US v. Peter Bove et al. (2016)

MEMORANDUM OF DECISION RE OBJECTION TO MOTION FOR JUDGMENT OF STRICT FORECLOSURE (# 156) AND MOTION FOR JUDGMENT FORECLOSURE BY SALE (# 157)

On April 18, 2016, the court entered a judgment of foreclosure by sale in the above-referenced case.  The court ordered that a sale to occur on June 18, 2016.  Subsequent to the entry of this order, the court became aware of an objection to the motion to judgment that had been filed the previous Friday, April 15, 2016.  This objection claimed the defendants had filed an answer and special defense and that, therefore, the motion for judgment was improvidently granted.  When the court became aware of this, it scheduled argument on the objection to the motion for judgment.  Argument occurred on or about May 2, 2016.  Rather than vacate the judgment at that time, the court took the papers on the objection to the motion for judgment, but extended the sale date to Saturday, July 30, 2016, so as to avoid the incurring of any committee costs in the interim.

This case has been pending before this court since June 2009.  The defendants were defaulted for their failure to plead in September 2009 (# 109).  Subsequently, the plaintiff filed a motion for a judgment (# 113).

On December 2, 2009, the case was reported to the court as settled based upon a reaching of an agreement to enter into a loan modification agreement (# 116).  The agreement to resolve the case broke down and in April 2010, the defendants moved to open the default (# 123), filed an answer and two special defenses (# 124), filed a counterclaim (# 125) and filed a motion to enforce a settlement agreement (# 126).

Thereafter, in April 2011, the defendant filed a notice of bankruptcy which stayed further action on the case for a period of time.  In August 2013, the defendant requested readmission into the foreclosure mediation program and the court granted that request.  The case stayed in mediation until September 2014, when it was reported that another agreement with regard to modification had been achieved.  Thereafter, almost a year later, in September 2015, the defendants filed a motion to strike one of the special defenses that had been filed by the defendants and also the counterclaim.  The court granted that motion on November 11, 2015 (# 147.50).  With the granting of the motion to strike, the defendants retained their special defense of accord and satisfaction and benefit of their denials of certain allegations of the complaint.

In light of this review of the pleading history in this case which now spans more than one-half of a decade, the court must open and vacate the judgment (# 157) previously entered as the plaintiff has not responded to the special defense of accord and satisfaction.  Once a responsive pleading is filed, the case may be claimed to the trial list so that a trial date can be set.

Cosgrove, J.

Cosgrove, Emmet L., J.