FORTUNE INSURANCE COMPANY, APPELLANT,
v.
VINCENTE SANCHEZ, JR. AND VINCENTE SANCHEZ, SR., APPELLEES
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A clerk's default against an insurance company was reversed because the defendant established excusable neglect due to misfiling, disclosed meritorious affirmative defenses, and acted with due diligence in moving to vacate.
A defendant may vacate a clerk's default when it demonstrates excusable neglect, a meritorious defense, and due diligence in seeking relief.
[1] A clerk's default may be vacated upon showing of excusable neglect, a meritorious defense disclosed in a defensive pleading, and due diligence in seeking relief.
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Join FLexlaw to unlock all legal intelligenceFortune Insurance Company failed to timely respond to a complaint filed by Vincente Sanchez, Sr. and Jr. due to a clerical error in misfiling the suit…
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PER CURIAM.
The order denying the defendant Fortune Insurance Company’s motion to vacate the clerk’s default entered in favor of the plaintiffs, Vincente Sanchez, Sr. and Jr., is reversed and the cause is remanded to the trial court with directions to set aside the said clerk’s default. We reach this result based on the following briefly stated legal analysis.
First, the defendant established excusable neglect below in not timely responding to the plaintiffs’ complaint in that the defendant, through a clerical error, had misfiled the suit papers. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 853 (Fla.1962); Broward County v. Perdue, 432 So. 2d 742, 743 (Fla. 4th DCA 1983); Renuart-Bailey-Cheely Lumber & Supply Co. v. Hall, 264 So. 2d 84 (Fla. 3d DCA 1972). Second, the defendant established a meritorious defense below by the proposed answer attached to its motion to vacate, which answer sets out in detail a number of affirmative, defenses, Pedro Realty Inc. v. Silva, 399 So. 2d 367, 369 (Fla. 3d DCA 1981) (“A defendant may not merely state that it has a meritorious defense, but must disclose such a defense in a defensive pleading or affidavit”); Perry v. University Cabs, Inc., 344 So. 2d 914, 915 (Fla. 3d DCA 1977) (“The existence of a meritorious defense should be disclosed in tendering a defensive pleading showing the de-fense_”). Third, the defendant established due diligence below in moving to vacate the clerk’s default upon learning of the said default. B.C. Builders Supply Co. v. Maldonado, 405 So. 2d 1345, 1347-48 (Fla. 3d DCA 1981).
Reversed and remanded.
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Sec. Bank, N.A. v. Bellsouth Advertising & Publ'g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996)…asserts that the Bank held only $374.21 belonging to .Garfield. The answer sufficiently states a meritorious defense. See Cinkat Transportation Inc. v. Maryland Casualty Co., 596 So. 2d 746, 747 (Fla. 3d DCA 1992); Fortune Insurance Co. v. Sanchez, 490 So. 2d 249 (Fla. 3d DCA 1986). . In Metcalf v. Langston, the court noted that sworn “proof may be rendered unnecessary by stipulation of the parties, or by the party against whom relief is sought filing a responsive pleading to the motion or other pleading fo…
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Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304 (Fla. 4th DCA 2010)…erified motion established excusable neglect. [*308] A meritorious defense is established where a “proposed answer [is] attached to its motion to vacate, which answer sets out in detail a number of affirmative defenses.” Fortune Ins. Co. v. Sanchez, 490 So. 2d 249, 249 (Fla. 3d DCA 1986). We similarly held that where a party “immediately filed a proposed answer with affirmative defenses upon receipt of the plaintiffs’ motion to set the cause for trial on damages,” the meritorious-defense and due-diligence ele…
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Cinkat Transp., Inc. v. Md. Cas. Co., 596 So. 2d 746 (Fla. 3d DCA 1992)…eritorious defense to plaintiffs claim in its proposed answer setting out its affirmative defenses, which was attached to its motion to vacate. Atlantic Asphalt & Equip. Co. v. Mairena, 578 So. 2d 292 (Fla. 3d DCA 1991); Fortune Ins. Co. v. Sanchez, 490 So. 2d 249 (Fla. 3d DCA 1986). Finally, Cinkat acted with due diligence in filing its motion to vacate. Although Cinkat did not file a motion to vacate for over two months after entry of the default final judgment, Cinkaf s attorney promptly contacted plaintif…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)
- Pedro Realty Inc. v. Silva, 399 So. 2d 367 (Fla. 3d DCA 1981)
- Perry v. Univ. Cabs, Inc., 344 So. 2d 914 (Fla. 3d DCA 1977)
- Broward Cnty. v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983)
- LaNorris Hobbs v. State, 264 So. 2d 84 (Fla. 1st DCA 1972)