Last updated: June 2026
If a default has been entered against you in a Florida lawsuit, it is not the end of your case. Florida courts strongly favor deciding lawsuits on their merits, and a default can usually be set aside if you act promptly and make the right showing. This article explains the different kinds of default, the three-part test Florida courts apply to vacate one, how to file a motion to set aside a default, and the deadlines that govern your window to act.
> This is Part I, covering defaults and default judgments addressed within one year. If more than a year has passed since a default final judgment was entered, see Part II — Default Final Judgments: One Year or Longer After Final Judgment, which covers the narrower grounds (such as a void judgment or fraud) that survive the one-year deadline.
The Three Kinds of “Default” — and Why the Difference Matters
The single biggest source of confusion is that “default” can mean three different things, and the standard for undoing each one is different:
- Clerk’s default. Under Florida Rule of Civil Procedure 1.500(a), when a party who has been sued fails to file or serve any document in the case, the party seeking relief may file and serve a motion for default, and the clerk must then enter a default. (Important update: under the version of Rule 1.500 effective January 1, 2026, a clerk’s default requires a filed and served motion — the clerk no longer enters a default on a bare request. Confirm the current rule before relying on any older form.)
- Court (judicial) default. Under Rule 1.500(b), when a party has appeared or has otherwise pleaded or defended but then fails to keep defending as the rules require, the other side must move for default and the court — not the clerk — decides whether to enter it.
- Default final judgment. A default by itself does not end the case; it only establishes liability. The court can later enter a final judgment on that default (Rule 1.500(e)), often after a hearing to determine damages. A final judgment is harder to undo than a bare default.
Florida courts examine an order refusing to set aside a default with greater leniency than an order refusing to set aside a default judgment. See Hunt Exterminating Co. v. Crum, 598 So. 2d 113, 114 (Fla. 2d DCA 1992). In other words, the earlier you catch it — before a final judgment is entered — the easier it generally is to get relief.
Florida’s Policy Favors Deciding Cases on the Merits
Long before the current rules, the Florida Supreme Court established the guiding principle: under appropriate circumstances, courts should liberally set aside defaults so that lawsuits can be decided on their merits rather than on a procedural misstep. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla. 1962). That policy of liberality still drives how trial courts and appellate courts handle these motions today. See also Bland v. Viking Fire Protection, Inc., 454 So. 2d 763 (Fla. 2d DCA 1984) (secretary’s misfiling of the summons and complaint constituted excusable neglect; default reversed).
The Three-Part Test to Vacate a Default
To set aside a default (or a default judgment entered on it within one year), the party in default must establish three things. Ponderosa, Inc. v. Stephens, 539 So. 2d 1162, 1163 (Fla. 2d DCA 1989); Coquina Beach Club Condominium Ass’n v. Wagner, 813 So. 2d 1061, 1063 (Fla. 2d DCA 2002):
I. Excusable Neglect
You must show that the failure to respond was the result of excusable neglect — not a deliberate choice to ignore the lawsuit. Florida courts define excusable neglect broadly as inaction that “results from clerical or secretarial error, reasonable misunderstanding, a system gone awry, or any other of the foibles to which human nature is heir.” Elliott v. Aurora Loan Services, LLC, 31 So. 3d 304 (Fla. 4th DCA 2010).
Courts have repeatedly found excusable neglect where:
- A secretary or staff member misfiled the suit papers, so counsel was never engaged. Yelvington Transport, Inc. v. Hersman, 513 So. 2d 1361 (Fla. 3d DCA 1987); Bland, 454 So. 2d 763.
- There was a reasonable misunderstanding between attorneys during settlement talks about whether an answer was due. Gables Club Marina, LLC v. Gables Condominium & Club Ass’n, 948 So. 2d 21, 24 (Fla. 3d DCA 2006).
- A party reasonably relied on the opposing side’s representation that no further action was needed. Weeks Cartage, Inc. v. CSX Transp., 547 So. 2d 237 (Fla. 1st DCA 1989).
Critically, excusable neglect must be proven by a sworn affidavit or verified motion — not by argument of counsel alone. Coquina Beach Club, 813 So. 2d at 1063. Ignorance of the law and a simple failure to understand the consequences of not responding are generally not excusable.
II. Meritorious Defense
You must show that you actually have a defense worth litigating — a reason the plaintiff should not automatically win. The standard way to demonstrate this is to attach a proposed answer with affirmative defenses to your motion. Yelvington Transport, 513 So. 2d 1361; Weeks Cartage, 547 So. 2d 237. A proposed answer that simply denies the allegations and raises real defenses (for example, lack of contract, payment, or a statute-of-limitations defense) typically satisfies this element when you are seeking to set aside a clerk’s default.
III. Due Diligence
You must show that, once you learned of the default, you acted quickly to fix it. Due diligence is a test of reasonableness judged on the facts of each case. Elliott, 31 So. 3d 304. Florida courts have found diligence where the motion to vacate was filed within roughly six to fifteen days of discovering the default. Coquina Beach Club, 813 So. 2d 1061 (seven-day delay was diligent). The longer you wait after learning of the default, the weaker this element becomes — so do not delay.
IV. The Equities
Even when the three elements are met, the court weighs the overall equities — including whether the other side would be prejudiced by reopening the case. Because of Florida’s strong policy favoring decisions on the merits, courts generally resolve genuine doubts in favor of vacating the default. North Shore Hospital, 143 So. 2d 849.
How to File a Motion to Set Aside a Default (Step by Step)
A motion to set aside a default is governed by Rule 1.500(d), which lets the court set aside a default and — if a final judgment has already been entered on it — set that judgment aside under Rule 1.540(b). Here is what a complete motion generally needs:
1. A written motion to set aside the default (or to vacate the default judgment), filed in the same case, citing Rule 1.500(d) and, if a final judgment was entered, Rule 1.540(b). 2. A sworn affidavit or a verified motion explaining why you failed to respond — the facts establishing excusable neglect. This is mandatory; an unsworn explanation is not enough. Coquina Beach Club, 813 So. 2d at 1063. 3. A proposed answer with affirmative defenses, attached as an exhibit, to demonstrate your meritorious defense. Yelvington Transport, 513 So. 2d 1361. 4. Facts showing due diligence — the date you learned of the default and how quickly you moved to set it aside. 5. A request for a hearing. The court will typically hold a short hearing, and where the motion shows a “colorable” basis for relief, an evidentiary hearing may be required before the motion can be denied.
If you have appeared in the case, you are also entitled to notice before a default is entered against you, and the clerk must notify you if a default is entered after you file something. Rule 1.500(c).
Deadlines and Timing — How Long Do You Have?
- Before a final judgment: There is no fixed clock to move to set aside a bare clerk’s or court default, but due diligence is itself a timing requirement — wait too long after learning of the default and the court can deny relief on that ground alone. Move within days, not weeks.
- After a default final judgment (within one year): A motion under Rule 1.540(b) based on mistake, inadvertence, surprise, or excusable neglect (ground (1)), newly discovered evidence (ground (2)), or fraud (ground (3)) must be filed within a reasonable time and no later than one year after the judgment was entered.
- More than one year later: Only the narrower Rule 1.540(b) grounds survive — for example, that the judgment is void (ground (4)) or that it has been satisfied or is no longer equitable (ground (5)). Those have no one-year cap but a “reasonable time” still applies. This is the scenario covered in Part II.
Defaults in Specific Contexts
The same three-part test applies across practice areas, but the stakes and tactics differ:
- Foreclosure. Many Florida default cases arise from mortgage foreclosures, often where a homeowner was in loan-workout discussions and believed no formal answer was required. Courts have set aside foreclosure defaults on exactly those facts. Elliott v. Aurora Loan Services, LLC, 31 So. 3d 304 (Fla. 4th DCA 2010). If a foreclosure default or default judgment has been entered against you, act immediately — a foreclosure sale can follow quickly.
- Eviction. Residential and commercial eviction cases move on very short timelines, and a default can lead to a writ of possession in days. The window to set aside a default in an eviction is correspondingly tight.
- Family law. In dissolution and support cases, a default can result in a final judgment dividing assets or setting support without your input. These judgments are still subject to the Rule 1.540(b) framework, and fraudulent financial affidavits carry special treatment that can extend the time to seek relief.
Talk to a Florida Litigation Attorney
A default is a deadline problem, and deadline problems get worse the longer they sit. If a default or default judgment has been entered against you anywhere in Florida, Zoecklein Law, P.A. can review the timing, prepare the affidavit and proposed answer, and move quickly to protect your right to be heard. Call (877) 206-0022 for a free consultation. We represent clients in litigation matters throughout Florida.
Frequently Asked Questions
How long do I have to set aside a default in Florida? It depends on the stage. Before a final judgment, there is no fixed deadline, but you must act with due diligence — Florida courts have approved motions filed within about six to fifteen days of discovering the default, and delay can defeat your motion on its own. After a default final judgment, a motion under Rule 1.540(b) based on excusable neglect, newly discovered evidence, or fraud must be filed within a reasonable time and no more than one year after the judgment. The bottom line: move as soon as you learn of the default.
What is excusable neglect? Excusable neglect is a failure to respond caused by an understandable mistake rather than a deliberate decision to ignore the lawsuit. Florida courts describe it as inaction resulting from “clerical or secretarial error, reasonable misunderstanding, a system gone awry, or any other of the foibles to which human nature is heir.” Elliott v. Aurora Loan Services, LLC, 31 So. 3d 304 (Fla. 4th DCA 2010). Misfiled paperwork, a reasonable misunderstanding between attorneys, and reasonable reliance on the other side’s representations have all qualified. It must be proven by a sworn affidavit or verified motion.
Can I be defaulted after 20 days? Yes. A defendant in a Florida civil case generally has 20 days after being served to file a response. If you miss that window and file nothing, the other side can move for a clerk’s default under Rule 1.500(a). The good news is that a default entered for missing the deadline can usually be set aside if you promptly show excusable neglect, a meritorious defense, and due diligence.
What is the difference between a default and a default judgment? A default establishes that you failed to respond and admits the well-pleaded allegations of liability. A default judgment is the court’s final order entering a money judgment or other relief based on that default. A bare default is generally easier to set aside than a default judgment, and the standards differ — which is why acting before a final judgment is entered matters. Hunt Exterminating Co. v. Crum, 598 So. 2d 113, 114 (Fla. 2d DCA 1992).
Do I need an affidavit to set aside a default? Yes, in almost every case. Excusable neglect and due diligence must be supported by a sworn affidavit or a verified motion setting out the facts; argument from your lawyer alone is not enough. Coquina Beach Club Condominium Ass’n v. Wagner, 813 So. 2d 1061, 1063 (Fla. 2d DCA 2002). You should also attach a proposed answer with affirmative defenses to show your meritorious defense.
Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship. The Florida Rules of Civil Procedure change periodically; confirm the current rule before relying on it. For advice on your specific situation, consult a licensed Florida attorney.
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