Due to precautions related to COVID-19, we have expanded our options for remote consultations. Please contact our office to discuss whether a full phone consultation or video conference is appropriate for your situation.

Judgments, Valid or Set Aside?

On Behalf of | Dec 14, 2013 | Judgments

Not all judgments are valid and if not, may be set aside.  Whenever I receive calls concerning judgments, I always start with asking about service of the complaint. If service is improper, the judgment will be deemed void. Even if the service is proper, Rule 1.540(b) of the Florida Rules of Civil Procedure provides a mechanism by which to move to set aside a default final judgment even if the complaint was properly served. 

I recently assisted a client in having a writ of garnishment against its bank account dissolved by seeking to set aside a judgment for my client’s excusable neglect in failing to respond to the case.  In that case, the corporate client’s registered agent was served with the complaint but mailed the complaint and summons to an old address of my client despite being provided with the updated address. As a result, my client never responded to the complaint and the creditor was able to obtain a default and default final judgment. The creditor had a writ of garnishment issued and served on my client’s bank account and the funds therein were frozen.

In my client’s case, I was able to demonstrate to the court that the complaint was served properly, but due to the registered agent’s failure to send the complaint and summons to the proper address, my client did not respond to the complaint due to “excusable neglect” and the default and default final judgment should be set aside. Excusable neglect occurs when inaction results from clerical or secretarial error or reasonable misunderstanding.  Florida case law requires that the excusable neglect must be accompanied by due diligence (acting expeditiously upon discovering the judgment) and a meritorious defense (one that, if proven, would provide a defense against entry of judgment), all of which must be proven by sworn testimony, such as an affidavit, before the default and default final judgment may be set aside.

Florida courts look favorable on setting aside default final judgments and allowing cases to move forward on the merits. However, the moving party must comply with the requirements listed above. In my case, we were able to demonstrate excusable neglect and that we acted quickly in moving to set aside the judgment as well as various meritorious defenses. As a result, the court set aside the default final judgment which meant the post-judgment writ of garnishment had to be dissolved, freeing my client’s funds.