Question: I am the President of my condominium association. I just found out that the association was sued by a disgruntled owner. Unfortunately, I just recently learned that the association has been “defaulted” in the lawsuit because we failed to answer the lawsuit by the deadline. Apparently the process server served a member of the community who hasn’t been on the board in over five years. This person is apparently still listed as the registered agent for the association, which is apparently why they were served with the lawsuit. Isn’t the process server required to serve the lawsuit on a current director? And what can we do now to address the default? J.H. via e-mail
Answer: The problem you highlight in your question is not uncommon. Community associations are corporations and required by law to designate a registered agent. The registered agent is the corporate representative who is served with formal legal papers and process, such as the summons and complaint when a lawsuit is filed. The process server will confirm the identity and address for a corporation’s registered agent from the online records of the Florida Division of Corporations (www.sunbiz.org). There is no requirement for the process server to confirm that the registered agent for a community association is a current member of the board of directors. The process server is permitted to rely on the latest records filed with the Florida Division of Corporations.
Many community associations list one of their directors as their registered agent. This is not a good idea as directors may move, resign or be recalled. I recommend that community associations have their association attorney serve as their registered agent. In most cases, the paperwork is going to go to the attorney anyway, so you avoid the exact type of problem you face now.
The process to “set aside” a default entered in a lawsuit should be discussed with your association attorney as soon as possible. A timely motion will need to be filed with the court explaining the reason or excuse why the community association missed the applicable deadline to respond to the lawsuit. The court has some level of discretion to decide whether to grant the motion to set aside the default. The association will be required to show “excusable neglect” to prevail on this motion.