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Was Your Business Sued & Defaulted? Learn How to Set Aside that Default

By May 22, 2023No Comments

In Florida, and in the US at large, a lawsuit starts with the filing of a complaint. The court then issues a document called the “summons,” which notifies the sued party of the lawsuit. The summons also provides the defendant with details including the rights and timing for a response. This summons has to be served (given to the defendant personally) by a process server.

Challenging Default Judgments: Understanding the Process

However, sometimes, especially when a business is involved, the business won’t have its address updated in the public records. On other occasions, the “registered agent”, the agent officially designated by the entity to notify it of a lawsuit, fails to do the job. There may also be an instance where a company is legally served the summons, but is not aware of the lawsuit, and does not respond to it. In such cases, the Plaintiff will then move for a default against the company, and later, for a final judgment based on that default.

So, what should you do in such situations? Situations where you may be facing a potentially costly final judgment, but you haven’t even had the chance to present your side of the story?

Vacating a Default Judgment: Three Key Requirements

Under Florida law, you must show three things in order to vacate a properly entered default:

(1)  “excusable neglect”, (2) a meritorious defense, and (3) due diligence. See Szucs v. Qualico Dev., Inc., 893 So. 2d 708, 710 (Fla. 2d DCA 2005) (“When ruling on a motion to vacate a default a court must consider whether the moving party (1) has shown excusable neglect, (2) has a meritorious defense to the opposing party’s claims, and (3) has exercised due diligence in obtaining relief after learning of the default.”).

“Excusable neglect must be proven by sworn statements or affidavits.” Quest Diagnostics, Inc. v. Haynie, 320 So. 3d 171, 175 (Fla. 4th DCA 2021). “Due diligence must be established with evidence, which includes a sworn affidavit.” Elliot v. Aurora Loan Servs.LLC, 31 So. 3d 304, 308 (Fla. 4th DCA 2010).

The Significance of  Supporting Affidavits

When it comes to a meritorious defense, “it must be asserted either by a pleading or in an affidavit, and a general denial is insufficient to demonstrate the existence of a meritorious defense.” Geer v. Jacobsen, 880 So. 2d 717, 721 (Fla. 2d DCA 2004)

Where a motion to vacate a default is unverified, and does not contain an accompanying supportive affidavit, it is legally insufficient. See Church of Christ Written in Heaven Ga., Inc. v. Church of Christ Written in Heaven of Miami, Inc., 947 So. 2d 557, 559 (Fla. 3d DCA 2006).

In Church of Christ, a Georgia church filed a complaint against a Florida church, which was served upon this Florida church. Id. at 558. The Florida church failed to respond to the complaint, and a default was subsequently entered against it. Id. The Florida church then submitted an unverified motion to vacate the default, which was granted initally. Id. On appeal, the Third District Court reversed, reasoning that the Florida church’s motion to vacate default was insufficient for several reasons, including the fact that “it did not contain any accompanying affidavit in support.” Id. at 559. The appellate court held that “[t]he motion [to vacate] was thus legally insufficient,” and reversed the trial court’s order vacating the default. Id.

“Excusable neglect is found where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir. However, the law requires certain diligence of those subject to it, and this diligence cannot be lightly excused.” Emerald Coast Util. Auth. v. Bear Marcus Pointe, LLC, 227 So. 3d 752, 757 (Fla. 1st DCA 2017). See also Szucs v. Qualico Dev., Inc., 893 So. 2d 708, 711 (Fla. 2d DCA 2005) (where the court held that hiring counsel three weeks after the plaintiff’s motion for summary judgment was not enough to show due diligence).

Contact Us for Legal Advice

For more information on vacation defaults, contact one of our experienced litigation attorneys at 305-570-2208. You can also email commercial attorney Eduardo directly at

We at Ayala Law PA are passionate about helping those in legal need, so please don’t hesitate to schedule a case evaluation with us online here.

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