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REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT


xxxTH JUDICIAL REGION
xxx xxx xxxx

xxx xxx xxxx


Plaintiff, Civil Case No. xxx xxx xxxx

-versus- FOR: Actual Damages for Serious


Physical Injuries, Moral Damages
xxx xxx xxxx
,
Defendant.
X----------------------------------X

MOTION TO LIFT/VACATE ORDER OF DEFAULT AND ADMIT


ATTACHED MOTION TO DISMISS WITH COUNTERCLAIM

The DEFENDANT, xxx xxx xxxx, through the undersigned counsel,


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 on the said Motion. Giving him ten (10) days
from receipt to file 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 Bank1, 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 xxxx

xxx xxx 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 xxx xxxx,
after having been duly sworn in accordance with law, depose and state that:

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:
Atty. xxx xxx xxxx
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.

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