A. Mann

The plaintiffs/moving parties sought summary judgment on a defaulted second mortgage in the principal amount of $425,000 secured against four properties.

The defendant's default was undisputed.

The court granted summary judgment, finding no genuine issue requiring a trial.

The defendant's counsel had engaged in repeated attempts to stay or adjourn the motion through duplicitous motions that had already been dismissed by other judges, amounting to abuse of process.

The court awarded full indemnity costs of $73,000 to the moving parties but deferred the issuance of Writs of Possession pending updated occupancy reports.

Following a trial under the Simplified Rules where the plaintiffs' claims were dismissed and the defendants' counterclaims succeeded, the court determined the final damages calculations and costs.

The court held that the defendants, despite beating their Rule 49 offer to settle, were only entitled to partial indemnity costs because they were defendants with a counterclaim and the plaintiffs' conduct was not reprehensible.

After considering the Rule 57.01 factors, including the unnecessary complexity added by the plaintiffs' unsubstantiated fraud allegations, the court awarded the defendants $80,000 in costs.

The defendant moved to dismiss the plaintiff’s action for failure to satisfy prior costs orders totaling more than $45,000 and for delay in prosecuting the action.

The plaintiff, through her granddaughter acting under an alleged power of attorney, asserted medical incapacity and financial hardship as reasons for non‑payment and delay.

The court found the evidence supporting impecuniosity and incapacity weak, contradictory, and largely unsupported, noting property transfers to family members and a lengthy history of delay and procedural default.

While recognizing that striking a claim is a drastic remedy, the court held the plaintiff had failed to justify her non‑compliance and lack of progress.

The court granted the plaintiff a final opportunity to pay the outstanding costs and comply with discovery obligations, failing which the defendant could seek dismissal.