,_ v - Fifth Court of Appeals

'I,
Appellant presented controverting summary judgment proof on each of the factors
under Tex. Bus. & Comm. Code § 24.008:
(1) the transfer or obligation was to an insider;
(Compliance Depot is not an insider of Invictus and there is no allegation
or proof that it is.)
(2) the debtor retained possession or control of the property transferred
(lnvictus did not retain possession or control of the Compliance Depot Units./
(3) the transfer or obligation was concealed;
(The sale of the Compliance Dq;ot Units was not concealed and the units
were always available for sale.)
(4) before the transfer was made or obligation was incurred, the debtor had
been sued or threatened with suit;
(Appellee had threatened suit based on a nonexistent "Agreement" and
manufactured breach three months after the Note was executed and
eight months before its maturity date at the same time that Appellee's
daughter, Karen Herrera, and other former employees were forming a
competzng . company. )8
(5) the transfer was of substantially all the debtor's assets;
(lnvictus has been in business since 2007 and continues to pursue other
assets and receivables, including the Spartan Equity receivable, referenced
in the Note./
( 6) the debtor absconded;
(lnvictus did not abscond. In fact, many times Invictus attempted to settle
with Appellee and pay the Note. Furthermore, Appellant's Chapter 13 Plan
confirmed on May 23, 2011 proposes to pay 100% of allowed claims to
d
. ) 10
ere ztors . .
(7) the debtor removed or concealed assets;
(lnvictus has not concealed assets. The sale of the Compliance Depot Units
ll
was not conceale d .).
6 CR. 184-185
7 See CR. 44.
8 CR 183-185.
9 See CR. 184-185.
10 See CR. 184 and CR. 164-165.
APPELLANT'S BRIEF
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