Free Response to Motion - District Court of Arizona - Arizona

1 FENNEMORE CRAIG, P.C. Janet Weinstein (No. 011910) 2 Bart Wilhoit (No. 020064) Kevin J. Bonner (No. 017944) 3 3003 North Central Avenue Suite 2600 4 Phoenix, Arizona 85012-2913 (602) 916-5000 5 Attorneys for Plaintiff 6 7 8 9 Century 21 Real Estate Corporation, 10 11 v. Plaintiff, No. CIV 03 2353-PHX-DGC CENTURY 21 REAL ESTATE CORPORATION' RESPONSE TO S MOTION TO REINSTATE COUNTERCLAIMS (Assigned to the Hon. David G. Campbell) UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

12 Daryush B. Motlagh and Jane Doe Motlagh, husband and wife; John 13 Edmonds and Jane Doe Edmonds, husband and wife; Integrity Assurance, 14 Inc., an Arizona corporation, 15 16 17 Defendants.

Century 21 Real Estate Corporation does not object to Motlagh' motion to s

18 reinstate the counterclaims as its relates to Daryush Motlagh and therefore withdraws its 19 Renewed Motion to Dismiss Counterclaims only as it relates to Daryush Motlagh. 20 Counterclaimants Jennifer Motlagh and Integrity Assurance, Inc. still do not have any 21 standing to assert the counterclaims. 22 The Bankruptcy Court ruled on October 26, 2004 that the counterclaims were the

1 23 sole property of the Motlagh bankruptcy estate. At an auction held on August 30, 2005,

24 Daryush Motlagh was the successful bidder to purchase the counterclaims from the 25 26
F ENNEMORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

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See Octobr 26, 2004 Minute Entry, attached to Motion to Reinstate Counterclaims.

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1 bankruptcy estate. The Bankruptcy Court approved a sale of the counterclaims to 2 Motlagh with the caveat that Century 21 could move to set aside the purchase if the 3 Bankruptcy Court determines that Motlagh used funds belonging to either the Integrity
2 s 4 Assurance Inc. or Motlagh bankruptcy estates to purchase the counterclaims. Motlagh'

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purchase of the counterclaims makes moot, for now, Century 21' renewed motion to s dismiss counterclaims as it relates to Daryush Motlagh. Integrity and Jennifer Motlagh, however, did not purchase the counterclaims and lack standing to pursue them. Motlagh' purchase of the counterclaims does not affect Century 21' pending s s

9 motion for summary judgment. As noted in the motion papers, defendants have not 10 proffered any admissible evidence to dispute that they are liable to Century 21 for post11 petition franchise fees. Although defendants claimed Century 21 did not provide support 12 to their real estate business, they provided no evidence of this and did not cite to any term 13 of the franchise agreement that Century 21 did not comply with. Century 21 agrees that 14 its argument concerning the counterclaim no longer supports granting the motion. But 15 that argument was secondary to the undisputed facts, which entitle Century 21 to 16 judgment as a matter of law. 17 18 19 20 21 22 23 24
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Century 21 requests that the Court grant its motion for summary judgment and schedule a Rule 16 Conference to set deadlines for Daryush Motagh' counterclaims. s Respectfully submitted this 10th day of November, 2005. FENNEMORE CRAIG, P.C.

By /s/Kevin J. Bonner (017944) Janet Weinstein

Century 21 believes that Integrity has been improperly been diverting money from its 25 bankruptcy estate to Motlagh and has raised that issue in a motion for the appointment of a Chapter 11 trustee in the Integrity bankruptcy matter. That motion remains pending. 26
F ENNE MORE C RAIG
A P ROFESSIONAL CORPORATION P HOENIX

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1 2 3 ORIGINAL AND ONE COPY OF THE FOREGOING filed this 10th day 4 of November, 2005, with: 5 United States District Court District of Arizona 6 401 West Washington Street Phoenix, AZ 85003 7 8 COPY OF THE FOREGOING mailed this 10th day of November, 2005 to: 9 Don P. Williams 10 Law Office of Don P. Williams P.O. Box 5308 11 Goodyear, AZ 85338 Attorney for Defendants 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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Bart S. Wilhoit Kevin J. Bonner Attorneys for Plaintiff

/s/ Amberlyn S. Murray
PHX/1729247.1

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