As set forth in Agreement #4,
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`Women’s Health granted to Ascentium a security interest in the Collateral (as defined in Agreement
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`#4) and all proceeds to secure Women’s Health“ obligations under Agreement #4.
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`23.
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`Concurrent with the execution of Agreement #4 and as an inducement for and
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`consideration of Ascentium to enter into Agreement #4, Dr. Ramirez signed and entered into a
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`guaranty agreement as shown on the first page of Agreement #4, whereby Dr. Ramirez
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`unconditionally guaranteed to Ascentium the payment and performance of all of Women’s Health’s
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`obligations under Agreement #4 and all related documents executed by Women’s Health.
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`24.
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`Pursuant to the Agreement, Defendants granted to Ascentium a first priority security
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`interest in the subject equipment, including additions, attachments, accessories and all substitutions
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`PLAINTIFF'S ORIGINAL COMPLAINT
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`PAGE 6 OF '0
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`6:21-cv-00164-JFH Document 2 Filed in ED/OK on 06/09/21 Page 7 of 10
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`and proceeds thereof. Ascentium, or its predecessors in interest, duly perfected its security interest
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`in the subject equipment by filing a UCC-l Financing Statement with the Oklahoma Secretary of
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`State. A true and correct copy of the UCC-l Financing Statement filed by Ascentium for the
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`equipment contemplated by the Agreement is attached hereto and incorporated by reference for all
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`purposes as Exhibit “D-l .” Ascentium has obtained all of the equipment in Defendants’ possession
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`and will dispose of it in a commercially reasonable manner. Any net proceeds will be accounted for
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`and credit given to the Defendants in accordance with the terms of Agreement #4.
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`25.
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`Defendants have failed to honor their payment obligations under Agreement #4 and
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`are in default thereunder. After accounting for all lawful offsets, payments, and credits, the schedule
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`balance owed by Defendants under Agreement #4 is 113,436.83.
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`26.
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`Ascentium has declared Defendants in default under Agreement #1, Agreement #2,
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`Agreement #3 and Agreement #4 collectively (the “Agreements”), whereby Ascentium has
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`accelerated the remaining payments due thereunder.
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`27.
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`The accelerated amount due under Agreement #1, after discounting future payments
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`to present value, is $126,484.03:
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`EFA #2183813 -
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`
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`Past Due Payments:
`Default Interest on Past Due Amounts (1.5% per month):
`Future Pa merits Accelerated 3% nresent value discount an alied :
`TOTAL:
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`$85,572.57
`$18,628.61
`$22,642.85
`$126 484.03
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`28.
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`The accelerated amount due under Agreement #2, afier discounting future payments
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`to present value, is $120,346.45:
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`EFA #22 l 1356
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`$120 46.45
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`Past Due Payments:
`Default Interest on Past Due Amounts (1.5% per month):
`Future Pa ments Accelerated 3% uresent value discount a- ulied :
`TOTAL:
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`$21,896.05
`$91 1.60
`$97,538.80
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`PLAINTIFF'S ORIGINAL COMPLAINT
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`PAGE 7 OF 10
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`29.
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`The accelerated amount due under Agreement #3, after discounting future payments
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`to present value, is $143,178.59:
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`EFA #2228018
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`
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`Past Due Payments:
`Default Interest on Past Due Amounts (1.5% per month):
`Future Pa ments Accelerated 3% nresent value discount an olied :
`TOTAL:
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`$50,390.38
`$4,524.50
`$88,263.71
`$143 178.59
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`30.
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`Finally, the accelerated amount due under Agreement #4, afier discounting future
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`payments to present value, is $113,436.83:
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`Past Due Payments:
`Late Charges:
`Default Interest on Past Due Amounts (1.5% per month):
`Future Pa ments Accelerated (3% nresent value discount a ulied):
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`EFA #2223019 _
`$16,422.68
`$410.57
`$636.71
`$95,966.87
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`$1 13 436.83
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`TOTAL:
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`31.
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`Therefore, afier consideration of all amounts due and owing under the Agreements
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`and all lawful offsets, credits and payments previously made under the Agreements, the outstanding
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`unpaid accelerated balance due and owing under the Agreements is collectively $503,445.90.
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`32.
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`All conditions precedent
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`to Ascentium’s right
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`to recover monetary judgment,
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`foreclosure of its ownership and/or security interest in the Equipment, and reasonable and necessary
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`attorney fees from the Defendants have been performed or have occurred and all notices required
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`have been given or have been waived.
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`IV. CAUSES OF ACTION
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`COUNT 1: BREACH or CONTRACT
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`33.
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`Ascentium incorporates herein all prior and subsequent allegations in this pleading.
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`34.
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`Defendants conduct and default as set forth herein constitutes a breach of contract.
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`Defendants failed to comply with their contractual obligations to Ascentium and failed to timely
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`tender payment to Ascentium as required under the Agreements. After consideration of all lawfiil
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`PAGE 8 OF 10
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`offsets, payments and credits, and without taking into account all pre-judgment interest, costs, andfor
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`attorneys’ fees, the total unpaid balance due and owing by Defendants to Ascentium is $503,445.90,
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`which is within the jurisdictional limits of this Court.
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`COUNT 2: BREACH or GUARANTY
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`35.
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`36.
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`Ascentium incorporates herein all prior and subsequent allegations in this pleading.
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`Defendant Dr. Ramirez is
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`liable to Ascentium pursuant
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`to the unpaid and
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`outstanding indebtedness arising under Guaranty #1, Guaranty #2, Guaranty #3 and Guaranty #4
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`(collectively, the “Guaranty Agreements”). Afier the allowance of all lawful offsets, credits, and
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`payments, the total balance due and owing by Defendant, under the Guaranty Agreements is
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`$503,445.90, excluding pre-judgment interest, and Dr. Ramirez, although repeatedly requested by
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`Ascentium, have wholly failed and refused and still refuse to pay the same or any part thereof.
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`Accordingly, Dr. Ramirez has breached his contractual obligation to Ascentium and have
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`proximately damaged Ascentium in the amount of $503,445.90, which is within the jurisdictional
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`limits of the Court.
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`COUNT 3: ATTORNEY’S FEES
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`37.
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`Ascentium incorporates herein all prior and subsequent allegations in this pleading.
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`38.
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`Upon Defendants“ failure to pay the balance due and owing under the Agreements
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`and Guaranty Agreements, Ascentium placed said contracts in the hands of the undersigned
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`attorney for enforcement, and have agreed to pay said attorney reasonable attorney’s fees for his
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`services for which Defendants have become liable by the terms of the Agreements, Guaranty
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`Agreements, and by virtue of OKLA. STAT. TIT. 12 § 12-936 (2014).
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`PAGE 9 OF 10
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`V. PRAYER
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`WHEREFORE, PREMISES CONSIDERED, Ascentium prays that Defendants be cited to
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`appear and answer herein; that upon final hearing hereof, the Court grant Ascentiurn judgment in
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`the sum $503,445.90 against Defendants, jointly and severally; plus pre-judgment interest at the
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`highest lawfiil rate from date of filing suit until date ofjudgment; for costs of Court, post-judgment
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`interest, as provided by law and attorneys’ fees; and other relief, special or general, at law or in
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`equity to which Ascentium may show itselfjustly entitled.
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`Respectfully Submitted,
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`HIERSCI-IE LAW FIRM
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`Isl G. Rudy Hiersche, Jr.
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`G. RUDY HIERSCHE, JR. OBA No. 4183
`105 N. Hudson, Suite 540
`Oklahoma City, OK 73102
`Telephone: (405) 23 5-3 1 23
`Facsimile: (405) 235-3142
`Email: rudyn'frihlfokccom
`Attorney for Plaintiff
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`-AND-
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`Mark W. Stout*
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`Texas State Bar ID. #24008096
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`mstout@padfieldstout.com
`Matthew B. Fronda“
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`Texas State Bar ID. #24086264
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`mfronda@padfieldstout.com
`PADFIELD & STOUT, L.L.P.
`420 Throckmorton Street, Suite 1210
`Fort Worth, Texas 76102
`(817) 338-1616 phone
`(817) 338-1610 fax
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`*Pro Hac Vice Admission to be Sought
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`PAGE IO 0F 10
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