VELAYO-FONG V. SPOUSES VELAYO FACTS: 1.

Spouses Raymond and Maria Hedy Velayo filed a complaint for collection of sum of money against Velayo-Fong. 2. In the complaint, Spouses Velayo alleged that Velayo-Fong was a resident of Honolulu, Hawaii, USA. 3. Since Velayo-Fong was a non-resident and not found in the Philippines, Spouses Velayo-Fong prayed for a writ to attach VelayoFong's properties found inthe Philippines. 4. However, before the application for the writ can be acted upon by the RTC, Spouses Velayofiled an Urgent Motion praying that the summons be served toVelayo-Fong at her Two Condominium Suites. One at Roxas Boulevard, Pasay City and another, at Burgos Street, T. Towers Condominium, Makati.Subsequently, the RTC granted the said motion. 5. Then, the Process Server indicated on his Officers Return that after several failed attempts to serve the copy of summons and complaints issued at thegiven addresses of Velayo-Fong, finally, the Process Server was able to serve personally the summons together with the copy of the complaint upon Velayo-Fong, not at her two addresses but at the lobby of a hotel, right in the presence of a lobby counter personnel but Velayo-Fong refused to sign in receipt thereof. 6. Later, the RTC in its Order declared Velayo-Fong in default for failure to file an answer. 7. Velayo-Fong, upon knowing the order of the RTC, filed a Motion to Set Aside Order of Default claiming that she was prevented from filing a responsive pleading and defending herself against respondents' complaint because of fraud, accident or mistake; that contrary to the Officer's Return, no summons wasserved upon her; that she has valid and meritorious defenses to refute respondents' material allegations. 8. The RTC denied the Motion and CA affirmed RTCs order. 9. 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. 10. She also argued that the summons should have been served through extraterritorial service since she is a non-resident. ISSUES: 1. How may service of summons be effected on a non-resident? 2. WON there was a valid service of summons on Velayo-Fong. YES. HELD: 1. Under Sec. 17, Rule 14, when the defendant is a nonresident and he is not found in the country, summons may be served extraterritorially. This kind of service of summons applies only where the action is in rem because in in remand quasi in rem actions, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. a. Where the action is in personam and when the defendant is a non-resident, personal service of summons within the state is essential to the acquisition of 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 jurisdiction over his person and therefore cannot validly try and decide the case against him. b. In the present case, Spouses Velayo's cause of action and their prayer that actual and moral damages, plus attorney's fees, be awarded in their favor affect the parties alone, not the whole world. Any judgment therein is binding only upon the parties

properly impleaded. Thus, it is an action in personam. As such, personal service of summons upon the defendants is essential in order for the court to acquire jurisdiction over their persons. c. Although in the complaint, Velayo-Fong was alleged to be a non-resident who is not found in the Philippines for which reason the Spouses first prayed that a writ of preliminary attachment be issued against her properties within the Philippines to confer jurisdiction upon the RTC. However, the spouses did not pursue its application for said writ when Velayo-Fong was subsequently found physically present in the Philippines and personal service of summons was effected on her. 2. A process server's certificate of service is prima facie evidence of the facts as set out in the certificate.

Between the claims of non-receipt of summons by a party against the assertion of an official whose duty is to send notices, the latter assertion is secured by the presumption that official duty has been regularly performed. To overcome the presumption of regularity of performance of official functions in favor of such Officer's Return, the evidence against it must be clear and convincing. In this case, Velayo-Fong failed to come forward with the requisite quantum of proof to the contrary, the presumption of regularity of performance on the part of the process server stands. NOTES: 1. The party seeking to have the order of default lifted must first show that her failure to file an answer or any other responsive pleading was due to fraud, accident, mistake, or excusable neglect and then she must show that she has a valid and meritorious defense. -In this case, petitioner failed to show that her failure to file an answer was due to fraud, accident, mistake or excusable neglect. Except for her bare unsupported allegation that the summons were only thrown to her at the elevator, petitioner did not present any competent evidence to justify the setting aside of the order of default. 2. She must also show that she has a meritorious defense or that something would be gained by having the order of default set aside. - In the present case, petitioner contented herself with stating in her affidavit of merit that the cases against respondent Raymond were filed at the instance of her father. Such allegation is a conclusion rather than a statement of facts showing a meritorious defense. The affidavit failed to controvert the facts alleged by the respondents. Petitioner has not shown that she has a meritorious defense. - Velayo-Fong failed to show that her failure file an answer was not due to fraud, accident, mistake, or excusable neglect; and that she had a valid and meritorious defense, there is no merit to her prayer for a liberal interpretation of procedural rules.