Business Law 101 / Defaults and Default Judgments

By Albert L. Kelley, Esq.

Most eviction cases are resolved not with a trial, but with a default. If the Tenant does not file an Answer or Motion at the end of the five day period after they have been served with the Complaint and Summons, the Landlord can proceed quickly through the default procedures. The Landlord must first file an Affidavit of Non-Military Service which is a sworn affidavit that states that the Tenant is not in the military. Often Landlords will know this information directly. If not, the Landlord can ask the Defense Manpower Data Center (DMDC) to determine if the tenant is in the military. If the request is made from the DMDC, their response should be attached to the affidavit. If the Tenant is in the military, it can delay your case. The Clerk cannot issue a default until the Affidavit of Non-Military Service is filed.

Next, the Landlord files a Motion for Clerk’s Default. A Clerk’s Default is merely an affirmation by the Clerk that nothing has been received by the Tenant during the five day period. It should be noted that while the Summons gives the Tenant 5 days to respond, they can actually file their response at any time before the Clerk’s Default is issued, even if that is days or weeks after the deadline has ended. The ramification of this simple document are heavy. Once a Clerk’s Default is entered, the Tenant cannot file any documents except a Motion to Set Aside the Clerk’s Default. This Motion must show three things: 1) that the Tenant’s failure to respond timely was based upon “mistake or excusable neglect” and 2) that they have a meritorious defense, and 3) that they acted promptly upon learning of the Default. If the Motion does not allege all three of these items in detail, the Court will deny it without hearing.

Mistake or excusable neglect means that there is a valid reason for not responding. If the date was mis-calendared, or the mail was delayed, the Court may allow it. If the failure was to buy more time, or if the Tenant was trying to get an appointment with an attorney, or if the Tenant did not understand the law, those are not valid excuses.

The meritorious defense requirement does not mean that the Tenant will win the case; it simply means that the Tenant has valid grounds to defend the case. It is not enough to allege that there are meritorious defenses- the Motion must specify what those defenses are.

Finally, the Tenant must act promptly. You cannot “sit on your rights”. Once the Tenant knows of the Default, they need to act immediately. Time is of the essence. Eviction cases are quick, so any delay could be fatal to the Tenant’s defense. If the Default is set aside, the case will proceed to trial. Otherwise, the Landlord can proceed to judgment.

After the Clerk issues the Default, the Landlord files a Motion for Default Judgment. This Motion needs to specify when the Tenant was served and state that the Tenant did not file a response and that the Landlord received a Clerk’s Default. The Landlord should attach a copy of the Sheriff’s Return of Service and a copy of the Clerk’s Default.   The Motion should also state how much the Court costs were (filing fees and sheriff’s fees) as these are awardable by the Court. The Judge will review the Motion and if it is sufficient will grant the Default Judgment, instructing the Clerk to issue a Writ of Possession.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.