CAUSE NO. DC-19-14060
`
`FILED
`8/25/2021 6:41 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`Darling Tellez DEPUTY
`
`IN THE DISTRICT COURT
`
`192nd JUDICIAL DISTRICT
`
`DALLAS COUNTY, TEXAS
`
`COR0GR6OD60DFO?On6On602LOD
`0OnOn60260DGOR80?CDCOD6OnOn602ton
`
`JPMORGAN CHASE BANK, N.A.,
`Plaintiff,
`
`Vv.
`
`ALL SAINTS CARE INJURY AND
`REHABILITATION CLINIC, INC.,
`and JACKSON C, EHIOGUH,
`Defendants
`
`ALL SAINTS CARE INJURY AND
`REHABILITATION CLINIC, INC.
`Plaintiff,
`
`Vv.
`
`JPMORGANCHASEBANK, N.A.,
`RICHARD G. DAFOE, THOMASM.
`SELLERS, KELLY R. FISHER, SCOTTE.
`HAYES, and MADELEINEC. HAYES, as
`SUBSTITUTE TRUSTEES
`
`Defendants.
`
`DEFENDANTS’ OBJECTION AND RESPONSE TO PLAINTIFF’S MOTION FOR
`SUMMARY JUDGMENT AS TO ALL CLAIMS AND COUNTERCLAIMS
`
`TO THE HONORABLE JUDGE OF SAID COURT:
`
`NOW COME,All Saints Care
`
`Injury
`
`and Rehabilitation Clinic, Inc. and Jackson C.
`
`Ehioguh, Defendants and file this their Objection
`
`and Response
`
`to Plaintiff's Motion for
`
`Summary Judgment
`
`as to All Claims and Counterclaims, and would
`
`respectfully
`
`show onto the
`
`Court as
`
`follows, to-wit:
`
`I
`
`Objection
`
`to Plaintiff’s Motion
`
`1,
`
`Pursuant to the November 13, 2019 Pretrial Order, “[n]o dispositive
`
`motion will
`
`be heard within 20
`
`ofthe trial date.” See Court’s File. The continuance ofthe trial setting
`
`days
`
`

`

`did not alter the deadline. Plaintiff's Motion is set for hearing
`September 1, 2021. Trial is
`scheduled for September 20, 2020. Also, pursuant to 192"District Court Policy and Procedures,
`
`on
`
`a
`
`party may movefor leave to allow such hearing based upon extenuating circumstances. No
`
`motion for leave to allow such hearing has been filed. Trial has been continued twice since the
`
`issuance of the Pretrial Order. Thus,
`
`no
`
`extenuating circumstance exists. Defendants object
`
`to
`
`Plaintiff's Motion and the
`
`hearing and moveto strike. Plaintiff's Motion is untimely and should
`
`be stricken.
`
`Ze
`
`3,
`
`I.
`
`Introduction and Procedural History
`
`Subject
`
`to Defendants’ objection above, Defendantsfiled this
`
`Response.
`
`Plaintiff is JPMorgan Chase Bank, N.A. (““JPMC’); Defendants are All Saints
`
`Care Injury and Rehabilitation Clinic,
`
`Inc.
`
`(“All Saints”) and Jackson C.
`
`Ehioguh (“Mr.
`
`Ehioguh’”’)(collectively referred to herein as
`
`“Defendants”).
`
`4.
`
`On September 6, 2019, JPMCfiled suit against All Saints and Jackson Ehioguh
`
`for breach of the Note and Guaranty Agreementrelating
`
`to the real property located at 606-608
`
`Oriole Blvd., Duncanville, Texas 75116
`
`(“Property”).
`
`5.
`
`On December28, 2020, All Saints filed suit against JPMC for breach of the Deed
`
`of Trust contract
`
`relating
`
`to the Property. The suit wasfiled in the County Court at Law No. 4 in
`
`Dallas County, Texas. All Saints requested and paidfortrial by jury.
`
`6.
`
`On January 22, 2021, the County
`
`Court case wastransferred and consolidated into
`
`this case.
`
`7.
`
`On August 3, 2021, JPMC filed its Motion for Summary Judgment
`
`as to All
`
`Claims and Counterclaims (“Motion”). Plaintiff's Motion is set for hearing
`
`on
`
`September 1,
`
`2021,
`
`Defendants’ Objection and Response to Plaintiffs Motion for Summary Judgment
`All Saints Care Injury & Rehabilitation Clinic
`
`Page 2
`
`

`

`8.
`
`9.
`
`This case is set for trial on
`
`September 20, 2021.
`
`Viewing the evidence in the
`
`light
`
`most favorable to Defendants as non-movants,
`
`there are
`
`genuine issues of material fact in the case at bar such that summary judgmentis not
`
`warranted. Accordingly, this Court should deny Plaintiff's Motion.
`
`Ill.
`
`Summary Judgment Evidence
`
`10.
`
`In support of Defendants’ Response
`
`to Plaintiff's Motion, Defendants rely upon
`
`and incorporate herein
`
`by reference the following evidence, which is attached hereto and
`
`incorporated
`
`herein:
`
`Exhibit 1: Affidavit of Jackson Ehioguh with attachments:
`
`Ex. 1A. Warranty Deed with Vendor’s Lien
`Ex. 1B. Note
`Ex. 1C. Deed of Trust, Assignment of Leases and Rents, Security
`Agreement and Financing Statement
`Ex. 1D. Chase Account
`Activity
`Ex. 1E. December 11, 2020 Notice of Foreclosure Sale
`Ex, 1F. December 12, 2020 PaymentReceipt
`Ex. 1G. January 6, 2021 Notice of Foreclosure Sale
`Ex, 1H. January 19, 2021 Payment Receipt
`January 19, 2021 Notice of Foreclosure Sale
`Ex. 1].
`Ex. 1J. February 12, 2021 Payment Receipt
`
`IV.
`
`Factual Background
`
`11.
`
`All Saints is the rightful
`
`owner of the property located at 606-608 Oriole Blvd.,
`
`Duncanville, Texas 75116 (“Property”). See Ex. 1A.
`
`12.
`
`On or about June 18, 2009, Defendants executed a U.S. Small Business
`
`Administration Note payable
`
`to JPMC. On or about the same
`
`a Deed of Trust to secure the
`
`day,
`
`payment of the Note was executed by Plaintiff. See Exs. 1B, 1C.
`
`13.
`
`Onor about
`
`April 16, 2020, JPMC
`
`paid $47,034.25 for past due taxes. See Plt.’s
`
`Motion, Ex. 1.
`
`to Plaintiff's Motion for Summary Judgment
`Defendants’ Objection and Response
`All Saints Care Injury & Rehabilitation Clinic
`
`3
`
`Page
`
`

`

`14.
`
`On June 10, 2020, Plaintiff made a
`
`sum
`
`lump
`
`payment to JPMC of $34,140.86
`
`to
`
`be applied
`
`to the taxes
`
`paid. See Ex. 1D.
`
`15.
`
`On or about December 11, 2020, Defendants received a Notice of Foreclosure
`
`Sale. See Ex. 1E. However, Plaintiff was current on his loan payments at the time. In fact,
`
`Plaintiff's payment made on December 22, 2020,
`
`was
`
`accepted by JPMC. See Ex.
`
`IF.
`
`Foreclosure was set for
`
`January 5, 2021. Further, the Notice of Foreclosure was defective in that
`
`the property description
`
`was different than in the Deed of Trust. See Exs. 1C, 1F.
`
`16.
`
`On December 28, 2020, All Saints filed suit against JPMC for breach of the Deed
`
`of Trust contract
`
`relating
`
`to the Property (“County Court Petition”). The suit was filed in the
`
`County Court at Law No. 4 in Dallas County, Texas. The suit contained an
`
`Emergency
`
`Application for
`
`Temporary Restraining Order.
`
`17.
`
`On December 30, 2020,
`
`the
`
`County Court
`
`granted All Saints’ Emergency
`
`Application for Temporary Restraining Order.
`
`18.
`
`On or about January 6, 2021, Defendants received a Notice of Foreclosure Sale
`
`scheduling another foreclosure for
`
`February 2, 2021. See Ex. 1G.
`
`19.
`
`On January 19, 2021, Defendants made a
`
`payment, which was
`
`accepted by
`
`JPMC.
`
`See Ex. 1H.
`
`20.
`
`On or about January 19, 2021, Defendants received a Notice of Foreclosure Sale
`
`scheduling foreclosure for March 2, 2021. See Ex. 11.
`
`21.
`
`On January 22, 2021, the
`
`County Court case was transferred and consolidated into
`
`this case.
`
`22.
`
`On February 12, 2021, Defendants made a
`
`payment, which was
`
`accepted by
`
`JPMC. See Ex. 1K.
`
`Defendants’ Objection and
`Response to Plaintiff's Motion for Summary Judgment
`All Saints Care Injury & Rehabilitation Clinic
`
`Page 4
`
`

`

`23.
`
`On February 22, 2021,
`
`this Court granted All Saints’ request for temporary
`
`injunction. Shortly thereafter, JPMC began refusing Defendants’ payments.
`
`24.
`
`On March 19, 2021, All Saints converted his County Court Petition to a
`
`counterclaim,
`
`andin its place, filed its Counterclaim in thiscase.
`
`V.
`
`Standard of Review
`
`25.
`
` Undera
`
`motion for summary judgment, the movant must establish that
`
`no material
`
`fact
`
`traditional
`issue exists and that it is entitled to
`
`judgment
`
`as a matter of law. Tex. R. Civ. P.
`
`166a(c). In response,
`
`the nonmovant must
`
`only produce
`
`more than a scintilla of probative
`
`evidenceto raise an issue of material fact. Oasis Oil Corp.
`
`v. Koch Ref. Co., 60 S.W.3d 248, 252
`
`(Tex. App.—CorpusChristi 2001, pet denied).
`
`More than a scintilla of evidence exists when the
`
`evidence “rises to a level that would enable reasonable and fair-minded
`
`to differ in their
`
`people
`
`conclusions.” Merrell Dow Pharms., Inc. v.
`
`Havner, 953 S.W.2d 706, 711 (Tex. 1997).
`
`26.
`
`In
`
`deciding
`
`whether there is a
`
`disputed
`
`issue of material fact that
`
`precludes
`
`summary judgment, the Court must consider the evidence in the light
`
`most
`
`favorable
`
`to the non-
`
`movant. Limestone Prods. Distribution, Inc. v.
`
`McNamara, 71 S8.W.3d 308 (Tex. 2002); Rhone-
`Steel, 997 S.W.2d 217, 223 (Tex. 1999); Nixon v. Mr. Property Mgmt. Co., 690
`
`Poulenc, Ine. v.
`
`S.W.2d 546, 548-49 (Tex. 1985).
`
`27.
`
`Further, the Court must
`
`indulge every reasonable inference and resolve all doubts
`
`in
`
`favor ofthe non-movant. Limestone Prods., 71 S.W.3d at 308; Nixon, 690 S.W.2dat 549.
`
`VI.
`
`Argument
`
`& Authorities
`
`A. Plaintiff’s Breach of Contract claim.
`
`28.
`
`contract:
`
`(1)
`
`Under Texas law, Plaintiff must prove the
`
`following elements of a breach of
`a valid contract existed; (2) Plaintiff performed under the contract; (3) Defendants
`
`Defendants’ Objection and Response to Plaintiffs Motion for Summary Judgment
`All Saints Care Injury & Rehabilitation Clinic
`
`Page 5
`
`

`

`breached the contract; and (4) Plaintiff sustained damages
`v. Christian & Smith, 950 S.W.2d 411, 412 (Tex. App.—Houston [Ist Dist.] 1997,
`
`Wright
`
`as a result of Defendants’ breach.
`
`no
`
`writ).
`
`29.
`
`Defendants do not admit any of the statements or conclusions in Plaintiffs
`
`Motion. But Defendants point
`
`out that JPMC received a
`
`payment of $34,140.86 in June 2020,
`
`as
`
`reimbursementfor the taxesit
`
`paid. See Ex. 1D.
`
`30.
`
`Defendants also point
`
`out that JPMC returned Defendants’ January and February
`
`as
`
`2021,
`
`“overpayments.” See Plt. Exs. 1, 1G, 1E. Thereafter, JPMC refused Defendants’
`
`payments. Defendants’ performance
`
`is excused due to Plaintiffs actions preventing Defendants
`
`from performing the contracts. O'Shea v. IBM
`Corp., 578 S.W.2d 844, 846 (Tex. App.—
`[1* Dist.] 1979, writ ref'd n.r.e.); S.K.Y. Inc. v. R.E. Butt Grocery Co., 440 S.W.2d 885.
`
`Houston
`
`889-90 (Tex. App.—Corpus Christi 1969,
`
`no
`
`writ).
`
`31.
`
`Further, Plaintiff breached the contract
`
`by knowingly acting
`
`to make Defendants’
`
`performance of the contractual obligations impossible.
`
`See
`
`Stephenson
`
`v.
`
`Calliham, 60 8.W.2d
`
`805, 807 (Tex. App.—Beaumont1933, writ
`
`ref’d); Arlington Heights Rity, Co. v. Citizens’ Ry. &
`
`Light Co., 160 §.W.1109, 1120 (Tex. App.—Amarillo 1913,
`
`no
`
`writ).
`
`32.
`
`Accordingly, Plaintiff?s Motion should be denied.
`
`B. Defendants are entitled to a
`
`jury trial.
`
`33.
`
`To
`
`prepared the
`
`billing
`
`begin with, Plaintiffs Exhibit 3 contains no
`testimony that Mr. Hayes
`statements or that he is a records custodian of Waddell Serafino Geary
`
`Rechner Jenevein, P.C. Therefore, Defendants objects
`
`to the billing records as
`
`hearsay.
`
`34. Without waiving the
`
`foregoing objections, Defendants would show that the Texas
`
`Constitution guarantees the right
`
`to a trial by jury.
`
`Monroe v. Alternatives in Motion, 234 S.W.3d
`
`and Responseto Plaintiff’s Motion for Summary Judgment
`Defendants’ Objection
`All Saints Care Injury & Rehabilitation Clinic
`
`Page 6
`
`

`

`56, 69 (Tex. App.--Houston [1st Dist.] 2007,
`
`no
`
`pet.) (citing Tex. Const. art. I, §§ 10, 15). “The
`
`right
`
`to a
`
`jury trial is one of our most
`
`precious rights, holding
`
`a sacred place in English and
`
`American
`
`history.” General Motors Corp.
`
`v.
`
`Gayle,
`
`951 S.W.2d 469, 476 (Tex. 1997). Under
`
`article one, section 15 of the Texas Constitution, “[t]he right
`
`to trial by jury
`
`shall remain
`
`inviolate" and we
`
`closely
`
`scrutinize any denial of this
`
`important nght
`
`to a
`
`litigant.
`
`See Tex,
`
`Const. art. I, § 15; City of Garland, 969 S.W.2d 548, 558 (Tex. App.--Dallas 1988), aff'd,
`
`22
`
`S.W. 3d 351 (Tex. 2000). The denial of the constitutional right
`
`to a
`
`jury trial constitutes
`
`reversible error. McDaniel v.
`
`Yarborough, 898 S.W.2d 251, 253 (Tex. 1995); Ogu
`
`v. CLA.
`
`Servs., 2009 Tex. App. LEXIS 78, *8, 2009 WL 41462 (Tex. App.—Houston [1st Dist.] 2009).
`a
`In this case, the record reflects that All Saints requested
`jury trial and paid the jury fee.’
`
`Therefore, All Saints is entitled to a
`
`jury trial on the questions of whether the fees are reasonable
`
`and necessary. Fuqua
`
`v. Oncor Elec.
`
`Delivery Co., 315 S.W.3d 552, 559-60 (Tex. App—
`
`Eastland 2010, pet. denied)(“[E]ven when declaratory relief has been determined by summary
`
`judgment, the issues of whether attorney’s fees are reasonable and necessary is a
`
`offact
`
`question
`
`for the jury
`
`to determine when the
`
`jury is the trier of fact.”).
`
`35.
`
`Evenif the Court of
`
`Appeals denies Defendants’ right
`
`to a
`
`jury, whether attorneys
`
`fees are reasonable and necessary is a fact issue.
`
`C. Defective Notice of Foreclosure Sale
`
`36.
`
`All Saints’ Defective Notice of Foreclosure Sale is more in line with a breach of
`
`contract claim.
`
`37.
`
`Under Texas law, All Saints must prove the following elements of a breach of
`
`contract:
`
`(1)
`
`a valid contract existed; (2) Plaintiff performed under the contract; (3)
`
`JPMC
`
`'
`
`On April 7, 2021, Defendants filed their Petition for Writ of Mandamus in the Fifth Court of Appeal, seeking
`reversalof this Court’s April 6, 2021 Order Striking Jury Demand. No
`ruling has been issued on thepetition.
`
`to Plaintiff's Motion for Summary Judgment
`Defendants’ Objection and
`Response
`All Saints Care Injury & Rehabilitation Clinic
`
`Page 7
`
`

`

`as a result of JPMC’s breach. Wright
`breached the contract; and (4) Plaintiff sustained
`damages
`v. Christian & Smith, 950 8.W.2d 411, 412 (Tex. App.—Houston[1st Dist.] 1997,
`
`writ).
`
`no
`
`38.
`
`On or about December 11, 2020, Defendants received a Notice of Foreclosure
`
`Sale (“December Notice”). See Ex. 1F. The December Notice was defective in that the property
`
`description
`
`wasdifferent than in the Deed of Trust. See Exs. 1C, 1F.
`
`39.
`
`with notice conditions, including
`Texas requires strict compliance
`description of the property to be sold at the foreclosure sale. LSR Consulting, LLC v. Wells
`
`an accurate
`
`Fargo Bank, N.A., 835 F.3d 530, 532 (Sth Cir. 2016) (citing
`
`Hous. First Am. Sav. v.
`
`Musick, 650
`
`S.W.2d 764, 768 (Tex. 1983) (“Compliance
`
`with the notice condition contained in the deed of
`
`trust and as
`
`prescribed by law is a
`
`prerequisite
`
`to the
`
`right of the trustee to makethesale.”)).
`
`40.
`
`Thus, JPMC did not
`
`comply
`
`with the notice requirements because the property
`
`was
`
`improperly
`
`described in the December Notice. JPMC, therefore, did not
`
`properly
`
`secure its
`
`to sell the
`
`right
`
`Property in foreclosure. The fact that Plaintiff re-noticed the foreclosure sale for
`
`does not
`
`change that All Saints was forced to
`
`a difference date and corrected the legal description
`as a
`
`seek legal remedy and,
`
`result, All Saints incurred damages.
`
`All Saints incurred court costs
`
`and reasonable and necessary attorneys’ fees, of which it seeks recover.
`
`Accordingly,Plaintiff's
`
`Motion should be denied.
`
`VIL
`
`Prayer
`
`WHEREFORE, PREMISES CONSIDER, Defendants
`
`respectfully request
`
`that
`
`Plaintiff's Motion for Summary Judgmentbe, in all things stricken,
`
`or in the alternative denied,
`
`and, Defendants be awarded such other and furtherrelief to which they
`
`are
`
`justly entitled.
`
`to Plaintiff's Motion for Summary Judgment
`Defendants’ Objection and Response
`All Saints Care Injury & Rehabilitation Clinic
`
`Page 8
`
`

`

`Respectfully submitted,
`
`
`J.B. Peacock, Jr.
`/s/_
`J.B. Peacock, Jr.
`State Bar No. 15678500
`
`David M. Vereeke
`State Bar No. 20457500
`GAGNON, PEACOCK & VEREEKE, P.C,
`1349
`Empire Central Drive
`Suite 500, Lock Box 56
`Dallas, Texas 75247
`Telephone: (214) 824-1414
`Facsimile:
`(214) 824-5490
`Email:
`attorneys@gapslaw.com
`
`ATTORNEYS FOR DEFENDANTS
`
`CERTIFICATE OF SERVICE
`
`that on the 25th day of August 2021, the
`foregoing document was served
`This is to
`certify
`via electronic means upon Richard G. DaFoe
`and Scott E. Hayes
`(rdafoe@wslawpc.com)
`(shays@wslawpc.com).
`
`
`J.B. Peacock, Jr.
`/si___
`Of Gagnon, Peacock & Vereeke, P.C.
`
`to Plaintiffs Motion for Summary Judgment
`Defendants’ Objection and Response
`All Saints Care Injury & Rehabilitation Clinic
`
`Page 9
`
`

`

`FOODCO?FO?CON0?6?
`CORC0CO"
`0ORCOR0GO70GODCO?ODLOD40DUO?40DLOO
`
`CAUSE NO. DC-19-14060
`
`JPMORGAN CHASE BANK, N.A.,
`Plaintiff,
`
`v.
`
`ALL SAINTS CARE INJURY AND
`REHABILITATION CLINIC, INC.,
`and JACKSON C. EHIOGUH,
`Defendants
`
`ALL SAINTS CARE INJURY AND
`REHABILITATIONCLINIC, INC.
`Plaintiff,
`
`Vv.
`
`JPMORGAN CHASE BANK, N.A.,
`RICHARD G, DAFOE, THOMAS M.
`SELLERS, KELLY R. FISHER, SCOTTE.
`HAYES, and MADELEINEC. HAYES, as
`SUBSTITUTE TRUSTEES
`
`Defendants.
`
`IN THE DISTRICT COURT
`
`192nd JUDICIAL DISTRICT
`
`DALLAS COUNTY, TEXAS
`
`DECLARATION OF JACKSON EHIOGUH
`
`“My
`
`nameis Jackson C. Ehioguh. Mydate
`
`ofbirth is June 20, 1962. My business address
`
`is 606-608 Oriole Blvd., Duncanville, Texas 75116, United States of America. Unless otherwise
`
`stated, every statement made herein is within my personal knowledgeand is true and correct.
`“I am the President of All Saints Care Injury and Rehabilitation Clinic,
`
`Inc. (“All
`
`Saints”).
`
`“All Saints is the
`
`rightful
`
`owner of the property located at 606-608 Oriole Blvd.,
`
`Duncanville, Texas 75116 (“Property”). See Exhibit A,
`
`a true and correct copy of the Warranty
`
`Deed with Vendor’s Lien.
`
`
`
`

`

`“On or about June 18, 2009,
`
`on behalf of All Saints, I executed a U.S. Small Business
`
`Administration Note payable
`
`to
`
`JPMorgan Chase Bank, N.A. (“JPMC”). On the same
`
`day, I
`
`executed a Deed of Trust to secure the payment of the Note was. See Exhibits B and C,a true
`
`and correct copy of the Note and Deed of Trust, Assignment of Leases and Rents, Security
`
`Agreement and Financing Statement.
`
`“On June 10, 2020, I paid
`
`to JPMC of $34,140.86 for reimbursementof the taxes
`
`paid by
`
`JPMC. See Exhibit D, a true and correct copy of my Account Activity that I obtained online.
`
`“On or about December 11, 2020, I received a Notice of Foreclosure Sale. See Exhibit E,
`
`a true and correct copy of the Notice of Foreclosure Sale. However, I was current on my loan
`
`payments at the time. In fact, I made a
`
`payment
`
`on December 22, 2020, that was
`
`accepted by
`
`JPMC. See Exhibit F,
`
`The notice stated that my Property
`
`a true and correct copy of my receipt.
`wasset for a foreclosure sale on
`
`January 5, 2021. As a
`
`result, I retained counsel.
`
`“On December 28, 2020, All Saints filed suit against
`
`JPMC and an
`
`Emergency
`
`Application for
`
`Temporary Restraining Order. On December 30, 2020, the County Court
`
`granted
`
`All Saints’ Emergency Application for Temporary Restraining Order.
`
`“On or about January 6, 2021, I received a Notice of Foreclosure Sale scheduling another
`
`foreclosure for
`
`February 2, 2021. See Exhibit G,
`
`a true and correct copy of the Notice of
`
`Foreclosure Sale.
`
`“On
`
`January 19, 2021, I made my monthly payment to JPMC, which was
`
`accepted. See
`
`Exhibit H,
`
`a true and correct copy of my
`
`receipt.
`
`“On or about January 19, 2021,
`
`I received a Notice of Foreclosure Sale
`
`scheduling
`
`foreclosure for March 2, 2021. See Exhibit I,
`
`a true and correct copy of the Notice of Foreclosure
`
`Sale.
`
`Declaration of Jackson Ehioguh
`
`Page 2
`
`

`

`“On February 12, 2021, I made my monthly payment to JPMC, which was
`a true and correct copy of my
`
`receipt.
`
`Exhibit K,
`
`accepted.
`
`See
`
`“On February 22, 2021, this Court granted All Saints’ request for temporary injunction.
`
`Shortly thereafter, JPMC began refusing my payments.
`
`“T declare under
`
`penalty of perjury under the laws of the United States of America that
`
`the foregoing is true and correct.”
`
`Executed in Dallas County, Texas,
`
`on
`
`August 25, 2021.
`
`ALL SAINTS CARE INJURY AND
`REHABILITATION CLINIC,INC.
`
`By:
`
`g Ela
`
`Jackson C. Ehioguh, President
`
`Declaration of Jackson Ehioguh
`
`Page 3
`
`

`

`Ww
`
`GF #: FT2AA-97909000520
`
`“or 97909000 SAD -79-FNT
`
`WARRANTYDEED WITH VENDOR'S LIEN
`
`NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR
`STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR
`RECORDIN THE PUBLIC RECORDS: YOUR SOCIAL
`NUMBER OR YOUR DRIVER'S LICENSE
`NUMBER.
`
`oECURIKY
`
`MRO5%
`
`4 PGS
`
`2emsetTsTen
`
`Date: June 12, 2009
`
`Grantor:
`AmerwayLeasing Corporation
`Grantor's Mailing Address (including county):
`703 Little Creek
`Duncanville, Texas 75116
`
`Grantee:
`All Saints Care Injury & Rehabilitation
`Clinic, Inc.
`Grantee’s Mailing Address (including county):
`606 Oriole Blvd,
`Duncanville, Texas 75116
`
`Consideration:
`SEE ATTACHED CONSIDERATION
`
`
`
`Property(including any improvements):
`an addition to the City of Duncanville, Dallas County, Texas,
`Being part of Block A, Fairmeadows No, 10,
`to the plat thereof recorded in Volume 52, Page 1, Map Records, Dallas County, Texas, and being
`according
`more
`particularly described as follows:
`Beginning at a 1/2" iron rod set for corner in the East right-of-way line of Oriole Boulevard at the Soulhwest
`corner of a tract of land described in a Deed to Been Fu Lee of record in Volume 86185, Page 59, Deed Records
`of said county;
`
`a distance of 269,77 feet to a
`Thence North 89° 40' 11" Easl along the South boundary line of said Lee Tract,
`point for corner at the Southeast corner thereof in the West boundary line of Camp Wisdom West Addition, an
`addition to the City of Dallas, Dallas County, Texas, according to the Plat thereof recorded in Volume 19, Page
`341, Map Records of said county, from which a PK Nail found for reference bears South 89° 40' 11" West a
`distance of 0.74 feet;
`
`Thence South 00° 04' 27" East a distance of 313.11 feet to a 1/2" iron rod set for corner at lhe Northeast corner
`of Lot 7, Block A of said Fairmeadows No. 10;
`
`Thence North 75° 19° 37" West along the North
`lines of Lots 7, 8, 9 and 10, Block A of said
`boundary
`a distance of 340.39 feet to a 1/2" iron rod setfor corner in the East Right-of-Way line of
`FairmeadowsNo. 10,
`said Oriole Boulevard at the Northwest cornerof said Lot 10:
`and containing 1 880 acres ofland.
`feet to the Place of
`Beginnig
`NOTE: COMPANY DOES NOT REPRESENT THAT THE ABOVE A
`CALCULATIONS ARE CORRECT.
`
`fi
`
`
`
`

`

`reservations, covenants, conditions, oil and gas leases, mineral severances, and otherinstruments, other than
`liens and conveyances, thataffect the property; rights of adjoining owners in any walls and fencessilualed on a
`boundary lines; any encroachments or
`shortages in area or
`boundary; any discrepancies, conflicts or
`common
`overlapping of improvements; all rights, obligations, and taxes for 2009, the payment of which Granlee assumes.
`
`Grantor, for the consideration and subjectto the reservations from and exceptions to conveyance and warranty,
`grants, sells, and conveys to Grantee the property, together with all and singular the rights and appurtenances
`thereto in any wise belonging, to have and hold it to Grantee, Grantee's heirs, executors, administrators,
`successors, or assigns forever. Grantor binds Grantor and Grantor's heirs, executors, administrators, and
`successors to warrant and forever defend all and singular the property to Grantee and Grantee's heirs,
`or to
`executors, administrators, successors, and assigns against every person whomsoeverlawfully claiming
`claim the same or any part thereof, except as to the reservations from and exceptions to conveyance and
`warranty.
`are retained until each note describedis fully paid
`The vendor's lien against and superior title to the property
`according toits terms, al which time this deed shall become absolute.
`nouns and pronouns include the plural.
`When the context requires, singular
`
`KR
`Amerway Leasing Corporation
`By:
`Wilbur Ketterman, President
`
`STATE OF
`OLN
`COUNTYOF
`z
`Le Ve
`before ne
`On_l? “le OF
`romped
`
`;
`
`THE tL bMinhuo
`J
`
`/)
`
`bhKALEVIL
`
`—
`
`Tifle’ofOfficer)
`ekeyD pops
`-
`why.
`
`7
`
`to4ne on the basis of satisfactory evidence) to be the person(s) whose
`personally known to me/(ar proved
`to the within instrument and acknowledgedto me that he/she/they executed the same
`name(s) is /are subscri
`or
`on the instrument the person(s),
`in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
`the entity upon behalf of which the person(s) acted, executed the instrument.
`
`WITNESS my hand and official seal.
`
`JUDY Kay F
`Notery Public, Stateor Texas
`My Commissian &
`April 10,
`
`2013
`
`
`(This
`
`area for Notarial Seal)
`
`

`

`GF #: FT2AA-97909000520
`
`CONSIDERATION
`TEN ($10.00) DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION,
`to Grantor in hand paid by
`Grantee, the receipt and sufficiency of which are
`hereby acknowledged and confessed, and for the further
`sum
`consideration of the execution and delivery by said Grantee of one certain promissory note in the principal
`even date herewith, payable
`of $ 675,000.00, bearing
`to the order of JP Morgan Chase Bank N.A., hereinafter
`as therein provided, said note being secured by
`a vendor's lien and superior
`called Mortgagee, bearinginterest
`a deed of
`title retained herein in favor of said Grantor and assigned to Mortgagee, and also being secured by
`trust of even date herewith from Grantee to Randall B. Durant, Trustee: and WHEREAS, Mortgagee has, at the
`special instance and request of Grantee, paid to Grantor a
`portion of the purchase price of the property
`hereinafter described, as evidenced by the above described promissory note, said vendor's lien and superior title
`against said property securing the payment of said promissory note are
`hereby assigned, transferred and
`delivered without recourse lo Mortgagee, Grantor hereby conveying to said Mortgagee the said superior title to
`said property, subrogating said Mortgageeto all rights and remedies of Grantor in the premises by virtue of said
`lien,
`
`
`
`

`

`AFTER RECORDING RETURN TO;
`apis, Attorney at Law
`rent
`15 N. Cefar Ridge Drive, Suite 3
`Duncanville] TX 75116
`
`id ¢
`Dust
`OD umcernrhpol
`Judy ob
`
`ar TINY
`bya
`
`ILED AND RECORDED
`
`OFFICIAL PUBLIC RECORDS
`
`_F
`TEXAS Dallas County
`
`|
`
`fa—John F. Warren, County Clerk
`
`June 18, 2009
`
`12:25:04
`FEE: $26.00
`
`2
`
`1
`
`is
`
`ah
`Gh.
`sf
`
`:%
`
`\
`
`e)
`
`ex
`
`

`

` THE STATE OF TEXAS
`
`CQUNTY OF DALLAS
`Thoreby certify that tho above and foregoing Isa full, true, and
`calracl photographie copy of the original record now In my
`lawful
`possession,filed on the date stampedthereon and es
`custody
`the same Is recorded In tha Recorder's Racords In myoffice under
`the volume and page orInstrument # stamped thereon.
`\ hareby certify on
`
`JAN 11 2021
`gvaapapy
`Aas
`
`
`
`
`
`

`

`
`US. SMALL BUSINESS ADMINISTRATION
`,
`7
`
`.
`U.S. Small Business Administration
`
`
`
`
`
`NOTE
`
`
`
`= A
`
`June 12, 2009
`
`
`
`
`
`ll Salnts Care injury and Rehabliitation Clinic, Inc.
`
`
`
`
`
`
`
`
`
`
`
`
`
`JPMorgan Chase Bank. NA
`
`
`
`All Saints Caro Injury and Rehabilitatian Clinic, Inc.
`
`
`
`Operating
`Company
`
`1, PROMISE TO PAY:
`in return for the Lean, Borrower promises to pay to the order of Lender the amount of Six Hundred Soventy-five Thousand &
`00/100 Dollars, interest on the unpaid principal balance, and all other amounts required by this Note.
`
`2. DEFINITIONS:
`“Collateral” means any property taken as
`security for payment of this Note or any guarantes of this Note.
`“Guarantor” means each person orantity that Signs
`@ guarantee of payment of this Note.
`“Loan” meansthe loan evidenced by this Note.
`“Loan Documents” maans the documentsrelated to this loan signed by Borrower, any Guarantor, or anyone who pledges
`
`collateral,
`“SBA” means the Small Businass Administration, an Agancy of the Unitad States of Amarica.
`
`3, PAYMENT TERMS:
`Barrower must make all payments at the place Lender designates. The payment terms for this Note ara:
`
`1. Maturity: This Note will mature in 20 years from date of Note.
`2. Rapayment Terms: Theinterest rate on this Note will fluctuate. The initial interest rate is 5.75% par year. Thisinitial
`rata is the LIBOR Base Rate in affect on tha first business day of the month in which SBA received the loan application,
`Plus 2.431%. Theinitial interest rate must remain in effect until the first change period begins.
`Borrower must pay principal and interest payments of $4,771.51 every month, beginning one month from the month this
`Note is dated; payments must be made on the twelfth calendar day in the months they are due.
`SBA FORM 147 (06/03/02) Version 4.1
`
`
`
`

`

`.
`
`PROMISSORY NOTE
`Page 2
`(Continued)
`
`then to
`
`Lender will apply each installment payment first ta pay interest accrued to the day Lender receives the payment.
`bring principal current, then ta pay any late fees, and will apply any remaining balance to reduce principal.
`The interest rate will be adjusted monthly (the “change period”),
`The “LIBOR Base Rate” is the combination of the One Month London Interbank Offered Rate in effect on the first business
`or any interest rate
`day of the month (as published in the Wall Street Journal} in which SBA received the application,
`change occurs, plus an additional 3.0 percentage points. Base Rates will be raunded to two decimal places with .004
`being raunded down and .005 being rounded up.
`The adjusted interest rate will be 2.431% above the LIBOR Base Rate. Lender will adjust the interest rate an the first
`calendar day of each change period, The change in interest rate ts effective on that day whether or not Lender gives
`:
`Borrawer notice of the change.
`Lender must adjust the payment amount at Jaast annually as needed to amortize principal over the remaining term of the
`note.
`lf SBA purchases the guaranteed portion of the unpaid principal balance, the interest rate becomes fixed at the rate in
`[f there is no uncured payment default, the rate becomes fixed
`effect at the time of the earliest uncured payment default.
`at the rate in effect at the time of purchase.
`Loan Prepayment:
`Notwithstanding any provision in this Note to the contrary:
`Borrower may prepay this Note. Borrower may prepay 20% or less of the unpaid principal balance at any time without
`If Borrower prepays more than 20% and the Laan has been sold on the secondary market, Borrower must:
`notice,
`8. Give Lender written natice;
`b. Pay all accrued interest: and
`c. If the prepayment is received less than 21 days from the date Lender receives the notice, pay an amount equal to 21
`days' interest fram the date lender receives the notice,
`fess any interest accrued during the 21 days and paid under
`subparagraph b., above.
`tf Borrower does not prepay within 30 days from the date Lender receives the notice, Borrower must give Lender a new
`notice,
`Subsidy Recoupment Fee. When in any one of the first
`three years from the date of initial disbursement Borrower
`voluntarily prepays more than 25% of the outstanding principal balance of the loan, Borrower must pay ta Lender on behalf
`of SBA a prepayment fee for that year as fallows:
`a. During the first year after the date on which the loan is first disbursed, 5% of the total prepayment amount;
`b. During the second year after the date on which the loanis first disbursed, 3% of the total prepayment amount; and
`c.
`During the third year after the date on which the loanis first disbursed, 1% of the total prepayment amount.
`All remaining principal and accrued interest is due and payable 20 years from date of Note.
`If a payment on this Note is mare than 10 days late, Lender may charge Borrowera late fee of up to 5.00%
`Late Charge:
`of the unpaid portion of the regularly scheduled payment.
`
`-
`
`™moaw>
`
`DEFAULT:
`Borroweris in default under this Note if Borrower daes not make a payment when due under this Note, or if Borrower or
`Operating Company:
`.
`Fails to do anything required by this Note and other Loan Dacuments;
`Defaults on any other loan with Lender;
`Does not preserve, or account to Lender's satisfactian for, any of the Collateral or its proceeds;
`Does not disclose, or anyone acting on their behalf does not disclose, any material fact to Lender or SBA;
`Makes, or anyone acting on their behalf makes, a materially false or
`misieading representation to Lender or SBA:
`Defaults on any loan or agreement with another creditor,
`if Lender believes the default may materially affect
`
`.
`.
`
`SBA FORM 147 (06/03/02) Version 4.1
`
`

`

`.
`
`.
`.
`
`PROMISSORY NOTE
`Page 3
`(Continued)
`aS
`Borrower's ability to pay this Note;
`Fails to pay any taxes when due;
`Becomes the subject of a
`proceeding under any bankruptcy or insolvency law;
`Has a receiver ofliquidator appointed for any part of their business or property;
`Makes an
`assignment for the benefit of creditors;
`Has any adverse change in financial condition or business operation that Lender believes may materially affect
`Borrower's ability ta pay this Note;
`L. Reorganizes, merges, consolidates, or otherwise changes ownership or business structure without Lender's prior
`written consent; oF
`M. Becomes the subject of a civil or criminal action that Lender believes may materially affect Borrower's ability to pay
`this Nate,
`
`ACTIYD
`
`me
`ee
`
`5. LENDER'S RIGHTS IF THERE (S A DEFAULT:
`Without notice or demand and without giving up any of its rights, Lender may:
`A. Require immediate payment of all amounts owing under this Note;
`B. Callect all amounts owing from any Borrower or Guarantor;
`.
`File suit and obtain judgement;
`.
`Take possession of any Collateral; or
`Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without advertisement.
`
`moo
`
`6. LENDER‘S GENERAL POWERS:
`
`Without notice and without Borrower's consent,
`may:
`Lender
`A. Bid on or buy the Collateral at its sate ar the sale of another lienholder, at any price it chooses:
`Incur expenses to collect amounts due under this Note, enforce the tarms of this Note or an