Sample Form
Republic of the Philippines
[REGIONAL TRIAL COURT/METROPOLITAN TRIAL COURT]
[Judicial Region]
Branch [Branch Number]
[City/Province]
[PLAINTIFF'S NAME],
Plaintiff,
- versus - Civil Case No. [Case Number]
For: [Nature of Action]
[DEFENDANT'S NAME],
Defendant.
x--------------------------------------------------x
MOTION TO DECLARE DEFENDANT IN DEFAULT
PLAINTIFF, through counsel, respectfully states:
1. Defendant [Defendant's Name] was served with summons and a copy of the
Complaint on [Date of Service] at [Address of Service], as shown by the
Sheriff's Return/Proof of Service attached as Annex "A."
2. Under the Rules, defendant had until [Last Day to File Answer] within
which to file an Answer or other responsive pleading.
3. The period to answer has expired, but defendant has not filed any Answer
or responsive pleading. This is shown by the Certification issued by the
Clerk of Court dated [Date of Certification], attached as Annex "B."
4. Under Rule 9, Section 3 of the Rules of Court, when a defending party
fails to answer within the time allowed, the Court may, upon motion of
the claiming party with notice to the defending party and proof of such
failure, declare the defending party in default.
5. Plaintiff is serving this Motion upon defendant and defendant's counsel,
if any, in compliance with the Rules.
PRAYER
WHEREFORE, plaintiff respectfully prays that defendant [Defendant's Name] be
declared in default and that plaintiff be allowed to present evidence ex parte
or in such manner as the Honorable Court may direct.
Plaintiff further prays for such other reliefs as are just and equitable.
[City], Philippines, [Date].
[LAW FIRM NAME], if any
Counsel for Plaintiff
[Law Firm Address]
By:
[LAWYER'S NAME]
Roll of Attorneys No. [Roll Number]
PTR No. [PTR Number], [Date], [Place]
IBP No. [IBP Number], [Date], [Place]
MCLE Compliance No. [MCLE Number]
[Email Address]
[Telephone/Mobile Number]
NOTICE OF SUBMISSION
The Branch Clerk of Court
[Court and Branch]
[Court Address]
Greetings:
Please submit the foregoing Motion for the consideration and resolution of
the Honorable Court after the lapse of the period for comment or opposition,
or upon such setting or directive as the Court may issue under the Rules.
[LAWYER'S NAME]
COPY FURNISHED:
[DEFENDANT'S NAME]
[Defendant's Address]
[DEFENDANT'S COUNSEL], if any
[Counsel's Address]
[Counsel's Email Address]
EXPLANATION
Service by [registered mail/accredited courier/electronic mail] was resorted
to because [state practical reason, if personal service was not made].
[LAWYER'S NAME]
Nature and Office of the Motion
A motion to declare a defendant in default is a litigious motion asking the court to issue an order of default because the defending party failed to file an answer within the time allowed by the Rules or by the court. Default is not created by mere lapse of time; it exists only after a court order declaring the defending party in default.
The motion belongs to the claiming party. In an ordinary civil action, the plaintiff files it against the defendant who failed to answer the complaint. The same default concept applies to any defending party who fails to answer a claim asserted against him, such as a counterclaim, cross-claim, third-party complaint, or complaint-in-intervention, but the motion must identify the specific pleading that required an answer.
The remedy protects orderly procedure, but it is not a shortcut around due process. Courts prefer trial on the merits, so the movant must show strict compliance with the requisites for default, while the court must still determine whether the claimant's pleading and evidence legally warrant relief.
When Default Becomes Available
Default becomes procedurally available only after a valid obligation to answer has arisen and the period to answer has expired without a proper responsive pleading. For an ordinary complaint, the period generally runs from valid service of summons and the complaint; for other claims, it runs from service of the pleading that calls for an answer.
The first inquiry is jurisdiction over the person of the defendant. A motion for default is premature if summons was not validly served, if substituted or extraterritorial service was defective, or if the defendant has not voluntarily appeared. A void service of summons cannot be cured by declaring the defendant in default, because default presupposes that the defendant was already bound to answer.
The second inquiry is the correct computation of the answer period. The motion should account for the date of service, the applicable period, any extension granted, any pleading or motion that affected the running of the period, and any order giving a new period to plead. A default order is improper while the period to answer is still running.
The third inquiry is the absence of a valid answer. If an answer was filed on time, default is unavailable. If an answer was filed late but before an order of default, the court may admit the answer in the interest of substantial justice, especially when the delay is slight, no intent to delay appears, and no prejudice is shown; the late filing, however, may still be subject to terms or sanctions.
Requisites
The rule on default requires a definite sequence: failure to answer, motion by the claiming party, notice to the defending party, proof of the failure, and a court order. Each step matters because a party may lose the right to participate actively in the proceedings after default.
| Requisite | Practical meaning | Usual proof |
|---|---|---|
| Valid claim requiring an answer | The defendant must have been served with a pleading that the Rules require him to answer. | Complaint or other claim, summons or service papers, and proof that the pleading was received. |
| Jurisdiction over the defendant | The court must have acquired jurisdiction by valid service of summons or voluntary appearance. | Sheriff's return, affidavit of service, registry record, courier proof, publication compliance, or appearance in the record. |
| Expired answer period | The time to answer must have ended before the motion is filed and before default is declared. | Computation from the date of service, orders on extension, and docket entries. |
| No answer or responsive pleading | The record must show that the defendant did not file the required answer within the allowed period. | Certification from the branch clerk when available, docket review, and statement in the motion referring to the court record. |
| Motion with notice | The claiming party must ask for default by written motion and must serve it on the defending party. | Proof of service of the motion and supporting papers on the defendant or counsel, as applicable. |
Form and Contents of the Motion
The motion should be written, captioned in the same case, addressed to the same court, signed by counsel or the party, and served in accordance with the rules on motions. Because it is a litigious motion, the opposing party must be given a real opportunity to oppose before the court acts on it.
The body should state the facts in chronological order. It should identify the defendant sought to be declared in default, the pleading served, the date and mode of service, the period to answer, the date the period expired, the absence of any answer or extension, and the rule authorizing the declaration of default.
The motion should attach or refer to the documents that make the default apparent from the record. The usual attachments are the summons, proof of service, sheriff's return or affidavit of service, relevant registry or courier records, orders granting or denying extensions, and any branch certification that no answer has been filed.
The prayer should ask the court to declare the specified defendant in default and to proceed in the manner allowed by the rule on default. The prayer may request judgment if the pleading alone warrants relief, or reception of evidence if the court requires proof. The motion should not ask for relief beyond the complaint, a different kind of relief, or damages not legally awardable in a default judgment.
Drafting Controls
- State dates precisely, because default turns on the expiration of the answer period.
- Identify the defendant separately when there are several defendants, because default is personal to the defending party who failed to answer.
- Refer to the operative pleading, because an amended or supplemental pleading may change the obligation to answer.
- Serve the motion on the defendant if no counsel has appeared, and on counsel if counsel has appeared for that defendant.
- Do not rely on conclusions such as "defendant is in default"; plead the facts showing why the court may declare default.
Notice and Opposition
A motion to declare defendant in default is expressly treated as a litigious motion under modern motion practice. The movant must serve it, and the defending party may oppose by showing that default is unavailable, that the period has not expired, that service of summons was defective, that an answer was filed, that an extension exists, or that circumstances justify admission of a late answer.
The required notice is not a technical formality. A declaration of default without notice to the defending party violates due process because the order changes the party's procedural standing. The later right of a defaulted party to receive notices of proceedings does not cure the absence of notice before the order of default.
When the defendant has not yet appeared by counsel, service of the motion should be made on the defendant at the address allowed by the service rules. When counsel has appeared, service should be made on counsel because notice to counsel is notice to the client for procedural purposes.
Judicial Action on the Motion
The court does not mechanically grant default. It must examine whether summons and the pleading were validly served, whether the period to answer was correctly computed, whether the defendant filed any answer or responsive pleading, whether the motion and notice requirements were observed, and whether special rules prohibit default.
If the requisites are present, the court issues an order declaring the defendant in default. After default, the court may render judgment granting the claimant such relief as the pleading warrants, unless it requires the claimant to present evidence. Reception of evidence may be delegated to the clerk of court when allowed, but the judge remains responsible for the judgment.
If the motion is defective, the court should deny it without prejudice when the defect can be corrected, such as insufficient proof of non-filing or incomplete service of the motion. If the defect concerns jurisdiction over the defendant, denial should be anchored on the absence of a valid duty to answer.
Effects of an Order of Default
An order of default is interlocutory. It does not dispose of the case, but it alters the defaulted party's participation. The defaulted defendant is generally barred from taking part in the trial, presenting evidence, objecting to the claimant's evidence, or controlling the course of the proceedings, subject to recognized remedies and the court's power to set aside the default.
The defaulted defendant remains entitled to notice of subsequent proceedings. This retained right reflects the difference between default and abandonment of all procedural protection. Notice allows the defendant to monitor the case, seek relief from the default before judgment, challenge improper proceedings, and use available post-judgment remedies.
Default is often described as an admission of the material allegations of the complaint, but the admission is not absolute. It does not admit conclusions of law, allegations contrary to law, facts not well pleaded, jurisdictional defects, or an entitlement to relief that the pleading itself does not support. The claimant must still obtain a judgment that is legally justified.
A default judgment is limited by the relief prayed for. It cannot exceed the amount demanded, cannot be different in kind from the relief sought, and cannot rest on a cause of action not pleaded. The defendant's failure to answer does not authorize a court to grant a remedy that the defendant was never called to meet.
Limits on Judgment After Default
The court may not treat default as an automatic confession that every requested remedy should be granted. The complaint must still state a cause of action, the court must have jurisdiction, and the relief must be supported by the pleadings and, when required, competent evidence.
Unliquidated damages require careful treatment because default does not by itself establish their amount. The rule on default judgment prevents awards that go beyond what was specifically demanded or that are unsupported by the record. Attorney's fees, moral damages, exemplary damages, and similar claims must not be awarded merely as a consequence of default.
Where several defendants are sued, the default of one defendant does not automatically establish liability against all. If the claim against the defaulting defendant is separable, proceedings may continue against that defendant. If the liability or defense is common, the court must avoid inconsistent results, and defenses successfully raised by answering co-defendants may benefit the defaulted defendant when they defeat the plaintiff's cause of action itself.
Cases Where Default Is Not Allowed
Default is not allowed in actions for declaration of nullity of marriage, annulment of marriage, and legal separation. If the defendant fails to answer in those actions, the court must direct the public prosecutor to investigate whether collusion exists between the parties and, when appropriate, to intervene so that the State's interest in the marital status is protected.
The prohibition rests on the public interest involved in marital status. The defendant's silence cannot be treated as an admission authorizing judgment, because the court must independently guard against collusion, fabricated grounds, and decrees that alter civil status without adequate scrutiny.
Special proceedings, special civil actions, and cases governed by special rules may also carry procedures inconsistent with ordinary default. The practitioner should check whether the governing rule supplies a different consequence for failure to plead, because a motion under the ordinary default rule is proper only when that rule applies.
Default Distinguished from Related Situations
| Situation | Trigger | Consequence |
|---|---|---|
| Default for failure to answer | Defendant fails to file the required answer within the allowed period. | Upon motion, notice, proof, and court order, defendant loses active participation but remains entitled to notices. |
| Failure to appear at pre-trial | Party or counsel fails to appear at pre-trial despite notice. | Consequences arise under the pre-trial rules, such as dismissal for plaintiff or ex parte presentation for defendant, not necessarily default for failure to answer. |
| Failure to oppose a motion | Party does not file opposition within the allowed period. | The motion may be considered unopposed, but the court must still determine whether the requested relief is legally proper. |
| Failure to comply with discovery or orders | Party disobeys discovery obligations or court directives. | Sanctions may be imposed under the applicable rule, which may differ from default under the rule on failure to answer. |
Relief from an Order of Default
After notice of the order of default but before judgment, the defaulted defendant may file a motion under oath to set aside the order. The motion must show that the failure to answer was due to fraud, accident, mistake, or excusable negligence, and that the defendant has a meritorious defense.
The requirement of a meritorious defense prevents the setting aside of default for delay alone. The defendant should state facts showing a real defense to the claim, usually through an affidavit of merits, a verified motion, or an attached proposed answer. General denials and bare assertions that the case should be heard on the merits are weak substitutes for specific defensive facts.
If the court sets aside the default, it may impose terms that are just, such as admitting the answer, requiring payment of costs, setting immediate deadlines, or limiting delays caused by the default. The objective is to restore adversarial litigation without rewarding neglect.
If judgment has already been rendered but is not yet final, the defendant may use remedies appropriate to a judgment, such as motion for new trial, motion for reconsideration, or appeal, depending on the ground and procedural posture. If the judgment has become final, relief is more restricted and may require extraordinary remedies when the rules allow them, especially where lack of jurisdiction or denial of due process is shown.
Ethical and Practical Responsibilities of Counsel
Counsel for the claimant must present the chronology candidly. A motion for default should not suppress a pending extension, a late answer already on record, a defective service of summons, or any order that affects the answer period. Candor is especially important because default may prevent the opposing party from participating in the trial.
Counsel for the defendant must treat service of summons and the answer period as urgent. A defendant who needs more time should seek an extension before the period expires, and a defendant who has already defaulted should move promptly to set aside the default with a sworn explanation and a concrete defense.
Both sides should remember that default is procedural, not substantive. It regulates participation in the case, but it does not create a cause of action, cure a jurisdictional defect, enlarge the complaint, or authorize a judgment unsupported by law.