Republic of the Philippines
REGIONAL TRIAL COURT
7th Judicial Region
Branch 11
Cebu City
CELIA O. DEL ROSARIO
Plaintiff,
R-CEB-19-09-8419-CV
For: Nullity of Amended
Articles of Incorporation and
By-Laws, Corporate Acts, and
Damages
-versus-
MIRADEL DEVELOPMENT
CORPORATION, NANETTE R. AVILA,
EMMANUEL JESUS R. AVILA, and
CHRISTOPHER DOUGLAS R. AVILA,
Defendants.
x-------------------------------------------/
COMMENT ON DEFENDANTS’ MOTION FOR EXTENSION TO FILE
RESPONSIVE PLEADING with MOTION TO DECLARE DEFENDANTS IN
DEFAULT
--------------------
PLAINTIFF, through the undersigned counsel and unto this
Honorable Court, most respectfully states the following:
BY WAY OF: COMMENT ON DEFENDANTS’MOTION FOR EXTENSION
TO FILE RESPONSIVE PLEADING
1. On 27 November 2019, Plaintiff, through the undersigned counsel,
received the Defendants’ Entry of Appearance with Motion for
Extension to File Responsive Pleading.
2. Defendants, through the aforementioned pleading, admitted that,
as ordered by this Honorable Court, they only had until 27
November 2019 to file their Answer, thus:
1
“3. Defendants received this Honorable Court’s
Summons thru registered mail on November 12, 2019,
requiring them to submit their Answer within fifteen
(15) days from the date of receipt of the Summons or
until November 27, 2019.” (emphasis ours)
3. Instead of filing their Answer, Defendants asked for an extension
of time to file the same, thus:
“WHEREFORE, it is most respectfully prayed of this
Honorable Court that (1) this Entry of Appearance be
duly noted and (2) that Defendants be given an
additional period of fifteen (15) days from today
or until December 12, 2019 to submit an Answer or
other responsive pleading to Plaintiff’s Complaint.”
4. As a clear matter of law, Defendants’ motion - asking for an
extension to file an Answer - is a prohibited pleading under A.M.
No. 01-2-04-SC or the Interim Rules of Procedure Governing
Intra-Corporate Cases [hereinafter “Rules”], thus:
SEC. 8. Prohibited pleadings. – The following
pleadings are prohibited:
1. Motion to dismiss;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of
judgment or order, or for re-opening of trial;
4. Motion for extension of time to file pleadings,
affidavits or any other paper, except those filed due
to clearly compelling reasons. Such motion must be
verified and under oath; and
5. Motion for postponement and other motions of
similar intent, except those filed due to clearly
compelling reasons. Such motion must be verified and
under oath.
5. While, as a matter of exception, the Rules provide that “clearly
compelling reasons,” which cause the filing of a pleading beyond the
period provided for under the Rules or ordered by the Honorable
Court, may justify the filing of a Motion for Extension of Time to File
Pleadings, etc., Defendants failed to allege and show “clearly
compelling reasons.” Here, the only excuse offered by Defendants in
asking for an extension is:
“4. However, the undersigned counsel was just
recently and formally engaged to represent the
2
Defendants, and would, therefore, be needing
additional time to collate and study the records and
other material documents (dating back to 1980)
pertinent to this case.” (emphasis ours)
6. Far from being compelled, much more “clearly compelling,” the
only excuse offered by Defendants is its own negligence in failing to
engage a lawyer sooner.
7. In any case, even assuming that there are “clearly compelling
reasons” justifying the filing of a Motion for Extension of Time to File
Pleadings, etc., Defendants’ effectively filed a mere scrap of paper for
failing to be verified and made under oath as required by the Rules,
thus:
SEC. 8. Prohibited pleadings. – The following
pleadings are prohibited:
1. Motion to dismiss;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of
judgment or order, or for re-opening of trial;
4. Motion for extension of time to file pleadings,
affidavits or any other paper, except those filed due to
clearly compelling reasons. Such motion must be
verified and under oath; and
5. Motion for postponement and other motions of
similar intent, except those filed due to clearly
compelling reasons. Such motion must be verified
and under oath.
8. In conclusion, Defendants’ Motion for Extension to File Responsive
Pleading is either a prohibited pleading or a mere scrap of paper.
Either way, the same should not be entertained by this Honorable
Court.
BY WAY OF: MOTION TO DECLARE DEFENDANTS IN DEFAULT
9. To date, 28 November 2019 or a day after the last day of the
required service of a responsive pleading to Plaintiff and the
corollary filing thereof before this Honorable Court, Defendants have
failed to file any responsive pleading.
10. Considering that no extension may be granted by this Honorable
Court pursuant to the Rules, Defendants time to file any responsive
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pleading has lapsed. Pursuant to the Rules, declaring Defendants in
default is warranted and proper, thus:
“SEC. 7. Effect of failure to answer. – If the
defendant fails to answer within the period above
provided, he shall be considered in default. Upon
motion or motu proprio, the court shall render
judgment either dismissing the complaint or
granting the relief prayed for as the records may
warrant. In no case shall the court award a relief
beyond or different from that prayed for.” (emphasis
ours)
PRAYER
11. WHEREFORE, foregoing premises considered, it is most
respectfully prayed to the Honorable Court to:
i. Deny Defendants’ Motion for Extension to File
Responsive Pleading;
ii. Declare Defendants in default; and
iii. Render judgment granting the relief prayed for by
Plaintiff.
12. Other reliefs and remedies consistent with law and justice are
likewise prayed for.
RESPECTFULLY SUBMITTED.
Cebu City, 28 November 2019.
ROMULO MABANTA BUENAVENTURA
SAYOC & DE LOS ANGELES
Counsel for Defendants
Suite 1204, 12th Floor, Insular Life Building
Mindanao Avenue corner Biliran Road
Cebu Business Park, 6000 Cebu City Philippines
Tel No. (032) 266-5930
Fax No. (032) 266-5932
4
[email protected]
By:
JOAN S. LARGO
Roll of Attorneys No. 44813
IBP Lifetime Membership No. 524409
PTR No. 1660881 01/08/2019-Cebu City
MCLE Compliance No. VI-0005007
Issued 12/18/17 and valid until 04/14/2022
[email protected]
RASHID V. PANDI
Roll of Attorneys No. 71536
IBP Receipt No. 042881, 05-18-18-Pasig City
PTR No. 1660879, 01-08-19-Cebu City
MCLE Certificate on Process: Bar 2017 Passer
[email protected]
MARK LAWRENCE C. BADAYOS
Roll of Attorneys No. 72382
IBP Receipt No. 088321, 06-06-19-Pasig City1
PTR No. 0865371, 06-27-19-Cebu City
MCLE Exempt2
[email protected] REQUEST/NOTICE OF HEARING
HON. CLERK OF COURT
Regional Trial Court
Branch 11
Cebu City
1
First payment of IBP due done to the National Office pursuant to 2019 Bar admission process.
2
Admitted to the Bar on 14 June 2019.
5
DIVINA LAW OFFICES
Counsel for Defendants
Unit 1504 Ayala Life – FGU Center
Mindanao Avenue corner Biliran Road
Cebu Business Park, Cebu City 6000
Telefax No. (63) (032) 416-8018
ATTY. MARK GREGORY R. AVILA
Defendant
2nd Floor, Catalino Building
Doñ a Rita Village, Banilad, Cebu City
Greetings! Please take notice that the foregoing Comment on
Defendants’ Motion for Extension to File Responsive Pleading with
Motion to Declare Defendants in Default shall be submitted for
consideration and approval of the Honorable Court on 6 December
2019, at 8:30 A.M. or as soon as the Court’s calendar will allow. Thank
you.
JOAN S. LARGO
EXPLANATION
Copies of this Motion for Reconsideration were furnished upon
Petitioner’s counsel and filed with this Honorable Court through
registered mail due to the distance between their offices and that of the
undersigned counsel, rendering personal service not feasible.
JOAN S. LARGO
Copy furnished to:
DIVINA LAW OFFICES
Counsel for Defendants
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Unit 1504 Ayala Life – FGU Center
Mindanao Avenue corner Biliran Road
Cebu Business Park, Cebu City 6000
Telefax No. (63) (032) 416-8018
ATTY. MARK GREGORY R. AVILA
Defendant
2nd Floor, Catalino Building
Doñ a Rita Village, Banilad, Cebu City
AFFIDAVIT OF FILING AND SERVICE BY REGISTERED MAIL WITH
EXPLANATION
I, LUZEL ORTEGA, of legal age, being the messenger of Counsel
for Respondents, with office address at Suite 1204, 12th Floor, Insular
Life Building, Mindanao Avenue corner Biliran Road, Cebu Business
Park, 6000 Cebu City, after having sworn to in accordance with law,
hereby depose and say:
On 28 November 2019, I served a copy of the following Motion for
Reconsideration by registered mail in accordance with Sections 3, 4, 5, 7
and 10, Rule 13 of the Rules of Court:
Republic of the Philippines
REGIONAL TRIAL COURT
7th Judicial Region
Branch 11
Cebu City
CELIA O. DEL ROSARIO
Plaintiff,
R-CEB-19-09-8419-CV
For: Nullity of Amended
Articles of Incorporation and
By-Laws, Corporate Acts, and
Damages
-versus-
MIRADEL DEVELOPMENT
CORPORATION, NANETTE R. AVILA,
7
EMMANUEL JESUS R. AVILA, and
CHRISTOPHER DOUGLAS R. AVILA,
Defendants.
x-------------------------------------------/
COMMENT ON DEFENDANTS’ MOTION FOR EXTENSION TO FILE
RESPONSIVE PLEADING with MOTION TO DECLARE DEFENDANTS
IN DEFAULT
By depositing a copy thereof in the Post Office, in a sealed envelope
plainly addressed to the Defendants’ and their counsels in the addresses
listed hereunder, with postage fully prepaid per registry receipt number
indicated opposite their names and the original receipt being attached
to the original of the pleading mailed, and with instructions to the
postmaster to return the mail to the sender after ten (10) days if
undelivered, to wit:
DIVINA LAW OFFICES
Counsel for Defendants
Unit 1504 Ayala Life – FGU Center
Mindanao Avenue corner Biliran Road
Cebu Business Park, Cebu City 6000
Telefax No. (63) (032) 416-8018
ATTY. MARK GREGORY R. AVILA
Defendant
2nd Floor, Catalino Building
Doñ a Rita Village, Banilad, Cebu City
Further, as required under Section 11 of the same Rule, the service of
said pleading was done through registered mail due to the distance
between their offices and that of the undersigned counsel, rendering
personal service not feasible.
LUZEL ORTEGA
Affiant
SUBSCRIBED AND SWORN to before me this November 2019 in the
City of Cebu, Philippines, affiant personally known to me.
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Doc. No. ;
Page No. ;
Book No. ;
Series of 2019.
