Motion to Set Aside / Vacate Default Judgment (Debt Collection) - Florida

IN THE [☐ COUNTY COURT / ☐ CIRCUIT COURT] OF THE [____________] JUDICIAL CIRCUIT

IN AND FOR [____________] COUNTY, FLORIDA

Case No. [____________]
Division: [____________]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to Fla. R. Civ. P. 1.540(b) and 1.500(d)

Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], moves this Court, pursuant to Florida Rule of Civil Procedure 1.540(b) and Rule 1.500(d), to set aside the [☐ clerk's default / ☐ final default judgment] entered against Defendant on [__/__/____], to quash any writ of garnishment or execution issued thereon, and to grant Defendant leave to file the Answer attached as Exhibit [__]. In support, Defendant states:

I. INTRODUCTION

1. This is a consumer debt-collection action in which Plaintiff seeks to collect an alleged [☐ credit-card / ☐ installment-loan / ☐ medical / ☐ other: [____________]] debt. A [☐ clerk's default / ☐ final default judgment] was entered against Defendant on [__/__/____] in the amount of $[____________].

2. Florida courts favor resolving disputes on their merits, and "all reasonable doubts should be resolved in favor of setting aside the default" so the matter may be tried. See North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962).

3. The default should be set aside because [summarize: service was defective so the judgment is void / Defendant's failure to respond was excusable neglect, Defendant has a meritorious defense, and Defendant acted with due diligence].

II. IDENTIFICATION OF THE DEFAULT JUDGMENT

4. On [__/__/____], the clerk entered a default against Defendant under Rule 1.500(a)/(b) for failure to file or serve any paper. [☐ Applicable / ☐ Not applicable.]

5. On [__/__/____], the Court entered a final default judgment against Defendant in the amount of $[____________], comprising alleged principal of $[__________], interest of $[__________], fees/costs of $[__________], and $[__________] in [____________].

6. Defendant [☐ first learned of the judgment on [__/__/____] when [describe — e.g., served with a writ of garnishment / notified of a bank levy / discovered on a credit report]; / ☐ otherwise: [____________]]. This Motion is filed within a reasonable time and within one year of entry of the judgment. See Fla. R. Civ. P. 1.540(b).

III. LEGAL STANDARD

7. Rule 1.540(b) provides that, "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding" for: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment, decree, or order is void; or (5) that it has been satisfied, released, or discharged, or that a prior judgment on which it is based has been reversed or vacated, or it is no longer equitable that it have prospective application.

8. Deadline. The motion "shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken." Fla. R. Civ. P. 1.540(b). A motion under (b)(4) asserting the judgment is void is not subject to the one-year limit and may be brought within a reasonable time.

9. Rule 1.500(d) vests the trial court with discretion to set aside a default and a default judgment in accordance with Rule 1.540(b).

10. Three-prong test. To vacate a default or default judgment, the movant must demonstrate: (1) excusable neglect in failing to timely respond; (2) a meritorious defense to the action; and (3) due diligence in seeking relief promptly after learning of the default. See, e.g., Goldome v. Davis, 567 So. 2d 909 (Fla. 2d DCA 1990); Schwab & Co. v. Breezy Bay, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978). The court must deny the motion if any one of the three prongs is not established; the movant bears the burden. The excusable-neglect and due-diligence prongs must be supported by sworn proof (affidavit). [verify current district-court-of-appeal authority before filing.]

IV. GROUNDS FOR RELIEF

☐ A. The Judgment Is Void — Defective Service / No Personal Jurisdiction (Rule 1.540(b)(4); Rule 1.070). Defendant was never validly served as required by Rule 1.070 and the Florida service statutes (Fla. Stat. ch. 48). Specifically, [describe — e.g., Defendant did not reside at the address of purported service; no copy was left with a resident 15 or older as required for substitute service; the return of service is false or facially defective; Defendant was not within Florida]. Because the Court lacked personal jurisdiction, the judgment is void and must be vacated, and the one-year limit does not apply.

☐ B. Excusable Neglect / Mistake / Inadvertence / Surprise (Rule 1.540(b)(1)). Defendant's failure to respond resulted from excusable neglect — inaction arising from "clerical or secretarial error, reasonable misunderstanding, a system gone awry," illness, or similar circumstances. See Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985). Specifically, [describe — e.g., Defendant was hospitalized / never received the papers / reasonably misunderstood the deadline / a calendaring or mail-handling error occurred]. The facts are set forth in Defendant's sworn Affidavit below.

☐ C. Fraud, Misrepresentation, or Misconduct (Rule 1.540(b)(3)). The judgment was procured by fraud, misrepresentation, or misconduct of Plaintiff, including [describe — e.g., a false affidavit of service; a "robo-signed" affidavit of debt; misrepresentation of the amount, ownership, or that the action was timely].

☐ D. Newly Discovered Evidence (Rule 1.540(b)(2)). Defendant has discovered evidence that by due diligence could not have been discovered in time to move for rehearing, namely [describe — e.g., proof of payment/discharge; documents showing the debt belongs to another; records establishing the debt is time-barred].

☐ E. Satisfied / Discharged (Rule 1.540(b)(5)). The judgment, or the underlying obligation, has been satisfied, released, or discharged (including by discharge in bankruptcy).

☐ F. Meritorious Defense (third prong; supports relief). Defendant has one or more meritorious defenses to the underlying debt claim, set forth in Section V and in the proposed Answer attached as Exhibit [__].

V. MERITORIOUS DEFENSE

11. The movant must show a meritorious defense — a defense that, if proved, would defeat or reduce the claim. Defendant asserts the following, each sufficient if proved:

☐ (a) Statute of Limitations. The alleged debt is time-barred. An action on a written contract must be brought within five (5) years (Fla. Stat. § 95.11(2)(b)); an action on a contract not founded on a written instrument or on an open account must be brought within four (4) years (Fla. Stat. § 95.11(3)(j)). The debt accrued on or about [__/__/____] (typically the date of default), and this action was filed outside the applicable period. [Where Plaintiff cannot produce the signed cardholder agreement, the 4-year open-account period may apply.]

☐ (b) Wrong Defendant / Mistaken Identity / Identity Theft. Defendant is not the person who incurred the alleged debt, or the account was opened or used through identity theft. [describe.]

☐ (c) Incorrect Amount; Unauthorized Interest/Fees. The judgment amount is incorrect, inflated, or includes interest, fees, or charges not authorized by agreement, unconscionable, or usurious. Plaintiff must itemize and substantiate each component.

☐ (d) Paid, Settled, or Discharged. The alleged debt has been paid, settled, released, or discharged in whole or in part.

☐ (e) Lack of Standing; No Proof of Assignment. Plaintiff is not the original creditor and failed to prove a complete, unbroken chain of assignment specifically identifying Defendant's account. Rule 1.130 requires the contract or assignment on which the claim is founded to be attached to the complaint. Fla. Stat. § 559.715 requires written notice of assignment of a consumer debt before suit.

☐ Potential separate FDCPA claim—not by itself a defense that the debt is invalid. If a qualifying debt collector failed to provide the notice or verification required by 15 U.S.C. § 1692g, Defendant may have a separate civil claim under 15 U.S.C. § 1692k. A formal pleading is not an “initial communication” under § 1692g(d). Plead such a claim only if procedurally permitted, and evaluate any state-law issue separately.

☐ (g) Failure to State a Claim / Noncompliance with Rule 1.130. The complaint failed to attach the written instrument or account documents on which the claim is founded.

12. These defenses are verified in Defendant's Affidavit below and stated in the proposed Answer attached as Exhibit [__].

VI. DEFENDANT'S AFFIDAVIT / DECLARATION

STATE OF FLORIDA
COUNTY OF [____________]

I, [____________], being first duly sworn (or declaring under penalty of perjury under the laws of Florida), state:

1. I am the Defendant in this action and have personal knowledge of the facts stated here.

2. [Service / notice facts — e.g., "I was never served with the summons and complaint. I did not live at [address] on the date service was claimed," OR explain the excusable neglect, mistake, or surprise that caused the failure to respond.]

3. I first learned that a [clerk's default / final default judgment] had been entered against me on [__/__/____], when [describe], and I acted promptly and with due diligence to seek relief.

4. I have a meritorious defense to this action, namely: [summarize the facts supporting the defense(s) checked in Section V — e.g., the debt is time-barred / is not mine / was paid / the amount is wrong / Plaintiff does not own it].

5. My failure to respond was not willful or the result of a disregard of the Court's process.

6. I respectfully ask the Court to set aside the [default / default judgment], quash any garnishment or execution, and allow me to defend on the merits.

Under penalties of perjury, I declare that I have read the foregoing and that the facts stated in it are true.

_______________________________________
[____________], Defendant

Executed on [__/__/____].

Sworn to (or affirmed) and subscribed before me by means of [☐ physical presence / ☐ online notarization] this [____] day of [____________], 20[____], by [____________], who is [☐ personally known / ☐ produced [____________] as identification].

_______________________________________
Notary Public, State of Florida
My commission expires: [____________]

VII. REQUEST TO STAY EXECUTION / QUASH GARNISHMENT

13. Defendant requests that the Court stay execution of the judgment — including any writ of garnishment, attachment, or levy — pending resolution of this Motion, and quash any writ already issued. A stay is warranted because the judgment is [☐ void for lack of jurisdiction / ☐ likely to be vacated on the merits], and continued enforcement would cause irreparable harm by depriving Defendant of [☐ wages / ☐ funds in a deposit account, including funds that may be exempt under Fla. Stat. § 222.11 (head-of-family wages) and other exemptions] before the Court rules.

VIII. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that the Court:

A. SET ASIDE the clerk's default under Rule 1.500(d) and/or VACATE the final default judgment entered on [__/__/____] under Rule 1.540(b);

B. STAY execution and QUASH or DISSOLVE any writ of garnishment, attachment, or levy issued on the judgment;

C. GRANT Defendant leave to file the Answer attached as Exhibit [__] and permit Defendant to defend on the merits;

D. AWARD Defendant costs and, to the extent permitted by law or contract, reasonable attorney's fees; and

E. grant such other and further relief as the Court deems just and proper.

IX. PROPOSED ORDER

A proposed order granting the relief requested is submitted herewith for the Court's convenience.

DATED: [__/__/____]

Respectfully submitted,

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
Florida Bar No. (if attorney): [____________]
[Street Address]
[City], [State] [____]
Telephone: ([____]) [____]-[________]
Primary Email: [____________________________________]
Secondary Email: [____________________________________]

X. CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the [____] day of [____________], 20[____], a true and correct copy of the foregoing Motion to Set Aside / Vacate Default Judgment, the supporting Affidavit, the proposed Answer, and the proposed Order was served upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) in accordance with Fla. R. Civ. P. 1.080, by the following method:

☐ Florida Courts E-Filing Portal / e-service to all designated email addresses
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Email (per Rule 1.080 / by agreement)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

FLORIDA PRACTICE NOTES

• Two standards. A clerk's default is set aside under Rule 1.500(d) (liberal standard before final judgment). A final default judgment is vacated under Rule 1.540(b) (higher mountain). Confirm which order is at issue.
• Three-prong test. Excusable neglect + meritorious defense + due diligence; failure of any one prong is fatal. Goldome v. Davis, 567 So. 2d 909 (Fla. 2d DCA 1990). Support excusable neglect and due diligence with a sworn affidavit.
• Deadline. Rule 1.540(b)(1)-(3): reasonable time and no more than one year after entry. A void-judgment motion under (b)(4) (e.g., defective service) has no one-year cap. The one-year limit is jurisdictional and can be raised for the first time on appeal.
• Favor of merits. "All reasonable doubts" are resolved in favor of setting aside the default. North Shore Hosp. v. Barber, 143 So. 2d 849 (Fla. 1962).
• Debt SOL: 5 years on a written contract (Fla. Stat. § 95.11(2)(b)); 4 years on an open account / contract not founded on a written instrument (§ 95.11(3)(j)). The 4-vs-5-year classification is decisive when a debt buyer cannot produce the signed agreement.
• Documentation: Rule 1.130 requires the contract/assignment to be attached; Fla. Stat. § 559.715 requires written notice of assignment of consumer debt before suit.
• Garnishment/exemptions: Head-of-family wage exemption (Fla. Stat. § 222.11) and other exemptions may apply; a separate motion to dissolve the writ and a Claim of Exemption may be required.

Sources and References

• Fla. R. Civ. P. 1.540 (relief from judgment): https://www.floridabar.org/rules/ctproc/ (Rules of Civil Procedure)
• Fla. R. Civ. P. 1.500 (defaults; setting aside): https://www.floridabar.org/rules/ctproc/
• Fla. R. Civ. P. 1.070 (process; service): https://www.floridabar.org/rules/ctproc/
• Fla. R. Civ. P. 1.130 (attaching cause of action and exhibits): https://www.floridabar.org/rules/ctproc/
• Fla. Stat. § 95.11 (limitations): https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0095/Sections/0095.11.html
• Fla. Stat. § 222.11 (exemption of wages of head of family): https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0222/Sections/0222.11.html
• Fla. Stat. § 92.525 (declaration under penalty of perjury): https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0092/Sections/0092.525.html
• Florida Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq.; § 559.72; § 559.715: https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0559/0559.html
• Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.: https://www.ftc.gov/legal-library/browse/rules/fair-debt-collection-practices-act-text
• CFPB — what is a default judgment: https://www.consumerfinance.gov/ask-cfpb/what-is-a-default-judgment-en-1459/