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Use Rule 9, Sec 3 (b) after notice of the order of default but
before judgment; Use Rule 37 if there is already a judgment
but not yet F &E
Extrinsic Fraud
Intrinsic Fraud
-is based on the acts of a party in a litigation during
the trial, such as the use of forged instruments or perjured
testimony, which did not affect the presentation of the case,
but did not prevent the fair and just determination of the
case
Accident
-something unforeseen, something unexpected or
unanticipated
Mistake
-defendant received summons & complaint. The
defendant instead of seeking assistance of a lawyer, went to
the plaintiff and asked for settlement. They kept on talking
about the settlement but in the meantime, the period to file
answer is also running. 15 days had passed by but they did
not settle yet. Plaintiff moved to declare defendant in default.
The court issued judgment on default
When to file?
Form
-It must be in writing. You must state the ground or
grounds for the motion, whether it is FAME or NEWLY
discovered evidence. Then, of course, you must serve a copy
of the motion to the adverse party
A motion for NT based on FAME must include an AFFIDAVIT
OF MERIT which states:
Affidavit of Merit
-immediately denied
3
2.) Did not comply with the rule that the motion must
specify the findings and conclusions alleged to be
contrary to law or not by the evidence; OR
3.) It failed to substantiate the alleged errors; OR
4.) It merely alleged that the decision in question was
contrary to law; OR
5.) The adverse party was not given notice thereof
Distinctions
As to Grounds
New Trial
Grounds: FAME
and NDE
As to trial
If granted, there
could be a trial de
novo
Allowed if the
ground was not
As to 2nd motion
A. Either:
a.) the court will enter judgment on it; OR
b.) the court may stay the enforcement until after the
new trial