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In another thread, JL recently presented some questions relating to filing an answer upon the denial of his motion to dismiss.

I just wanted to share one thought for consideration and discussion.

Under the rules in most states, modeled after Federal Rule 6(b), a party can ask for an enlargement of time.  While it is always a good idea to endeavor to complete and file every document on time, courts routinely grant enlargements of time when timely requested, especially when the request is (a) early in the case, (b) the time requested is small, (c) the request for an enlargement is a first request, and (d) the request is unopposed.

It is always essential to precisely conform to the Rules in making such a request and to be prepared to file on time if the request for enlargement is not granted.

If you can get your adversary -- the plaintiff -- to agree to the request, getting the request approved is almost always a slam dunk, especially the first time.

It is almost always a good idea to at least present the motion to the plaintiff in advance and to at least ask that the plaintiff agree to the motion.  You might be pleasantly surprised at how quickly the plaintiff will agree.  This sort of cooperation in civil litigation is routine and expected in other sorts of cases, but in foreclosure, the foreclosure mills often seek to press where other sorts of cases this would be agreed to instantly.

You need to very carefully read the rules and cases on the rules before preparing your motion for enlargement.  But the motion itself is generally reasonably straightforward, short and simply.  You are usually going to need to give a reason for the enlargement.  This is critical.  If you do not set forth a reason, then you are unlikely to succeed.  But first enlargements are often granted on the thinnest of reasons.  Looking for an attorney is almost always a pretty good reason and since courts usually prefer that parties be represented by attorneys, courts are usually loath to deny motions for enlargement based upon such a reason.

The motion is probably going to need to be supported by affidavit.  This means that you will need to swear to the facts in support of your motion.  If you are asking for time to find an attorney, it would be a good idea to actually look for one and to make a good faith effort to do so.  (This does not mean that you have to succeed in that effort.)

Maybe you are attending to a sick relative who is down with the flu.  Maybe you have been required to work overtime by your employer.  Whatever reason(s) you cite, you should take care that your allegations and your affidavit are true.

Bear in mind the old adage:  nothing ventured, nothing gained.  You can ask for an enlargement and be denied.  If you don't ask, then you aren't going to be given more time.

Also, bear in mind that time is money.  If the enlargement keeps you in your home an extra month, then you need to ask yourself how much that remaining in the property is worth and devote an appropriate amount of time to the effort.  Of course, the plaintiff knows this too.

You need to ask for a specific amount of time and that amount of time needs to be realistic.  If your state requires you to answer in thirty days, it is generally unlikely that you would be granted an enlargement in excess of that amount of time except under the most exceptional of circumstances (e.g. you are lying in a coma in the hospital and your recovery is uncertain).  It is usually easiest to obtain a single enlargement of the amount of time that is normally allowed or shorter.

The court is quite unlikely to grant you more time than you request and may shorten the allowance, so generally you want to ask for as much time as you can reasonably request without the request being viewed as excessive.  Of course, the amount of time you ask for also needs to relate to the reason for your request.  If you ask for more time because you are attending a funeral, you might be lucky to get a week.  If your reason suggests a longer impairment in your time to answer, then you may reasonably ask for and get more time.

Also, bear in mind that there are usually very different standards applied to requests made timely in advance of a deadline and requests made after the deadline has passsed.

In most places, the former standard under Rule 6(b)(1) requires good cause.  The latter under 6(b)(2)requires a much more difficult standard of excusable neglect

For this reason, it is essential to get the request in well enough in advance to be considered under the good cause standard.

Be sure to include a proposed order.  If you furnish an order and your motion is clear, well supported and made in conformance with the rules, the chances of getting a first enlargement are probably pretty good.  Getting a second enlargement is usually more challenging.  A second request probably needs a better excuse and needs to request less additional time (e.g - ask for 30 days on the first request and 14 days on the second).

If you fail to include a proposed order, your chances of getting an enlargement drop precipitously, since this would require someone to take the time to type and print out the order you have neglected to prepare.  If the proposed order is included all the judge has to do is sign the order.  In some courts, judges routinely delegate to their clerk routine approval of such first requests.  The clerk may simply use a rubber stamp to affix the judge's signature and your order is granted.  (Keep this in mind when you think you ar egoing to be making an effective argument about rubber stamped signatures on indorsements!)

The chances of success will vary considerably from judge to judge.  Chances are probably highest when your motion is unopposed.  But even the most crooked foreclosure mill law firm may not want to incur the wrath of a judge by opposing a first request which is well prepared and properly supported.  You may be pleasantly surprised.

Finally, bear in mind that requirements as to scheduling motions for hearings and/or getting matters decided by submission vary greatly from place to place.  In many places, if you make a motion and fail to either request determination by submission OR set the matter for a hearing nothing will happen.

This is a classic mistake many pro se litigants make.  They prepare a motion and never set the motion for hearing.  They think that the court is going to rule on their motion.  But the court may never even look at the motion until it is set for hearing or for determination by submission.

Many scam artists lead distressed borrowers down a path to slaughter by helping litigants prepare and file various specious pleadings.  Of course, when the matter actually comes before the judge, the specious motion will be denied or case will be dismissed.  The scam artists do not want you to know that your filings are sham pleadings and that you have simply been taken in by swindlers.  So they never tell you about the necessity to set a hearing.  (Appellate courts will routinely affirm trial court decisions where the court didn't even consider motions that were filed but never set for hearing and determination.) 

When filing a motion and scheduling a motion for hearing, take care to read, understand and appreciate rules about minimum times.  Usually, a motion cannot be heard for some number of days after filing and service of the motion, so if you wait until the very last day to ask for enlargement, you have already missed the deadline.  Allow several extra days and get your motion in ahead of the deadline, taking care to schedule the motion so that it will be determined in advance of the deadline.

If your court requires oral hearing of this sort of motion, then you may have to appear in person.  Again, this is a double edge sword and makes a claim on your time.  You might have to take time off from work to go to court.  On the other hand, the opposing attorney may have to also make a court appearance to oppose the motion.  So where oral hearings are required, your adversary may be somewhat more willing to agree to the enlargement.

If you can get the plaintiff to agree, then you need to make sure to call attention to this in your filing.  Instead of labelling it a "Motion for Enlargement of Time To Answer", call it an "AGREED Motion for Enlargement of Time To Answer".  Include your supporting affidavit and in your affidavit relate that the plaintiff has agreed and attach a copy of a written letter or e-mail message reflecting and memorializing that agreement.  Also call attention to the agreement in the cover letter and expressly ask the clerk to put the agreed motion before the judge for signature on your proposed order.  This really greases the skids for the judge to sign the order.

The principles discussed here can generally apply to any deadline you face.  But you need to use such requests sparingly and judiciously.  If you become like the boy who cried wolf, when faced with a real emergency, you may have used up all of the court's good will.
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This is helpful. Thank you.
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