Burr & Forman

01.28.2016   |   Blog Articles, Consumer Finance Litigation, Florida

Errant Clerk’s Default Must be Set Aside Regardless of Excusable Neglect, Due Diligence, Meritorious Defenses

In Stuart-Findlay v. Bank of America, N.A., 2010CA014370, 41 Fla. L. Weekly D207a (Fla. 4th DCA 2014), Florida’s Fourth District Court of Appeal held that a clerk’s default entered in error should have been set aside, regardless of the defendant’s alleged failure to demonstrate excusable neglect, meritorious defenses, or due diligence. The facts of the case were not in dispute. At the time the clerk’s default was entered, the defendant had served various papers in the action. As a result, pursuant to Fla. R. Civ. P. 1.500 the Court, and not the Clerk, was the proper party to enter a default. The bank offered several arguments in defense of the trial court’s decision not to vacate the default upon a timely motion by the defendant. First, the bank argued that because the Court had entered an order that the “default shall remain in place” prior to its denial of the motion to vacate, this constituted a judicial default by the court pursuant to Fla. R. Civ. P. 1.500(b). The Fourth DCA found this argument unpersuasive in light of the initial errant clerk’s default that the Court refused to disturb. Second, the bank argued that the defendants failure to demonstrate excusable neglect, due diligence, and meritorious defenses merited the trial court’s decision to deny the motion to vacate. The Fourth DCA disagreed, citing an opinion of the Second DCA Beztak Constr. Co. v. Kesling Carpets, Inc., a Div. of Old Mill Indus., Inc., 596 So. 2d 1297, 1298 (Fla. 2d DCA 1992) that proof of those facts does not apply where the clerk of court erroneously enters a default despite papers having been served by the defendant. Third, the bank argued that the trial court’s order was justified because the defendant failed to respond to the complaint for over two years. The Fourth DCA found this argument unpersuasive in light of Rule 1.500’s language that once a paper is served, a judicial default is required, and not a clerk’s default. This opinion illustrates the extreme difficulties litigants can expect when defending improvidently entered clerk’s defaults. In all but the most extreme circumstances, litigants would do well to simply consent to having such defaults vacated if the defendant does not simply consent to a judgment being entered thereon. Otherwise the default and corresponding judgment are open to attack on appeal, making any success in overcoming a motion to vacate a pyrrhic victory at best. A copy of the Fourth DCA’s opinion can be found here.

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