REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
MANILA, BRANCH 4

MARIAM M. WANTZ, herein

represented by her Attorney In Fact,
PRISCILLA M. VENERACION,
Petitioner,

-versus- Civil Case No. R-MNL-18-

04907-CV
For: Partition

DONALD E. WANTZ,
Respondent.

COMMENT/OPPOSITION
To Respondent’s Motion for Reconsideration

Petitioner, through undersigned counsel, unto this Honorable

Court, respectfully states:

1. Last August 6, 2019, respondent filed a motion to lift

order of default and admit attached Answer. The said motion was
not under oath as required by the Rules of Court; the answer
attached was not properly verified; there was no meritorious
defense.

2. In order to ensure that the case would be tried on the

merits, this Honorable Court granted the motion to lift order of
default provided that respondent file to the Honorable Court the
proper verification on the answer on or before August 16, 2019. In
addition thereto, complainant was also directed to file the necessary
verification and certification within the same period.

3. On August 16, 2019, undersigned counsel filed before

this Honorable Court the proper verification and certification as
directed by this Honorable Court. On the other hand, respondent
failed to file the proper verification.

4. On August 20, 2019, respondent filed a motion for

reconsideration alleging that Priscilla M. Veneracion is not
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Civil Case No. R-MNL-18-04907-CV

authorized to sign the verification and certification of non forum

shopping. Ms. Veneracion is authorized as the SPA contained in the
complaint states that the attorney in fact, Ms. Veneracion was
authorized by Mariam M. Wantz to file the necessary case against
respondent concerning her property covered by CTCs 62879 and
62880.

5. Respondent further alleges that this Honorable Court

committed error when it allowed complainant to submit a
certification of non-forum shopping concerning an initiatory
pleading, hence, it has to return to its original prayer for the
dismissal of the instant complaint. Respondent is utterly misleading
this Honorable Court. He never prayed for the dismissal of the
complaint based on the alleged lack of certification of non-forum
shopping. His unverified answer prayed for the dismissal of the
complaint based on the allegedly bigamous nature of the marriage
between him and petitioner.

6. First and foremost, respondent has already been held in

default pursuant to the Order of this Honorable Court dated June 4,
2019. It was only on July 11, 2019 that respondent, through counsel,
filed an entry of appearance with prayer for extension of time to file
answer.

7. On July 26, 2019, respondent filed a motion to lift order

of default and admit attached answer. To reiterate, the motion to lift
order of default was fatally defective. The rules of court provide:

Relief from Order of Default1 - 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 failure to answer was
due to fraud, accident, mistake or excusable negligence and
that he has a meritorious defense. In such case, the order of
default may be set aside on such terms and conditions as the
judge may impose in the interest of justice.

8. The motion to lift order of default filed by respondent

was not under oath nor was it due to fraud, accident, mistake or
excusable negligence. According to the motion, respondent only
found out about the alleged complaint when he was informed by his

1
Sec. 3 (b) Rule 9 of the 1997 Rules of Civil Procedure

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Civil Case No. R-MNL-18-04907-CV

representative, Ms. Jocelyn Mabuhay, about a pleading handed to

her by the security guard of the condominium unit. This is clearly a
lie.

9. Prior to the summons through publication on the instant

case, on October 3, 2018, the process server of this Honorable Court
in the person of Mr. Ronnie R. Ruaya, issued a Process Server’s
Return stating that summons was tendered to Ms. Jocelyn Mabuhay.
Nevertheless, this Honorable Court decided that it is better to serve
summons through publication since the authority of Ms. Mabuhay
to receive the summons is questionable. Aside from the basis for the
lifting of the order of default being a lie, the same motion was also
not under oath. At the very least, the alleged receipt of the pleading
should be should declared under oath by Ms. Jocelyn Mabuhay for
she allegedly received the pleading belatedly. It should also be
declared under oath by respondent as this is the alleged excusable
negligence.

10. In addition thereto, the attached answer also contains a

defective verification and certification against forum shopping. The
attached affidavit of merit/verification is dated July 19, 2019
whereas the motion to lift order of default and the answer were
dated July 26, 2019. Clearly, respondent cannot verify the motion
and answer on July 19 considering that is was completed only on
July 26, 2019.

11. Finally, as stated in the answer filed by respondent, the

alleged meritorious defense is anchored on the allegation that the
marriage between petitioner and respondent is void for being
bigamous. As stated in the complaint filed before this Honorable
Court, the marriage between petitioner and respondent was already
dissolved through a divorce decree issued in the United States. If
there is any truth to the allegation that said marriage was bigamous,
then, respondent should have alleged this in the case for divorce in
the United States and the same court should have ruled on the same.
This only shows that the allegation of bigamy is a lie while
complainant was able to show proof before this Honorable Court
that her marriage with respondent has already been severed
through divorce. The complaint attached by respondent in his
answer concerning the criminal complaint has also been dismissed.

12. On this score alone, motion to lift order of default

should have been denied and the answer filed by respondent on

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July 26, 2019 should be discarded as a mere scrap of paper. Hence,

respondent should continue to be declared in default.

13. Be that as it may, pursuant to the rules of civil

procedure, this Honorable Court, through presiding Judge Dela
Rosa, exercised his discretion and set aside the order of default. In
exercising his discretion, he also imposed such terms and conditions
that he deemed necessary in the interest of justice. This was the
contents of the Order dated August 6, 2019 where he imposed upon
the parties to submit the required verification and certification
within 10 days or until August 16, 2019. Without the required
verification from the respondent, his motion and answer cannot be
considered for being defective.

14. Clearly, respondent is abusing the leniency and

consideration being given by this Honorable Court. This Honorable
Court already allowed the lifting of the order of default and ordered
respondent to submit his proper verification and certification.
Respondent, however, failed to abide by this order and instead filed
a motion for reconsideration questioning the discretion exercised by
this Honorable Court in allowing the submission of the proper
verification and certification on the part of complainant. If this
Honorable Court’s Order dated August 6, 2019 directing the parties
to submit their proper verification and certification is void,
necessarily, the order lifting the order for default should also be
void.

15. According to the Rules of Civil Procedure, a party on

default shall be entitled to notice of subsequent proceedings but not
to take part in the trial.2 Clearly, respondent cannot participate in
the trial and allege complainant’s alleged lack of the required
certification of non-forum shopping unless the order of default is
lifted. The lifting of the order is conditioned on respondent’s
complying on such terms and conditions as imposed by the judge in
the interest of justice. Respondent clearly failed to comply when it
failed to submit the required verification and certification.

16. In addition thereto Sec. 5, Rule 7 of the Rules of Court

provides that :

Failure to comply with the foregoing requirements shall

2
Sec 3 (a) Rule 9 of the 1997 Revised Rules of Civil Procedure

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Civil Case No. R-MNL-18-04907-CV

not be curable by mere amendment of the complaint or other

initiatory pleading but shall be cause for the dismissal of the
case without prejudice, unless, otherwise provided, upon
motion and after hearing. x x x

17. Clearly, this Honorable Court, exercising its authority

and discretion, on the hearing on the motion dated August 6, 2019,
already directed otherwise. This Honorable Court directed the
parties to submit the proper Verification and Certification of Non-
Forum Shopping. Hence, the complainant’s submission of the
required verification and certification, pursuant to the Order of this
Honorable Court, is valid.

18. Considering respondent’s failure to file the required

proper Verification and Certification of Non-Forum Shopping
within the given period of 10 days, it is submitted that this
Honorable Court has no choice but to scrap the motion to lift order
of default and the attached answer. Consequently, the order dated
August 6, 2019 lifting the order of default should be recalled and
cancelled and the Order dated June 4, 2019 declaring respondent in
default should be reinstated. Consequently, the order lifting the
Order of Default admitted respondent’s answer should be stricken
of the records of this case.

RELIEF

WHEREFORE, petitioner respectfully prays that the motion

for reconsideration be denied and hold respondent again in default
for failing to submit the required verification and certification as
directed in the Order dated August 6, 2019.

Petitioner prays for such further or other relief as may be

deemed just or equitable.

Manila, September 9, 2019.

COPY FURNISHED

Branch Clerk of Court

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Civil Case No. R-MNL-18-04907-CV

Metropolitan Trial Court

Manila, Branch 4

Legist Law Firm

G/F JGG Building
No. 105 Pasadena Street, Pasay City

Office of the Solicitor General

134 Amorsolo Street, Legaspi Village
Makati City

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