[CODALS - FINAL] RULE 9-10 Flashcards
Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.
Effect of failure to plead defenses and objections . What is the xpn?
Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.
XPN: If there is LLRP - court shall dismiss the claim.
Aside from compulsory counterclaim, what else is barred if not set up?
Cross claim.
When is there default?
- If the defending party fails to answer within the time allowed therefor, the court shall declare the defending party in default.
- Wilful failure to appear before an officer
- Failure to appear at pre-trial
2/3 technically not a default declaration but D considered default.
What will the court do after declaring the defendant in default?
Court shall proceed to render judgment granting the claimant such relief as his or her pleading may warrant, **unless **the court in its discretion requires the claimant to submit evidence
Relief from order of default before judgement.
A party declared in default may at any time after notice thereof and before judgment file a *motion under oath to set aside the order of default *upon proper showing that his or her *failure to answer was due to fraud, accident, mistake or excusable negligence *and that he or she has a meritorious defense
Extent of relief to be awarded to a plaintiff when a default udgement is rendered against a defending party.
A judgment rendered against a party in default shall [neither] exceed the amount or be different in kind from that prayed for nor award unliquidated damages
Two kinds of proceedings after declaration of default and the extend of relief that may be granted
- W/o hearing
- W/ hearing
page 37 – rev
When can LLRP be raised?
Any stage of the proceedings, even for the first time on appeal.
How many times should all available grounds for objection in attacking a pleading, order judgment or proceeding (POP) be invoked?
One time XPN LLRP
Can defendant be declared in defalt motu propio?
No
See rev for steps.
What rights are waived when a defendant is declared in default?
Rights of the defending party to be heard + present evidence and participate during trial
W
What rights does the defendant still have when he is declared in default?
Party still entitled to notice of final judgements and orders and proceedings taken subsequent to default
May be cited and testify as a witness
Can a default party file a MTD?
No, cannot file a motion to dismiss w/o first filing a motion to set aside the order of default.
Effect of partial default
When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented.
When are defaults not allowed?
- Action for annulment or declaration of nullity of marriage or for legal separation fails to answer.
- Actions governed by the Rule of Summary Procedure and Rule of Procedure for Small Claims Cases,
- Special civil actions
Investigate collusion or see if evidence is fabricated.
