Nick Carter and Suzanne Elovecky persuaded a Massachusetts Superior Court judge to deny a request to enjoin a foreclosure sale initiated by their lender clients.
Mr. Carter and Ms. Elovecky argued that the plaintiff borrower – despite allegations of fraud in his complaint to the contrary – was fully aware of every aspect of the agreement to purchase the commercial property at issue, including the air rights associated with the property in a separate transaction.
The plaintiff, who has defaulted on his loan obligations, alleged that the sale of the air rights occurred at a "secret closing" without his knowledge.
However, in opposing the preliminary injunction request, Mr. Carter and Ms. Elovecky submitted documentary evidence demonstrating that an attorney represented the plaintiff at all relevant times, understood that the property's air rights were being sold separately, and that the attorney incorporated into the sale agreement specific terms related to the property and the air rights.
As a consequence, Mr. Carter and Ms. Elovecky argued that the court should deny the request for an injunction against the foreclosure sale because the plaintiff would not likely succeed on the merits of his complaint, including allegations of fraud and misrepresentation.
This argument was strengthened further by the fact that the plaintiff's complaint was barred by applicable statutes of limitation, as the sale transaction occurred nearly 11 years ago in March 2006. The documentary evidence showing the plaintiff's counsel's participation in the negotiations leading up to the transaction precluded the application of the discovery rule to the statute of limitations defense.
Mr. Carter, a partner at the firm, has over two decades of experience as a trial lawyer in state and federal courts in a wide variety of commercial litigation matters. Ms. Elovecky has 10 years of experience handling complex commercial litigation matters, including contract disputes and real estate litigation.