AFFIDAVIT OF MERIT

Definition
 It is an affidavit setting forth the facts and circumstances alleged to
constitute such fraud, accident, mistake, excusable negligence.
 It sets forth the particular facts claimed to constitute the movant’s
meritorious cause of action or defense.

Statutory Basis
Rule 8, Sec. 5 of the Rules of Court
In all averments of fraud or mistake, the circumstances constituting
fraud or mistake must be stated with particularity. Malice, intent,
knowledge or other condition of the mind of a person may be averred
generally.
An Affidavit of Merit must be attached in the following pleadings:
a. Motion to Lift Order of Default (Rule 9, Sec. 3(b), RoC)
b. Motion for Reconsideration (Rule 37, Sec. 2, RoC)
c. Motion for New Trial (Rule 37, Sec. 2, RoC)
d. Petition for Relief from Judgment (Rule 38, Sec. 1, RoC)

Supporting Jurisprudence
(1) Spouses Manuel v. Ong G.R. No. 205249 October 15, 2014
The need for an affidavit of merit is consistent with Rule 8, Sec. 5 of the
1997 Rules of Civil Procedure, which requires that “in all averments of
fraud or mistake, the circumstances constituting fraud or mistake must
be stated with particularity.”
The three (3) requisites that must be satisfied by a motion in order “to
warrant the setting aside of an order of default or failure to file answer,
are:
a. It must be made by motion under oath by one that has knowledge
of the facts;
 b. It must be shown that the failure to file answer was due to
fraud, accident, mistake or excusable negligence; and
c. There must be a proper showing of the existence of a
meritorious defense.”
 It is through an affidavit of merit that a defendant seeking relief from an
order of default shows that “the failure to file answer was due to fraud,
accident, mistake or excusable negligence.”

(2) Carson Realty v. Red Robin Security Agency G.R. No. 225035 February 8,
2017
“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.”
(3) Madarang v. Spouses Morales G.R. No. 199283 June 9, 2014
Under Section 1, Rule 38 of the 1997 Rules of Civil Procedure, a petition
for relief from judgment may be filed on the ground of fraud, accident,
mistake, or excusable negligence.
(4) Prospero v. Robles, et al. G.R. No. L-16870 May 31, 1963
The mere allegation made by appellants in the petition for relief that the
default was due to the gross negligence or mistake and/or abandonment
of their attorney without stating the facts that constitute such
negligence, mistake, or abandonment, is not legally sufficient to justify
the granting of the relief provided for in Rule 38. Likewise, it has been
repeatedly held that, to merit the relief, it is not sufficient to allege that
the aggrieved party has good and strong evidence to support his case,
this being clearly a mere conclusion. The affidavit of merit required by
the rules must contain and submit to the court such facts as would
probably convince the latter that the aggrieved party has a
meritorious case.
(5) City of Taguig v. City of Makati G.R. No. 208393 June 15, 2016
Rule 37, Section 2 of the 1997 Rules of Civil Procedure spells out what a
motion for reconsideration must contain: xxx shall be supported by
affidavits of merits which may be rebutted by affidavits.
(6) Nuguid v. Carino G.R. No. L-12379 July 31, 1958
Under our Rules of Court, an affidavit of merit must not only contain
facts constituting the movant’s good and substantial defenses but must
also state the nature and character of the fraud, accident, mistake or
excusable negligence on which the motion for relief was based.
Republic of the Philippines )
City of ________________ ) S.S.

AFFIDAVIT OF MERIT

UPON BEING DULY SWORN, I do hereby depose and say that:

1. I, __________________________________________, the defendant in Civil Case

No. _____________ entitled _____________________________________________;

2. The summons in the above-entitled case was not actually served and
personally served to me;

3. Not being a lawyer and therefore not familiar with legal procedures, I
thought all the while that the motion for postponement filed by the
plaintiff is sufficient. Otherwise, I could have filed, through counsel,
an Answer;

4. My failure and inability to file an Answer on time is attributed to the

following reasons:
a) The summons was served to my residence on February 21,
2003, and the same was served to my housemaid;

b) That at the time the said summons was served, I was in

Cebu, on a matter requiring my urgent personal presence;

c) I was able to return only on ________________, and it was only

then when I learned that there was a summons received by
my housemaid. I immediately went to see my counsel, but
unfortunately, he was abroad at that time;

d) Not being lawyer and not knowing the rudiments of legal

procedures, what I did is to file an Urgent Motion for
 Postponement. In fact, since my lawyer was out of the
country, it was only myself who prepared the said motion;

e) Being unfamiliar with legal procedures and legal

requirements, I did not realize that what I have to file is an
Answer;

f) That I am in good faith and I respectfully seek the kind

consideration, compassion, and understanding of this
Honorable Court regarding my predicament and failure to
file my Answer on time. I give my assurance, however, that I
have no intention whatsoever to disregard the order of this
Honorable Court;

5. That a grave miscarriage of justice will result if I will not be given an

opportunity to file an Answer to the instant petition;

6. That with the kind indulgence, compassion and understanding of this

Honorable Court, I courteously pray that the attached Answer to be
admitted;

7. That I execute this affidavit of merit in support of my urgent motion

for leave to admit Answer with Compulsory Counterclaim.

__________________________
Affiant