Once again continuing in its fine tradition of ruling however it wants, using whatever rationale is convenient and seems to apply at the time, the 3d DCA extends the concept of "excusable neglect" so far that even Mr. Fantastic is impressed.
You can read the head-scratching opinion here. Listen I recognize that there is a lot of wiggle room in what is essentially something that is equitable in nature, but you can just feel the animus to the rogue homeowners seeping through in the opinion.
I guess the Third wants judges to just rule on the merits, forget the whole default judgment concept once somebody finally appears and wants to litigate the case, and they also want to see a lot of appeals on this issue.
17 comments:
I've read the opinion twice now. I don't understand your complaint about the decision. The facts fit comfortably within the definition of "excusable neglect" set forth in a host of prior cases. Why is it puzzling to you?
Thanks for commenting, Miguel. I was using overstatement for effect, so don't think I believe the opinion is that awful. It just could be a lot clearer.
My primary complaint is that the factors set forth to evaluate excusable neglect are so elastic that it would be difficult to NOT find excusable neglect if the 3d so wanted. They even reached into the due diligence set of factors to find additional factors supporting excusable neglect.
This mechanic's box of tools creates uncertainty for litigants and lower court judges, who will not be certain when to deny a motion to vacate, because the determination is so fact-sensitive that the 3d could overrule using one or more of the factors that might be present in that particular case. That type of uncertainty leads to abuse, whether well-intended or not.
The County was the one defaulted. That is the dispositive fact -- fed, state, and local governments all get to play be special rules.
Fair-minded people can certainly disagree as to what the policy should be regarding vacating defaults. However, the Third appears to have followed the law in this case. I agree that "excusable neglect" is elastic; it is necessarily so because of the public policy of this State to decide cases on the merits. Once a court determines the defendant acted with due diligence and has a meritorious defense, it will look hard to find excusable neglect.
My frustration is when the trial courts don't look hard enough at the first two factors, especially the due diligence requirement. Years ago, Judge Schwartz suggested a rule of thumb to determine due diligence: if the defendant does not move to set aside the default within 20 days, due diligence is not shown. Judge Schwartz reasoned that the defendant gets 20 days to respond to the complaint when first served, so why should it be any different after the defendant learns of the default. Makes sense to me.
About a year ago, I defended against two motions to set aside defaults. In each case the defendant waited approximately 6 weeks to move to set aside the default after learning of its entry. One judge denied the motion to vacate, another did not. THAT is frustrating.
Maybe we're better off looking at due diligence than excusable neglect. In other words, if there is due diligence there is excusable neglect? That seems to be where we are heading.
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