If the Bank (Plaintiff) files a foreclosure complaint against you, they must serve you with a
summons and a complaint. If this happens to you, you will have 20 days
to answer the Plaintiff’s complaint under Fla. R. Civ. P. 1.140.
The best thing to do once this happens, is to contact a knowledgeable
Foreclosure Defense firm that can litigate on your behalf. Often times,
life gets in the way and we forget to do things or meet certain deadlines.
If you forget to answer the complaint, then the bank can file a clerk’s
default or a motion for judicial default against you. This will make their
life a lot easier to obtain a Final Judgment against you which will lead
to a foreclosure sale and you can lose your home. If you have been defaulted,
then you must vacate the default in order to litigate against the Plaintiff
and preserve your rights in the property.
In Florida, there is a three-part test the courts apply when deciding whether
to vacate the default. These are: 1) was there
excusable neglect for failing to answer the complaint? 2) Is there a
meritorious defense? and 3) was
due diligence used by the Defendant to attempt to vacate the default?
Latin American Property Insurance Company v. Italian Palace, Inc., 596 So.2d 1174 (Fla. 4th DCA 1992). The good thing for homeowners to know,
is that the courts prefer the parties to try a case upon the merits of
the claim and courts should uphold a liberal policy when ruling on whether
to vacate a default. However, this is not always a slam dunk and the homeowner
should understand what the elements mean.
The courts have held
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.
Elliot v. Aurora Loan Services, LLC, 31 So.3d 304, 307 (Fla. 4th DCA 2010). A good example to demonstrate
this element, is where a homeowner believed the lender was working with
them on obtaining a settlement instead of moving forward with their foreclosure
case. The courts have held in Florida that this example constitutes excusable neglect.
meritorious defense is established where a “proposed answer [is] attached to its motion
to vacate, which answer sets out in detail a number of affirmative defenses.”
Fortune Ins. Co. v. Sanchez, 490 So.2d 249, 249 (Fla. 3d DCA 1986). For this element, if you do not
assert a valid defense to the complaint and attach it to your motion to
vacate the default, you will have failed to satisfy this element.
The last element,
Due Diligence, is examined
from the time at which the party seeking to vacate the default had first
discovered that a default had been entered. What’s important to note, is that if you discover you have been defaulted,
but do not do anything until many months later and then come to the Final
Judgment hearing to get the court to listen to your arguments, the court
will not hold that you exercised due diligence and could very well disregard
your arguments. However, the courts have held that even a 15-day delay
satisfied this element.
Marshall David, Inc v. Incapco, Inc., 558 So.2d 206 (Fla. 2d DCA 1990). The best thing to do from a homeowners
standpoint, is to immediately contact a knowledgably and aggressive attorney
that knows the law and more importantly, knows the Judge in order to put
together a well-crafted Motion in order to vacate the existing default.
Remember, the goal is to litigate against the Plaintiff to either dismiss
the case (based on the facts of the case and the existing law) or to reach
a proper settlement based on the merits of the case.
Finally, a Motion to Vacate Default
must be verified by the homeowner. The homeowner does not need to appear at
the hearing, but must swear, under penalty of perjury, that the facts
asserted in the Motion to Vacate are true and correct.