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Ferraro v. Realty USA

April 23, 2009

CHRISTOPHER FERRARO, MICHELE FERRARO, AND RON REALE, D/B/A POWER OF ATTORNEY ADVOCATES, PLAINTIFFS,
v.
REALTY USA, ET AL., DEFENDANTS.



DECISION AND ORDER

Currently before the Court is Plaintiffs' Motion for a Preliminary Injunction pursuant to Federal Rules of Civil Procedure 65. Motion (Dkt. No. 120). Plaintiffs Christopher Ferraro, Michelle Ferraro and Ron Reale ("Plaintiffs") are seeking to restrain and enjoin Defendants from the foreclosure, sale, or auction of any property now in controversy as set forth in Plaintiffs' Complaint. Id. Plaintiffs' Motion for a Preliminary Injunction is denied. Additionally, Plaintiffs' are liable for sanction, in the form of attorneys' fees incurred by Defense counsel who appeared in Court on April 22, 2009.

I. Background

On April 17, 2008, Plaintiffs commenced this action pro se, alleging various violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), as codified at 18 U.S.C. § 1961 et seq., violations of the Truth in Lending Act, as codified at 18 U.S.C. § 1601 et. seq., violations of 18 U.S.C. § 1341, violations of 18 U.S.C. § 1343 and violations of unspecified New York banking and lending laws. See Compl. (Dkt. No. 1).

This action arises out of Plaintiffs' purchase of ten properties between June and December 2006. Id. Plaintiffs entered into a partnership to purchase the properties, and obtained mortgages to finance the purchases of all ten properties, several of which are now in foreclosure. Id. Plaintiffs allege that Defendants were lenders, serviced mortgages, or purchased mortgages on the secondary market. Id.

On February 2, 2009, Plaintiffs filed an Order to Show Cause seeking a Temporary Restraining Order. Order to Show Cause (Dkt. No. 120). The Order to Show Cause originally arose out of the impending sale on February 4, 2009 by public auction of one of the properties at issue in this Complaint: 1071 Wendell Avenue, Schenectady, NY ("1071 Wendell"). Id. This Court denied the Order to Show Cause and further ordered that Plaintiffs' Order to Show Cause for a Preliminary Injunction should be construed as a Motion for a Preliminary Injunction. Dkt. No. 121. The Court also granted Plaintiffs' request and ordered a hearing on this issue. Id.; Dkt. No. 120. 1071 Wendell was sold at public auction as scheduled. Dkt. No. 121; Cornish Decl. ¶ 9.

In accordance with this Court's February 2, 2009 Order, Plaintiffs filed their Memorandum of law in support of their Motion for a Preliminary Injunction on March 23, 2009. Dkt. No. 125. Five Responses in opposition to Plaintiffs' Motion for a Preliminary Injunction were filed by various Defendants. See Dkt. Nos. 128, 130, 131, 132, 135.

On April 7, 2009, Plaintiffs filed another Motion for a temporary restraining order to enjoin the sale of two properties located at 133 Second Avenue, Troy, NY 12180 ("133 Second") and 817 River Street, Troy, NY 12090 ("817 River"), at public auction on April 17, 2009 and April 21, 2009, respectively. Dkt. No. 138. This Court denied that Motion. Dkt. No. 139.

On April 22, 2009, at Plaintiffs' request, this Court held oral arguments on Plaintiff's Motion for a Preliminary Injunction. Dkt. No. 146. Five attorneys for various Defendants appeared in Court. Id. Plaintiffs, however, failed to appear. Id.

II. Discussion

A. Preliminary Injunction

1. Preliminary Injunction Standard

The Second Circuit has stated that "[a] party seeking injunctive relief ordinarily must show:

(a) that it will suffer irreparable harm in the absence of an injunction and (b) either (I) a likelihood of success on the merits or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardship tipping decidedly in the movant's favor." Tom Doherty Assoc., Inc. v. Saban Entm't, 60 F.3d 27, 33 (2d Cir. 1995). "Such relief . . . is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Moore v. Consolidated Edison Co. of New York, Inc ., 409 F.3d 506, 510-511 (2d Cir. 2005). "Where there is an adequate remedy at law, such as an award of money damages, injunctions are unavailable except in extraordinary circumstances." Id. (citing Morales v. Trans World Airlines, Inc., 504 ...


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