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  1. #1
    Join Date
    Feb 2007

    Default Motion to Set Aside Default Judgement

    My question involves an eviction in the state of: Florida

    Mistake (CCP 473(b)):
    A mistake of fact occurs when a person understands the facts to be other than they are.
    A mistake of law occurs when a person knows the facts as they are, but has a mistaken belief as to the legal consequences of those facts.

    We received a five day notice, summons, complaint.

    Per the summons on the fifth day we were told by both the plaintiff and my brother that we were not required to go to court on that day, not to worry, that a second set of papers would not be filed until the next week because they had entered into a negotiation by which my brother would pay the landlord the full amount due by that date.

    We were led to believe their arrangement would void any need to go to court and were
    repeatedly told we didn't need to go to court that day by both parties via their separate
    phone conversations to us.

    Since we were on the outside of their negotiation we depended on what they were
    saying to us was true..

    We later learned that anything presented outside of going to court on the fifth day
    would not have prevented a default judgement from being entered against us..

    We originally had intended to file a motion on that day to determine rent due.

    Our proper defense was based on the odd amount shown on the
    three day notice and amount of actual rent due..( accounting request )

    I believe we should file a motion to set aside the default judgement based
    on mistake..Do we also file for a stay of execution of judgement? If so, do
    these two papers need to be filed by a lawyer or can we do this ourselves
    and if we file them ahead of the landlord filing their writ of possession will
    our papers be seen by the judge before the writ is granted?

    Anything else we should do?

    I ask this because my brother was back and forth about loaning this
    to us, he was going to make it contingent on my inheritance coming
    in from a trust on the third week of this month but he could not verify
    how much it would be with the trustee as of this past Friday.

    If he backs out then we only have a short window before we lose the unit.

    I have been supporting both of us since last year while my husband was heading
    toward his disability hearing but I started falling behind on rent as my cataracts are
    bad in both eyes and I can't work for long periods of time anymore.

    Our landlords have been really good to us and were working with us
    but they reached the end of their patience and filed.

    Thank you for any advice you can give us..

  2. #2
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: Motion to Set Aside Default Judgement

    The default was entered by the court clerk based upon the lack of filing, or the plaintiff filed for a default based upon your failure to appear and defend? If there was an agreement that you didn't have to answer pending the outcome of your negotiations, why were you planning to appear and file a motion - and why didn't you do so?

    The judgment was entered how many days ago?

    Read this.

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