Setting Aside a Default Judgment on the Day of Trial

Today, I was able to overcome a Motion for Default on the day of trial

With some exceptions, a Motion for Default, and a subsequent default, can be a death knell for a Civil Case in Florida. Brought pursuant to Fla. R. Civ. P. 1.500, a clerk’s default can be entered when a party – most likely a defendant – has failed to file any paper or pleading in a pending lawsuit. I see this pretty commonly in Foreclosure cases throughout the state of Florida. Generally, the banks are telling consumers that they will not try to foreclose as long as the borrower is trying to modify the loan. What they don’t tell you is that they won’t tell their attorney of their conversation. This generally results in a Motion for Default being filed despite a home owners best intentions. Many times, even after the motion for default is filed and entered, there is no notice to the consumer.

What is a default?

A default literally means that you have admitted to all well pled facts of the Complaint. This means conditions precedent, a parties standing, liquidated damages, and even in some instances jurisdiction and venue. This eliminates any chance you have as a defendant to enter defenses or conduct discovery. It is generally something that signals to both the judge and the represented parties in the suit as a waiver of the right to defend in a lawsuit.

How can this be bad at trial

A Motion for Default, or default judgment, is dangerous for a trial. Defenses that may have existed have been waived by nature of the default. This puts you at a significant disadvantage. You would only be able to contest unliquidated damages of the cause of action, allege that the bank failed to state a cause of action, object to some evidence, or potentially fight a court’s jurisdiction over the case. Outside of that, a judge will pretty quickly stop you from defending given the default.

This is troublesome, especially in a foreclosure case, for a number of reasons. It shortens the time period it takes the bank to get judgment significantly. In some instances, judgment can be entered in as little as six months. If you are interested in saving your home, you may not get a chance at mediation or loss mitigation. If you made payments after the alleged date of default or if the bank does not really have your note, the judge may never hear these arguments.

If a default is entered against you, can you fix it?

If a default has been entered against you, and you have a trial date rapidly approaching, you have to seek out counsel. A motion to set aside or vacate a default is very precise in what must be laid out. There are certain things that must be alleged, it must be brought diligently, and there has to be some sort of defense. Failure to show the right things can result in the motion being denied. If you are facing trial with a default, the odds are already stacked against you, and a motion to set aside the default may be a long shot as well.

The following two tabs change content below.

Bryant H. Dunivan Jr., Esq.

Partner at Owen & Dunivan, PLLC
Attorney Bryant Dunivan is a foreclosure, real estate, and consumer protection attorney who focuses his efforts on making his clients feel like people and not just a file. Just Served? I offer a free consultation. Contact me today.

Attorney Bryant Dunivan is a foreclosure, real estate, and consumer protection attorney who focuses his efforts on making his clients feel like people and not just a file. Just Served? I offer a free consultation. Contact me today.

Leave a Reply

Your email address will not be published. Required fields are marked *

*

This site uses Akismet to reduce spam. Learn how your comment data is processed.