My sincere apologies for the wait.
Od ehad, shalom.
Before I answer your follow ups, I would ask if you could please elaborate on the following:
1. What do I do next? What's the process?
Someone in your situation may wish to respond to the motion. What they are attempting to do here is to set the default motion aside. This can only be done for good reason, but the Judge has the final say and full discretion to grant the request or not. Obviously, I do not know the reason(s) that they are claiming. Let me know if you need a sample reply.
The Court will hear the motion. If it is denied, the matter stays as is and the default judgment stands. If it is granted, she essentially puts the default judgment aside and re-opens the case for another trial.
2. What is her chances to get the case reopened if is only 2 month past from default.
Pretty poor. She generally has to file 30 days or no later past the default judgment to begin with. In addition, in order for the court to grant a motion to set aside a default judgment, the moving party is required to show the trial court three things:
(1) the party’s failure to file a responsive pleading was due to excusable neglect;
(2)the movant has a meritorious defense to the underlying action; and
(3) the moving party acted "with due diligence in seeking relief from the default." Airport Centre, Inc., v. Jorge Ugarte, et al., No. 3D11-2997 (Fla. 2nd DCA July 11, 2012)
citing Lazcare Int’l v. Caraballo, 957 So. 2d 1191, 1192 (Fla. 3d DCA 2007).
In short, unlikely, unless she can prove foul play on your part.
3. Shortly that's what she saying: She is saying that because she don't English is not her first language and she have to move 3 times because of DV case that was dismiss 6 months ago, she saying that there is a DCF case open and act... By saying all what is her chances and what should I expect next.
I see. This is very case by case matter. I have seen
a default judgment set aside because the other party claimed not to have spoken English, but that was within 30 days of the default judgment. Here, it is 2 months past. So the fact that she waited this long really hurts her argument.
4. How do i stop her from keep going to child services and putting false allegations? is very festering to be stress what she will do next and how she will use the system to try and destroy my life. I'm concern to start war with her she is very unpredicted and unstable person who don't think before doing something. I'm saying that because i did my research and find that this child protective services can take my son away. please help. thanks.
You cannot "stop" someone from alleging. However, you can retaliate by threatening
to file a suit for DEFAMATION and INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS in civil court. Someone in your situation may wish to threaten to do so. This would be separate from the family matter and a whole another civil suit.
To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one
cause of action, although it is not unusual to have more than one.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS is essentially outrageous actions that are meant to intentionally inflict emotional pain. RJ v. Humana of Florida, Inc., 652 So. 2d 360 - Fla: Supreme Court 1995
DEFAMATION - Under Florida law, the elements of a defamation claim are: the defendant published a false statement; about the plaintiff;
to a third party; and the falsity of the statement caused injury to the plaintiff. Border Collie Rescue v. Ryan, 418 F.Supp.2d 1330, 1348 (M.D.Fla. 2006).
Threats of a lawsuit may have her think twice before other false reports against you.