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OTERO V TAN15 August 2012Petition for review on certiorari under Rule 45 seeking to annul and set aside CA Decision arming RTCudgment

!ACT"#$ Com%laint$ Tan &led for collection of sum of mone' and damages wit( )TCC Caga'an de *ro against

*tero alleging t(at *tero %urc(ased on credit %etroleum %roducts from (is Petron outlet for P2+0k,des%ite demands- *tero defaulted$ Des%ite recei%t of summons t(roug( wife *tero- (e failed to &le answer wit( )TCC$ Tan t(en &led a )otion to declare *tero in default, *tero denied receiving summons$ .earings were conducted until )TCC issued an order declaring *tero in default- to w(ic( a co%' wassent to *tero- and t(ere/' allowing Tan to %resent (is evidence e %arte# (is em%lo'ees- s(owingvarious statements of account

)TCC$ n favor of Tan- noting t(at *teros failure to &le an answer des%ite notice is a tacit admission of Tansclaim$ *tero a%%ealed to RTC asserting t(at )TCCs decision is factuall' /aseless and t(at (e was de%rivedof due %rocess

RTC$ Armed )TCC- noting t(at t(e statements of account %resented were overw(elming enoug( to %rove*teros inde/tedness- and t(at (e was served due notice contrar' to *teros claim of de%rivation ofdue %rocess$ *tero &led for )R /ut was denied, t(en &led for review wit( CA

$ 3%laining t(at evidence %resented were %resented /' etac(e w(o was not a witness /' Tan$ T(at t(e genuineness and due eecution of said statements of account- /eing %rivate- must

&rst /e esta/lis(ed lest t(e said documents /e rendered inadmissi/le in evidence

CA$ Assailed RTC and )TCC decision- noting t(at an' defense w(ic( *tero ma' (ave against Tan isalread' deemed waived due to *teros failure to &le (is answer

""3#$ 6*7 *tero- declared in default /' )TCC- in t(e a%%ellate %roceedings- ma' still raise t(e failure of

Tan to aut(enticate t(e statements of account w(ic( (e adduced in evidence

.38D#$ 93"$ A defendant w(o fails to &le an answer ma'- u%on motion- /e declared /' t(e court in default

$ A %art' in default loses (is rig(t to %resent (is defense- control t(e %roceedings- and eamineor cross$eamine witnesses$ .owever- t(e fact t(at a defendant (as lost (is standing in court for (aving /een declared in defaultdoes not mean t(at (e is left wit(out recourse

$ Remedies available to party in default (Lina v CA, et al):$ )a'- at an' time after discover' t(ereof and after :udgment- &le a motion- under

oat(- to set aside t(e order of default on t(e ground t(at (is failure to answer was due to fraud-accident- mistake- or ecusa/le neglect- and t(at (e (as meritorious defenses

$ f :udgment (as /een rendered w(en defendant discovered default- /ut /efore t(esame (as /ecome &nal and eecutor- (e ma' &le a motion for new trial

$ f defendant discovered t(e default after t(e :udgment (as /ecome &nal andeecutor- (e ma' &le a %etition for relief

$ .e ma' also a%%eal from t(e :udgment rendered against (im as contrar' to t(eevidence or to t(e law- even if no %etition to set aside t(e order of default (as /een %resented /' (im

$ rounds t!at may be raised in su"! an appeal:$ !ailure of %lainti; to %rove material allegations of t(e com%laint$ Decision is contrar' to law$ Amount of :udgment is ecessive or di;erent in kind from t(at %ra'ed for

$ n t(is case- *tero asserts t(at Tan failed to %rove t(e material allegations of (is com%laint since t(estatements of account w(ic( (e %resented are inadmissi/le in evidence

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$ Contrar' t(en to CA- it is not accurate to state t(at (aving /een declared in default /' t(e )TCC-*tero is alread' deemed to (ave waived an' and all defenses w(ic( (e ma' (ave against Tans claim