2005 2005 R4 v. Sanzio H. Araujo et al. (2012)

MEMORANDUM OF DECISION ON PLAINTIFF'S OCTOBER 16, 2012 MOTION FOR ORDER (# 183.00)

The plaintiff seeks the following remedy from the defendants,' Sanzio H. Araujo's and Carla Araujo's, failure to file a post-hearing brief:  “The Court enter an order overruling the Defendants' Objection to Plaintiff's Motion for Judgment of Strict Foreclosure, as the Defendant has failed to file a brief as ordered by the Court.”

The defendants, Sanzio H. Araujo and Carla Araujo, filed an Objection to Motion for Strict Foreclosure dated March 19, 2012 (# 162.00) to which the plaintiff replied on August 22, 2012 (# 174.00).   These two pleadings were filed in response to the plaintiff's March 30, 2010 Motion for Judgment of Strict Foreclosure (# 138.00).   The court held two days of evidentiary hearings on the above pleadings.

The plaintiff presented its direct case seeking a judgment of foreclosure by offering eight exhibits and referencing the pleadings and orders already in the file.   After the plaintiff rested, the defendants offered the testimony of an expert witness and the defendant, Sanzio H. Araujo.   The plaintiff cross examined.   The defendants rested their defense of the foreclosure and their prosecution of Motion (# 162.00).

Thereafter, the defendants waived oral argument and elected to file a post-hearing brief.   The court ordered the defendant's brief to be filed on October 5, 2012, and the plaintiff to file a brief, if the plaintiff so wished, by October 22, 2012.   No further briefs would be filed.   No oral argument would be scheduled after the briefs were filed.   The court noted that the 120 days to render a written decision would run from the date the plaintiff could elect to file a brief, October 22, 2012.   The defendants filed three Motions for Extension on Brief October 5, 2012 (# 179.00), October 9, 2012 (# 180.00), and October 11, 2012 (# 181.00).   The court granted the defendants the last extension (# 181.86), which gave the defendants until October 15, 2012 to file their brief.   To the date hereof the defendants have not filed their brief.   The defendants have not requested any further extensions to file their brief after October 15, 2012.   The defendants have not objected to the plaintiff's Motion for Order now before the Court.   The Motion for Order was assigned to the nonarguable short calendar for Monday, October 29, 2012, and thereafter assigned to the undersigned as the trial judge.   The defendants did not request oral argument on this Motion for Order (# 183.00).   The plaintiff duly marked this Motion for Order (# 183.00) ready and the plaintiff did not request oral argument.   This court has taken the Motion for Order (# 183.00) on the papers.

The Court denies the plaintiff's Motion for Order (# 183.00) since the request for a judgment is inappropriate in light of the two days of contested evidence and testimony.

The Court will not read any post-hearing briefs filed by the defendants as a sanction for not complying with the briefing schedule, a briefing schedule that was extended three times at the defendants' own request.   The plaintiff has opted not to file a brief and the time for the plaintiff to file a brief has passed.   The court therefore will not read any post-hearing briefs.

The court will render a written decision on all three motions 120 days from the last trial date of August 29, 2012 that day being Thursday, December 27, 2012.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.