In Florida, the failure to file a timely response to a complaint can lead to the Defendant losing the lawsuit altogether. However, if action is taken swiftly, the Courts can grant relief to a defendant who may have missed the deadline to file a response if he/she has a recognized excuse for the failure to timely file a response to a complaint.
IA civil case begins with the filing of a complaint or petition. Once the complaint has been served on the defendant, the defendant typically has twenty (20) days to respond to the complaint. The defendant’s initial response can take many forms including, a motion for an enlargement of time to respond, a motion to dismiss the complaint, a motion for a more definite statement, or an answer. Unfortunately, defendants sometimes fail to make any response to the complaint within the time provided by law.
A defendant’s failure to respond within the time provided can, and often does, lead to the entry of an order of default and then a default final judgment against the defendant. This default judgment can result in the defendant losing valuable rights and property. If the underlying complaint relates to real property, the default can lead to a foreclosure sale of the subject property.
For Florida defendants, there is relief if a default has been entered against you. Under Florida Rules of Civil Procedure, “the court may set aside a default, and a final judgment consequent thereon in accordance with rule 1.540(b).” Fla. R. Civ. P. 1.500(d). Under that rule, the court may relieve a party from an order (including an order of default) for reasons including, mistake, inadvertence, surprise, or excusable neglect. Fla. R. Civ. P. 1.540(b).
The setting aside of a default judgment is not automatic, and the burden is on the defendant to prove they have a legal excuse for failing to respond to the plaintiff’s complaint. However, Florida courts have a liberal policy of granting a motion to set aside a default judgment and a preference for having cases heard and determined on the merits rather than decided by default.
In order to meet the burden to have a default judgment set aside, the defendant needs to prove three elements: (1) that the failure to file a responsive pleading was a result of mistake, inadvertence, or excusable neglect; (2) that the defendant had a meritorious defense; and (3) that the defendant acted with due diligence in seeking relief from the default. United Capital Funding Corp. v. Technamax, 946 So.2d 63 (Fla. 2d DCA 2007).
The facts establishing excusable neglect must be set forth in a sworn document or affidavit. DeRuyter v. State, 521 So.2d 135, 136 (Fla. 5th DCA 1988). Florida courts have given and accepted many examples of the types of events that will support a claim of excusable neglect, including clerical or secretarial error, reasonable misunderstanding, a system gone awry, or any other of the foibles to which human nature is heir. Bethesda Memorial Hosp., Inc. v. Laska, 977 So.2d 804, 806 (Fla. 4th DCA 2008).
The second requirement, a meritorious defense, is intended to prevent a defendant from obtaining an order to set aside a default judgment only as a delay tactic. Whether the meritorious defense must be set forth in a verified answer, sworn motion or affidavit depends on whether the defense is a legal defense or a factual defense. Geer v. Jacobsen, 880 So. 2d 717, 721 (Fla. 2d DCA 2004). Regardless of whether the defense is legal or factual, the Defendant must demonstrate to the Court that he/she at least has a colorable defense to the claims made in the lawsuit.
The third requirement, acting with due diligence, does not set a bright-line rule for how soon after learning of the default judgment, a defendant must act in order to be successful in setting aside the judgment. The Second and Third District Courts of Appeals have indicated that the same time that is required to respond to a complaint, 20 days, may serve as a starting point for the determination of due diligence. Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300, 304 (Fla. 2d DCA 2004) see also, Techvend, Inc. v. Phoenix Network, Inc., 564 So.2d 1145 (Fla. 3d DCA 1990). Florida Courts have held that “once the twenty days have passed, other factors must be considered.” Allstate Floridian Ins. Co. 890 So. 2d 300. In that same case, the Court found that a delay of seven weeks was unreasonable and did not meet the due diligence requirement.
Even though a default can be set aside, it is always best practice to respond to a lawsuit in a timely manner. Oftentimes, if counsel is retained, a party can obtain an extension of time to respond to a complaint. If you are sued, it is best to retain a lawyer as soon as possible so that you receive proper legal advice as to how you should respond to the lawsuit.
If you have been notified of a default judgment entered against you or have been served with a lawsuit, The Boatman Law Firm is here to advise and assist you. The attorneys at The Boatman Law Firm can help you protect your rights and property. Contact us today to schedule an initial consultation at (239) 330-1494.
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