How can a default judgment be set aside?

This man is sad because a default judgment was entered against him

How can a default judgment be set aside?

792 527 Jeffrey Vizcaino

Imagine a lawsuit has been filed against you (or your company). For whatever reason—whether you chose to ignore the summons, never actually received a copy, or simply mis-calendared your deadline to respond—you fail to timely file a response with the court, and the plaintiff moves for an entry of default. After that’s obtained, the plaintiff files a motion for default judgment against you and is awarded every single dollar sought in its complaint — potentially millions — plus costs and attorney fees. Now you receive in the mail a “default judgment” ordering you to pay a large sum of money. Wait…what? Essentially, without even presenting your side of the case you must pay the plaintiff an exorbitant amount as if a full trial had occurred! How can this be?

Under Rule 1.500(e), Florida Rules of Civil Procedure, “[f]inal judgments after default may be entered by the court at any time.” The term “default judgment” refers to the final disposition of the case against a defendant for whom a default has been entered. Unlike a judgment after trial, a default judgment is entered without consideration of the merits of the case.

Default judgments are a double-sided coin. From a plaintiff’s perspective, a default judgment is a fast track to being awarded all the damages sought in the complaint without opposition. However, from the defendant’s perspective, it can potentially result in unjustly paying a large sum of money, especially when valid defenses exist.

So, what can you do? Luckily, depending on the specific facts of your matter, Florida law provides procedures to allow defendants, in limited situations, to set aside default judgments so they can properly defend themselves in civil actions.

First things first: NEVER ignore a summons!

If you are served with a summons and lawsuit, NEVER ignore them. In Florida, after service, you have 20 days from the date of service to file a responsive document (21 days if served with a federal lawsuit). As mentioned above, if you fail properly respond, you leave yourself vulnerable to a default judgment being entered against you.

Simply put, the easiest way to avoid a default judgment is by taking your lawsuit seriously. As soon as you are served, consult with a lawyer about your options. And remember, time is of the essence!

Relief from a default judgment

While default judgments are binding against defendants, Florida has a liberal policy of vacating defaults and default judgments. [1] Generally, courts prefer to resolve a case based on its merits rather than a procedural mishap.[2]

Under Rule 1.500(d), Florida Rules of Civil Procedure, “[t]he 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).”  Rule 1.540(b) allows a defendant to seek relief from a final judgment by a show of mistake, inadvertence, due diligence, excusable neglect, or fraud, among other reasons.

“Excusable neglect” is a three-prong test

When you have good reason why you failed to respond to the complaint, you may be able to show “excusable neglect” as a reason to vacate the default judgment. If that situation exists, you will need to show three things: (1) excusable neglect, (2) the existence of a meritorious defense to the complaint, and (3) due diligence in seeking relief after learning of the default judgment.[3]

First, excusable neglect can be established by setting forth facts that constitute good cause as to why you for failed to respond to the complaint. A number of factors can be raised to establish excusable neglect, and it is important you consult with an experienced attorney who can analyze the facts specific to your issue and whether or how excusable neglect may be raised from those facts.

The second required prong is to show that you have a meritorious defense to the plaintiff’s claims. Meritorious defenses are simply valid legal or factual defenses that may be raised to combat plaintiff’s claims. Defenses that are even minimally specific may qualify as meritorious.[4]

Finally, the due diligence requirement is dynamic and determinative on the specific facts of each case.[5] What is considered “due diligence” in one case may not hold true for another. A defendant must demonstrate to the court that they exercised due diligence in seeking to set aside a default judgment. Therefore, as soon as a you learn of a default judgment has been entered, consult with a lawyer immediately. Wait too long and it may be too late.

Other reasons exist, and timing is essential

Other reasons a default judgment can be set aside include, without limitation, it being void (for instance, a violation of your due process rights or if the complaint seeks invalid relief) or because payment was already made, satisfying the amount awarded in the judgment.

It is also important to note that, for most circumstances, a motion to set aside a default judgment must be filed not more than 1 year after entry of the judgment, and, in all circumstances, within a “reasonable time.”[6] Regardless, each case is different, and you should discuss timing with your attorney.

Has a default judgment been entered against you?

If a default judgment has been entered against you, your company, or someone you know, it is important that you consult with an attorney right away. Your quick action now can be the difference between you being responsible for paying an unjustly large sum of money or being able to defend yourself in the case.

The attorneys at Cynthia Conlin & Associates have experience helping defendants to obtain orders vacating default judgments. Contact our Orlando attorneys today by calling 407-965-5519 to schedule a consultation.

[1] Taylor v. Vitetta, 8 So. 3d 1216, 1217 (Fla. 4th DCA 2009).

[2] N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849, 853 (Fla. 1962).

[3] Household Finance Corp., III v. Mitchell, 51 So.3d 1238 (Fla. 1st DCA 2011).

[4] Id. At 1241.

[5] Coquina Beach Club Condominium Ass’n, Inc. v. Wagner, 813 So.2d 1061, 1064 (Fla. 2d DCA 2002).

[6] Fla. R. Civ. P. 1.540(b).