I consult with and represent many persons and businesses who have had judgments entered against them by default in Florida and I'm not kidding when I claim I could write a book on what I've learned about the subject over the years.
I have written a separate article about what specifically a civil judgment is in Florida, and I have a judgment defense practice page dedicated to nothing but the services I provide in that area of law.
Understand that this article discusses strictly the issues surrounding default judgments. If a default has been entered against a party and a judgment has not yet been entered and the party wishes to now join in the litigation such a situation requires an entirely different analysis and approach.
In my professional opinion there is a tremendous amount of misunderstanding and misinformation about defaults and judgments entered thereon in Florida.
This goes for the layperson and attorneys, alike.
I think that one of the biggest misconceptions is that once a party is in default, the opposing party may request and receive whatever it chooses to request without any further proof or qualification needed.
This could not be further from the truth, although many times I see situations where this is precisely what occurred. I think perhaps this is because most attorneys aren't used to dealing with default situations. In the real world of litigation, most people either appear or answer and then the entire default situation doesn't exist in the first place.
A default is a status entered against a party who fails to respond (or appear if its small claims) as required by the rules of procedure or an order of the court.
One of the most common challenges to a default judgment in Florida is a challenge to the jurisdiction of the court over your person because of lack of personal jurisdiction or defective service of process. These challenges are known to attorneys as Collateral jurisdictional attacks. If you were not served properly (and I mean for a legally recognized reason, not a personal feeling of wrong doing) with notice of a lawsuit, then it can be argued that the court never had the authority to enter a judgment against you in the first place. In such a case, a motion may be filed seeking to have the judgment set aside for want of personal jurisdiction.
In Florida, a default admits all of the well plead allegations of the complaint (or statement of claim in small claims). This is what generally allows a party to recover what they asked for when a party defaults. Its because by not answering (or appearing if small claims) that party admitted what was claimed against it.
In almost every case after a default is entered, the plaintiff will submit affidavits and a proposed judgment to the court and the court will then enter the judgment without the requirement that any hearings be held.
Some times this is NOT the procedure that should have been followed. Certain types of relief require very specific types of pleading and proof before a judgment should be entered, even if a party is in default. Other times, there are defects so significant with the pleadings that the relief should not be granted at all because the claimed harm is not compensable under Florida law.
Many times such "formalities" will go unnoticed and unchallenged unless a savvy defendant or attorney is made aware of the issue.
There are certain defects in pleading and procedure which will render the judgment entered void under Florida law. What this means is that the problem is of such a fundamental nature that it is not valid under Florida law. For those interested, I have written an entire article on the difference between void and voidable judgments in Florida
Unless you know specifically what you are looking for, its almost impossible to know whether a default judgment might be vacated for these types of proof and pleading defects. This is where you will need an experienced attorney to review your specific case.
Whats important to consider is that just because a default was entered, it doesn't mean that you are out of options.
Once a default judgment is entered, many people believe that there is nothing that can be done other than to pay the judgment in full, including all the interest, costs, and attorney's fees which were added to the original balance.
The truth is that there are sometimes potential defenses which may be raised many years after entry of a default judgment in Florida. This is where I come into play. I have obtained and litigated thousands of cases involving defaults and default final judgments in Florida and I am intimately familiar with numerous potential defenses. Just because that judgment was entered and signed by a judge doesn't mean that its now an irreversible situation.
I can tell you that its not unheard of for certain high volume law firms and plaintiff's to (hopefully inadvertently) cut corners when litigating cases and seeking judgment after default. Sometimes these cut corners and failure to adhere to established procedure can be chalked up to harmless error, however, sometimes these defects can provide the potential for meaningful relief form the judgment in whole or in part.
I will say that challenging a default judgment is a sophisticated and often times technical legal process that does not lend itself to pro-se representation. That's not to say that its impossible to successfully attack a default final judgment in Florida successfully pro-se, just that I cannot remember it being done successfully on one of the thousands of cases I litigated against consumers. Again, its a very technical type of legal argument which many are not suited for.
With all of this being said, the majority of judgment entered in Florida are entered legitimately and in conformity with Florida law and court procedure. Not every judgment is inherently flawed or subject to attack.
At the Law Office of Alex McClure, I pride myself on working closely with my clients to provide practical solutions to their consumer debt problems.
I do everything in my power to provide options that my clients didn't even know existed before consulting with me.
Contact the Law Office of Alex McClure today to find out how I can help you create a sustainable financial future for yourself.
The Law Office of Alex McClure provides services in Lake Mary, Sanford, Longwood, Deltona, Deland, Orlando and all of Seminole, Volusia, Orange, Brevard and Lake Counties.