How to Get out of Default in Florida

For most people being sued is a terrible and stressful event.  Sometimes, rather than facing the uncertainty  head on, people fail to do anything at all.  In Florida, the failure to respond to a lawsuit within a specified time period, sometimes as little as 20 days, can result in a Default being entered against you. That means that if you fail to respond, the allegations in the Complaint (the lawsuit) may be taken as true. Alarmingly, this can lead to a situation where a judgment is entered against you for liquidated damages or leave you with only the ability to argue the level of damages if your damages are un-liquidated. Obviously the easiest way to avoid a Default Judgment is to simply file and Answer to the lawsuit.  This should almost always be done with the aid of an attorney. But, chances are if your reading this article a Default may have already been entered against you. So how does one get out of a Default in Florida?  Well lets start with the basics so that you can understand what has happened.  Florida has a set procedure for the operation of a lawsuit, these are codified in the Florida Rules of Civil Procedure.  A Default, if entered comes from one of these rules codified in Florida Rule of Civil Procedure 1.500 which provides:

RULE 1.500. DEFAULTS AND FINAL JUDGMENTS THEREON

(a) By the Clerk. When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper.

(b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, that party shall be served with notice of the application for default.

So the failure to actually file any responsive pleading or paper, any response whatsoever, can lead to a Default.  Depending on the tenacity of Plaintiff’s counsel, this can happen in as little as twenty days after service in some cases.  Ok so a Default has been entered, what can you do?  Well the same set of rules that create the Default also provide some instruction on how to obtain relief.

Rule 1.500(d) of the Florida Rules of Civil Procedure provides:

“The Court may set aside a default, and if a final judgment consequent thereon has been entered, the Court may set it aside in accordance with Rule 1.540(b) of the Florida Rules of Civil Procedure.”

So we then turn to Florida Rule of Civ. P. 1.540(b) which states:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect…”

Establishing the Required Elements for Relief from Default in Florida 

So the Florida Rules of Civil Procedure provide a roadmap for who is entitled to relief.  The individual facts and circumstances of your case are key to the determination but Florida law requires three things (1) Excusable Neglect (2) Meritorious Defense (3) Due Diligence.   We will discuss each briefly.  Also, if you would like some authority for these elements check out the following case: Hunt Exterminating Co., Inc. v. Crum, 598 So. 2d 113, 114 (Fla. 2d DCA 1992).

I. Excusable Neglect

Excusable Neglect means that there was some basis for your failure to file the answer in a timely manner. Although there is no bright line rule with excusable neglect common factual scenarios exist. Commonly excusable neglect can be found from major life emergencies like hospital stays or medical conditions. Additionally if Plaintiff and Defendant were engaged in settlement negotiations such that Defendant could have had a good faith belief that Plaintiff would not have moved for Default, that scenario may provide sufficient facts to fit this criteria.  Keep in mind that there is no bright line rule.  Whatever the factual basis for the late response, make sure that you put these facts in the form of an Affidavit to attach to your Motion to Set Aside Default.

For an Example of some potential fact scenarios that might help your particular case, you can key in the following cases to Google:

a) Gables Club Marina, LLC v. Gables Condominium and Club Ass’n, Inc., 948 So. 2d 21, 24 (Fla. 3d DCA 2006)(Finding that a misunderstanding regarding settlement negotiates was sufficient excusable neglect)

b) Weeks Cartage, Inc. v. CSX Transp. 547 So. 2d 237 (Fla. 1st DCA 1989) (Finding Defendant’s belief that no response was needed based upon misunderstanding of the representations of Plaintiff’s attorney was excusable neglect)

c) Elliot v. Aurora Loan Services, LLC, 31 So. 3d 304 (Fla. 4th DCA 2010)

II. Meritorious Defense

A meritorious defense is also required to obtain relief from Default in Florida.  What is meritorious? Well according to Webster’s it is: “deserving of reward or praise.”  Luckily for every Defense counsel and Defendant in Florida, the Courts define this term a little differently.  A “meritorious defense” for the purpose of setting aside a default merely requires that the party in default raise issues of fact.  So not a literal definition, any  defense that will raise issues of fact sufficient to negate the Plaintiff’s Complaint. Again, if you haven’t talked to a Florida lawyer, great idea to do so to make sure you raise the right issues.

See for example:

a) North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla. 1962) (allegation that the hospital had a meritorious defense to the action inasmuch as it had not been negligent sufficient to establish meritorious defense)

b) Ponderosa, Inc.v. Stephens, 539 So. 2d at 1164 (statement in its unsworn motion that it did not have knowledge of an incident occurring on the date in question prior to receiving the complaint sufficient to establish meritorious defense)

c)  Yelvington Transport, Inc. v. Hersman, 513 So. 2d 1361 (Fla. 3d DCA 1987) (general denial of complaint’s allegations and affirmative defenses establishes meritorious defenses for purpose of setting aside default). 

III.  Due Diligence

The last element is probably the easiest to understand and the least out of your control.  After learning that a Default had been entered did you make diligent attempts to find a Florida attorney, or try to submit the necessary documents to obtain relief from default?  Unfortunately there is no bright light rule regarding the time frame.  Some Court has have held that weeks are ok but months are not.  Ultimately each factual determination regarding your due diligence will need to be made by the Judge.  The shorter in time from learning about the Default to taking action to get it overturned, the more likely you are to obtain this element.

IV.  The Equities

Judges generally don’t like to have cases determined on procedural technicalities.  If you just couldn’t respond to the lawsuit in time it is tremendously unfair for your to have a Default Judgment entered against you and the entire case heard without giving you Due Process or in other words, your day in Court.  This unfairness, or inequity as it is called in the caselaw in Florida has not been lost on our Courts. As a result, in Florida there is a strong presumption to allow Defendants relief from default.   See for example: 

a)  Coquina Beach Club Condominium Ass’n Inc. v. Wagner, 813 So. 2d 1061, 1063 (Fla. 2d DCA 2002). “A litigant who timely moves to set aside a default, asserting a credible explanation of human error, is entitled to be heard on the merits.” Id. at 1064.  

b) Bland v. Viking Fire Protection, Inc. 454 So. 2d 763 (Fla. 2d DCA 1984) (“[C]ourts should liberally set aside defaults so that lawsuits may be determined on their merits.”)

So if you find yourself trying to get out of a Default in a Florida lawsuit, you may be able to have the Default Set Aside and defend your case.  We strongly recommend that you consult with a licensed Florida Attorney immediately if you find yourself in Default.  As always, if you have additional questions or need help with anything identified in this article, just give us a call. 

Brice Zoecklein 

Attorney at Law

This Post Has 2 Comments

  1. Avatar

    Hi Mr. Zoecklein,

    Thank you so much for this article, helpful in understanding the procedure. I do have a question: what happens if a Motion For Clerk Determination Of Default is properly filed yet the Clerk of Court does not provide the Plaintiff proper relief?

    This happened to me this week: acting as pro se litigant (being determined indigent) after filing and being told by the Clerk “it’s all taken care of now” I was honest and transparent and sent a copy of the Motion (and evidentiary paperwork demonstrating clear Default) to the Defendant’s attorney of another case…within 2 hours he made Notice of Appearance (had I sent a copy of the Motion via USPS rather than email he wouldn’t have jumped in until days later). I kept waiting for Notice on the Docket of Default but it never came, so I made Motion for Judicial Determination of Default which was then denied due to the fact the Clerk of Court did not make the determination in my first motion. (How bizarre DOES the legal system get??) Anyway, I have since sent an email to the Clerk of Court (an elected official) requesting documentation of protocol for Clerk Determination of Default and I have sent Notice to the Court that a Motion For Reconsideration is forthcoming once I hear back from the Clerk of Court. Within this case I am now exposed in needing to deal with a Motion For Summary Judgment (a pain in the butt) and feel that I have been unduly harmed by the Clerk of Court.

    In your experience, have you ever run into a similar situation? If so, can you direct me to case law?

    My legal participation is necessitated and resultant from my two sons being abused by their mother (my “ex”) and they are living with me, under psychiatric care, so I am trying to do the best I can, fighting the good fight, but most-often imitating a bumper-car as I contend with the legal system; I believe in rule of law — Default in this matter is clear — I don’t understand why I should be punished for being transparent and providing the most-likely intended attorney a copy of my Motion For Default promptly through email. The judge told me that was the right thing to do but since the Clerk of Court didn’t make the determination my Motion For Judicial Determination was denied.

    I truly appreciate your time and consideration.

  2. Avatar

    Hi,

    I’m trying to assist my niece, who lives in Ocala, Florida, with the lingering results of a traffic accident she caused a few years ago.

    Just last month, the insurance company for the injured driver secured a default judgement for over $50,000. I contacted the lawyers (William M. Lindeman PA) to confirm that they could not execute on that judgment because my niece is on welfare and lives in the home she owns (i.e. judgement proof income and assets). They confirmed they had no intent to execute on the judgment but that they would be pursuing the Financial Responsibility Law. I take this as a threat to have my niece’s license suspended if the judgment is not satisfied. Maybe I’m wrong, but that is how the law reads.

    I would like to know if the default judgment can be set aside and/or if a chapter 7 discharge will resolve the threat of the suspension of the license. Maybe both is required?

    Please let me know your thoughts and the costs involved in this process.

    Thanks!
    Derik

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