What Does it Mean to be Defaulted and What Do You Do About It?

Let’s say that you check your mail one day, and you get what appears to be a lawsuit. It’s a document from a lawsuit, all right—but it also says that you have been “defaulted.” That can’t be good. What does that mean?

What is a Default?

A lawsuit starts with the filing of a Complaint—the document that says “I’m suing you and here’s why.” By law, and under constitutional due process requirements, you (the Defendant being sued) are required to be notified of the Complaint, and you must be given the chance to respond, or answer, what is alleged in the Complaint.

If a Defendant is served with the lawsuit, and does nothing, the Plaintiff (the part suing) can ask the court to enter a default against the Defendant. A default admits whatever is alleged in the Complaint, and by doing so, eliminates any of the Defendant’s ability to defend the claim.

Why Are Defendants Defaulted?

There are a number of reasons why someone may not respond to an initial complaint.

Sometimes, a Defendant just forgets to respond to or answer the Complaint. There is a deadline to respond, and a Defendant may ignore that deadline, leading to a default.

In other cases, service may be wrong—in other words, you were never actually served with the Complaint, so you knew nothing about it, and thus, could never respond to the Complaint which you didn’t know existed in the first place.

What Do You Do?

Whatever the reason, you’re now staring down a default, and have no way to respond to or defend the claim. But all hope is not lost, so long as you act quickly enough.

There are situations where a court can overturn a default, which would then allow you to respond to, and defend against, the allegations in the Complaint.

If there is some error in service meaning you weren’t properly served, or the process server served the wrong person, you can use that to demonstrate that the default should be overturned.

But what if it was your fault—you were properly served, and you just “dropped the ball,” and didn’t respond in the tie provided? In that case, you can try to argue what is known as excusable neglect. Excusable neglect says that you admit that you didn’t respond on time, but you have a good reason why you didn’t.

So, for example imagine that your business’ registered agent was served with the Complaint, but never provided it to you. Or, imagine that you were served, and then had some family emergency, which kept you from finding an attorney to respond on time.

These (and many other situations like it) are occasions where the lack of responding to the Complaint, could be seen as excusable.

What Will the Court Do?

Courts on one hand, don’t like overturning defaults. Courts want to have finality in cases, and they have busy dockets, and want to close and move along cases as quickly as possible. On the other hand, courts also don’t want to just default someone who made an honest mistake, and judges tend to want cases decided on the merits, with all sides having the opportunity to be heard.

Call our Fort Lauderdale business litigation lawyers at Sweeney Law P.A. at 954-440-3993 for help if you’ve been served with any kind of business law lawsuit.

Sources:

media.floridabar.org/uploads/2018/08/form-79.pdf

casetext.com/rule/florida-court-rules/florida-rules-of-civil-procedure/rules/rule-1540-relief-from-judgment-decrees-or-orders