When a defendant who has been validly served with summons fails to file an answer within the time allowed by the rules, the plaintiff may move, with notice to the defending party, for the court to declare the defendant in default. Upon such a motion and proof of the failure to answer, the court issues an order of default, and thereafter proceeds to render judgment granting the plaintiff such relief as the pleading and evidence may warrant (the court may require the plaintiff to present evidence ex parte, or decide on the basis of the pleadings). The effect of being declared in default is serious: the defaulting defendant loses the right to take part in the trial, to present their own evidence, and to cross-examine the plaintiff's witnesses; they are, however, still entitled to notice of subsequent proceedings, though they cannot participate. A party declared in default is not without remedy. The principal remedy is a motion to lift or set aside the order of default, filed at any time after notice of the order and before judgment, showing under oath that the failure to answer was due to fraud, accident, mistake, or excusable negligence, and that the defendant has a meritorious defense (supported by an affidavit of merit). If granted, the default order is lifted and the defendant is allowed to file their answer and participate. After judgment by default, the remedies shift: the defendant may file a motion for new trial or reconsideration, an appeal, or, in proper cases, a petition for relief from judgment or annulment of judgment, within the applicable periods and grounds. The law disfavors default judgments and prefers cases to be decided on the merits, so courts are generally liberal in lifting default orders when the requisites are shown. So default results from failing to answer on time, it costs the defendant the chance to present a defense, but it can be lifted upon a proper, timely showing of a valid excuse and a meritorious defense.
When Default Happens
If a defendant validly served with summons fails to answer on time, the plaintiff may move (with notice) for the court to declare the defendant in default, after which the court may render judgment on the plaintiff's evidence.
The Effect
A defaulting defendant loses the right to participate in the trial, present evidence, and cross-examine — though they are still entitled to notice of the proceedings.
How to Lift the Order
The main remedy is a motion to lift the order of default, filed after notice and before judgment, showing under oath that the failure was due to fraud, accident, mistake, or excusable negligence, plus a meritorious defense (affidavit of merit). After a default judgment, remedies shift to new trial, appeal, or relief from judgment. Courts disfavor default.
Practical Takeaways
- Failing to answer on time risks an order of default;
- Default costs the chance to present a defense;
- Move to lift it with a valid excuse + meritorious defense; courts are liberal.
Frequently Asked Questions
When can a defendant be declared in default? When the defendant, validly served with summons, fails to file an answer within the time allowed, and the plaintiff moves, with notice, for a declaration of default, which the court grants upon proof of the failure.
What is the effect of being in default? The defaulting defendant loses the right to take part in the trial, present evidence, and cross-examine the plaintiff's witnesses, though they remain entitled to notice of subsequent proceedings.
How do I lift an order of default? By filing a motion to lift or set aside the order at any time after notice and before judgment, showing under oath that the failure to answer was due to fraud, accident, mistake, or excusable negligence, and that you have a meritorious defense.
What are my remedies after a default judgment? A motion for new trial or reconsideration, an appeal, or in proper cases a petition for relief from judgment or annulment of judgment, within the applicable periods and grounds.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you have questions about your rights or options under Philippine law, our firm is available to assist. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.