Where a plaintiff creditor seeks a temporary restraining order and injunction against an auction house to prevent the sale of construction equipment at a price that would harm her security interest in the equipment, the motions are denied because the plaintiff failed to show either a likelihood of success on the merits or potential for irreparable harm.
"Eleanor Kerrissey ("Kerrissey' or 'plaintiff') filed a complaint against Commercial Credit Group. Inc. ("CCG") and Alex Lyon & Son Sale Managers & Auctioneers, Inc. ("Lyon & Son") (collectively 'defendants') alleging numerous violations of Massachusetts state law, including a claim for unfair and deceptive practices pursuant to M.G.I. c. 93A, for conduct related to a public auction. Plaintiff seeks injunctive and declaratory relief, as well as treble damages including costs and attorneys' fees. She alleges that defendants engaged in unfair and deceptive practices by making various misrepresentations at the auction and thus did not conduct it in a commercially reasonable manner as requested by Massachusetts law. As a result of that allegedly sham auction, plaintiff asserts that the construction equipment sold at that auction was sold at a price well below market value which harmed her security interest in that collateral. On February 7, 2019, Kerrissey filed a motion for a temporary restraining order or, in the alterative, a preliminary injuction seeking to void the public auction and enjoin the consummation of certain sales made at that auction...
"In her motion, Kerrissey requests a preliminary injunction 1) to enjoin the consummation of certain sales of heavy equipment from the auction, 2) to void the sales from the auction to the extent that payment has not already been received or that the sales were made to persons affiliated with defendants. 3) to order defendants to conduct a second auction in compliance with applicable law and/or 4) to allow plaintiff or JDHE sufficient time to pay fof the outstanding balance of the loans in exchange for a release of CCG's interest in the heavy equipment...
"In order to obtain a preliminary injunction, the moving party must establish 1) a reasonable likelihood of success on the merits, 2) the potential for irreparable harm if the injunction is withheld, 3) a favorable balance of hardships and 4) the effect on the public interest. Jean v. Mass. State Police, 492 F.3d 24, 26-27 (1st Cir. 2007). Out of these factors, the likelihood of success on the merits 'normally weighs heaviest in the decisional scales.'
"Plaintiff cites no case law in support of her state law claims and thus it is difficult to assess her likelihood of success on those claims...
"Rather, the burden is on the plaintiff to prove such a lielihood and she has failed to meet that burden...
"The second element for consideration, namely proof of irreparable harm, weighs heavily against plaintiff...
"Finally, and perhaps most importantly, plaintiff does not clearly explain why CCG or Lyon & Son would not be able to satisfy any judgment to which she may become entitled if she proves that the subject equipment was sold at a commercially unreasonable auction. For those reasons, Kerrisey has not satisfied her burden of establishing irreparable harm and thus her motion for preliminary injuction relief will be denied."
Kerrissey v. Commercial Credit Group, Inc. et al.
