October 19, 2015

How to Set Aside a Clerk’s Default and Default Judgment

After the Plaintiff (usually the bank in a foreclosure action) has filed a lawsuit and served you with the initial pleading (i.e., the Complaint), you have 20 days in which to file an answer or respond to the Complaint. If you do not, the Plaintiff may file a Motion for Clerk’s Default. Each county in the state of Florida has different requirements but generally, the Plaintiff will file with the court its Motion, the original summons, an affidavit of service (assuming that you were served) and an affidavit of non-military service (assuming you are not an active military serviceperson). Upon review, the clerk will enter a default against you. This means that you are unable to file an answer or file any responsive pleading at that point. Essentially, your time to contest the action has passed.

However, you may file a Motion to Set Aside a Clerk’s Default. Florida Rule of Civil Procedure 1.500(d) states that, “[t]he court may side 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).” Under rule 1.540(b) a default final judgment may be set aside if you can prove that the failure to file an answer was due to the following: 1) excusable neglect 2) you have a meritorious defense and 3) you acted with due diligence to seek relief from the default.

While proving these three factors is certainly not impossible, we like to argue that Rule 1.500(d) draws a distinction between a clerk’s default for failing to file any paper in the action and default final judgment which is essentially an adjudication on the merits (end of the case). Arguably Rule 1.500(d) says that a final judgment must be set aside pursuant to 1.540(b) whereas a clerk’s default may be set aside liberally by the court. What we argue to the court if we are trying to set aside a clerk’s default (non-final judgment) is that the three factors listed above are not relevant and that the court may set aside the clerk’s default liberally. We have been very successful in doing so.

It is well settled case law that the court’s prefer to decide a case on the merits rather than a technicality which is what a clerk’s default is. There may be many reasons why you failed to file an answer or response. Maybe you did not know you needed to or were looking for an attorney and the twenty days went by. Regardless, you should be able to defend yourself, which is what we argue to the court. It is certainly possible to set aside a clerk’s default and a default final judgment however, like most things in the law, time is of the essence.