How to Write a Motion to Set Aside a Default
| Background: | The clerk just entered default against you |
| Problem: | The clerk was wrong, but you don't know how to fix his/her wrongdoing |
| Solution: | You ask the Court to set aside the default (with help from this guide) |
I. Definitions
II. Legal Citations
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney’s fees under Rule 54 if the district court extends the time to appeal under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed within the time allowed for filing a motion under Rule 59.
III. Samples
| # | Comments | ₧ | |
|---|---|---|---|
| 101 |  | 2020 | Attorney Filing | Improper Service; §48.21 FS; |  |
| 102 | | 2020 | Attorney Filing | Timely MTD; | |
| 103 | | 2018 | Pro Se Filing | Improper Service (family member); Restraining Order | |
| 104 | | 2018 | Attorney Filing | Correction of Final Judgment; Oversight/Omission | |
| 105 | | 2018 | Attorney Filing | Leasehold; Eviction; Excusable Neglect; Bad Faith; | |
| 106 | | 2017 | Attorney Filing | Insurance; Appraisal; Excusable Neglect; | |
| 107 | | 2017 | Attorney Filing | Notice of Appearance; Extension Sought; | |
| 108 | | 2013 | Attorney Filing | Clerical Error; Excusable Neglect | |
| ...more samples coming soon... hitting the like button will raise this on TBD's priority list | |||
| # | Comments | ₧ | |
|---|---|---|---|
| ...more samples coming soon... hitting the like button will raise this on TBD's priority list | |||
IV. Templates
| # | Link | Comments | ₧ |
|---|---|---|---|
| T01 |  | Duval (FL) | Replace all placeholder tags with real data (eg "[plfName]" becomes "John Doe"). |  |
| ...more template versions are available... so, hit the like button to encourage TBD to add additional versions! | |||
V. Application
- Trial Courts Should Aim to Adjudicate the Merits of a Case:
It is axiomatic that Florida jurisprudence favors liberality in the area of setting aside defaults in order that parties may have their controversies decided on the merits." Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1104 (Fla. 4th DCA) (citing North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla. 1962)), rev. denied sub nom. Hayslip v. Somero, 476 So.2d 674 (Fla. 1985). A default will be set aside upon a showing that excusable neglect led to the default, a meritorious defense exists for the cause, and due diligence was used to set aside the default. See Rosenblatt v. Rosenblatt, 528 So.2d 74 (Fla. 4th DCA 1988). Further, "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, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits.
- Erroneous Default Entries are Invalid from the Beginning:
We hold that the clerk's default was void ab initio because appellants served their answer and affirmative defenses before the clerk entered its default. Therefore, appellants were not required to raise the argument in the trial court that the default was void in order to preserve that point for appellate review. See Sunniland Bank v. Mosley, 659 So.2d 1184 (Fla. 4th DCA 1995); Clement v. Marcus, Stowell Beye, Inc., 516 So.2d 1137 (Fla. 4th DCA 1987); Gibraltar Serv. Corp. v. Lone and Assoc., 488 So.2d 582 (Fla. 4th DCA 1986); Chester, Blackburn Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980). Accordingly, we reverse and remand with directions to the trial court to vacate the default and the final judgment entered thereon.
- Erroneous Default Entries Preclude the Need to Show 'Extraordinary Circumstances':
Because a default was entered erroneously by the clerk at a time when Beztak had, in fact, served papers in the cause, there was no requirement that Beztak establish excusable neglect, a meritorious defense, or due diligence.
VI. Quick Commentary
- Purpose of a Default:
The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.
- Act swiftly (ie, file this document as soon as you can)
- At USCA11, you have a 14-Day Deadline*
- Download as many sample documents as you'd like
- learn about TBD's point system
- Also, feel free to use the templates (see Part IV - above) to help draft your 'Motion to Set Aside Default'
- Save the final version as a PDF file.
- File it in court
VII. Additional Resources
VIII. Bibliography
IX. Conclusion
With the use of the templates (as well as the samples above), you can more easily ask your court to relieve you from the clerk's erroneous entry.
...POINTS & THINGS...
You can use this to get the court to correct an error/wrongdoing that was committed by the clerk.
As always - please get the justice you deserve.
Sincerely,
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