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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87566
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am the plaintiff in a small claims case in florida and the

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I am the plaintiff in a small claims case in florida and the defendant recently files a Motion to Vacate the default judgement. We have a hearing for that in a couple of weeks. My question is how likely is the judgement to be vacated? They stated in the motion they acted "immediately" when learning of the default judgment. However, it was over 60 days before they filed the motion and only did so after I filed a Writ of Garnishment. Any opinions based on experience would be appreciated.

Also, is there anything in particular I should prepare for this hearing other than the information applicable to the timeline above?
Submitted: 11 months ago.
Category: Legal
Expert:  Ely replied 11 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

Can you please tell me:

1) How were they served (certified mail, constable, private process server)?
2) What are they claiming was the reason that they did not respond in time which lead to the default judgment?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 11 months ago.

(1) They were served by the local Sheriff's Department


(2) They did not appear at the initial hearing which resulted in the default judgement. They stated in the motion to vacation that had a conflict and tried to reschedule the hearing. The rescheduled date was not set and they inadvertently missed the hearing.


(3) The default judgement was entered on June 19th and the motion to vacate was entered on August 22nd.

Expert:  Ely replied 11 months ago.
Friend,

They stated in the motion to vacation that had a conflict and tried to reschedule the hearing.

Did they ever file a Motion for Continuance?
Did they ever file an actual ANSWER to the suit?
Customer: replied 11 months ago.

No motion for continuance

No answer to the actual suit

 

They ignored everything and filed nothing at all until the Writ of Garnishment was .entered. Then they obtained council who has filed the Motion to Vacate

Expert:  Ely replied 11 months ago.
Thank you.

Well they are going through the motions, but the chances of them having the suit dismissed are unlikely.

When someone is sued, they have to file an answer within the time allotted:

" Unless a different time is prescribed in a statute of Florida, a defendant shall serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication. A party served with a pleading stating a crossclaim against that party shall serve an answer to it within 20 days after service on that party. The plaintiff shall serve an answer to a counterclaim within 20 days after service of the counterclaim. If a reply is required, the reply shall be served within 20 days after service of the answer." Florida Rules of Civil Procedure RULE 1.140.

Not doing so can cause a default judgment under Florida Rules of Civil Procedure RULE 1.500, which is what happened.

They never filed an answer, nor did they ever even file a motion for continuance for the date set for the hearing. They did not show up. They disregarded everything.

In short, provided that one illustrates that:

1) They never filed an answer; and
2) They were served properly; and
3) They never showed up to the hearing after properly being noticed

...then the chances of them winning the vacate judgment motion are slim.

Also, is there anything in particular I should prepare for this hearing other than the information applicable to the timeline above?

Yes. Someone in your situation may wish to:

1) Go to the court and get a COPY of all the paperwork and ensure that the Court has proof of them being served (make a copy of that too);
2) Construct a timeline of what happened and keep it handy for the hearing; and
3) Show the Court that they were properly served and properly noticed of the hearing properly, and filed to answer and show up, respectively.

I hope this helps and clarifies. Good luck.

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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87566
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 10 other Legal Specialists are ready to help you
Expert:  Ely replied 11 months ago.
Thank you for your gratuity.

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