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Exodus Vision, LLC v. Touchmark National Bank

United States District Court, N.D. Georgia, Atlanta Division

March 10, 2017

EXODUS VISION, LLC, Plaintiff,
v.
TOUCHMARK NATIONAL BANK, and QUALITY MED, INC., Defendants.

          OPINION AND ORDER

          WILLIAM S. DLTFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Quality Med, Inc.'s (“Quality Med”) Motion to Dismiss Plaintiff's Third Amended Complaint [40].

         I. BACKGROUND

         A. Facts

         Plaintiff Exodus Vision, LLC (Plaintiff or “Exodus Vision”) is a single-member limited liability company formed under the laws of the State of Nevada. (Third Am. Compl. (“Complaint”) [34] ¶ 1). Its sole member is a citizen of New York. (Id.). Defendant Touchmark National Bank (“Touchmark”) is a national bank with its main office located at Alpharetta, Georgia. (Id. ¶ 2). Quality Med is a Georgia corporation with its principal office at Tucker, Georgia. (Id. ¶ 3).

         In January 2011, Exodus Vision purchased multiple “Vision Center at Meijer” stores, and as part of this purchase, Exodus Vision also acquired ophthalmic equipment worth about $181, 790. (Id. ¶ 7). From 2011 to 2015, Exodus Vision purchased additional ophthalmic equipment for use at eye care centers. (Id. ¶ 8). In early 2015, Exodus Vision closed all the eye care centers and shipped the ophthalmic equipment to various storage facilities for temporary storage. (Id. ¶ 9).

         One of the shipments was delivered to Dwain Curtis (“Curtis”) of Ophthalmic Equipment Resource, LLC (“OER”). (Id. ¶ 10). OER and Exodus Vision had done business in the past, so Curtis agreed to store Plaintiff's ophthalmic equipment free of charge at OER's unused warehouse space located at Lawrenceville, Georgia. (Id. ¶¶ 11, 12). Plaintiff's ophthalmic equipment was stored in a segregated area of OER's warehouse, and Curtis inventoried and placed yellow tags on Plaintiff's equipment to distinguish it from OER's own inventory. (Id. ¶¶ 14, 18). Plaintiff's ophthalmic equipment stored at OER had an appraised resale value of at least $126, 041.25.[1] (Id. ¶ 19).

         On August 14, 2014, Touchmark made a loan to OER secured by OER's existing and after-acquired inventory. (Id. ¶ 20). In November 2015, OER defaulted on the loan, and Touchmark advised OER and Curtis that it intended to conduct a sale of the collateral located in OER's warehouse. (Id. ¶ 22). Later that month, Curtis filed Chapter 7 bankruptcy. (Id. ¶ 23).

         Beginning in November 2015, counsel for Curtis and OER and counsel for Touchmark communicated regularly regarding the sale of the collateral. (Id. ¶ 24). On November 16, 2015, Touchmark sought a valuation of its collateral, and OER provided notice of Plaintiff's interest in the ophthalmic equipment stored at the warehouse. (Id. ¶ 25). On November 18, 2015, Touchmark inspected the warehouse as well as Plaintiff's ophthalmic equipment, which was tagged to differentiate it from OER's assets. On November 19, 2015, OER provided Touchmark with an itemized list of Plaintiff's ophthalmic equipment, including each item's brand, model, and serial number. (Id. ¶ 28). On November 25, 2015, OER provided Touchmark with another copy of the itemized list of Plaintiff's ophthalmic equipment as well as Curtis's inventory of the equipment. (Id. ¶ 32).

         On December 2, 2015, Exodus Vision, after learning of Curtis's bankruptcy filing, contacted Touchmark to ask about the “course of action need[ed] to be taken for [Plaintiff] to be able to obtain possession of” Plaintiff's ophthalmic equipment. (Id. ¶ 38). From December 2, 2015, to December 16, 2015, Plaintiff and Touchmark communicated regularly about Plaintiff's ownership of its ophthalmic equipment and about repossessing the equipment. (Id. ¶¶ 39-45). Throughout their communications, Touchmark asserted that it is not able to identify Plaintiff's equipment with sufficient certainty and requested additional documentation of Plaintiff's ownership. (Id. ¶¶ 39, 41, 43).

         Plaintiff's Complaint asserts that Touchmark, during this time, contemporaneously sought bids from potential purchasers, including Quality Med, and allowed the potential bidders to examine the contents stored at the warehouse. (Id. ¶¶ 50, 51). Plaintiff's Complaint asserts that, during the examination, Plaintiff's ophthalmic equipment remained segregated from OER's assets and was tagged as belonging to Plaintiff, but Touchmark informed at least one bidder that Plaintiff's ophthalmic equipment was subject to the sale. (Id. ¶¶ 52, 54).

         On December 14, 2015, Touchmark emailed Quality Med to accept Quality Med's bid to purchase all contents of the warehouse. (Id. ¶ 57). Touchmark, after accepting Quality Med's bid, next emailed Plaintiff to express “concerns about the identification of the equipment” and “to set up a conference call to further discuss” Touchmark's concerns. (Id. ¶ 58).

         On December 16, 2015, Quality Med began removing the contents from the warehouse, and Touchmark disclosed to Plaintiff that its ophthalmic equipment had been sold.[2] (Id. ¶¶ 46, 60). Touchmark did not provide Plaintiff with any information regarding the sale or identify Quality Med as the purchaser. (Id. ¶¶ 60-70).

         Plaintiff's Complaint alleges that Quality Med sold all the items it removed from the warehouse, including Plaintiff's ophthalmic equipment, to various ...


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