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Opposition to Ex-Neg V9c

Opposition to Ex-Neg V9c

Ratings: (0)|Views: 29 |Likes:
Published by Glenn Augenstein
My Opposition to Appellees Motion for Excusable Neglect, and Motion for Leave to File Its Brief Out of Time
My Opposition to Appellees Motion for Excusable Neglect, and Motion for Leave to File Its Brief Out of Time

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Published by: Glenn Augenstein on Feb 21, 2012
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03/15/2013

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Commonwealth of KentuckyCourt of Appeals
 NO. 2009-CA-000058-MR GLENN D. AUGENSTEINAPPELLANTv.APPEAL FROM HENRY CIRCUIT COURTACTION NO. 07-CI-00368DEUTSCHE BANK NATIONAL TRUST COMPANYAPPELLEE 
APPELLANT'S OPPOSITION TO APPELLEE'S MOTIONFOR LEAVE TO FILE BRIEF OUT OF TIME
Comes now Appellant, Glenn D. Augenstein,
 pro se
, and objects to the Motion toFile Brief Out of Time of Appellee Deutsche Bank National Trust Company, as Trusteefor the Soundview Home Loan Trust 2005-OPT4. The Appellee's Motion For Leave ToFile Brief Out of Time should be DENIED.The motion consists of a single paragraph which wholly fails to identify a factual predicate or even a scintilla of evidence in support of such motion.
PROCEDURAL HISTORYHistory of Prior Enlargements To the Benefit of Appellee
The Appellant filed his Appellant’s Brief perfecting the appeal on August 10, 2009.Therefore, the Appellee’s Brief was originally due on
October 9, 2009
.
1
 By motion filed October 8, 2009, Appellee sought a sixty (60) day enlargement of time to file its brief. By Order of October 20, 2009, the Court extended the deadlinegiving the Appellee sixty six (66) days, setting the new deadline as
December 14, 2009
.
1
Although CR 76.12(2)(a) allows for sixty (60) days, the docket entry seemed to erroneously indicate that the brief was due October 14, 2009, appearing to allow Appellee an extra day, for a total of 61.A
PPELLANT
'
S
O
PPOSITION
 
TO
A
PPELLEE
'
S
M
OTION
 
TO
F
ILE
B
RIEF
O
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No. 2009-CA-000058-MR 
 Augenstein v Deutsche Bank National Trust Company
Page 1
 
Thereafter, upon the Appellant’s filing of his CR 60.02 motion with the HenryCircuit Court, the Appellate Court ordered the appeal held in abeyance during the pendency of that matter, implicitly granting Appellee additional time to research, prepare,and write its brief. A total of five months and three days elapsed between the date of the
December 14, 2009
, deadline and the date the case was returned to the active docket.On
April 23, 2010
, the Henry Circuit Court entered an order denying Appellant'sCR 60.02 motion. The Appellee was immediately aware of the Circuit Court’s order of 
April 23, 2010
, and certainly could have resumed preparations of its brief immediatelyupon receipt of this Order. The entry of this order rather clearly signaled that the appealwould be quickly returned to the active docket. The deadline to file the Appellee’s Brief had been
December 14, 2009
, then long passed. Absent an enlargement, the brief wouldhave been immediately due upon reinstatement to the active docket.Despite the fact that the brief was already more than four months overdue, the
 Appellee took no action
to apply for any additional extension by motion under CR 6.02(a). To the great fortune of the Appellee, when the Appellate Court ordered thisappeal returned to the active docket on May 17, 2010, the Court also generously made a
 sua sponte
grant of an additional thirty (30) day enlargement for Appellee to file its brief.The new deadline for the Appellee's brief was
June 16, 2010
.
2
 
But by then, the Appelleehad already had twenty-four (24) days post circuit court order to resume work on the brief to have it ready upon reinstatement to the active docket. The enlargement gave theAppellee an additional thirty days for a total of fifty-four (54) days after the entry of theCircuit Court order. Still this was not enough. The Appellee had to take NINE (9) more
2
Fox v. House
, 912 S.W.2d 450, 450-1; 1995 Ky. App. LEXIS 109 (Ky. App. 1995).A
PPELLANT
'
S
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PPOSITION
 
TO
A
PPELLEE
'
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OTION
 
TO
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ILE
B
RIEF
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UT
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No. 2009-CA-000058-MR 
 Augenstein v Deutsche Bank National Trust Company
Page 2
 
days, to which it was not authorized.
3
 
On
June 25, 2010
, Appellee filed its Motion For Leave To File Brief Out Of Time. Appellee's motion seeks yet another additional (fourth)enlargement to provide for the acceptance of a brief which was overdue by nine (
9)
days.The appellate court found that the trial court had, “in accordance with
 Pioneer's
command, properly considered these last two instances of neglect [the one day tardinessin filing and the subsequent period in seeking post-deadline enlargement by motion] notin isolation, but by "taking account of all relevant circumstances surrounding the party'somission."
 Pioneer 
 
, 507 U.S. at 395.”
4
The court's prior generosity in granting prior enlargements and the movant's history of missed deadlines were such relevantcircumstances.
 Nafziger v. McDermott International 
 
, 467 F.3d 514, 522-4; 2006 U.S.App. LEXIS 25982; 66 Fed. R. Serv. 3d (Callaghan) 592 (6
th
Cir. 2006),
cert.
 
denied 
 
.
The Appellee Has Had Ample Time To Complete And File Its Brief 
Through the June 16, 2010, due date of the brief, the Appellee had a total of ten (10)months and six (6) days (310 days) to prepare its brief.The Appellant returned the record to the Henry Circuit Court on June 25, 2009, precisely a year to the day before the Appellee's motion, and the record had beencontinuously available to the Appellee from that time, giving the Appellee a full year of unfettered access to the record in support of its efforts to prepare its brief.
5
 The allowed period for the brief under CR 76.12(2)(a) was sixty (60) days. Whenthe court has allowed an enlargement of time, it usually allows only sixty (60) days for a
3
A
 
 bsent the Court’s unilateral third enlargement of time for the Appellee to file its brief, the brief would have beenalready overdue on May 18, 2010, and the Appellee’s
excusable neglect 
m
 
otion would have been an explanation of its prior inadvertence in seeking enlargement upon reinstatement to the active docket.
4
Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership
, 507 U.S. 380, 395; 113 S. Ct. 1489,1498; 123 L. Ed. 2d 74, 89; 1993 U.S. LEXIS 2402 (U.S. 1993).
5
Appellee deemed this case to be so simple that it found it wholly unnecessary to even
check out 
the record.A
PPELLANT
'
S
O
PPOSITION
 
TO
A
PPELLEE
'
S
M
OTION
 
TO
F
ILE
B
RIEF
O
UT
O
F
T
IME
No. 2009-CA-000058-MR 
 Augenstein v Deutsche Bank National Trust Company
Page 3

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