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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2511
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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In Florida please provide case law and standards

Customer Question

In Florida please provide case law and standards for removal of default. (My client received a Petition but it was sent to his old address where his father signed for it. He received it two weeks later and the Answer was filed a week late from the original date but not late regarding when he actually received it. However, we are filing a Motion to Remove Default in Florida and I would like the legal standard, please.Thank you,
Laura Greco Naylor
Submitted: 1 year ago.
Category: Family Law
Expert:  S. Kincaid replied 1 year ago.
This is actually called a Motion to Set Aside Default or Default Judgment. Here is a packet from the State of Florida with forms and instructions. Cases will follow...
Expert:  S. Kincaid replied 1 year ago.
1) "The courts of this state have generally been quite liberal in setting aside default judgments, and any reasonable doubt should be resolved in favor of granting the motion in order to permit a trial on the merits." Cunningham v. White, 390 So.2d 467, 468 (Fla. 3d DCA 1980). See also J.J.K. Int'l, Inc. v. Shivbaran 985 So.2d 66, 69 (Gla) 4th DCA 2008 (stating that Florida policy "tates a preference for deciding a case on its merits rather than on a technicality.") 2) In order to set aside a default or default judgment, the trial court must determine: "(1) whether the defendant has demonstrated excusable neglect in failing to respond; (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, has demonstrated due diligence in seeking relief." Schwartz v. Bus. Cards Tomorrow, Inc., 664 So.2d 611, 611 (Fla. 4th DCA 1994).(3) "Where no notification of an application for default is given, that default may be set aside without a showing of excusable neglect or a meritorious defense." Appliance & Refrigeration Dist., Inc. v. Fedders USA, Inc., 518 So.2d 1384, 1386-1387 (Fla. 3d DCA 1988).(4) When addressing excusable neglect, the Supreme Court has found that "the court would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control." Pioneer Investment Services Co. v. Brunswick Assoc.'s Ltd. P'ship, 507 U.S. 380, 388-89 (1993). Is that enough?
Expert:  S. Kincaid replied 1 year ago.
The link to the packet doesn't' seem to be working. Here it is again.