REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT
BRANCH _____ - MANILA

Mr. X,
Plaintiff,
- versus - CIVIL CASE No. ______________
For: Foreclosure of Real Estate
Mortgage
Mr. Y,
Defendant.
x----------------------------------x

MOTION TO DISMISS

COME NOW, DEFENDANT, by counsel and unto this Honorable

court, most respectfully move for the dismissal of the above-captioned case
upon the argument THAT THE COMPLAINT FAILED TO STATE A
CAUSE OF ACTION.

Section 1, Rule 2 of the Rules of Court provides that every ordinary

civil action must be based on a cause of action. As defined by the Rules, a
cause of action is the act or omission by which a party violates a right of
another. It is the delict or wrongful act of omission committed by the
defendant in violation of the primary right of the plaintiff.

To be sufficient, a cause of action must appear from the face of the

complaint. In the case at bar, defendant respectfully submit that the
complaint is wanting on this particular matter and the test is whether the
court can render a valid judgment on the complaint based on the facts
alleged and the prayer asked for. Indeed, the elementary test for failure to
state a cause of action is whether the complaint alleges facts which if true
would justify the relief demanded. Only ultimate facts and not legal
conclusions or evidentiary facts, which should not be alleged in the
complaint in the first place, are considered for purposes of applying the test.
 Applying this to the complaint, first, plaintiff failed to establish the
factual basis of his right that was violated by defendant to which he would
be entitled to moral and exemplary damages; and second, a decree of
foreclosure for the sale at public auction of the parcel of land lacks factual
basis because plaintiff failed to provide the description of the mortgaged
property.

RELIEF

WHEREFORE, premises considered, after hearing, it is most

respectfully prayed unto this Honorable Court that complaint be ordered
dismissed for failure of the plaintiff to state a cause of action.

Other reliefs, just and equitable are likewise prayed for.

(signed)
Atty. B
Counsel for the Defendant
Address:__________________
IBP Lifetime No.___________
PTR No._ _________________
Roll No. __________________
MCLE Exemption No._______
Tel. No. __________________
Email: atty.b@gmail.com