In the State of Florida, there are two (2)ways a default can be entered against a Defendant (party being sued).

  1. Failing to respond to a lawsuit: After a Defendant has been served with a lawsuit, a Defendant has twenty (20) days to respond.If the Defendant fails to respond to the lawsuit within twenty (20) days, the Plaintiff (party bringing the lawsuit) can file a Motion for Default against the Defendant with the Clerk. If the Clerk does not receive a response from the Defendant, a default will be entered them.
  2. Failing to appear for a Pretrial Conference: When a Defendant is sued for less than Five Thousand Dollars ($5,000.00), a pretrial conference/mediation will be set by the Court.If the Defendant fails to appear for the pretrial conference/mediation and they were properly served, the Judge will enter a default against the Defendant.

After a default is entered, a Final Default Judgment can be entered against the Defendant shortly thereafter. The State of Florida does however allow a Defendant to file a Motion to Vacate Default. Rule 1.540(b) of the Florida Rules of Civil Procedure allows a Default to be set aside for several reasons. These include:

  • Fraud
  • Mistake
  • Newly discovered evidence
  • Excusable Neglect
  • default is void.

Florida Law states that for a default to be vacated, the Defendant must be meet all elements of the (3) three (3) part test. The three (3)elements include:

  1. Excusable Neglect:Due to a misunderstanding, clerical error, or human error, the Defendant was unable to respond to the Complaint.
  2. Meritorious Defense: The Defendant must attach an Answer and Affirmative Defenses to their Motion that presents valid defenses to the Complaint.
  3. Due Diligence: After discovering that a default had been entered against them, the Defendant acted quickly in filing the Motion to Vacate Default. The element is based on reasonableness. For example, if five days has elapsed since a default was entered and the Defendant files a Motion to Vacate Default, the Court will likely rule that this element had been met. If the Court rules that the Motion was filed too late, this element would not be met. An Affidavit by the Defendant must be attached to the Motion.

In the State of Florida, failure to respond to a complaint or failing to appear at a pretrial can result in a default against the Defendant. Fortunately, the State of Florida also allows the Defendant the opportunity file a Motion to Vacate the Default entered against them if they meet certain requirements. If you are unsure about your rights after a default has been entered against you, contact the Law Office of Brian P. Kowal, PA today at (954) 990-7552.