REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT xxxTH JUDICIAL REGION xxx xxx xxxx xxx
xxx xxxx Plaintiff , -versus-
xxx ,
xxx
Civil Case No. xxx
xxx
xxxx
FOR: Actual Damages for Serious Physical Injuries, Moral Damages
xxxx
Defendant. X----------------------------------X
MOTION TO LIFT/VACATE ORDER OF DEFAULT AND ADMIT ATTACHED MOTION TO DISMISS WITH COUNTERCLAIM COUNTERCLAIM xxx xxxx , through the undersigned counsel, The DEFENDANT, xxx unto this Honorable Court, after having been duly deposed and having been placed under oath, hereby say:
1. Defendant was declared to be in default in an Order of this Honorable Court dated 08 May 2018, when he failed to file his answer within the reglementary period; 2. That on 18 May 2018 herein defendant through counsel, filed a Comment and Motion to dismiss with Counterclaim. Consequently, the Honorable Court denied the same in an Order dated 29 May 2018; 3. Defendant begs for a reconsideration of the 08 May 2018 Order declaring him in default, for the reason that he belatedly received the summons which was received by his mother, on _______________; 4. As a matter of fact, it was only on 07 May 2018 when herein Defendant received a copy of the Order dated 06 April 2018, ordering him to file his comment/opposition comment/opposition on the said Motion. Giving him ten (10) days from receipt to file comment/opposition, comment/opposition, that he sought the assistance of herein counsel and was informed of the impending results of this legal dispute; 5. Additionally, as explained earlier in his Comment and Motion to Dismiss with Counterclaim, the surrounding factual circumstances of the case at bar is the same as that involved in Criminal Case No. xxx-
17 for Reckless imprudence Resulting in Serious Physical Injuries filed by the Plaintiff at the Municipal Trial Court in Cities, Branch 3, Calamba City, Laguna entitled, “People of the Philippines vs. xxx xxx xxxx.”; 6. At outset it must be emphasize that the above mentioned criminal case has already been provisionally dismissed by the Court on 27 February 2018, the dispositive portion of which reads: “WHEREFORE, the cases are hereby ordered PROVISIONALLY DISMISSED with the consent of the accused.” 7. Copy of the Court Order dated 27 February 2018 issued by the Municipal Trial Court in Cities Branch 3, Calamba City, Laguna is hereto attached and marked as Annex “A”; 8. Herein Defendant believing in good faith, that since Criminal Case No. 62310-17 has been provisionally dismissed, thought that the present Civil case is moot and academic;
BASIS FOR LIFTING OF ORDER OF DEFAULT
9. Section 3(b) Rule 9, of the Rules of Court provides the remedy against an order of default to wit: A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. 10. Additionally the Supreme Court as early in Montinola, Jr. v. Republic Planters Bank 1, has noted that the three (3) requisites that must be
1
244 Phil. 49 (1988)
satisfied by a motion in order "to warrant the setting aside of an order of default for failure to file answer, are: (1) it must be made by motion under oath by one that has knowledge of the facts; (2) it must be shown that the failure to file answer was due to fraud, accident, mistake or excusable negligence; and (3) there must be a proper showing of the existence of a meritorious defense." 11.In the case at hand, herein Defendant’s failure to file his answer was not meant to disregard or delay the proceedings but because of his mistaken belief that the same will be settled, considering the decision rendered by Municipal Trial Court in Cities, Branch 3, Calamba City, Laguna in Criminal Case No. 62310-17. Attached as Annex “B” is the Defendant’s Affidavit of Merit; 12.In the interest of substantial justice and for the reason earlier stated, Defendant begs the compassion of this Honorable Court to admit his attached Motion to Dismiss with Counterclaim. Delay in the proceedings of this case was never intended.
PRAYER
WHEREFORE, premises considered, it is most respectfully prayed to this Honorable Court that that the Order of default be set aside and this case be ordered finally DISMISSED for lack of merit and the Defendant’s compulsory counterclaim be granted, i.e. attorney’s fee of Php30,000.00 plus moral damages of Php100,000.00, plus cost of suits.
FURTHER, the Defendant respectfully prays for such and other reliefs as may be deemed just and equitable in the premises. City of _________, __ June 2018.
xxx xxx xxxx Counsel for Defendant Roll No. ____, IBP No. ____; ____ MCLE Compliance No. ____; ______
NOTICE OF HEARING
Clerk of Court METC Branch xxx
xxx
xxx
xxx
xxxx
xxxx
Counsel for Plaintiff ________________________ ________________________ Greetings: Please submit the foregoing for the consideration and approval of this Honorable Court at the soonest possible time or on ____________ at 8:30 in the morning.
xxx xxx xxxx Counsel for Defendant
VERIFICATION AND SWORN CERTIFICATION OF NON-FORUM SHOPPING
I, xxx xxx xxxx, of legal age with postal address at Blk x Lot x, Phase 1, xxx after having been duly sworn in accordance with law, depose and state that:
xxx
xxxx,
1. I am the Defendant in the above-entitled Civil Case for Actual Damages for Serious Physical injuries, Moral Damages and Attorney’s Fees; 2. I caused the preparation and filing of the foregoing Comment and Motion to Dismiss with Counter Claim; 3. I have read the contents thereof and the facts stated therein are true and correct of my personal knowledge and/or on the basis of copies of documents and records in my possession; 4. To the best of my knowledge I have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; 5. If I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to report that fact within five (5) days there from to this Honorable Court.
AFFIANT/DEFENDANT FURTHER SAYETH NAUGHT. xxx
xxx xxxx Affiant
IN WITNESS WHEREOF, I have hereunto set my signature this 7th day of May 2018 in the City of Calamba, Laguna. Affiant personally appeared before me in my presence. Doc. No.; Page No. ; Book No. ; Series of 2018.
Cc: xxx xxxx Atty. xxx Counsel for Plaintiff EXPLANATION
A copy of this pleading is served via registered mail, instead of via person service, on the adverse counsel due to the distance of his law office address and the lack of field staff of undersigned counsel at this time.
