BDO vs Tansipek

Facts:

Brief Facts

J. O. Construction, Inc. (JOCI) entered into a contract with Duty Free Philippines, for the construction of Duty Free Shop.

 Payments were received by JOCI directly or through John Tansipek the authorized collected, which was initially remitted to JOCI, however a
payment through PNB Check was not turned over, instead Tansipek endorsed said check and deposited the same to his account in PCIB.
 PCIB allowed said deposit despite lack of authority of Tansipek.
 PCIB refused to pay JOCI the full amount of the check despite demands made by the latter.

J.O. Construction, Inc. (JOCI), filed a complaint against Philippine Commercial and Industrial Bank (PCIB).

1. PCIB filed a Motion to Dismiss the Complaint. The RTC denied PCIB’s Motion to Dismiss.
2. PCIB filed a Motion to Admit Amended Third-Party Complaint.
3. Upon Motion, Tansipek was granted time to file his Answer to the Third-Party Complaint. He was, however, declared in default for failure to do
so.
4. The Motion to Reconsider the Default Order was denied.
5. Upon being declared in default, Tansipek filed a Motion for Reconsideration of the Default Order.
6. Upon denial thereof, Tansipek filed a Petition for Certiorari with the Court of Appeals, which was dismissed for failure to attach the assailed
Orders.
7. Tansipek’s Motion for Reconsideration with the Court of Appeals was denied for having been filed out of time.

Issue: Whether the motion for reconsideration of the default order was the correct remedy.

Ruling: No.

Tansipek as 3rd party defendant did not follow the proper procedure.

Tansipek’s remedy against the Order of Default was erroneous from the very beginning. Respondent Tansipek should have filed a Motion to Lift
Order of Default, and not a Motion for Reconsideration pursuant to Section 3 (b), Rule 9 of the Rules of Court.

Section 3. Default; declaration of. — If the defending party fails to answer within the time allowed therefor, the court shall, upon motion
of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the
court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires
the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (1a, R18)

(b) Relief from order of default. — 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. (3a, R18)

A Motion to Lift Order of Default is different from an ordinary motion in that the Motion should be verified; and must show fraud, accident, mistake,
or excusable neglect, and meritorious defenses.

The allegations of FAME and of meritorious defenses must concur.

Assuming for the sake of argument, however, that Tansipek’s Motion for Reconsideration may be treated as a Motion to Lift Order of Default, his
Petition for Certiorari on the denial thereof has already been dismissed with finality by the Court of Appeal’s.

≈ Tansipek did not appeal said ruling of the Court of Appeals to this Court. The dismissal of the Petition for Certiorari assailing the denial of
Tansipeks Motion constitutes a bar to the retrial of the same issue of default under the doctrine of the law of the case.