I went yesterday to a hearing for the defendant's counsel to get a motion on a judgment default ordered...

The judge signed it.

I had filed a motion to set aside along with my affidavit and a supporting affidavit the day before.

I thought the judge would be addressing my motion but she did not.

That being said and the order on the judgment default being signed, what can I do next?

Do I refile the set aside motion with a new date? Do I file a request for hearing on that motion to set aside?

The procedure (what follows what) is confusing.

Needless to say, am appearing pro se.

Thanks in advance.

I'm a little confused about your language: "I went yesterday to a hearing for the defendant's counsel to get a motion on a judgment default ordered..." A Motion doesn't get ordered; the relief requested in the Motion is what gets ordered.

I'm not sure that what was ordered is the default judgment - which the title of this thread indicates.

What exactly did the Judge order?

Quote:

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Originally Posted by JudyKayTee

I'm a little confused about your language:

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Me too.

I think maybe this is what the OP means:
"I went yesterday to a hearing on a motion for default judgment. The defendant's counsel had asked me to attend the hearing."

But I agree. It's unintelligible.

Let's start over, Ocean512beach: Are you the plaintiff (the person suing) or the defendant (the person being sued)?

A default or default judgment (which?) was entered against the defendant?

You filed a motion to set something aside. What was it you wanted set aside?

What was the title of the order the judge signed yesterday?

The reason your motion was not addressed is that the other side is given a set amount of time to oppose a motion such as the one you filed. Until this time has passed, or the opposition has been filed, the motion is not ripe for decision.

I am the third party defendant.
A default judgment was entered against me.
I attended a re-notice of hearing for a Motion for Judicial Default (which I think is the same thing as a Default Judgment) but verbatim the notice reads 'Judicial Default'. This notice was issued by defendants' counsel.

What I wanted was for Judge to give me time to answer the Amended Third Party Complaint for Damages which was dtd 7/08. Yes, 08 not 09. My affidavit which I attached to the Motion to Set Aside Default Judgment explained that I hired two consecutive attorneys, paid them retainers, but did not get retainer agreements and they attempted negotiations with the Defendants' counsel but did not neither of them answered the Amended Third Party Complaint for Damage on my behalf.

After the re-notice of hearing for a Motion for Judicial Default mentioned above, I received a Final Judgment for a huge amount.

Now, I'm unbelieveably sad..

Can I repair any of this?

I filed a Motion to Set Aside Default Judgment.
Re you the plaintiff (the person suing) or the defendant (the person being sued)?

A default or default judgment (which?) was entered against the defendant?

You filed a motion to set something aside. What was it you wanted set aside?

What was the title of the order the judge signed yesterday?

The reason your motion was not addressed is that the other side is given a set amount of time to oppose a motion such as the one you filed. Until this time has passed, or the opposition has been filed, the motion is not ripe for decision.

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Originally Posted by ocean512beach

Now, I'm unbelieveably sad..

Can I repair any of this?

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Hello o:

In a word, YES.

I don't know if the judge abused her discretion by NOT addressing your motion. She certainly might have. It sounds like they're beating you via technicality instead of the merits of the case. But, that's the advantage of having a lawyer.

Procedurally, I wouldn't know what your next move is. You may be done in that court, or you may have another shot with that judge. If you make the wrong move, you'll be defeated again... If you don't know the rules, you'll NEVER win, because lawyers DO know the rules.

Toward that end, and if you wish to continue pro se, buy yourself a book entitled, Rules of Civil Procedure for the particular court that your dealing with. You can probably buy one at your local college bookstore.

If you can decifer these rules, and that's not really hard, then you'll know what your next move is. I suspect it's to appeal. So, while you're at the bookstore, buy another book entitled, Rules of Appealate Procedure for the particular court you'll be appealing in.

Then follow the rules and kick some butt.

excon

Oh Man - thanks for the books. I'll get them asap.

After reading everything I can get a hold of until I get those you mentioned -- I think my next step is... a Motion for Rehearing Pursuant to Rule 1.530, Fla. R. Civ. P.

Then to call the Fl Bar and ask for grievance department and fee arbitration. After all these guys took retainers, did have negotiations with Defendants' counsel but did not act in my best interest. And at the end of the day, I lost.

Your opinion,

Quote:

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Originally Posted by ocean512beach

I am the third party defendant.
A default judgment was entered against me.
I attended a re-notice of hearing for a Motion for Judicial Default (which I think is the same thing as a Default Judgment) but verbatim the notice reads 'Judicial Default'. This notice was issued by defendants' counsel.

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You didn't attend a notice of hearing (piece of paper sent to you). You attended a hearing (meeting with the judge).

"Judicial default", or "default" would be a finding that you failed to answer or otherwise defend in time. "Default judgment" would be a judgment (judicial finding that you owe money, etc.), based upon such a default.

If you had moved to set aside a default judgment, apparently the default judgment had already been entered when you filed your motion. So it is unclear why the defendant's lawyer felt it necessary to ask for a hearing for "judicial default" (if he already had the judgment). Are you sure that the judgment had already been entered?

If the default judgment was what he got at the hearing, it appears to be a final judgment. When the time allotted by the rules to oppose your motion has passed, ask for a hearing on that motion. But ultimately, you may need to appeal the judgment within a set period (30 days - See appellate Rule 9-1110(b), next post), unless it is first set aside.

Quote:

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Originally Posted by excon

Toward that end, and if you wish to continue pro se, buy yourself a book entitled, Rules of Civil Procedure for the particular court that your dealing with. You can probably buy one at your local college bookstore.

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Here it is:
http://www.floridabar.org/TFB/TFBRes...df?OpenElement

Quote:

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Originally Posted by excon

If you can decifer these rules, and that's not really hard, then you'll know what your next move is. I suspect it's to appeal. So, while you're at the bookstore, buy another book entitled, Rules of Appealate Procedure for the particular court you'll be appealing in.

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Here:

http://www.floridabar.org/TFB/TFBRes...df?OpenElement

I am SSSOOO grateful for the differentiation between default judgment and judicial default. No one has been able to explain the difference to me. Now I'm understanding so much more.

At this last hearing, Judge ordered a Final Judgment. I went to the Clerk's Office on Friday (8/7) and asked for a copy of court minutes. They read as follows:

"Motion for Default.

Attorney XXX (Defendants' counsel) is searching for a second default. Final Judgment against YYY was vacated to allow YYY to file an answer back in April.

XXX has not answered or had an appearance filed by an attorney on his behalf.

Judge grants Final Judgment against YYY. Judge signs prepared order by Attorney XXX."

Between April 2009 and now I had employed two separate attorneys, paid them retainers, but did not get retainer agreements. They were (independently) negotiating with Attorney XXX and did not file the answer on my behalf because of same.

I think I can make a motion for a re-hearing but the Arguments for Rehearing section is proving to be difficult for me. I drafted the Background section.

Quote:

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... court minutes.. . read as follows:

"Motion for Default.

Attorney XXX (Defendants' counsel) is searching for [seeking?] a second default. Final Judgment against YYY was vacated to allow YYY [I assume you are "YYY"?] to file an answer back in April.

XXX [you mean "YYY"?] has not answered or had an appearance filed by an attorney on his behalf.

Judge grants Final Judgment against YYY. Judge signs prepared order by Attorney XXX."

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My questions are bracketed and in italics.

Quote:

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Originally Posted by ocean512beach

I think I can make a motion for a re-hearing but the Arguments for Rehearing section is proving to be difficult for me. I drafted the Background section.

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When you file your motion for rehearing, I suggest you attach to it an answer. This is what the attorney and the judge want. They are trying to avoid further delays. To them it may seem that this case is dragging on and on, is getting bogged down in the pleading (complaint, answer, etc.) stage, and is getting nowhere near resolution. Lodging an answer would give the judge an immediately visible "light at the end of the tunnel", and a chance to cut through the clutter.

Make it simple. Don't try to use a lot of legalise. Something like this:

"Third-party Defendant [insert your name] moves for a rehearing [or reconsideration] of the default judgment dated [insert the date of the second default judgment] and for an order that the Answer to Third-party Complaint, attached hereto, be filed."

Your memorandum or affidavit in support of this motion would read something like this:

"I paid retainers to two different attorneys, but for some reason they failed to answer the third-party complaint. I have a good defense to this third party complaint and seek to assert those defenses. My answer is attached to the instant motion.. . "

Yes - searching for -- not seeking

Yes -- I did not answer the complaint -- MY TYPO

Question:

I can file a motion for rehearing can't I even though I received this Final Judgment dtd 8/6/09. I have 10 days right -- 8/16/09 would be my deadline (since the 16th is a Sunday than my deadline would be this Friday 8/14) right?

The language on the Final Judgment I received this Fri states:

This matter coming to be heard on Final Hearing after the entry of a Judicial Default in this cause, and, based on the evidence presented, the Court, FINDS AS FOLLOWS:

1. IT IS ADJUDGED that {Defendants] recover from [me] the sum of +$30,000 that shall bear interest from 4/27/09 at the statutory interest rate of 9% per annum

etc.

etc.

Quote:

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Originally Posted by ocean512beach

... I can file a motion for rehearing can't I even though I received this Final Judgment dtd 8/6/09. I have 10 days right -- 8/16/09 would be my deadline (since the 16th is a Sunday than my deadline would be this Friday 8/14) right?

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I hesitate to tell you you have more time than you calculated, because there is no reason to wait for the last possible day. But, for what it's worth:

Quote:

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RULE 1.530. MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS...
(b) Time for Motion. A motion for new trial or for rehearing shall be served not later than 10 days after... the date of
Filing of the judgment...

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So yes, the rule for motions for rehearing provides ten days from the date of the filing of the judgment (assuming the judgment was dated and filed on the 6th). But also see:

Quote:

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RULE 1.090. TIME
(a) Computation. In computing any period prescribed or allowed by these rules, by order of court,
Or by any applicable statute, the day of the act, event, or default from which the designated period
Begins to run shall not be included. The last day of the period so computed shall be included unless it is a
Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which
Is neither a Saturday, Sunday, or legal holiday.. .

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So, the 16th being a Sunday, you would have until Monday the 17th.

Again, leave yourself room for the unexpected and get it in early.

WHEREFORE, Defendant prays that the Complaint filed herein against her be
Dismissed; for her costs herein expended; and for any and all other just and proper relief.

Hi: Is the above Wherefore Clause OK for my answer?

Yes. Looks good.