Motion to Declare Defendant in Default.docx

REPUBLIC OF THE PHILIPPINES NATIONAL CAPITAL JUDICIAL REGION METROPOLITAN TRIAL COURT Parañaque City, Branch 88 ARLYNE PARREÑO Plaintiff,

-versus-

Civil Case No. 2018-34 For: Damages

FATIMA SANTOS-PARREÑO Defendant.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x MOTION TO DECLARE DEFENDANT IN DEFAULT

PLAINTIFF, by undersigned counsel, unto this Honorable Court, respectfully states: 1. On June 8 2018, plaintiff filed a complaint for damages of even date against defendant entitled Arlyne S. Parreño vs. Fatima Santos-Parreño (Civil Case No 2018-034).1  The said complaint was raffled before this Honorable Court. 2. The records of this Honorable Court show that Defendant was served with copy of the summons and of the complaint, together with annexes on July 16, 2018. 2 The Return states, in part, that: “Hence, on 16 July 2018, the undersigned went again to

defendant, Fatima Santos-Parreño and she personally received such court processes and signed the original copy of Summons to acknowledge rece ipt thereof.”

3. Upon verification however, the records show that defendant has failed to file her Answer within the reglementary 1

Attached and marked as Annex “A” is a copy of the Complaint dated June 8, 2018; hereafter, “complaint.” 2 Attached and marked as Annex “B” of this Motion is a copy of Officer’s Return dated July 17, 2018; hereafter, “Return.”

period specified by the Rules of Court despite the service of the summons and the complaint. 4.

Rule 11, Section 1 of the Rules of Court provides:

Section 1. Answer to the complaint. —  The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court.

5. Thus, defendant Fatima Santos-Parreño may be declared in default pursuant to the Rules of Court for her deliberate failure to file an Answer within the reglementary period. 6.

Rule 9, Sec. 3 of the Rules of Court provides:

Section 3. Default; declaration of. —  If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.

In Spouses Humberto and Carmencita Delos Santos vs. Hon. Emmanuel Carpio and Metropolitan Bank and Trust Company ,3 the Supreme Court ruled that: 7.

Clearly, there are three requirements which must be complied with by the claiming party before the court may declare the defending party in default, to wit: (1) the claiming party must file a motion asking the court to declare the defending party in default; (2) the defending party must be notified of the motion to declare him in default; (3) the claiming party must prove that the defending party has failed to answer within the period provided by the Rule.

 G.R No. 153696, September 11, 2006.

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8. Plaintiff filed the subject motion with notice to the defendant in compliance with the abovecited ruling. Lastly and evidently, 15 days from July 16, 2018 is July 31, 2018. Per the records of this Honorable Court as of July 31, 2018 and even up to the date of this motion, defendant is yet to file her Answer. 9. In Spouses Benedict and Sandra Manuel vs. Ramon Ong ,4 the Supreme Court ruled that: A sheriff’s return, if complete on its face, must be

accorded the presumption of regularity and, hence, taken to  be an accurate and exhaustive recital of the circumstances relating to the steps undertaken by a sheriff.

10. The Return and is clear and unequivocal that defendant personally received the summons and the complaint on July 16, 2018. Defendant had 15 days but refused to comply with the procedural requirements of the law. In Lui Enterprises, Inc. vs. Zuellig Pharma Corporation and Philippine Bank of Communications ,5 the Supreme Court ruled that: Fifteen days is sufficient time for a defendant to answer with good defenses against the plaintiff’s allegations in the

complaint. Thus, a defendant who fails to answer within 15 days from service of summons either presents no defenses against the plaintiff’s allegations in the complaint or was

prevented from filing his or her answer within the required period due to fraud, accident, mistake or excusable negligence.

11.

Lastly, in

 Momarco Import Company, Inc. vs. Felicidad

Villamena ,6 the Supreme Court held that:

While the courts should avoid orders of default, and should be, as a rule, liberal in setting aside orders of  G.R. No. 205249, October 15, 2014. 5 G.R. 193494, March 12, 2014. 6  G.R. No. 192477, July 27, 2016 citing Acance v. Court of Appeals, G.R. No. 159699, March 16, 2005; Montinola, Jr. v. Republic Planters Bank, No. L-66183, May 4, 1988. 4

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default, they could not ignore the abuse of procedural rules by litigants like the petitioner, who only had themselves to  blame.

12. As such and based on the foregoing, it is respectfully prayed that Defendant Fatima Santos-Parreño be declared in default pursuant to the Rules of Court and that the Honorable Court proceed to render judgment as the complaint may warrant. RELIEF

WHEREFORE, plaintiff Arlyne S. Parreño respectfully prays that Defendant Fatima Santos-Parreño be declared in default pursuant to the Rules of Court and that the Honorable Court proceed to render judgment as the complaint may warrant. Other reliefs, just or equitable, are likewise prayed for.

Quezon City for Parañaque City, August 16, 2018. By: LOWELL FREDRICK A. MADRILEÑO Roll of Attorney’s No. 65899 PTR No. 6619831/1-06-18/Makati IBP No. 021637/1-05-18/Rizal Chapter MCLE Compliance No.7 [email protected] Princeton Residences, Brgy. Valencia, Aurora Blvd., Quezon City Tel. No.: 661-1401

 Admitted to the Philippine Bar on June 21, 2016, hence, compliance with MCLE Requirements is not yet due until the year 2019 pursuant to Rule 2, Section 2 of Bar Matter No. 850. 7

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NOTICE AND COPY FURNISHED: Fatima Santos Parreño

#85 P. Oliveros St., Cupang, Antipolo City The Honorable Clerk of Court

Metropolitan Trial Court Parañaque City, Branch 88 Gentlemen: Please take notice that the foregoing Motion to Declare Defendant in Default dated August 16, 2018 shall be submitted for the consideration and approval of this Honorable Court on August 10, 2018, at 1:30 p.m.

Lowell Fredrick A. Madrileño

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