Opinion
00-CV-0745E(Sr).
April 26, 2004
ORDER
WHEREAS this foreclosure action was filed August 25, 2000; and
WHEREAS this Court issued an Order dated July 18, 2001 granting plaintiff a Judgment of Foreclosure and Sale ("Foreclosure Judgment"); and
WHEREAS defendants filed a motion on February 5, 2002 seeking to set aside the Foreclosure Judgment; and
WHEREAS this Court granted in part defendants' motion in an Order dated June 4, 2002 such that the Foreclosure Judgment was confirmed as to defendants' liability but that the amount of the liability had to be determined in light of defendants' sale of part of the mortgaged premises in partial satisfaction of the defendants' mortgage; and
WHEREAS no activity occurred in this action until this Court scheduled a status conference for June 20, 2003 — over a year after the June 4, 2002 Order was issued; and
WHEREAS this Court is not aware of the reason for plaintiff's delay in prosecuting this action; and
WHEREAS Judge Foschio scheduled a settlement conference for June 11, 2003, which was actually held on June 30, 2003, at which time it was decided that the parties would report back at a later date; and
WHEREAS this Court adjourned a June 20, 2003 status conference until July 11, 2003 in light of the settlement conference scheduled by Judge Foschio; and
WHEREAS the July 11, 2003 status conference was adjourned until July 25, 2003, at which time plaintiff's counsel indicated that defendants were attempting to sell additional parcels of the mortgaged premises; and
WHEREAS this Court adjourned the July 25, 2003 status conference until August 22, 2003, which was further adjourned to September 19, 2003 at plaintiff's request; and
WHEREAS plaintiff's counsel, in a letter dated September 5, 2003, indicated that the September 19, 2003 status conference was unnecessary and that plaintiff would file an application for Judgment of Foreclosure and Sale as soon as it received the necessary title information — which it had purportedly ordered; and
WHEREAS, on March 22, 2004, this Court issued an Order to show cause ("OSC") as to why this action should not be dismissed for failure to prosecute; and
WHEREAS defense counsel responded to the OSC in a letter dated April 15, 2004 by indicating that, inter alia, defendants were attempting to sell parts of the mortgaged premises in an attempt to settle this action; and
WHEREAS plaintiff responded to the OSC via an affidavit of defense counsel dated April 21, 2004, stating that, inter alia, plaintiff was (1) waiting for title information that it anticipated receiving within two weeks, and (2) requesting an additional thirty days to file its application to Amend the Judgment of Foreclosure and Sale; and
WHEREAS defense counsel's affidavit also indicated that "the delays incurred have not prejudiced the defendants"; and
WHEREAS this Court finds that the delays in this action have prejudiced the defendants — to wit, causing them to continue accruing 8% interest at a time when interest rates are at historic lows; and
WHEREAS this Courts deems it appropriate to relieve defendants of the burden of paying interest for some period of plaintiff's unexplained delay in prosecuting this action; and
WHEREAS plaintiff's sole explanation for the delay in filing its application to amend the Foreclosure Judgement is the need to obtain title information that it purportedly ordered in September of 2003; and
WHEREAS plaintiff has shown cause — albeit barely — why this action should not be dismissed for failure to prosecute; and
WHEREAS this Court strongly encourages plaintiff to hasten its efforts to bring this action to resolution; it is accordingly
ORDERED that plaintiff has shown cause why this action should not be dismissed for failure to prosecute, that defendants shall not be liable for interest for the period from September 4, 2002 until the date on which plaintiff files its motion to amend the Foreclosure Judgment and that this action will be dismissed with prejudice unless plaintiff files with this Court, by May 17, 2004, either (1) a motion to amend the Foreclosure Judgment or (2) an executed settlement agreement and stipulation of dismissal.
This Court deems three months to be a generous amount of time for plaintiff to have filed a motion seeking to amend the Foreclosure Judgment. Even if the parties were engaged in settlement negotiations, plaintiff should have prepared its motion to amend shortly after this Court's June 4, 2002 Order. Nonetheless, it appears that plaintiff did not even order the requisite title information until the latter part of 2003. This delay is inexcusable and it is equitable to suspend the interest for which defendants otherwise would have been liable.