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How to Get out of Default in Florida

April 9, 2015

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:


(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

Disclaimer:   The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice.  This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.