DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WILLIE WRIGHT,

Appellant,

v.

REGIONS BANK,

Appellee.

No. 4D22-2129

[May 10, 2023]

Appeal from the County Court for the Seventeenth Judicial Circuit, 

Broward County; Corey Amanda Cawthon, Judge; L.T. Case No. 

062021CC010018AXXXSO.

Willie J. Wright, Fort Lauderdale, pro se.

No appearance for appellee.

DAMOORGIAN, J.

Appellant, Willie Wright (“Wright”), seeks review of the default final 

judgment entered against him in the underlying action to recover on a 

past-due credit card account. We reverse the final judgment and the order 

denying the motion to set aside the default and remand for further 

proceedings.

The underlying action began with Appellee, Regions Bank (“the Bank”),

filing a complaint to collect amounts allegedly owed by Wright on a credit 

card account with the Bank. Wright, pro se, moved for an extension of 

time to respond to the complaint. Before the county court ruled on 

Wright’s motion, the Bank moved for summary judgment. Nearly five 

months later, with no action being taken by either party, the county court 

sua sponte entered two orders. The first order appointed a mediator and 

referred the case to mediation. The second order granted Wright’s request 

for an extension of time. The second order also stated the court, “on its 

own motion pursuant to Rule 1.500(b), shall enter a default against 
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[Wright] without further notice or hearing” unless he filed a responsive 

pleading within ten days.

Shortly after the ten-day deadline expired, the county court sua sponte

entered a default against Wright for failing to file a responsive pleading.

Despite entry of the default, the parties participated in court-ordered 

mediation but were unable to reach an agreement. Apparently realizing a 

default had been entered against him, Wright filed his answer and 

affirmative defenses. Shortly thereafter, Wright also moved to set aside 

the default. The motion included Wright’s affidavit in which he explained 

he timely filed his answer—but did so under the wrong case number. Also 

attached to the motion was a copy of the first page of the original answer 

Wright filed in the wrong case. The county court denied the motion on the 

basis Wright failed to act with due diligence in seeking relief. This appeal 

follows.

On appeal, Wright argues the county court abused its discretion in 

denying his motion to set aside the default on the basis that he failed to 

act with due diligence in seeking relief. We agree.

Florida Rule of Civil Procedure 1.500(d) provides, “[t]he court may set 

aside a default, and if a final judgment consequent thereon has been 

entered, the court may set it aside in accordance with rule 1.540(b).” 

Generally, “if the trial court enters a default judgment for failure to file 

responsive pleadings, and the defendant seeks to set it aside pursuant to

Rule 1.540(b), the trial court must determine: ‘(1) whether the defendant 

has demonstrated excusable neglect in failing to respond[;] (2) whether the 

defendant has demonstrated a meritorious defense; and (3) whether the 

defendant, subsequent to learning of the default, has demonstrated due 

diligence in seeking relief.’” Mullne v. Sea-Tech Constr. Inc., 84 So. 3d 

1247, 1249 (Fla. 4th DCA 2012) (alteration in original) (quoting Halpern v. 

Houser, 949 So. 2d 1155, 1157 (Fla. 4th DCA 2007)); see also Schwartz v. 

Bus. Cards Tomorrow, Inc., 644 So. 2d 611, 611 (Fla. 4th DCA 1994) (“The 

failure of the defendant to satisfy any one of these elements must result in 

a denial of the motion to set aside the default.”). However, “[w]here, as 

here, a trial court denies a motion to vacate a default judgment based on 

a failure to exercise due diligence, ‘the only issue to be addressed on appeal

is whether the defendants demonstrated that they acted with due diligence 

in seeking relief from the default judgment.’” Fernandez v. Difiore, 279 So. 

3d 174, 176 (Fla. 4th DCA 2019) (emphasis added) (quoting Fla. Eurocars, 

Inc. v. Pecorak, 110 So. 3d 513, 515 (Fla. 4th DCA 2013)).

“In considering whether a party has made a ‘timely application’ to set 

aside a default, courts must evaluate both the extent of the delay as well 
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as the reasons for the delay.” Fla. Eurocars, Inc., 110 So. 3d at 515–16;

see also Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304, 308 (Fla. 4th 

DCA 2010) (holding due diligence “is a test of reasonableness [which] must 

be evaluated based on the facts of the particular case”).

Here, by moving to set aside the default nineteen days after it was 

entered, Wright acted with due diligence. See Howard v. Gualt, 259 So. 3d 

119, 123 (Fla. 4th DCA 2018) (holding that by moving to vacate a default 

nineteen days after learning of the suit, the defendant “acted with due 

diligence to set aside the default”). Moreover, Wright’s affidavit explained 

he was attempting to defend himself in several different cases pending in 

the same county court involving debts he allegedly owed, and that he 

timely filed the answer to the complaint in the wrong case. Wright also 

provided a copy of the first page of “Defendant’s Answer and Affirmative 

Defenses” bearing a timestamp establishing that he indeed timely filed his 

answer in the wrong case.1

On these facts we hold that the county court abused its discretion in 

denying Wright’s motion to set aside default on the grounds that he failed 

to act with due diligence. Accordingly, we reverse the final judgment and 

the order denying the motion to set aside default and remand for further 

proceedings consistent with this opinion.

Reversed.

KLINGENSMITH, C.J., and LEVINE, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

1 Although the county court informally noted Wright “arguably” demonstrated 

excusable neglect, our precedent suggests the timely—albeit errant—filing of 

Wright’s answer constitutes excusable neglect. See Somero v. Hendry Gen. Hosp., 

467 So. 2d 1103, 1106 (Fla. 4th DCA 1985) (“[W]here inaction results from 

clerical or secretarial error, reasonable misunderstanding, a system gone awry or 

any other of the foibles to which human nature is heir, then upon timely 

application accompanied by a reasonable and credible explanation the matter 

should be permitted to be heard on the merits.”); see also Viking Gen. Corp. v. 

Diversified Mortg. Invs., 387 So. 2d 983, 985 (Fla. 2d DCA 1980) (“The mistake 

envisioned by [Rule 1.540(b)] is the type of honest and inadvertent mistake made 

in the ordinary course of litigation.”).