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Republic of the Philippines

National Capital Judicial Region


Branch 39, Quezon City



Civil Case No. 000909

- versus -



x ---------------------------------- x

Sample motion to set aside the order of waiver


DEFENDANT, by counsel, respectfully states that:

1. Five (5) days after service of summons and receipt of Complaint, she filed a Motion to Dismiss
on the ground that plaintiff’s claim is outside the jurisdictional amount of this Honorable Court under
the new Expanded Jurisdiction Act and that the Complaint should properly be filed and tried before the
Metropolitan Trial Court. The Motion to Dismiss, which was received by plaintiff’s counsel on 25 March
2007, was set for hearing on 10 April 2007, as indicated on the “Request for and Notice of Hearing”.

2. Without waiting for the hearing on the Motion to Dismiss, this Honorable Court declared
defendant in default on 7 April 2007 based solely on plaintiff’s Motion, filed two (2) days after the
supposed lapse of the reglementary period, which, however, was tolled by the filing of a Motion to

[1 & 2] 3. Under the circumstances, the order of default is premature and without legal and
factual basis as: (a) defendant has not failed to file an Answer within the reglementary period, (b) the
reglementary period has not lapsed because of the filing of the Motion to Dismiss within the period, and
(c) the pendency of the Motion to Dismiss is prejudicial to the issue of defendant’s default.
Consequently, the order of default should be lifted.

[3] WHEREFORE, defendant respectfully prays that the Order of Default against her be LIFTED
and that this Honorable Court resolve her Motion to Dismiss.

Quezon City; 8 April 2007.


Counsel for Defendant



1. [4] Request for and Notice of Hearing

2. [5] Proof of Service

party may file a motion to revive or re-open a case dismissed without prejudice, within ten (10)
calendar days from receipt of notice of the order dismissing the same; otherwise, the only remedy
shall be to re-file the case. A party declared to have waived his/her right to file position paper may, at
any time after notice thereof and before the case is submitted for decision, file a motion under oath to
set aside the order of waiver upon proper showing that his/her failure to appear was due to justifiable
and meritorious grounds. (16a)

excusable neglect

excusable neglect

n. a legitimate excuse for the failure of a party or his/her lawyer to take required action (like filing an
answer to a complaint) on time. This is usually claimed to set aside a default judgment for failure to
answer (or otherwise respond) in the period set by law. Illness, press of business by the lawyer (but not
necessarily the defendant), or an understandable oversight by the lawyer's staff ("just blame the
secretary") are common excuses which the courts will often accept. However, if the defendant loses the
complaint or fails to call his/her attorney the courts will be less lenient. In any event, the defendant must
show he/she had some worthwhile defense. (See: default, default judgment)

California Code of Civil Procedure sections 473(b), 473(c), 473(d) and 473.5 specify the most common
grounds upon which you can base a motion for relief of default or default judgment. These grounds

Inadvertence, Surprise, Mistake, or Excusable Neglect (CCP 473(b)):

Perhaps the most common basis for set aside of a default judgment is inadvertence, surprise, mistake or
excusable neglect. Under CCP §473(b), the court may set aside a default and default judgment if the
defendant asking for the set aside presents enough evidence to the court to demonstrate that the
default was entered by inadvertence, mistake, surprise, or excusable neglect. This motion must be filed
within six months of the default being set aside.

“Inadvertence” and “excusable neglect” are virtually synonymous (


Barnes v. Witt

, 207 Cal. App. 2d 441 (1962)), and are the most common reasons for a set aside. In addition to filing a
timely motion, the defendant asking for the set aside must present sufficient evidence for the court to
find that the inadvertence or neglect was excusable. To be excusable, the neglect must have been the act
or omission of a reasonably prudent person under the circumstances. Forgetting about the lawsuit, being
too busy to properly respond, or being unable to afford an attorney are not grounds for excusable
neglect. Examples of excusable neglect include:

Illness that disables the party from responding or appearing in court

Failure to respond because you relied on your attorney to do so

Failure to appear at trial because you relied on misinformation provided by a court officer. A

mistake of fact occurs when a person understands the facts to be other than they are. A

mistake of law
occurs when a person knows the facts as they are, but has a mistaken belief as to the legal
consequences of those facts. Ignorance of the law or negligence in researching the law does not
generally constitute an excusable mistake, and therefore is not usually ground for relief from a default;
however, the more confusing or obscure the critical fact or point of law that caused the default, the
more likely it becomes the court will find the mistake to be excusable. Surprise occurs when a party is
placed in an injurious legal situation, through no fault or negligence of his or her own, that ordinary
prudence would not have guarded against. Typically, in the day-to-day handling of these motions, the
court does not focus on whether a problem is a “mistake” or “inadvertence” or “excusable neglect,” but
rather looks at what went wrong, and whether it is reasonable under the circumstances to relieve the
requesting party from the judgment.

Party not given “actual notice” in time to defend (CCP 473.5):

Even if service of the summons is proper, sometimes it does not result in “actual notice” to a party in
time to defend their case. “Actual notice” means the party genuinely does not know of the litigation, so
to show a lack of actual notice a defendant would need to demonstrate to the court that he or she
lacked knowledge that the lawsuit existed. This lack of knowledge cannot be caused by the defendant’s
inexcusable neglect or avoidance of service. Asking to set aside due to this lack of actual knowledge in
time to defend the case requires the motion to be filed within a reasonable period of time, and that time
must be within two years of the date of the judgment.

Goya v. P.E.R.U. Enterprises,

87 Cal. App. 3d 886 (1978).

Void Judgments (CCP 473(d)):

The court may, on its own motion or the motion of either party, set aside any void judgment or order. A
judgment or order may be void if the issuing court lacked subject matter jurisdiction over the action,
personal jurisdiction over the defendant, if the judgment or order granted relief that the court had no
power to grant, or if the judgment was procured by fraud on the court. Although there are numerous
ways in which a judgment may be void, a common way default judgments are found to be void is if the
judgment was obtained after improper or fraudulent service, resulting in a lack of personal jurisdiction
over the defendan