MOTION TO DECLARE DEFENDANT IN DEFAULT
(Under Philippine Rules of Court, as amended by the 2019 Amendments to the 1997 Rules of Civil Procedure)

1. Concept of Default

A defendant is declared in default when:

The defendant fails to file an Answer (or other permissible responsive pleading) within the reglementary period; and
The plaintiff files a motion to declare the defendant in default, showing that the defendant has been duly served with summons and yet failed to answer or otherwise plead.

The effect of being declared in default is that the defendant loses his or her standing in court, thereby forfeiting the right to be heard and to present evidence during the trial (except as to certain rights, such as the right to be notified of subsequent proceedings, the right to receive orders and pleadings, the right to cross-examine the plaintiff’s witnesses if the court so allows, etc.).

Default is never automatic. Even if the defendant fails to file an Answer, the plaintiff must file the appropriate motion to declare defendant in default, and the court must issue an order declaring the defendant in default after evaluating the plaintiff’s motion.

Governing Provisions:

Rule 9, Section 3 of the 1997 Rules of Civil Procedure (as amended by the 2019 Amendments).
Related jurisprudence and Supreme Court circulars clarify and emphasize strict compliance with the rules, but also note the principle that default is not favored and that every defendant should be given ample opportunity to present his defense.

2. Grounds and Requirements for a Motion to Declare Defendant in Default

Failure to File an Answer or Responsive Pleading Within the Reglementary Period
- The defendant is required to file an Answer (or other permissible responsive pleading, such as a Motion to Dismiss on appropriate grounds, a Motion for Bill of Particulars, or a Motion for Extension if allowed under certain circumstances) within:
  - 30 calendar days after receipt of summons (in ordinary civil actions, under the 2019 Revised Rules).
  - 15 days in certain special civil actions, or as provided in special laws.
- If the defendant fails to do so and no justifiable reason for the delay is presented, the plaintiff may move for a declaration of default.
Proof of Service of Summons
- The plaintiff must prove that the defendant was properly served with summons. Defective or invalid service of summons precludes a valid declaration of default.
Filing of Motion to Declare Defendant in Default
- The plaintiff must file a motion, in writing, stating that the defendant has failed to answer or otherwise plead within the period fixed by the rules.
- The motion must be verified (or at least supported by an affidavit) stating the facts showing that the defendant has been duly served with summons but has failed to file a responsive pleading.
Notice of Hearing to Defendant
- The motion must comply with the requirements on motions (Rule 15, 2019 Amendments). Even though the defendant is in default, courtesy and due process require that the motion be furnished to the defendant or to counsel on record (if any) so that the defendant may have a chance to oppose or correct the omission before the court declares default.

3. Procedure After Filing the Motion

Set the Motion for Hearing
- Under the Rules on motions, a movant should set the motion for hearing on a specified date and time, giving the other party(ies) an opportunity to be heard.
Court’s Determination
- If the court is satisfied that the defendant was served with summons, the reglementary period to answer has expired, and no answer (or appropriate pleading) has been filed, the court may issue an Order of Default.
Effect of Order of Default
- The defendant loses the right to take part in the trial.
- The plaintiff is allowed to present evidence ex parte (the court proceeds to receive the plaintiff’s evidence and decides the case based on that evidence).
- However, the defendant retains certain limited rights:
  - The right to be notified of subsequent proceedings, orders, and judgments;
  - Under certain jurisprudential rulings, the right—upon motion—to cross-examine the plaintiff’s witnesses if the court, in its discretion, allows it;
  - The right to file post-judgment remedies if warranted.

4. Remedies of a Party in Default

Although default deprives a defendant of the chance to actively participate in the trial, there are recognized remedies:

Motion to Lift Order of Default (Rule 9, Section 3(b))
- The defendant may file a verified motion at any time after discovery of the default but before judgment seeking to set aside the order of default.
- The defendant must show (a) that the failure to answer was due to fraud, accident, mistake, or excusable negligence (FAME), and (b) that there is a meritorious defense.
- Both elements must be proven. A meritorious defense usually requires the defendant to attach a proposed Answer or to provide an affidavit of merits detailing the defenses.
Appeal from the Judgment by Default
- If default was declared and the case proceeded to judgment, the defendant may challenge the resulting decision via appeal if valid grounds exist (e.g., jurisdictional errors, grave abuse of discretion, or other valid grounds).
Petition for Relief from Judgment (Rule 38)
- If the period to appeal has lapsed, and the defaulted defendant can show that judgment was obtained through mistake or excusable negligence, and that it has a meritorious defense, it can seek relief from judgment within the time limits fixed by Rule 38 (within 60 days from discovery of the judgment or 6 months after the judgment becomes final and executory).
Annulment of Judgment (Rule 47)
- If the defendant can show that the judgment is void for lack of jurisdiction or for extrinsic fraud, an annulment proceeding may be filed under Rule 47.

5. Jurisprudential Guidelines

Default is not favored
- Philippine courts adhere to the principle that default is disfavored in the interest of giving every party the fullest opportunity to ventilate his or her claims and defenses on the merits.
- Courts are enjoined to be liberal in setting aside orders of default where the defendant appears to have a plausible or meritorious defense, as it is generally more equitable to allow a full trial on the merits than to rigidly insist on technicalities.
Strict Compliance with Service of Summons
- Proper and valid service of summons is crucial. If summons was not validly served, any order of default or ensuing judgment is null and void.
Abuse of Process
- Courts will not hesitate to strike down motions to declare default if the record suggests an abuse of process or that the plaintiff is employing the declaration of default as a tool for harassment.
- Likewise, if the defendant’s default is the result of extrinsic fraud by the plaintiff (e.g., hiding critical notices, deliberately sending notice to a wrong address), courts may set aside a default to promote justice.
Mandatory Character of Timelines
- Despite the principle that default is disfavored, courts also have recognized that rules must be followed. Hence, a defendant’s blatant disregard of procedural timelines, without any justifiable reason, leaves the court no option but to declare default.

6. Sample Form: Motion to Declare Defendant in Default

Below is a simplified template. It must be tailored to the facts and specifics of each case and must comply with all technical requirements of the Rules of Court, including the verification and certificate of non-forum shopping if required. Always check the latest jurisprudence and local rules.

REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
[Judicial Region and Branch], [City or Province]

[CASE TITLE]
[Plaintiff],
Plaintiff,
-versus-
[Defendant],
Defendant.

CIVIL CASE NO. ____

MOTION TO DECLARE DEFENDANT IN DEFAULT

The Plaintiff, by counsel, respectfully states:

Plaintiff filed the above-captioned case for [specify cause of action, e.g., Sum of Money, Breach of Contract, etc.] against the Defendant.

On [date], summons and a copy of the Complaint with its annexes were duly served upon the Defendant, as shown by the Sheriff’s Return of Service attached hereto as Annex “A.”

Under the Rules of Court, Defendant had [30] days from receipt of the summons and complaint within which to file his/her Answer or other responsive pleading. The reglementary period to file the Answer expired on [date].

As of this date, Defendant has not filed any Answer, Motion to Dismiss, or any permissible responsive pleading, nor has Defendant sought an extension of time to file the same.

Since Defendant failed to file a responsive pleading within the time prescribed by the rules, and no justifiable reason or excusable negligence is apparent, it is respectfully prayed that the Honorable Court declare Defendant in default pursuant to Rule 9, Section 3 of the Rules of Court.

Once Defendant is declared in default, Plaintiff prays that this Honorable Court allow Plaintiff to present evidence ex parte and thereafter render judgment in accordance with the evidence and the reliefs prayed for in the Complaint.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that the Honorable Court:

Declare Defendant in default for failure to file an Answer within the reglementary period; and

Allow Plaintiff to present evidence ex parte for the purpose of rendering judgment in Plaintiff’s favor.

Other reliefs just and equitable under the premises are likewise prayed for.

[Date and Place of Filing]

Respectfully submitted.

[Lawyer’s Name]
Counsel for Plaintiff
IBP No. ____ / PTR No. ____ / Roll No. ____
[Address]
[Email and Contact Number]

Copy furnished:
[Name and Address of Defendant / Defendant’s Counsel]

*Make sure to include a Notice of Hearing (Rule 15), a proper Verification if required by the nature of the action, and the Certificate of Non-Forum Shopping if the rules require so (generally for initiatory pleadings, though courts often require the same for motions that effectively raise a new matter).

7. Practical Tips and Ethical Considerations

Ensure Proper Service of Summons
- Double-check the Sheriff’s Return or any relevant proof of personal or substituted service. Any deficiency in service of summons renders an Order of Default void.
Check the Docket for Filings or Extensions
- The defendant might have filed an Answer or motion for extension which has not reached the plaintiff, or has been erroneously omitted from the court’s records.
Avoid Premature Filing
- File a motion to declare in default only after the defendant’s deadline to answer has clearly lapsed. A premature motion can be denied outright, wasting the court’s and counsel’s time.
Professional Candor and Fair Play
- While default is a tool in civil procedure, it is considered a harsh remedy. Lawyers are ethically bound to uphold fairness and not to resort to unscrupulous tactics to secure default. If there is any good faith discussion with the defendant or legitimate reason for delay, lawyers are encouraged to respect the rules of procedure, while also practicing fairness and candor.
Verify the Defendant’s Status and Address
- If the defendant is out of the country or unable to receive summons for reasons like serious illness, the court may be inclined to be lenient. Counsel must ensure that the record clearly shows the circumstances validating the motion.
Remember the Court’s Discretion
- Even if the plaintiff has strictly complied with procedural rules, the court, in the interest of substantial justice, may give the defendant additional time to answer. While default is permitted, it is not always mandatory.

8. Summary

A Motion to Declare Defendant in Default is anchored on the defendant’s failure to file an Answer or responsive pleading within the prescribed period. To succeed, the plaintiff must:

Prove valid service of summons;
Show that the period to file an Answer has lapsed;
File the motion with due notice to the defendant; and
Obtain the court’s order declaring defendant in default.

Once declared in default, the defendant loses the right to participate in the trial (with limited exceptions), and the plaintiff may present evidence ex parte. However, the defendant has remedies—such as a motion to lift order of default, an appeal, a petition for relief, or annulment of judgment—if it can demonstrate compelling grounds such as excusable negligence and a meritorious defense.

Ultimately, default is disfavored in our legal system, and courts generally endeavor to decide cases based on their merits rather than on technicalities. Counsel must thus navigate the applicable procedural rules carefully and ethically, ensuring that the defendant’s right to due process is respected while also advancing the client’s interest in an efficient and just resolution of the dispute.