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What does Motion for Clerk Default mean.

Port Saint Lucie, FL |

I am a tenant living in a rental house that is in the process of being foreclosed and "MTN FOR CLERK DEFAULT/DEFAULT" is in the list of what is going on at the court level.

Attorney Answers 3

  1. It means the court will soon enter judgment foreclosing the owner's interest in the house. What it means for you is that the new owner will have to honor your lease. If you are on a month to month you are entitled to 90 days notice of termination of lease.

    The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.

  2. In Florida a defendant has twenty days from service of complaint to respond. If a defendant does not file with the court any paper or serve on the attorney any paper, which could consist of a letter, within the twenty day time period the plaintiff may file a motion to have the clerk enter a default against the defendant. A default admits all of the well pled allegations.

    If the default was served against you then you should file a response with the court and mail a copy to the attorney listed in the motion.

  3. I will supplement the answers given by my colleagues, both of which being accurate, but as Paul Harvey used to say, here is the rest of the story.

    What is your goal? To defend against the claim does not make sense. Since you are a tenant your rights are inferior to the rights of the mortgage holder. In your particular situation, having a default entered against you merely means that, as counsel stated, you have admitted to the well pled allegations. If you were to file a response, you would probably admit to the allegations, so the default does not hurt you.

    In foreclosure actions, the Plaintiff typically do not go to trial. Instead, they file a Motion for Summary Judgment, and affidavits are filed. You as the tenant may receive a Notice of Hearing but you do not have to attend--this is a civil court proceeding, not a criminal one, so you have no legal obligation to attend a hearing unless you are subpoenaed to do so.

    If the Plaintiff wins its Motion, the judge will authorize the sale of the property, and that should be your wake-up call that you should be thinking about moving.

    If you have a written lease that was entered into before the foreclosure action began, then you can live in the premises for the remainder of the term, UNLESS whomever buys the home at the foreclosure sale is going to use it for THEIR primary residence, in which event you still have 90 days from being noticed to leave--not 90 days from the sale.

    If you do not have a written lease, then you still have that 90 day window to stay in the premises.

    Good luck.

    Jeffrey B. Lampert
    246 Royal Palm Beach Blvd.
    Royal Palm Beach, FL 33411