Default After Answer? – How to Vacate a Default or Set Aside a Default After Answering

This article walks through how to vacate a default or set aside a default after an answer was filed in Florida. If you have any questions as to vacating a default or default judgment, or setting aside, please contact Bernhard Law Firm at abernhard@bernhardlawfirm.com, 786-871-3349, www.bernhardlawfirm.com. Bernhard Law Firm is based in Miami, Florida.

Bernhard Law FirmFlorida appellate courts long ago confirmed the rule that a default and default judgment must be reversed where entered against defendants who timely file a response, “manifesting an intent to defend on the merits,” prior to a motion for default. Motor Sport Engineering, Inc. v. Car Point, Inc., 611 So. 2d 15, 15–16 (Fla. 3d DCA 1992) (holding trial court erred in entering default and default judgment after pro se defendants timely filed their answer); Tuthill v. Anthony Dieguez, P.A., 526 So. 2d 1045, 1045 (Fla. 3d DCA 1988) (holding trial court erred in entering default against pro se defendant after his answer was filed).

This relief from default comes under Florida Rules of Civil Procedure 1.500, 1.080, and 1.090, not Rule 1.540. See Drake v. Public Health Trust of Dade Cty. 832 So. 2d 172, 173 (Fla. 3d DCA 2002) (reversing default and default final judgment under Rule 1.500, where defendant filed a response prior to the hearing on motion for default); Thompson v. Hancock Bank, 158 So. 3d 613, 614–15 and n. 1 (Fla. 5th DCA 2013) (the application of Rule 1.500 precludes entry of default when a defendant’s response is filed prior to the entry of default).[1]

None of these appellate decisions require remand for any evidentiary hearing or other such proceedings by the trial court, as setting aside is automatic if a timely answer was filed and the Clerk’s docket shows whether a response was filed before entry of default. Id.; Int’l Energy Corp. v. Hackett, 687 So. 2d 941, 943 (Fla. 3d DCA 1997) (default is erroneous if entered after papers are filed, and must be vacated without regard to meritorious defense or excusable neglect); Herrera v. Garcia, 559 So. 2d 83, 83 n.1 (Fla. 3d DCA 1990) (“Since no default should have been entered initially, it is not necessary to show a meritorious defense as a condition to setting it aside.”).[2]

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The filing of a response, alone and without showing service, is sufficient to invalidate a default and default judgment. Brooks v. Ocean Village Condo. Ass’n, Inc., 656 So. 2d 275, 276 (Fla. 3d DCA 1995) (default erroneously entered and must be vacated where pro se defendant filed letter before default); Humbert v. Ackerman, 541 So. 2d 1229, 1230 (Fla. 3d DCA 1989) (default, even though signed by trial judge, must be set aside if response is filed before the default order); Marchese, 383 So. 2d at 735 (Fla. 3d DCA 1980) (default, even though signed by trial judge, must be set aside if response is filed before the default).[3]

Thus, it is irrelevant whether the plaintiff/appellant claims to have not received the response. Id.; see also Williams v. Express Leasing, Inc., 575 So. 2d 768, 769 (Fla. 5th DCA 1991) (holding default should be set aside where a response is mailed, even if not received, prior to default being entered).

Not even the passage of several years can effect the requirement to vacate an erroneously entered default after a response is filed. Stuart-Findlay v. Bank of Am., Nat’l Ass’n, 183 So. 3d 468, 471 (Fla. 4th DCA 2016) (“the [plaintiff] argues that the default was proper because the [defendant] failed to answer the complaint after the court ordered him to do so, and then failed to take action for two years. Once again, the bank is mistaken.”); see also Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305, 1308 (Fla. 3d DCA 1987) (holding default and default judgment must be set aside where paper was filed before entry of default, even though the motion to vacate was untimely filed and res judicata had taken effect).

Gross abuse of discretion review applies to this order setting aside a default entered after a timely filed answer. Doga Corp v. Sarria, 858 So. 2d 1132, 1133 (Fla. 3d DCA 2003) (aff’ing order vacating default, as there was no gross abuse); Kapetanopoulos v. Herbert, 449 So. 2d 947, 950 (Fla. 2d DCA 1984) (“We recognize that in review of an order granting or denying a motion to vacate a default judgment, gross abuse of discretion must be shown in order for the reviewing court to reverse.”); Hemisphere Nat’l Bank v. Goudie, 478 So. 2d 452, 453 (Fla. 3d DCA 1985) (aff’ing order vacating default, given this Court “being unable to conclude that the trial court grossly abused its discretion in entering the order setting aside and vacating default and default judgment.”).

Further, where an appellant seeks to reverse a trial court’s order granting a motion to vacate default, an even greater showing of gross abuse of discretion is necessary, given “Florida’s long-standing policy of liberality towards the vacation of defaults so that the merits of a cause may be reached.” Herbert at 950.

Thus, if the docket record is plain that a defendant timely filed a response to the complaint, “manifesting an intent to defend on the merits,” within 20 days of service of process and prior to any motions for default and default judgment, the Court must automatically vacate or set aside.

As stated above, a timely filed answer on the docket requires a judge to set aside the subsequent improper defaults and default judgment, under the above Florida case law. A judge is required to do vacate or set aside under Florida Rule of Civil Procedure 1.500, supported by Rules 1.080 and 1.090. As such, a judge’s decision to do so is correct and an appellate court should affirm it on any challenge. If you have any questions as to vacating a default or default judgment, or setting aside, please contact Bernhard Law Firm at abernhard@bernhardlawfirm.com, 786-871-3349, www.bernhardlawfirm.com.

[1] See also Singh v. U.S. Bank, N.A. for Citigroup Mortg. Loan Trust, Inc., 223 So. 3d 436, 438 (Fla. 2d DCA 2017) (Rule 1.500 precluded entry of default by the trial court after a response is filed, and required any such order be set aside); Sansbury v. Wells Fargo Bank, N.A., 204 So. 3d 985, 986–87 (Fla. 5th DCA 2016) (default must be dismissed under Rule 1.500 where a motion to dismiss was pending when default was entered); Pinnacle Corp. of Cent. Fla., Inc. v. R.L. Jernigan Sandblasting & Painting, Inc., 718 So. 2d 1265, 1266 (Fla. 2d 1998) (Rule 1.090 effectively extends any deadlines, and thus a party cannot be in default upon a filing that is timely under Rule 1.090).

[2] See also Mohammed v. J.I. Kislak Mortg. Corp., 534 So. 2d 818, 819 (Fla. 3d DCA 1988) (entry of default judgment is improper where party filed response three days before judgment); Reicheinbach v. S.E. Bank, N.A., 462 So. 2d 611, 612 (Fla. 3d DCA 1985) (erroneous entry of default entitled defendant to relief despite failure to demonstrate anything else); Meyerson v. Block, 404 So. 2d 807, 808 (Fla. 3d DCA 1981) (trial court’s role in considering a default improperly entered does not require comparing conflicting affidavits and resolving factual issues thereon, where the court record shows that a response was filed before default); Chester, Blackburn and Roder, Inc. v. Marchese, 383 So. 2d 734, 735 n.3 (Fla. 3d DCA 1980) (“Since the order of default was erroneous, the default judgment must be set aside even if, as the [plaintiff] argues, the defendant did not show a meritorious defense in support of its motion to vacate.”).

[3] See also Great Barrier Golf Design, Inc. v. Value Structues, Inc., 787 So. 2d 158, 159 (Fla. 2d DCA 2001) (holding default improvidently entered where response already filed, under Rule 1.500); Lenhal Realty, Inc. v. Transamerica Comm. Fin. Corp., 611 So. 2d 79, 80 (Fla. 4th DCA 1992) (holding it was error to enter default after defendant filed a paper, even where defendant did not show up at the hearing, under Rule 1.500); Nants v. Faria, 553 So. 2d 369, 370 (Fla. 5th 1989) (reversing denial of motion to vacate on holding that default should not have been entered where response was filed earlier the same day).

Bernhard Law Firm

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