If a defendant who has been validly served with summons fails to file an answer within the required period, the plaintiff may move to have them declared in default. Once the court issues an order of default, the defending party loses the right to participate actively in the trial (they generally cannot present evidence), and the court may proceed to render judgment based on the plaintiff's evidence, though the relief granted cannot exceed or differ in kind from what was prayed for. A party declared in default still has remedies: they may move to lift the order of default before judgment by showing the failure was due to fraud, accident, mistake, or excusable negligence and that they have a meritorious defense; and after judgment, other remedies like a motion for new trial, appeal, or a petition for relief may be available depending on the stage.
Ignore a lawsuit and it does not go away — the court can decide it without you. That is the danger of being declared in default.
How Default Happens
When a defendant has been validly served with summons but fails to file an answer within the required period, the plaintiff may move to declare the defendant in default. If the court finds the failure and proper notice, it issues an order of default.
The Effect of Being in Default
A defendant in default generally:
- Loses the right to take active part in the trial — they typically cannot present evidence;
- Is still entitled to notice of subsequent proceedings; and
- Faces a judgment based on the plaintiff's evidence.
Importantly, the court does not automatically give the plaintiff everything — the relief granted cannot exceed or be different in kind from what was prayed for in the complaint, and the plaintiff must still prove the claim as required.
Remedies Before Judgment
A party declared in default is not without recourse. Before judgment, they may file a motion to lift the order of default, showing:
- That the failure to answer was due to fraud, accident, mistake, or excusable negligence (FAME); and
- That they have a meritorious defense (usually shown by an affidavit of merit).
If granted, the defendant is allowed back into the case.
Remedies After Judgment
If judgment by default has already been rendered, depending on the stage the defendant may still pursue:
- A motion for new trial or reconsideration, if still within the period;
- An appeal from the judgment; or
- A petition for relief from judgment, or in extreme cases annulment of judgment, under the conditions the rules set.
Best Defense: Answer on Time
All of these remedies are uphill battles. The far better course is simply to file a timely answer (or the proper responsive pleading), or seek an extension where allowed, the moment you are served. Never assume a case can be ignored.
Practical Takeaways
- Failing to answer can get you declared in default, losing the right to present evidence;
- The court can decide on the plaintiff's evidence, but relief cannot exceed what was prayed for;
- You can move to lift default by showing FAME plus a meritorious defense — but the safest move is to answer on time.
Frequently Asked Questions
What does it mean to be declared in default? If a validly served defendant fails to file an answer within the required period, the court may declare them in default, after which they generally lose the right to present evidence and the case may be decided on the plaintiff's evidence.
Can the plaintiff get anything they want in a default judgment? No. The relief granted cannot exceed or differ in kind from what was prayed for in the complaint, and the plaintiff must still prove the claim as required by the rules.
How can I lift an order of default? Before judgment, file a motion to lift the order of default showing that the failure to answer was due to fraud, accident, mistake, or excusable negligence, and that you have a meritorious defense.
What if a default judgment has already been rendered? Depending on the stage, you may pursue a motion for new trial or reconsideration, an appeal, or a petition for relief from judgment. These are harder, so answering on time is far better.
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.