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VELAYO-FONG vs.

SPOUSES RAYMOND and MARIA HEDY VELAYO, ISSUES:

FACTS: How may service of summons be effected on a non-resident?

Spouses Raymond and Maria Hedy Velayo filed a complaint for collection of sum RULING:
of money against Velayo-Fong. In the complaint, Spouses Velayo alleged that
Velayo-Fong was a resident of Honolulu, Hawaii, USA. Since Velayo-Fong was a Under Sec. 17, Rule 14, when the defendant is a nonresident and he is not found
non-resident and not found in the Philippines, Spouses Velayo-Fong prayed for a in the country, summons may be served extraterritorially. This kind of service of
writ to attach Velayo-Fong’s properties found in the Philippines. summons applies only where the action is in rem because in in rem and quasi in
rem actions, jurisdiction over the person of the defendant is not a prerequisite to
However, before the application for the writ can be acted upon by the RTC, confer jurisdiction on the court provided that the court acquires jurisdiction over
Spouses Velayo filed an Urgent Motion praying that the summons be served to the res.
Velayo-Fong at her Two Condominium Suites. One at Roxas Boulevard, Pasay Where the action is in personam and when the defendant is a non-resident,
City and another, at Burgos Street, T. Towers Condominium, Makati. personal service of summons within the state is essential to the acquisition of
Subsequently, the RTC granted the said motion. jurisdiction over the person. This cannot be done, however, if the defendant is
not physically present in the country, and thus, the court cannot acquire
Then, the Process Server indicated on his Officers Return that after several failed jurisdiction over his person and therefore cannot validly try and decide the case
attempts to serve the copy of summons and complaints issued at the given against him.
addresses of Velayo-Fong, finally, the Process Server was able to serve In the present case, Spouses Velayo’s cause of action and their prayer that actual
personally the summons together with the copy of the complaint upon Velayo- and moral damages, plus attorney’s fees, be awarded in their favor affect the
Fong, not at her two addresses but at the lobby of a hotel, right in the presence parties alone, not the whole world. Any judgment therein is binding only upon the
of a lobby counter personnel but Velayo-Fong refused to sign in receipt thereof. parties properly impleaded. Thus, it is an actionin personam. As such, personal
service of summons upon the defendants is essential in order for the court to
Later, the RTC in its Order declared Velayo-Fong in default for failure to file an acquire jurisdiction over their persons.
answer. Velayo-Fong, upon knowing the order of the RTC, filed a Motion to Set NOTES:
Aside Order of Default claiming that she was prevented from filing a responsive
pleading and defending herself against respondents’ complaint because of fraud, The party seeking to have the order of default lifted must first show that her
accident or mistake; that contrary to the Officer’s Return, no summons was failure to file an answer or any other responsive pleading was due to fraud
served upon her; that she has valid and meritorious defenses to refute accident, mistake, or excusable neglect and then she must show that she has a
respondents’ material allegations. valid and meritorious defense.

The RTC denied the Motion and CA affirmed RTCs order.

Now, Velayo-Fong questioned the propriety and validity of the service of


summons made upon her as she did not remember having been served with
summons but remembers that a man hurled some papers at her while she was
entering the elevator and, not knowing what the papers were all about, she threw
back the papers to the man before the elevator closed; that she has a valid and
meritorious defense to refute the material allegations of respondents’ complaint.

She also argued that the summons should have been served through
extraterritorial service since she is a non-resident.

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