Atala v. Ondeck Capital, Inc. et al Administratively Closed

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GEORGE ATALA,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-5708
ON DECK CAPITAL, INC., ODK
CAPITAL LLC, ENOVA
INTERNATIONAL INC.,
HEADWAY CAPITAL LLC,
DAVID FISHER, SEAN
RAHILLY, CATHLEEN PUGH,
CAPTAIN CAPITAL GROUP,
LLC, DOES 1–20
Defendants.
MEMORANDUM AND RECOMMENDATION
Pending 	before 	the 	Court 	is 	Defendants 	On 	Deck 	Capital, 	Inc.
(“OnDeck”), ODK Capital, LLC, Enova International, Inc. (“Enova”), Headway
Capital, LLC, David Fisher, Sean Rahilly, and Cathleen Pugh’s (collectively,
the “Enova Defendants”) Motion to Compel Arbitration and Stay Action, or
Alternatively, 	to 	Transfer 	Venue 	(ECF 	No. 	38), 	Plaintiff 	George 	Atala’s
(“Plaintiff”) Motion for Judicial Notice (ECF No. 42), and Enova Defendants’
Motion to Strike Plaintiff’s Motion for Judicial Notice (ECF No. 43).1 Based on
1 This case was referred to the Undersigned for all purposes pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF No. 13).
United States District Court
Southern District of Texas
ENTERED
July 31, 2026
Nathan Ochsner, Clerk
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a 	review 	of 	the 	motions, 	arguments, 	and 	relevant 	law, 	the 	Court
RECOMMENDS Enova’s Motion to Compel Arbitration and Stay Action, or
Alternatively, to Transfer Venue (ECF No. 38) be GRANTED, Plaintiff’s
Motion for Judicial Notice (ECF No. 42) be DENIED AS MOOT, and Enova’s
Motion 	to 	Strike 	Plaintiff’s 	Motion 	for 	Judicial 	Notice 	(ECF 	No. 	43) 	be
DENIED AS MOOT.
I. 	Background
A. The Complaint
On November 26, 2025, pro se Plaintiff filed a 101-page Complaint
against Captain Capital Group LLC (“Captain”), OnDeck, ODK Capital, LLC,
Enova, Headway Capital, LLC, David Fisher, Sean Rahilly, Cathleen Pugh,
and Doe Defendants 1–20 (collectively, “Defendants”), raising various federal
and state law claims for alleged unlawful lending and collection practices. (See
ECF No. 1). 	Although difficult to follow, the Court construes the allegations
and claims as follows.
On October 24, 2022, Plaintiff entered into a loan contract (the “Loan
Contract”) with Enova and OnDeck for $150,000. 	(Id. at 2, 7, 24). 	Only
$146,250 was disbursed to Plaintiff after an origination fee of $3,750, and the
Loan Contract disclosed an annual percentage rate of about 63%, required
weekly ACH debits of about $3,800, and required total repayment of about
$198,000. 	(Id. at 24). 	The interest paid on the loan was about 38% which
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Plaintiff states is more than double the maximum allowed under Texas law.
(Id.). 	In the contract, Plaintiff claims Defendants misrepresented that the
Loan originated in Utah and claims Defendants manufactured a basis for
litigating any contract disputes in Utah. 	(Id. at 12–14). 	Plaintiff paid off the
loan in full and asserts he suffered financial harm because of Defendants’
usurious 	interest 	rate, 	unlawful 	fees, 	deceptive 	practices, 	fraudulent
inducement, and illegal business structure.2 (Id. at 4–7, 11, 25). David Fisher
is the President of Enova, Cathleen Pugh is a Custodian of Records for ODK
Capital and OnDeck, and Sean Rahilly is General Counsel for Enova. 	(Id. at
9–10, 42–43, 46–47).
Based on these allegations, Plaintiff asserts the following claims: Texas
Usury (Count 1); Common Law Fraud and Fraudulent Inducement (Count II);
Texas Deceptive Trade Practices Act (Count III); Civil RICO (Count IV); RICO
Conspiracy (Count V); Negligence, Negligent Data Handling, and Privacy
Breach (Count VI); Criminal Usury (Count VII); Texas Theft Liability Act
(Count VIII); Fraudulent Transfer (Count IX); Negligent Misrepresentation
2 After Plaintiff paid off the loan in October 2023, he entered into a business line of
credit contract with Defendants in November 2023; however, Plaintiff does not assert any
claims arising from this separate contract. (ECF No. 1 at 26).
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(Count X); and Declaratory Judgment (Count XI). (Id. at 29–88).3
For 	relief, 	Plaintiff 	seeks 	economic 	damages, 	statutory 	damages,
consequential 	and 	incidental 	damages, 	damages 	for 	emotional 	distress,
punitive damages, attorneys’ fees, costs, and declaratory relief. (Id. at 94–100).
Plaintiff has attached to his Complaint a portion of the Loan Contract.4 	(See
ECF No. 1-1).
B. The Loan Contract and Arbitration Provision
In 	the 	Loan 	Contract, 	Sonata 	Construction, 	LLC 	is 	the 	Borrower,
Plaintiff is the sole Guarantor, and ODK Capital, LLC is the Lender.5 (Id. at
2, 19). 	The Loan Contract contains an Arbitration clause at section 33 (the
“Arbitration Provision”), which provides: “The parties agree that at the election
of any party, all claims between borrower, guarantors, and lender shall be
resolved through mandatory binding individual arbitration pursuant to this
section.” (Id. at 12). The subsections provide, in part, as follows:
3 Plaintiff also invokes federal question jurisdiction under 28 U.S.C. § 1331 because
“Plaintiff asserts claims under the Racketeer Influenced and Corrupt Organizations Act
(RICO), 18 U.S.C. §§ 1961–1968, including violations of [sections] 1962(c) and 1962(d),” as
well as supplemental jurisdiction over his related state-law claims “because those claims
arise from the same nucleus of operative facts as the federal RICO claims.” (ECF No. 1 at
11). 4 The attached exhibit is titled, “Business Loan and Security Agreement Supplement”
and states, “This Business Loan and Security Agreement Supplement is part of (and
incorporated by reference into) the Business Loan and Security Agreement.” (ECF No. 1-1
at 2). 5 The Loan terms and details are the same as recited by Plaintiff in his Complaint.
(ECF No. 1-1 at 2). Additionally, the weekly payment amount of approximately $3,800 was
to be paid over 52 weeks, for a total loan term of 12 months. (Id. at 2–3).
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(A) 	[U]nder this arbitration agreement, Borrower, Guarantor, or
Lender will not have the right to (i) have a court or jury decide
the 	claim 	being 	arbitrated, 	(ii) 	engage 	in 	pre-arbitration
discovery to the same extent that Borrower, Guarantor, or
Lender could in court . . . .
(B) 	The term “Claims” is to be given the broadest possible
meaning, and includes without limitation Claims arising from
or relating to (i) this Agreement, including without limitation,
the 	terms, 	constructions, 	interpretation, 	performance,
termination, breach, or enforceability of this Agreement, (ii)
any transactions effected pursuant to this Agreement, (iii)
terms of or change or addition of terms to this Agreement, (iv)
collection or enforcement of any obligation arising from this
Agreement, (v) advertisements, promotions, or oral or written
statements relating to this Agreement or any transactions
between us pursuant to this Agreement, (vi) Claims between
Borrower 	and 	Guarantor 	and 	Lender 	or 	Lender’s 	parent
corporations, wholly or majority owned subsidiaries, affiliates,
predecessors, 	successors, 	assigns, 	agents, 	independent
contractors, employees, officers, directors or representatives
arising 	from 	any 	transaction 	between 	us 	pursuant 	to 	this
Agreement, 	and 	(vii) 	Claims 	regarding 	the 	validity,
enforceability, 	or 	scope 	of 	this 	Arbitration 	section 	or 	this
Agreement, including but not limited to whether a given claim
or dispute is subject to arbitration.
. . .
(G) 	If Borrower, Guarantor, or Lender files a Claim in court,
such action is not deemed to be a waiver of the right to compel
arbitration 	of 	any 	counterclaims, 	cross-claims, 	or 	separate
claims that may be asserted against it. In such a case, upon the
election of any party, the entire dispute shall be resolved in
arbitration pursuant to the provisions of this section.
(H) 	This 	arbitration 	section 	is 	governed 	by 	the 	Federal
Arbitration Act, 9 U.S.C. §§ 1–16, other applicable federal law,
and to the extent it is applicable, by Utah law.
(Id. at 12–13). 	The Loan Contract also includes a forum-selection clause at
section 32, which provides: “Borrower, Guarantors and Lender agree that any
action . . . arising out of this Agreement may be brought in any court of the
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State of Utah or in the United States District Court for the District of Utah . .
. . Borrower and Guarantors and Lender agree that venue is proper in such
courts.” (Id. at 12).
Section 41 states the Agreement and any related disputes are governed
by applicable federal law and Utah law.6 (Id. at 15). Plaintiff also signed the
“Signature Page,” which states:
I hereby, as a duly authorized agent of Borrower, and in my
individual and personal capacity as Guarantor, affirm that I have
read and understand the terms and conditions of, consent to, and
agree to be bound by, the Business Loan and Security Agreement
(inclusive of the Guaranty therein), the accompanying Business
Loan 	and 	Security 	Agreement 	Supplement, 	and 	the
accompanying Authorization Agreement for Direct Deposit (ACH
Credits) and Direct Payments (ACH Debits).
(Id. at 19).
C. Procedural History
After Plaintiff filed his Complaint, Captain filed a motion to dismiss for
insufficient service of process on December 23, 2025. 	(ECF Nos. 29–31). 	On
February 4, 2026, the Enova Defendants filed the instant Motion to Compel
Arbitration and Stay Action, or Alternatively, to Transfer Venue (to the United
States District Court for the District of Utah). 	(ECF No. 38). 	Plaintiff filed a
6 Section 41 specifically provides the “Agreement and any claim, dispute, or
controversy (whether in contract, tort, or otherwise) at any time arising from or relating to
this Agreement is governed by, and this Agreement will be construed in accordance with,
applicable federal law and (to the extent not preempted by federal law) Utah law without
regard to internal principles of conflict of laws.” (ECF No. 1-1 at 15).
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response in opposition to the Enova Defendants’ motion (ECF No. 40), and the
Enova Defendants filed a Reply (ECF No. 41).
On February 18, 2026, Plaintiff filed the instant Motion for Judicial
Notice, asking the Court to take judicial notice of state court records from
litigation in North Carolina between ODK Capital and the Renfrow Group
corporation over a similar loan agreement, as support for his opposition to
arbitration, because therein purportedly lies similar contract-formation issues
that supersede arbitrability. (ECF No. 42). The Enova Defendants then filed
the instant Motion to Strike Plaintiff’s Motion for Judicial Notice, arguing
Plaintiff’s filing is effectively a sur-reply without leave-of-court, an improper
request for judicial notice of legal determinations rather than adjudicative
facts, and nonetheless irrelevant to the motion to compel. (ECF No. 43).
On 	June 	5, 	2026, 	the 	Court 	entered 	a 	Memorandum 	and
Recommendation, recommending Captain’s motion to dismiss be denied and
Plaintiff be given an opportunity to cure any defect in service. 	(ECF No. 45).
Plaintiff later served Captain on June 11, 2026. 	(ECF No. 46). 	On June 26,
2026, 	the 	District 	Judge 	adopted 	the 	Court’s 	June 	5 	Memorandum 	and
Recommendation. (ECF No. 47). At the Court’s direction, Captain filed a letter
informing the Court that it joins the Enova Defendants’ Motion to Compel
Arbitration. 	(ECF No. 48). 	In the letter, Captain states the Arbitration
Provision applies to Captain “as an independent contractor of certain Enova
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entities, including ODK Capital, LLC.” 	(Id. at 1).7 	The pending matters are
therefore ripe for disposition.
II. 	Legal Standard for the Federal Arbitration Act
Title 9 U.S.C. § 2 of the Federal Arbitration Act (“FAA”) governs the
validity, 	irrevocability, 	and 	enforcement 	of 	agreements 	to 	arbitrate. 	It
provides:
A written provision in . . . a contract evidencing a transaction
involving 	commerce 	to 	settle 	by 	arbitration 	a 	controversy
thereafter arising out of such contract or transaction, or the refusal
to perform the whole or any part thereof, or an agreement in
writing to submit to arbitration an existing controversy arising out
of 	such 	a 	contract, 	transaction, 	or 	refusal, 	shall 	be 	valid,
irrevocable, and enforceable, save upon such grounds as exist at
law or in equity for the revocation of any contract . . . .
9 U.S.C. § 2.
Under section 3, if any suit or proceeding is brought in federal court
based on “any issue referable to arbitration under an agreement in writing for
such arbitration,” “the court . . . upon being satisfied that the issue involved . .
. is referable to arbitration . . . shall on application of one of the parties stay
the trial of the action until such arbitration has been had in accordance with
the terms of the agreement.” 	9 U.S.C. § 3. 	“A party aggrieved by the alleged
failure, neglect, or refusal of another to arbitrate under a written agreement
7 Plaintiff filed a response to Captain’s letter, reiterating his opposition to arbitration.
(ECF No. 49).
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for arbitration may petition . . . for an order directing that such arbitration
proceed in the manner provided for in such agreement.” 9 U.S.C. § 4.
Courts must “rigorously enforce agreements to arbitrate.” Marsh v. First
USA Bank, N.A., 103 F. Supp. 2d 909, 914 (N.D. Tex. 2000) (quoting Dean
Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985)). 	“The FAA requires
that an arbitration agreement, as any other contractual provision, be enforced
by the courts according to its terms, if it is otherwise valid under general
principles of contract law.” 	Id. (citing Volt Info. Scis., Inc. v. Bd. of Trustees,
489 U.S. 468, 478 (1989)). “[W]hen a court undertakes the interpretation of an
arbitration provision covered by the FAA, ‘due regard must be given to the
federal policy favoring arbitration, and ambiguities as to the scope of the
arbitration clause itself resolved in favor of arbitration.’” Id. (citation omitted).
“When considering a motion to compel arbitration, the court must
determine: (1) whether a valid agreement to arbitrate exists between the
parties, and (2) whether the dispute at issue falls within the scope of that
agreement.” 	Grant v. Houser, 469 F. App’x 310, 314 (5th Cir. 2012). 	“While
ordinarily both steps are questions for the court, the parties can enter into an
arbitration agreement that delegates to the arbitrator the power to decide
whether a particular claim is arbitrable.” 	Archer and White Sales, Inc. v.
Henry Schein, Inc., 935 F.3d 274, 278 (5th Cir. 2019) (citations omitted).
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“Challenges to the validity of arbitration agreements ‘upon such grounds
as exist at law or in equity for the revocation of any contract’ can be divided
into two types.” 	Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444,
(2006). 	“One type challenges specifically the validity of the agreement to
arbitrate.” 	Id. 	“The other challenges the contract as a whole, either on a
ground that directly affects the entire agreement (e.g., the agreement was
fraudulently induced), or on the ground that the illegality of one of the
contract’s provisions renders the whole contract invalid.” 	Id. 	“Guided by § 4
of the FAA,” the Supreme Court has held that:
[I]f the claim is fraud in the inducement of the arbitration clause
itself – an issue which goes to the making of the agreement to
arbitrate – the federal court may proceed to adjudicate it. But the
statutory language does not permit the federal court to consider
claims of fraud in the inducement of the contract generally.
Id. at 445 (quoting Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S.
395, 403–04 (1967)). Moreover, “as a matter of substantive federal arbitration
law, an arbitration provision is severable from the remainder of the contract. .
. . [U]nless the challenge is to the arbitration clause itself, the issue of the
contract’s validity is considered by the arbitrator in the first instance.” 	Id. at
445–46.
A “delegation provision is an agreement to arbitrate threshold issues
concerning the arbitration agreement.” 	Rent-A-Center, Inc. v. Jackson, 561
U.S. 63, 68 (2010). As such, “parties can agree to arbitrate ‘gateway’ questions
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of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or
whether their agreement covers a particular controversy.” 	Id. at 68–69.
“Accordingly, unless [Plaintiff] challenged the delegation provision specifically,
[the Court] must treat it as valid under § 2, and must enforce it under §§ 3 and
4, leaving any challenge to the validity of the Agreement as a whole for the
arbitrator.” Id. at 72; see also Henry Schein, Inc. v. Archer & White Sales, Inc.,
586 	U.S. 	63, 	65, 	68 	(2019) 	(“When 	the 	parties’ 	contract 	delegates 	the
arbitrability question to an arbitrator, a court may not override the contract.
In those circumstances, a court possesses no power to decide the arbitrability
issue. 	That is true even if the court thinks that the argument that the
arbitration agreement applies to a particular dispute is wholly groundless.”).
“[P]arties 	may 	delegate 	threshold 	arbitrability 	questions 	to 	the
arbitrator, 	so 	long 	as 	the 	parties’ 	agreement 	does 	so 	by 	‘clear 	and
unmistakable’ evidence.” 	Henry Schein, Inc., 586 U.S. at 69 (citing First
Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) and Rent-A-Center,
Inc., 561 U.S. at 69 n.1).
III. 	Discussion
The Enova Defendants argue that all the requirements are met for
compelling arbitration. 	Namely, there is a valid agreement to arbitrate
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between the parties,8 and the claims at issue regarding the Loan Contract,
including the validity and enforcement of the agreement itself, fall within the
scope of their arbitration agreement. 	(ECF No. 38 at 10–14). 	The Enova
Defendants further argue that the action must be stayed pending arbitration
under § 3 of the FAA. (Id. at 14). Alternatively, the Enova Defendants request
that the action be transferred to the District Court for the District of Utah
pursuant the contract’s forum-selection clause. (Id. at 15).
In opposition, Plaintiff argues arbitration should be denied because he
did not agree to arbitrate, there are contracting-party “identity” issues, the
defendants’ corporate structure and relationships are disputed, and the loan
contract is void ab initio for being usurious and induced by fraud. 	Further,
Plaintiff challenges the delegation clause, and claims that non-signatories
cannot invoke the arbitration clause and defendants waived their right to
arbitrate by filing separate litigation. 	(ECF No. 40 at 12–26). 	In reply, the
Enova 	Defendants 	counter 	that 	Plaintiff 	admitted 	in 	his 	pleadings 	the
existence of a valid agreement to arbitrate, all defendants are covered by the
arbitration provision, the contract’s validity is a question for the arbitrator,
8 The Enova Defendants contend a valid contract to arbitrate exists under either Utah
or Texas law. (ECF No. 38 at 11–12). The Court need not reach the choice-of-law issue; as
discussed below, the contract’s validity is for arbitration.
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and separate lawsuits with different parties does not imply waiver of their
right to arbitrate. (ECF No. 41 at 2–8).
Plaintiff’s action boils down to claims for fraud and usury relating to his
Loan Contract. 	Because these claims fall under the scope of the Arbitration
Provision, they should be resolved in arbitration. 	The Court will nonetheless
address the issues germane to the instant dispute.
A. Claims Regarding the Loan Contract
In his lengthy Complaint, Plaintiff raises a panoply of claims and
allegations stemming from his Loan Contract due to Defendants’ alleged
usurious 	interest 	rate, 	unlawful 	fees, 	deceptive 	practices, 	fraudulent
inducement, and illegal business structure. 	(Id. 	at 4–7, 11, 25, 29–88).
Plaintiff also attaches the Loan Contract, where he signed as the Guarantor
and on behalf of the Borrower. 	(ECF No. 1-1 at 18–19). 	The Loan Contract’s
Arbitration Provision, specifically provides that “all claims between borrower,
guarantors, 	and 	lender 	shall 	be 	resolved 	through 	mandatory 	binding
individual arbitration.” 	(Id. at 12). 	According to the Provision, the term
“Claims” is to be “given the broadest possible meaning, and include without
limitation Claims arising from or relating to” the Loan Contract and its
transactions, terms, and obligations. (Id. at 12–13). The Provision also covers
claims “between Borrower and Guarantor and Lender or Lender’s parent
corporations, wholly or majority owned subsidiaries, affiliates, predecessors,
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successors, 	assigns, 	agents, 	independent 	contractors, 	employees, 	officers,
directors or representatives.” (Id. at 13).
When 	considering 	a 	motion 	to 	compel 	arbitration, 	the 	court 	must
determine “(1) whether a valid agreement to arbitrate exists between the
parties, and (2) whether the dispute at issue falls within the scope of that
agreement.” 	Grant, 469 F. App’x at 314. 	“While ordinarily both steps are
questions for the court, the parties can enter into an arbitration agreement
that delegates to the arbitrator the power to decide whether a particular claim
is arbitrable.” Archer and White Sales, Inc. 935 F.3d at 278. Here, the question
of whether a valid agreement to arbitrate exists between the parties—i.e., the
gateway 	question—has 	been 	delegated 	to 	the 	arbitrator, 	because 	the
Arbitration 	Provision 	expressly 	covers 	“Claims 	regarding 	the 	validity,
enforceability, or scope of this Arbitration section or this Agreement, including
but not limited to whether a given claim or dispute is subject to arbitration.”
(ECF No. 1-1 at 13) (emphasis added).
The Supreme Court has explained that “[c]hallenges to the validity of
arbitration agreements ‘upon such grounds as exist at law or in equity for the
revocation of any contract’ can be divided into two types.” 	Buckeye Check
Cashing, Inc., 546 U.S. at 444. 	“One type challenges specifically the validity
of the agreement to arbitrate.” 	Id. 	“The other challenges the contract as a
whole, either on a ground that directly affects the entire agreement (e.g., the
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agreement was fraudulently induced), or on the ground that the illegality of
one of the contract’s provisions renders the whole contract invalid.” 	Id.
(emphasis added). 	Plaintiff’s action falls under the second type, challenging
the contract as a whole, because his complaint is rife with allegations that the
Loan Contract was fraudulently induced and that the contract’s usurious
provisions render it invalid. The Supreme Court’s decisions in Buckeye Check
Cashing, Inc. v. Cardegna and Rent-A-Center, Inc. v. Jackson are directly
applicable to this case.
In Buckeye Check Cashing, the plaintiffs and Buckeye Check Cashing
entered into a loan contract, which included a clause whereby Cardegna agreed
to resolve any claims over the loan through arbitration. 	546 U.S. at 442–43.
The plaintiffs later sued Buckeye in Florida state court, alleging that Buckeye
charged usurious interest rates and that the agreement violated various state
lending and consumer-protection laws, rendering it illegal. 	546 U.S. at 443.
Buckeye moved to compel arbitration, and the trial court denied the motion,
holding that the court should resolve a claim that a contract is illegal and void
ab initio. 	Id. 	The state court of appeal reversed, holding the question of the
contract’s legality should instead go to the arbitrator, and the Florida Supreme
Court reversed, ruling in favor of Plaintiff. Id.
When the case was before the Supreme Court, the Court explained that
challenges to the validity of arbitration agreements can be divided into two
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types—one challenging specifically “the validity of the agreement to arbitrate”
and other challenging “the contract as a whole.” 	Id. at 444. 	The Court
concluded that plaintiffs’ claim was of this second type, because, much like
Plaintiff’s case here, “[t]he crux of the complaint is that the contract as a whole
(including its arbitration provision) is rendered invalid by the usurious finance
charge.” 	Id. 	Relying on precedent and § 4 of the FAA, the Court reiterated
that “if the claim is fraud in the inducement of the arbitration clause itself—
an issue which goes to the making of the agreement to arbitrate—the federal
court may proceed to adjudicate it. But the statutory language does not permit
the federal court to consider claims of fraud in the inducement of the contract
generally.” Id. at 445 (citing Prima Paint Corp., 388 U.S. at 403–04).
Therefore, “unless the challenge is to the arbitration clause itself, the
issue of the contract’s validity is considered by the arbitrator in the first
instance.” 	Id. 	at 	445–46. 	“[B]ecause 	[Plaintiff] 	challenge[s] 	the 	[Loan]
Agreement . . . [t]he challenge should therefore be considered by an arbitrator,
not a court.” 	Id. at 446. 	Rent-A-Center further supports this conclusion. 	In
Rent-A-Center, the Supreme Court held that, where an arbitration agreement
includes 	a 	delegation 	provision 	that 	the 	arbitrator 	will 	determine 	the
agreement’s 	enforceability, 	and 	a 	party 	challenges 	specifically 	the
enforceability of that particular delegation, the district court considers the
challenge; however, if a party challenges the enforceability of the agreement
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as a whole, the challenge is for the arbitrator. 561 U.S. at 67–72. The Rent-A-
Center Court ultimately concluded the plaintiff “challenged only the validity of
the contract as a whole” and he did not specifically challenge the delegation
provision. Id. at 72–76.
“Accordingly, 	unless 	[Plaintiff] 	challenged 	the 	delegation 	provision
specifically, [the Court] must treat it as valid under § 2, and must enforce it
under §§ 3 and 4, leaving any challenge to the validity of the Agreement as a
whole for the arbitrator.” 	Id. at 72. 	The Court concludes that Plaintiff
challenges the Loan Contract as a whole, and thus, the motion to compel
arbitration should be granted.9 See Williams v. Cmty. Bank, Ellisville, 821 F.
App’x 292, 296 (5th Cir. 2020) (“As the Supreme Court has stated, parties
challenging an arbitration agreement must direct their arguments at the
arbitration agreement, not the validity of the contract as a whole. 	Here, the
Williamses’ allegations of fraud are all directed at the contract as a whole.”).
9 The non-signatories are also entitled to invoke arbitration because Plaintiff alleges
that the corporate defendants and the individual defendants acted together to defraud
Plaintiff and because such allegations are connected with the obligations of the parties’ loan
contract. See Noble Capital Group, L.L.C. v. US Capital Partners, Inc., No. 20-50721, 2021
WL 3477481, at *3 (5th Cir. Aug. 6, 2021). Additionally, the Arbitration Provision explicitly
covers claims involving the “Lender or Lender’s parent corporations, wholly or majority
owned 	subsidiaries, 	affiliates, 	predecessors, 	successors, 	assigns, 	agents, 	independent
contractors, employees, officers, directors or representatives.” (Id. at 13).
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B. Challenge 	to 	the 	Arbitration 	Agreement 	and 	Delegation
Provision
Even if the Court were to assume Plaintiff has challenged the arbitration
agreement and delegation provision, the Court would still conclude that his
challenge fails.
When considering whether there was a valid delegation, “the court’s
analysis is limited.” Archer and White Sales, Inc., 935 F.3d at 279. The Court
asks “if the parties entered into a valid agreement. 	If they did, [the Court]
turn[s] to the delegation clause and ask[s] ‘whether the purported delegation
clause is in fact a delegation clause—that is, if it evinces an intent to have the
arbitrator decide whether a given claim must be arbitrated.’ 	Id. 	“When
determining that intent, ‘[c]ourts should not assume that the parties agreed to
arbitrate arbitrability unless there is clear and unmistakable evidence that
they did so.’” Id. (internal quotations omitted). “If there is a valid delegation,
the court must grant the motion to compel.” Id.
In response to the motion to compel, Plaintiff contends he did not
knowingly assent to the arbitration agreement and he specifically challenges
the delegation clause because “(1) it was contained in a contract with disputed
counterparty identity; (2) it depended on false Utah recitals; (3) Plaintiff
disputes that he knowingly agreed to delegate threshold questions to an
arbitrator when the identity of the ‘Lender’ invoking delegation was concealed;
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and 	(4) 	the 	unsigned 	portal 	contract 	confirms 	no 	valid 	agreement 	was
formed.”10 (ECF No. 40 at 12, 20). 	Plaintiff’s arguments, however, are belied
by his pleadings. 	In reply, the Enova Defendants point out instances in
Plaintiff’s Complaint in which he states he entered into the Loan Contract and
that he attached the signed version of the Contract he now denies signing.
(ECF No. 41 at 2–3). Defendants’ points are well taken. The Court will address
each of Plaintiff’s arguments.
To begin, the issue of the agreement’s “validity” is different from the
issue whether any agreement between the parties “was ever concluded.” Rent-
A-Center, 561 U.S. at 71 n.2. 	As the Supreme Court explained in Buckeye
Check Cashing, and reaffirmed in Rent-A-Center:
The issue of the contract’s validity is different from the issue
whether any agreement between the alleged obligor and obligee
was ever concluded. 	Our opinion . . . addresses only the former,
and does not speak to the issue decided in the cases . . . which hold
that it is for courts to decide whether the alleged obligor ever
signed the contract . . . whether the signor lacked authority to
commit the alleged principal . . . and whether the signor lacked the
mental capacity to assent.
Buckeye Check Cashing, Inc., 546 U.S. at 444 n.1; see also Rent-A-Center, 561
U.S. at 71 n.2 (citing Buckeye Check Cashing, Inc., 546 U.S. at 444 n.1); cf.
Allen v. Regions Bank, 389 F. App’x 441, 444 (5th Cir. 2010) (explaining that
10 In his response, Plaintiff has attached a version of his Loan Contract without the
electronic signatures. (ECF No. 40-2 at 29–47).
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“when the issue is whether an arbitration agreement even exists,” such as by
alleging “the contract with the arbitration provision never came into effect
because all the necessary signatures were never acquired,” the courts must
decide; but finding that contraction formation was not an issue because the
plaintiffs agreed there was a valid contract with the arbitration provision); id.
at 446 (“This [new formation allegation] appears to be an attempt to claim this
dispute fits within the category that the Supreme Court has said is for the
courts, that the agreement was not ‘concluded’ because the contract was never
signed, or the signatory did not have authority to bind or had insufficient
mental capacity.” (citing Rent-A-Center, 561 U.S. at 71 n.2 and Buckeye Check
Cashing, Inc., 546 U.S. at 444 n.1)). 	Plaintiff has repackaged his arguments
post hoc based on issues of assent. 	The Court, however, finds that his
arguments are meritless.
First, Plaintiff argues that he did not sign the contract containing the
arbitration clause. 	(ECF No. 40 at 20). 	Yet, as Defendants point out, his
Complaint is replete with factual allegations that he entered into the Loan
Contract. (ECF No. 41 at 2–3). For instance:
• 	“Plaintiff personally executed and guaranteed the October 24, 2022
financing agreement in his individual capacity, thereby becoming
personally obligated for all amounts due under the loan.” (ECF No. 1
at 7, ¶ 21).
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• 	“On October 24, 2022, Plaintiff entered into a loan agreement through
the 	OnDeck 	online 	platform 	for 	a 	stated 	principal 	amount 	of
approximately $150,000.” (Id. at 24, ¶ 94).
• 	“Every substantive part of the transaction occurred in Texas: the loan
was solicited, applied for, approved, executed via electronic signature,
funded, and repaid while Plaintiff was in Texas.” 	(Id. at 24, ¶ 97
(emphasis added)).
• 	“This 	cause 	of 	action 	concerns 	the 	October 	24, 	2022 	financing
agreement issued to Plaintiff through the OnDeck online platform . .
. .” (Id. at 29, ¶ 118).
• 	“Plaintiff reasonably relied on the written agreement [for the 2022
loan], OnDeck branding, and Defendants’ representations. . . . “Had
Plaintiff known the true facts, he would not have entered into the
2022 loan.” (Id. at 36, ¶¶ 139–140).
• 	Plaintiff “sought and acquired financial services and credit from
Defendants.” (Id. at 37, ¶ 144).
Nowhere in the Complaint does Plaintiff allege he did not sign the Loan
Contract. Nor does he raise an allegation that the Loan Contract was procured
without his signature, such as through forgery. Indeed, as mentioned, Plaintiff
attached the Loan Contract which contains his signature, thereby assenting to
the terms of the agreement, including the Arbitration Provision. 	(ECF No. 1-
1 at 18–19). 	“It is a cardinal rule of contract law, recognized by the Supreme
Court more than a century ago, that a party is bound by a contract to which he
signified his assent and he cannot be heard to complain that he did not read
its contents.” 	Marsh, 103 F. Supp. 2d at 919 (“The [Plaintiffs’] original
Cardmember agreement contained the arbitration clause. . . . Thus, [they]
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cannot and do not contend that they were not aware of the arbitration provision
contained in their Cardmember Agreement.”); see also Noble Capital Group,
L.L.C., Inc., 2021 WL 3477481, at *2 (“[Plaintiff], however, argues that because
it 	was 	not 	a 	signatory 	to 	any 	of 	the 	agreements 	containing 	arbitration
provisions, it cannot be compelled to arbitrate. But in its complaint, [Plaintiff]
claimed that Defendants fraudulently induced it to assent to the arbitration
clauses. 	So 	[Plaintiff] 	cannot 	now 	claim 	that 	it 	never 	assented 	to 	the
arbitration clauses.”).
Second, Plaintiff challenges the delegation clause because it “depended
on false Utah recitals.” 	(ECF No. 40 at 20). 	However, this argument hinges
on challenging the Loan Contract as a whole, because, according to Plaintiff,
these recitals constitute fraud, thereby rendering the contract illegal. 	As
examples, Plaintiff states in his Complaint:
• 	“The Utah venue clause in Plaintiff’s 2022 agreement states only that
disputes may be brought in Utah, making it permissive clause.
Plaintiff alleges that the clause was procured through false recitals .
. 	. 	and 	is 	therefore 	void 	and 	further 	evidence 	of 	Defendants’
fraudulent scheme.” (ECF No. 1 at 28, ¶ 116).
• 	“The 	Fraud 	Defendants 	made 	material 	false 	statements 	and
omissions regarding the identity of the lender, the place of lending,
the 	governing 	law, 	the 	nature 	of 	the 	transaction, 	and 	the
enforceability of the loan.” (ECF No. 1 at 32, ¶ 131).
• 	“The Fraud Defendants . . . falsely represented the loan as having
been made in Utah. . . . These misrepresentations induced Plaintiff .
. . to accept a Utah venue clause that Defendants knew was baseless.”
(Id. at 32, ¶ 132).
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• 	“Texas courts refuse to enforce choice-of-law provisions that would
circumvent Texas’s fundamental public policy particularly its strong
policy against usury. . . . The Utah venue clause was procured through
false recitals . . . .” (Id. at 91, ¶¶ 360–361).
Plaintiff challenges the forum-selection and choice-of-law provisions, but he
does 	not 	specifically 	challenge 	the 	Arbitration 	Provision, 	let 	alone 	the
delegation clause. 	See Marsh, 103 F. Supp. 2d at 920 (“The arbitration
provision standing alone does not present an opportunity for one party to gain
an unfair advantage over the other in arbitration, any more than the inclusion
of a forum selection clause would impede a just result in a court of law.”); Green
Tree Servicing, L.L.C. v. House, 890 F.3d 493, 504 (5th Cir. 2018) (“The
[borrowers’] fraud allegations are not specific to the arbitration agreement. In
their pleadings, the [borrowers] argued generally that the [lenders] ‘wrongfully
obtain[ed] the [borrowers’] signatures on contracts, promissory notes, deeds of
trusts, insurance payment plans, and completion certificates’ and that ‘[a]ll the
signatures . . . on the aforementioned documents were generally procured
under duress, with deceit, and/or through coercion, trickery, and/or other
wrongful conduct.’ 	These blanket allegations of fraud fall well short of the
specificity that Rent-A-Center requires.”).
Finally, Plaintiff’s first and third arguments challenge the delegation
clause based on alleged disputed identities of the contracting parties. 	(ECF
No. 40 at 20). In short, Plaintiff argues he did not assent to arbitration because
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he intended to contract with OnDeck, but the Loan Contract identifies ODK
Capital as the Lender. 	Again, the Loan Contract and his Complaint tell a
different story. Tellingly, the Loan Contract’s first section states as follows:
This Business Loan and Security Agreement . . . governs your
business loan (“Loan”) from ODK Capital, LLC. . . . In this
Agreement . . . The words “OnDeck”, “Lender”, “we”, “us”,” and
“our” mean ODK Capital, LLC or its successor(s) and assigns.
(ECF No. 1-1 at 5 (emphasis added)). 	In Plaintiff’s Complaint, he does not
allege that he asserted a complaint about the identity of the contracting parties
after he received the Loan Contract. On the contrary, Plaintiff submits he paid
off the loan in full, and Plaintiff does not allege he raised a lack-of-assent
complaint based on misidentity during the twelve-month term of the contract.
(ECF No. 1 at 25–26). See generally Allen, 389 F. App’x at 446 (“The [Plaintiffs]
accepted 	this 	[arbitration] 	agreement 	by 	continuing to 	use 	their 	deposit
accounts with [Defendant] and by signing signature cards. This was sufficient
clarity to demand arbitration of arbitrability.”). 	Moreover, “shortly after
Plaintiff paid off the 2022 loan [in October 2023,]” Plaintiff admits he entered
into second line of credit with Defendants in November 2023. 	(ECF No. 1 at
26). It begs the question why one would contract with party again if they had
an issue with who exactly they were contracting with.
Additionally, in May 2025, a “Charge-Off Specialist” in connection with
the November 2023 line of credit contacted Plaintiff requesting “tax returns,
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financial statements, bank records, and other confidential information” to
“evaluate 	a 	hardship 	review;” 	but 	rather 	than 	assert 	an 	identity-based
complaint, “Plaintiff provided the requested information in good faith[.]” 	(Id.
at 27–28). For these reasons, Plaintiff’s arguments challenging the Arbitration
Provision and delegation clause are unavailing.
“Any 	ambiguities 	regarding 	the 	scope 	of 	an 	arbitration 	clause 	are
resolved in favor of coverage.” 	Allen, 389 F. App’x at 446. 	The Arbitration
Provision clearly and unmistakably evidences the parties delegated threshold
arbitrability questions to the arbitrator. 	Henry Schein, Inc., 586 U.S. at 69.
The Court thus recommends the motion to compel arbitration be granted.
C. Pending Motions for Judicial Notice and to Strike
Because the Court recommends that this action should be ordered to
arbitration and stayed, the Court recommends the pending Motion for Judicial
Notice (ECF No. 42), and Motion to Strike Plaintiff’s Motion for Judicial Notice
(ECF No. 43) be denied as moot. 	Even if the Court were to consider the
arguments therein, they do not change the Court’s conclusions.
IV. 	Conclusion
Based on the foregoing, the Court RECOMMENDS Enova’s Motion to
Compel Arbitration and Stay Action, or Alternatively, to Transfer Venue (ECF
No. 38) be GRANTED, Plaintiff’s Motion for Judicial Notice (ECF No. 42) be
DENIED AS MOOT, and Enova’s Motion to Strike Plaintiff’s Motion for
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Judicial Notice (ECF No. 43) be DENIED AS MOOT. The Court FURTHER
RECOMMENDS that this action be ORDERED to arbitration and STAYED
pursuant to § 3 of the FAA.
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
SIGNED in Houston, Texas on July 31, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
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