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sunshine326 · Jun 13, 2007, 01:37 PM

Can anyone tell me if there is a time limitation in Miami Dade County, Florida to File a Motion to Vacate Default Judgment? I am attempting to file one for Lack of Service (I have never been served!) on a Default Judgment entered in 09/2001, however, I read somewhere that in the state of California this must be done with 30 days of receipt of notice. Does anyone know about Florida?:confused:

CliffARobinson · Mar 9, 2012, 04:51 PM

Motion to Vacate is generally accepted only within 1 year.

Reference

AK lawyer · Mar 9, 2012, 07:02 PM

Originally Posted by CliffARobinson

Motion to Vacate is generally accepted only within 1 year.

Reference

Florida Rules of Civil Procedure

"RULE 1.540. RELIEF FROM JUDGMENT, DECREES, OR ORDERS
...
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On 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 the following reasons: (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 heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been re-versed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. 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. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court...."

So it appears to me that unless you can persuade the court that the judgment is "void", you would have to file an independent action, claiming that what happened was a "fraud upon the court".

JudyKayTee · Mar 10, 2012, 08:20 AM

I'm reading that section as: "The motion should be filed within a reasonable time." "Reasonable" appears to be open to the interpretation of the Court.

What am I missing?

AK lawyer · Mar 10, 2012, 12:10 PM

Originally Posted by JudyKayTee

...
What am I missing?

I don't know. Maybe I highlighted the wrong words. I shall try again:

"and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered.. . "

It's conjunctive ( i.e.: "and"). It has to be within a reasonable time, true. But also, it has to be within a year at the most (if it's for reasons (1), (2), or (3)). That's why one would have to shoe-horn failure to properly serve process into reasons (4), (5), or "a fraud upon the court".

I think "fraud upon the court" may well apply. OP said "I have never been served", but you can bet that the court was made to believe otherwise. OP should look at the court file and see what the return of service actually says.

JudyKayTee · Mar 10, 2012, 03:52 PM

My question is why it's taken since 2001 to figure out that the papers were never served.

Anyway, I re-read it and understand.

As always - thanks.

I was hung up on fraud and "reasonable."

AK lawyer · Mar 10, 2012, 03:55 PM

Originally Posted by JudyKayTee

My question is why it's taken since 2001 to figure out that the papers were never served.

Probably because OP did not know of the lawsuit until now.

And that could be because he/she is just now applying for credit.