Rules 13 to 15 (Audio recording of codal provisions)

 

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Rules 10 to 12 (Audio recording of codal provisions)

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Rules 7 to 9 (Audio recording of codal provisions)

 

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Rules 4 to 6 (Audio recording of codal provisions)

 

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Rules 1 to 3 (Audio recording of codal provisions)

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RULES ON DEFAULT

Rules on default are found in Rule 9 Section 3 of the 2019 Amendments to the Rules on Civil Procedure.

A party defendant is required to file an Answer within 30 days from service of summons, according to Rule 11, Section 1. This is unless the court provides for a different period. The period to file Answer is within 60 days from service of summons if the defendant is a foreign private juridical entity, and the summons was served on the government official designated by law to receive it.

If the defendant does not file an answer within this period, the plaintiff must file a motion to declare the defendant in default. Note that the court cannot issue an order of default on its own or motu proprio, without such a motion.

What are the requirements before the court can issue an order declaring the defendant in default?

1. The plaintiff must file a motion.
2. The motion must show that the Defendant did not file an Answer within the requisite period.
3. The motion must be accompanied by a notice to the defendant.

Why must there be a notice to the defendant? Because under Rule 15, Section 5 number 13, a motion to declare the defendant in default is a litigious motion. This means that the defendant has the opportunity to file an opposition within 5 calendar days from receipt.

Besides, the court has the discretion to set the motion for a hearing. The court will have 15 days to resolve the motion to declare in default, and this is counted either from the date the court receives the opposition filed by the defendant or upon the expiration of the 5-day period for filing an opposition.

We said that the motion must also prove that the defendant failed to file an answer within the required period. What kind of proof is required? The plaintiff can attach the summons showing the date the defendant received the same, and state in his motion that despite the lapse of the period, an answer has not been filed. This will be evident from the case records.

When the court is satisfied that these requirements are both present, it will now issue an order declaring the defendant in default.

What will the court do then? It may do one of two things, according to Section 3 of Rule 9. 

1. The court may proceed to render judgment, granting the plaintiff the relief supported by his complaint. 
2. The court may require the plaintiff to present evidence ex parte, meaning without the presence of the defendant. The rules provide that reception of evidence may be delegated to the clerk of court. Note that what is delegated is only the reception of evidence. The judge will himself render the decision.

When the court issues an order of default, what does this mean for the defendant?

The defendant will not be allowed to participate in the trial. However, he is entitled to receive notices of the proceedings, so he will know what is happening to the case.

Are there remedies that the defendant can avail of in default situations? 

Yes. The remedies depend on the stage of the proceedings in which he learns that he has been declared in default, or whether a default judgment has already been issued.

1. If the defendant receives the motion to declare him in default, he can file an opposition within 5 days from receipt, according to the rule on litigious motions.

2. If there is already an Order of default (no judgment yet), he can file a motion to lift the order of default. There are 3 requirements:

a) The motion must be under oath

b) He must show that his failure to file an answer is due to fraud, accident, mistake or excusable negligence

c) He has a meritorious defense, which is shown in an Affidavit of Merit.

The judge may set aside the default order on just terms.

3. If there is already a Decision, and it is still within the 15-day period to appeal

a. He may file a motion for new trial within 15 days from receipt of the Decision on the ground of fraud, accident, mistake or excusable neglect

b. He may also file a motion for reconsideration if his ground is that the decision is not supported by the evidence, the decision is contrary to law, or the award of damages is excessive.

c. He may also file an appeal.

4. If he received the Decision beyond the 15 day period to appeal, he can file a petition for relief from judgment under Rule 38 as long as it is within the necessary period, that is within 60 days from notice and within 6 months from entry of judgment.

5. In extraordinary cases, he can file an Action to Annul the decision under Rule 47, by filing a case with the Court of Appeals invoking extrinsic fraud or lack of jurisdiction as grounds.

6. If the Order of default was issued with grave abuse of discretion amounting to lack or excess of jurisdiction, he can file a petition for certiorari under Rule 65 within 60 days from receipt of the order of default.

Note that you have to distinguish between default order and default judgment. A default order is issued pursuant to the Plaintiff’s motion, before evidence is received. A default judgment is issued after the court considers the plaintiff’s evidence.

Note also that these rules apply to permissive counterclaims in which the plaintiff becomes the defendant on the counterclaim and is required to file an answer within the reglementary period. Also to third-party complaints.

Suppose there are several defendants, some of whom file an answer while others are in default, what will the court do?

The court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented.

If a defendant has been declared in default, and the plaintiff was able to present evidence showing that he is entitled to an award much more than what is prayed for in the complaint, can the judge grant such an award?

No. According to the Rules, a judgment rendered against a party in default shall neither exceed the amount or be different in kind from that prayed for nor award unliquidated damages.

Are there cases when defaults are not allowed? Yes.

1. In actions for annulment of marriage
2. In actions for declaration of nullity of marriage
3. In actions for legal separation

In these cases, if the defendant fails to answer, the court shall order the Solicitor General or his or her deputized public prosecutor, to investigate whether or not a collusion between the parties exists. If there is collusion, the court will dismiss the petition. If there is no collusion, the OSG or public prosecutor shall intervene for the State in order to see to it that the evidence submitted is not fabricated.