Civpro-atty

Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE

Notes by: Paul Lemuel E. Chavez

CIVIL PROCEDURE NOTES

PRELIMINARIES

Remedial Law

Branch of law which prescribes the method of enforcing the rights or obtaining redress for their invasions

Remedial Law vs Substantive Law

Substantive Law Remedial Law

Part of the law which creates, defines, or regulates rights concerning life, liberty, or property or the powers of agencies or instrumentalities for the administration of public affairs

Refers to the legislation providing means or methods whereby causes of action may be effectuated, wrongs redressed, and relief obtained (adjective law)

Makes vested rights possible

Has no vested rights

Prospective in application

Governs rights and transactions which took place (retroactive)

Cannot be enacted by SC SC is expressly empowered to promulgate procedural rules

4 Main Divisions of Remedial Law:

1. Civil Procedure (Rules 1-71)2. Special Proceedings (Rules 72-109)3. Criminal Procedure (R110-R127)4. Rules on Evidence (Rules 128-134)

What are the sources of Remedial Law?

1. 1987 Constitution2. BP 129 (Judiciary Reorganization Act of

1980) as amended by RA7691 (Act expanding the jurisdiction of MTCs, MuTCs, MCTCs

3. Rules of Court4. Supreme Court Administrative Matters and

Circulars5. Supreme Court decisions6. New Civil Code7. Family Code8. Local Government Code (RA 7160),

particularly the Katarungang Pambarangay Law

9. Special Laws and amendments10. Rules of Procedure on Small Claims11. Revised Manual of the Clerk of Court

Differentiate: Civil Actions, Special Proceedings, Criminal Actions

Special Proceedings

Criminal Procedure

Civil Action

A remedy by which a party seeks to establish a status, a right, or a particular fact (Rule 1 S3c)

The State prosecutes a person for an act or omission punishable by law (Rule 1 S3b)

A proceeding wherein a

A party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong

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person is prosecuted by the State for acts or omissions committed in violation of penal laws, and to impose the corresponding penalty provided for by penal laws

A civil action may be ordinary or special. (R1 S3a)

Governed by special rules, and in the absence of special provisions, the rules provided for in ordinary civil actions shall be, as far as practicable, apply suppletory (R72 S2)

Governed by the Revised Rules of Criminal Procedure

Both are governed by the Rules for ordinary civil actions, subject to specific rules prescribed for a special civil action (R1 S3a)

May involve only one party

Involves the State against the accused

Involves 2 or more parties

Initiated by petition

Initiated by complaint (but filed in court by Information)

Initiated by complaint, or, in some special civil actions, by petition

Except Habeas Corpus, NOT based on a cause of

Based on an act or omission punishable by

Based on a cause of action

action law

CONSTITUTIONAL PROVISIONS Relating to CIVIL PROCEDURE

A8 S1

Judicial Power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial Power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

What are those other Courts as may be established by Law?

SandiganbayanFamily Courts (RA 8369)Court of Tax AppealsSharia Court

A3 S1

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

A3 S9—(Basis of Rule 67)

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Private property shall not be taken for public use without payment of just compensation

A6 S30

No law shall be passed increasing the appellate jurisdiction of the SC as provided in this Constitution without its advice and concurrence.

A8 S5 P1

The Supreme Court shall have the following powers:

- Exercise original jurisdiction over cases affecting:

o Ambassadorso Other public ministers and consuls

- Over petitions foro Certiorario Prohibitiono Mandamuso Quo warrantoo Habeas corpus

A7 S4

The Supreme Court en banc shall be the sole judge of all contests relating to the election, returns, and qualification of the President or Vice President, and may promulgate its rules for the purpose.

A7 S18

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within 30 days from its filing.

A8 S5 P2—(Basis of Rule 56)

- Review- Revise- Reverse- Modify- Affirm

o On appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

1. All cases in which constitutionality or validity of any

a. treaty,b. international or executive

agreementc. lawd. presidential decreee. proclamationf. orderg. instructionh. ordinancei. regulation

i. is in question

2. all cases involving the legality of anya. taxb. impostc. assessmentd. tolle. any penalty imposed in relation

thereto

3. all cases in which the jurisdiction of any lower court is in issue

4. all criminal cases in which the penalty imposed is reclusion perpetua or higher

5. all cases in which only an error or question of law is involved

A8 S5 P5 (basis of Rules of Court)

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The SC shall have the power to promulgate rules concerning:

1. Protection and enforcement of constitutional rights

2. Pleading, practice, procedure in all courts3. Admission to practice of law4. Integrated Bar5. Legal assistance to the underprivileged

Such rules shall (Limits to SC-rule making power):

1. Provide simplified and inexpensive procedure for speedy disposition of cases

2. Shall be uniform for all courts of the same grade

3. Shall not diminish, increase, modify substantive rights.

Rules of procedure of special court and quasi judicial bodies shall remain effective unless disapproved by the SC

A8 S2

The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the SC of its jurisdiction over cases enumerated in S5 thereof.

No law shall be passed reorganizing the Judiciary when it undermines security of tenure of its members.

A3 S16

All persons shall have the right to speedy disposition of cases before before all judicial, quasi judicial, administrative bodies.

A8 S14—(basis for Rule 36)

No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.

No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without starting the legal basis therefor.

A9A S7 (basis of Rule 64)

Each Commission shall decide by majority of all its Members in any case or matter brought before it within 60 days from date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the SC on certiorari by the aggrieved party within 30 days from receipt of a copy thereof.

CIVIL PROCEDURE PROPER

Jurisdiction

Authority of the court to hear and decide a case and to implement its decision

Rule 30 Rule 36

Rule 39

Venue Jurisdiction

Place where action is instituted

Power of court to hear and decide a case

May be waived Jurisdiction over subject

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matter and over nature of action are conferred by law and cannot be waived

Procedural Substantive

May be changed by written agreement of the parties

Cannot be subject of the agreement of the parties

Not a ground for motu proprio dismissal, except in Summary Procedure

A ground for motu proprio dismissal

General JurisdictionPower to adjudicate all controversies except those expressly withheld from the plenary powers of the court.

It extends to all controversies which may be brought before a court within the legal bounds of rights and remedies.

Special or Limited JurisdictionOne which restricts the court’s jurisdiction only to particular cases and subject to such limitations as may be provided by the governing law.

It is confined to particular causes, or which can be exercised only under the limitations and circumstances prescribed by the statute

Appellate JurisdictionPower and authority conferred upon a superior court to rehear and determine causes which have been tried in lower courts, the cognizance which a superior court takes of a case removed to it, by appeal or writ of error, from the decision of a lower court or the review by a superior court of the final judgment or order of some lower courts

Concurrent / Confluent / Coordinate JurisdictionPower conferred upon different courts, whether of the same or different ranks, to take cognizance at the same stage of the same case in the same or different judicial territories

E.g. CA, SC, Sandiganbayan, RTC- in HC cases, Writ of Amparo, Writ of Habeas Data

Original JurisdictionPower of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law and appellate jurisdiction, or the authority of a court higher in rank to re-examine the final order or judgment of a lower court which tried the case or elevated for judicial review. It is jurisdiction conferred upon or inherent in the first instance

Jurisdiction conferred by law and filed at the first instance (NOTE: all civil actions)

Exclusive JurisdictionPower to adjudicate a case or proceeding to the exclusion of all other courts at that stage

Jurisdiction of the court to the exclusion of all other courts

Exclusive Original JurisdictionPower of the court to take judicial cognizance of a case instituted for judicial action for the first time to the exclusion of all other courts

Territorial JurisdictionRefers to geographical area within which the court’s powers can be exercised

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In civil cases, assumes importance in case of venue of real or mixed actionIn criminal cases, consideration of territory and locus of crime determine venue and jurisdiction

Territorial jurisdictions:

SC and CANationalRTCRegional jurisdictionInferior courtsTerritorial jurisdiction as defined by SC in BP129

*Power of tribunal considered with reference to the territory within which it is to be exercised.

Delegated JurisdictionThe grant of authority to inferior courts to hear and determine cadastral and land registration cases under certain conditions

Doctrine of Primary Jurisdiction

courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring special knowledge and experience of said tribunal in determining technical and intricate matters of fact

courts shall not take cognizance of a case unless it has been decided at the administrative level

Coordinate Jurisdiction(same as Concurrent Jurisdiction)

Power conferred upon different courts, whether of the same or different ranks, to take cognizance at the same stage of the same case in the same or different judicial territories

Ancillary JurisdictionPower of the courts to settle issues which are incidental to main issue

Appeal by Certiorari Petition for Certiorari

Rule 45 Rule 65

Petition is based on questions of law

Petition is based on questions of jurisdiction, whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion

Mode of appeal Mode of review / SPECIAL CIVIL ACTION

Involves review of the judgment award or final order on the merits

Directed against interlocutory order of the court or where there is no appeal or any plain, speedy, or adequate remedy

Filed within 15 days from notice of judgment, final order, or resolution appealed from

Filed not later than 60 days from notice of judgment, order, or resolution sought to be reviewed

Stays judgment or final order appealed from

Unless a writ of preliminary injunction or temporary restraining order is issued, the petition does not stay

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the challenged proceeding

Appellant and appellee are original parties to the action, and the lower court or quasi judicial agency is not impleaded

Judge, court, quasi judicial agency, tribunal, corporation, board or officer or person are public respondents who are impleaded in the action

Motion for reconsideration is not required

Motion for reconsideration or for new trial is required; if a motion for reconsideration or new trial is filed, the period shall not only be interrupted but another 60 days shall be given to petitioner (SC Admin Matter 02-03)

Court is in exercise of its appellate jurisdiction and power of review

Court exercises original jurisdiction

Petition shall be filed with the Supreme Court

Petition shall be filed with the RTC, CA, Sandiganbayan, Comelec

JURISDICTION

SUPREME COURT

Original Jurisdiction of the Supreme Court:

A8 S5 P1- (Rule 56)

The SC shall have exclusive original jurisdiction over cases involving:

1. Ambassadors2. Other public ministers and consuls3. Over petitions for:

a. Certiorarib. Prohibitionc. Mandamusd. Quo warrantoe. Habeas corpus

Appellate Jurisdiction of the Supreme Court:

A8 S5 P2

The SC may review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

1. All cases in which the constitutionality or validity of any treaty, internation or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question

2. All cases involving the legality of any tax, impost, assessment or toll, or any penalty imposed in relation thereto

3. All cases in which the jurisdiction of any lower court is in issue

4. All criminal cases in which the penalty imposed is reclusion perpetua or higher (WITHIN THE SCOPE OF CRIMINAL PROCEDURE- RULE 45)

5. All cases in which only an error or question of law is imposed

1 and 2- PURE QUESTIONS OF LAW

Administrative Supervision of the Supreme Court:

1. Over court personnel2. Over Justices

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3. Over Judges4. Practice of Law5. Members of the Integrated Bar

CA decisions

- Appealable to SC under Rule 45

R45 S1- a party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals may file with the SC a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.

Note that questions of law can be raised before the CA (BP129)

COURT OF APPEALS

Original jurisdiction / Original Concurrent Jurisdiction

Original jurisdiction to issue writs of:

- Mandamus- Prohibition- Certiorari- Habeas corpus- Quo warranto- Auxiliary writs and processes,

o Whether or not in aid of its appellate jurisdiction

Exclusive Original Jurisdiction:

Exclusive original jurisdiction over the actions for annulment of judgments of RTCs

Appellate Jurisdiction:

1. Rule 41- over RTC decisions in the exercise of its ORIGINAL JURISDICTION (via Notice or Record of Appeal)

- RTC jurisdiction, first instance, including Special Civil Actions

2. Rule 42- over RTC decisions in the exercise of its APPELLATE JURISDICTION (via Petition for Review)

3. Rule 43- Exclusive appellate jurisdiction over all final judgments, resolution, orders, or awards of quasi judicial agencies, instrumentalities, boards, or commissions (via Petition for Review)

RTC

Exclusive Original Jurisdiction:

1. In all actions in which the subject of litigation is incapable of pecuniary estimation

2. Actions which cannot be quantified into monetary estimationSubject matter (BP129)

3. In all civil actions which involve title to or possession of real property or any interest therein, where assessed value of property involved exceeds 20k OMM or in MM, value of property involved exceeds 50kExcept actions of FE and UD of lands and buildings, original jurisdiction of which is conferred with MTC, MuTC, MCTC

4. In all actions in admiralty and maritime actions where demand or claim exceeds 300k OMM or exceeds 400k MM

5. In all matters of probate, testate or intestate, where gross value of estate exceeds 300k OMM or exceeds 400k MM

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Gross value- assessed value of property of deceased before deduction (NOT market value)

6. In all actions involving the contract of marriage and marital relations

7. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction of any court, tribunal, person or body exercising judicial or quasi judicial functions

(refer to 902-A below)

8. In all civil actions and special proceedings falling within Exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law

9. In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs or the value of property in controversy exceeds 300k OMM or exceeds 400k MM

1996 Bar- Gross value is 200k, property located in Pampanga. What is the jurisdiction and venue?

MTC of the place of decedent’s actual residence at the time of his death, if a resident of the Philippines. If a non resident, then the MTC of the place where his estate is located.

(RA8799 S5.2 as amended by PD902-A)- exclusive and original jurisdiction of the RTC to hear and decide following cases:

1. Cases involving devices or schemes employed by or any acts of the board of directors, business associates, its offices or partnership, amounting to fraud or

misrepresentation which may be interest of the public and/or of the stockholders, partners, members of associations or organizations registered with the Commission

2. Controversies arising out of intracorporate or partnership relations, between and among stockholders, members or associates, between any and all of them and the corporation, partnership, or association of which they are stockholders, members or associates respectively, and between such corporation, partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity

3. Controversies in election or appointment of directors, trustees, officers or managers of such corporations, partnerships, or associations

4. Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments, in cases where the corporation, partnership or association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when the respectively fall due or in cases where the corporation, partnership or association has no sufficient assets to cover its liabilities, but is under management of a rehabilitation receiver or management committee

Concurrent Original Jurisdiction:

With SC, CA, -- over petitions for certiorari, mandamus, prohibition, quo warranto, habeas corpus

Appellate Jurisdiction:

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Over all cases decided by MTCs, MuTCs, MCTCs in their respective territorial jurisdictions

MTC

(note: baligtarin ang RTC jurisdiction, below 20-50, 300-400)

Ordinary Civil Actions:

1. exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including grant of provisional remedies in proper cases, where the value of the personal property, estate or amount of the demand does not exceed 300k OMM or 400k MM exclusive of interest, damages, of whatever kind, AF, litigation expenses and costs, the amount of which must be specifically alleged. Provided, that interest, damages of whatever kind, AF, litigation expenses, and costs shall be included in the determination of the filing fees. Provided further that where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of demand shall be the totality of the claims in all the causes of action, irrespective of whether the cause of action arose out of same or different transactions

2. exclusive original jurisdiction over cases of forcible entry or unlawful detainer, provided that when, in such cases, defendant raises questions of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession (see: Summary Procedure)

3. exclusive original jurisdiction in all civil actions involving title to or possession of

property or any interest therein where assessed value of property or interest therein does not exceed 20k OMM or does not exceed 50k MM exclusive of interest, damages of whatever kind, AF, litigation expenses, costs. Provided that in cases of land not declared for taxation purposes, the value of such property shall be determined by assessed value of adjacent lots

4. civil cases where the demand does not exceed 300k or not more than 400k MM

5. over actions involving personal property valued at not more than 300k OMM or not more than 400k MM

6. admiralty and maritime cases where the demand or claim does not exceed 300k OMM or does not exceed 400k MM

Summary Procedure:

1. All cases of FE and UD, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where AF are awarded, the same shall not exceed 20k

2. All other civil cases, except probate proceedings, where the total amount of the plaintiff’s claim does not exceed 100k OMM or 200k MM exclusive of interests and costs (as amended by AM 2-11-9-SC)

3. Civil cases not higher than 100k- Subject to the Rule on Small Claims

What if, gumitna? 150k?

Higher than 100k OMM, then subject to Regular Proceedings in MTC

BUT, below 200k MM, hence, in such case, subject to Summary Procedure pa rin

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Why the need to discuss jurisdiction?

To know whether subject to Motion to Dismiss (Rule S1b), that the court has no jurisdiction over the subject matter of the case

In Civil Procedure, SC-CA-RTC-MTC

In Criminal Procedure, SC-CA-SANDIGANBAYAN-RTC-MTC

Commencement of a Civil Action:

R1 S5

Civil action is commenced by the filing of the original complaint in court and payment of the requisite docket fees. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court.

DOCKET FEES- needed to acquire jurisdiction over the case

Jurisdiction over plaintiff

By filing of original complaint in court plus payment of requisite docket fees

Jurisdiction over defendant

By voluntary appearance or service of summons

Jurisdiction over subject matter

Conferred by law

Jurisdiction over the issue

Determined by allegations in the complaint

Jurisdiction over the res

By actual or constructive seizure of property by way of attachment or execution

Action, Cause of Action, Right of Action (Simplified Version)

Action Cause of Action Right of Action

Suit to enforce one’s right or for the prevention or redress of a wrong

Act or omission by which a party violates a right of another

Remedial right to file a suit based on cause of action

Original Distinctions:

Action Cause of Action Right of Action

Suit filed in court for enforcememt or protection of a right, or the prevention or redress of a wrong (R1 S3)

Act or omission by which a party violate a right of another (R2 S2)

Remdial right or right to relief granted by law to a party to institute an action against a person who has committed delict or wrong against him

Reason for the action

Remedy or means afforded or the

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consequent relief

Formal statement of operative facts that give rise to a remedial right

Remedial right given to a person because of occurrence of the alleged facts

Matter of procedure and depends on the pleadings filed by the parties

A matter of right and depends on substantive law

Not affected by affirmative defenses (fraud, prescription, estoppel, etc)

Affected by affirmative defenses

Kinds of actions:

1ST GROUP: for purposes of venue under Rule 4

Real Action

- Actions affecting title to or possession of real property (A415 NCC in consideration)

- Venue: R4 S1

Personal Action

- Involves privity of contract/personal property (A416-417 of NCC in consideration)

- Venue: R4 S2

Mixed Action

- Action affecting title to or possession of real property + Privity of Contract

- Venue: R4 S1

2ND GROUP: for purposes of determining jurisdiction/service of summons

Action In Rem

- Action which binds the whole worldNote: all Special Proceedings are in rem actions

- Summons/notification by PUBLICATION

Action in Personam

- Action which binds the parties

Action Quasi In Rem

- Action which binds interestso Foreclosure of mortgageo Partitiono Attachmento Any interest or lien on real

property

Action in rem Action in personam

Action Quasi in Rem

Directed against the thing itself

Directed against particular persons

Directed against particular persons

Jurisdiction over person of defendant is not required

Jurisdiction over person of defendant is required

Jurisdiction over the person of the defendant is not required as long as jurisdiction over the res is acquired

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A proceeding to determine the state or condition of a thing

An action to impose a responsibility or liability upon a person directly

A proceeding to subject the interest of a named defendant over a particular property to an obligation or lien burdening it

Judgment is binding on the whole world

Judgment is bonding only upon the parties impleaded or their successors in interest

Judgment is binding upon particular persons

Examples:

Probate proceeding,

cadastral proceeding,

special proceedings

Examples:

Action for specific performance

Action for breach of contract

Examples:

Action for partition

Action to foreclose real estate mortgage

Real Action Personal Action

Mixed Action

Ownership or possession of real property is involved

Personal property is sought to be recovered or where damages for breach of contract are

Both real and personal properties are involved

sought

Founded on privy of real estate

Founded on privity of contract

Founded on both

Filed in the court where the property or any part thereof is situated (R4 S1)

Filed in the court where the plaintiff or any of the plaintiffs resides, where defendant or any of the defendants resides, or in case of non resident defendant, where he may be found, at election of plaintiff (R4 S2)

Filed in the court where the property or any part thereof is situated (R4 S1)

Example:

Accion reivindicatoria

Example:

Action for a sum of money

Example:

Accion publiciana with a claim for damages

Personal Action Action in personam

Personal property is sought to be recovered or where damages for breach of contract are sought

An action directed against particular persons, may be real action, personal action, mixed action

Founded on privity of contract

Not necessarily; because the action may also be real or mixed

Filed in court where R4 S1 or R4 S2 may

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plaintiff or any of defendants reside, at option of plaintiff (R4 S2)

govern, depending on whether the action is real action or personal action

Mixed Action Quasi In Rem Action

Both real and personal properties are involved

Both real and personal properties may also be involved

Founded on both privity of real estate and privity of contract

Action directed against particular persons, but jurisdiction over defendant is not required as long as jurisdiction over the res is acquired

Rules on venue of real actions shall govern (R4 S1)

Rules on personal actions govern (?)

Real Action In rem action

Ownership or possession of real property is involved

Action directed against the thing itself

Filed in court where property or portion thereof is situated

Not necessarily; depends on whether the action is real, personal, mixed

A proceeding founded on privity of real estate

A proceeding to determine state or condition of a thing

Judgment may bind whole world, or particular persons, depending on whether in rem, in personam, quasi in rem

Judgment is binding upon the whole world

PLEADING (R6 S1)

Sworn written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment

Complaint (R6 S3)

The complaint is the pleading alleging the plaintiff’s cause or causes of action.

Answer (R6 S4)

Pleading in which a defending party sets forth his defenses

INITIATORY PLEADING

A pleading that initiates an action

RESPONSIVE PLEADING

A pleading that responds to allegations in the adverse party’s pleading

Initiatory Pleadings

Original complaintPermissive counterclaimCross claimThird party complaint4th party complaintComplaint in interventionPetitionIn special civil actionsIn special proceedingsCounter counter claimCounter cross claim

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Counter Counter Claim Counter Cross Claim

Any claim which defending party in a counterclaim may have against the original counterclaimant

Any claim which a defending party in a cross claim may have against the original cross claimant

COMPULSORY- Arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim

PERMISSIVE- does not arise of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim

Can be an initiatory pleading, if permissive

Responsive Pleadings

Answer to original complaintAnswer to permissive counterclaimAnswer to third party complaintAnswer to fourth party complaintAnswer to complaint in interventionComment or objection to petitionCompulsory counterclaimReplyAnswer to counter counter claimAnswer to counter cross claim

A motion IS NOT A PLEADING

A position paper IS NOT A PLEADING

A memorandum IS NOT A PLEADING

Why?

Motion is an application for relief other than by a pleading (R15 S1)

Position Paper and Memorandum only narrate facts of the case, issues, no cause of action, no defenses, but only contain discussions

Initiatory Pleading Responsive Pleading

A pleading that initiates an action

A pleading that responds to allegations in the adverse party’s pleading

Original complaint

Permissive counterclaim

Cross claim

Third party complaint

4th party complaint

Complaint in intervention

Petition

In special civil actions

Answer to original complaint

Answer to permissive counterclaim

Answer to third party complaint

Answer to fourth party complaint

Answer to complaint in intervention

Comment or objection to petition

Compulsory counterclaim

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In special proceedings

Counter counter claim

Counter cross claim

Reply

Answer to counter counter claim

Answer to counter cross claim

Need to be verified, with certification against forum shopping, plus payment of docket fees

Except when otherwise provided by law or these Rules, need not be verified

No need for certification against forum shopping, and not need for payment of docket fees (Note: compulsory counterclaim, docket fees are suspended)

Instances when verification is needed:

Actionable document

Allegations of usury


Succeeding pleadings in special proceedings

Complaint- a pleading alleging plaintiff’s cause and causes of action

FLOW OF CIVIL PROCEDURE

I. BARANGAY CONCILIATION PROCEEDINGS

General Rule with respect to Barangay Conciliation Proceedings:

S412, LGC

No complaint, petition, action or proceedings involving any matter within authority of the Lupon shall be filed or instituted directly or indirectly in court or in any other government office or adjudication unless there has been a confrontation between the parties before the Lupon Chairman or the pangkat, and that no conciliation or settlement has been reacehed as certified by lupon or pangkat chairman.

Exceptions to above rule:

S408, LGC

1. where one party is the government or any subdivision or instrumentality thereof

2. where one party is a public officer or employee, and the dispute relates to performance of his official functionsoffenses punishable by imprisonment exceeding 1 year or a fine exceeding 5k pesos

3. offenses where there is no private offended party

4. where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit

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their differences to amicable settlement by an appropriate lupon

5. disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon

6. such other classes of disputes which the President may determine in the interest of justice

7. where one of the parties is a juridical entity

8. where accused is under police custody or detention

9. where the person has otherwise been deprived of personal liberty calling for habeas corpus proceeding

10. where the actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendent litewhere the action may otherwise be barred by the statute of limitations

11. in case of labor disputes

12. action to annul a judgment upon a compromise

13. CARL disputes

14. Disputes involving traditions of an indigenous cultural community

Does the Exclusive Original Jurisdiction of the RTC on actions involving those incapable of pecuniary

estimation include provisional remedies as falling within the category?

No, because provisional remedies are merely ancillary to the main action. The category of actions incapable of pecuniary estimation refers only to main actions.

Purpose of Barangay Proceedings:

Reduce the number of litigations and prevent the deterioration of the quality of justice which has been brought about by indiscriminate filing of cases in the courts. (Zamora vs Heirs of Izquierdo)

Venue of Barangay Conciliation Proceedings:

S409, LGC

Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon of said barangay

Those involving actual residents of different barangays within the same city or munipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complainant

All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated

Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located

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Rules on appearance before Barangay Proceedings:

S415, LGC

In all katarungang pambarangay proceedings, the parties must appear in person without the assistance of counsel or representative, except for minors and incompetents who may be assisted by their next of kin who are not lawyers.

Effect of Amicable Settlement and Arbitration Award:

S416, LGC

The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of 10 days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court.

However, this provision shall not apply to court cases settled by the lupon under last paragraph of S408 of this Code, in which case the compromise settlement agreed upon by the parties before the lupon shall be submitted to the court and upon approval thereof, have the force and effect of a judgment of said court.

Rules on execution of judgment in Barangay Proceedings:

S417, LGC

The amicable settlement or arbitration award may be enforced by execution by the lupon within 6 months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court.

Remedies of the parties in case of failure of amicable settlement before the lupon:

1. File the case before the proper court2. Repudiate the agreement (S418, LGC)3. File a petition before the MTC to nullify the

agreement (basis?)

Remedy in case of failure to comply with Barangay Conciliation:

As defendant, file a motion to dismiss under R16 S1j on the ground that a condition precedent has not been complied with.

Motion to dismiss was granted, remedy of plaintiff?

Re file the case with the certification of having undergone Barangay conciliation proceedings, as the dismissal is without prejudice.

Motion to dismiss was denied, remedy of defendant?

R16 S4 states that if the motion is denied, movant shall file his answer within the balance of the period granted by Rule 11 to which he was entitled at the time of serving his motion, but not less than 5 days in any event, computed from his receipt of the notice of the denial. Proceed with the trial, and when the decision is adverse, file an appeal raising as error the ground for denial of the motion to dismiss. When the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, file petition for certiorari under Rule 65.

** In between Barangay conciliation and filing of complaint, if real property is involved, plaintiff can file adverse claim over the property, or can file notice of lis pendens

Notice of Lis Pendens

- “buyer beware”

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- Notice to buyer of existence of an adverse claim

o It is not a pleadingo There is need to register it with the

register of deeds

II. COMPLAINT

Complaint (R6 S3)

The complaint is the pleading alleging the plaintiff’s cause or causes of action.

Undergone Barangay Conciliation Proceedings

NOTE: If the case undergone Barangay conciliation proceedings first, there must be a specific allegation in the complaint that there is compliance with Barangay Conciliation proceedings

Pag wala, patay (?)- M2D S1j OR amend the complaint (?)

Jurisdiction

IF, court has no jurisdiction, M2D R16 S1b

(importance of knowing BP129 as amended by RA7691 Rules on Jurisdiction)

Granted- Refile

Denied- State R16 S4 (yung BUONG SAGOT na Gusto ni Boss Atty Tan)

Summary Procedure:

Cases covered:

1. All cases of FE and UD, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where AF are awarded, the same shall not exceed 20k

2. All other civil cases, except probate proceedings, where the total amount of the plaintiff’s claim does not exceed 100k OMM or 200k MM exclusive of interests and costs (as amended by AM 2-11-9-SC)

3. Civil cases not higher than 100k- Subject to the Rule on Small Claims

GENERAL RULE on Summary Procedure: No Motion to Dismiss is allowed (Prohibited Pleading)

EXCEPT:

1. Lack of jurisdiction over the subject matter of the claim

2. Lack of jurisdiction over the person of the defendant

3. Failure to comply with Barangay Conciliation Proceedings

HOWEVER, with respect to SMALL CLAIMS CASES,

ABSOLUTE RULE: motion to dismiss is not allowed

Reason: defeats the purpose of Small Claims Proceedings

Venue

- Can be subject to stipulation of the parties

State: Rules on venue

R4 S1

Actions affecting title to or possession of real property or interest therein shall be commenced and tried in the proper court which has jurisdiction over

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the area wherein the real property involved or a portion thereof is situated.

Forcible entry and unlawful detainer actions shall be commenced and tried in the MTC of the municipality or city wherein the real property involved or a portion thereof is situated.

R4 S2

All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, where the defendant or any of the defendants resides, or in case of a non resident defendant he may be found at the election of the plaintiff.

R4 S3

If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found

EXCLUSIVITY OF VENUE- NOTE: Rule 4 SHALL NOT APPLY... if

R4 S4

1. The parties have validly agreed in writing2. The agreement in writing was made before

the filing of the action3. Exclusive venue is stipulated

Atty Tan’s comment:

Rule 4 of the Rules of Court did not provide for MAY, but SHALL

Suppose, Real property is subject of dispute (real action). A lives in Pasay, B lives in Manila, the real property is located in Davao. Following Rule 4 S1, the suit should be filed in Davao, being the place where the property or portion thereof is situated.

However, the parties can exclusively agree that the venue can be filed in Baguio, provided that the requisites of R4 S4 as to exclusivity of venue are complied with

So, it means that Rule 4 S1 can be the subject of agreement, and that the suit can be filed somewhere else other than what S1 provides? (Parang ok lang sana kung concern e personal action under R4 S2- can be subject of agreement, pero venue of REAL ACTION CAN BE SUBJECT OF AGREEMENT?! Labo ata...)

Seems there is a loophole in Rule 4

If the venue is permissive,

Then the venue is in addition to the rules on venue

Action was filed in the wrong venue:

I will file motion to dismiss under R16 S1c on the ground that the venue is improperly laid

The motion was granted (court issues not a judgment but an ORDER). Counsel for plaintiff. Remedy?

I will refile the case in the court of the proper venue, because the order of dismissal is without prejudice (R16).

EXCEPT: if there exists grave abuse of discretion amounting to lack or excess of jurisdiction, Certiorari Rule 65 is the proper remedy

Motion to dismiss was denied. Remedy for defendant?

Rule 16 S4

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File an answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion but not less than 5 days in any event, computed from his receiving of notice of denial. Then, go to trial. When the decision is adverse, file an appeal raising as error the denial of the motion to dismiss. If the denial of the motion is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, file petition for certiorari under Rule 65.

Motion to dismiss on the ground of improper venue IS A PROHIBITED PLEADING under the Rules on Summary Procedure, and more so in Small Claims

Remedy: raise the ground as an affirmative defense

Parties

(R3 S1)

Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term plaintiff may refer to the claiming party, the counterclaimant, cross claimant, or the 3rd 4th etc party plaintiff. The term defendant may refer to the original defending party, the defendant in the counterclaim, the cross defendant, or the 3rd 4th etc party defendant.

Plaintiff includes:

- Counter counterclaimant- Counter cross claimant

Defendant includes:

- Defendant in counter counterclaim- Defendant in counter cross claim- An unwilling co plaintiff or one who should

be joined as plaintiff but refuses to give consent thereto (R3 S10)

- A person necessary to a complete determination or settlement of the questions involved therein

Plaintiff

A person having an interest in the matter of the action or in obtaining the relief demanded

Defendant

A person claiming an interest in the controversy or the subject thereof adverse to the plaintiff

3 rd party plaintiff

A defending party who may with leave of court file against a third person not party to the action called the 3rd 4th etc party defendant a claim for contribution, indemnity, subrogation, or any other relief in respect of his opponent’s claim (R6 S11)

Cross Claimant

A party to an original action who has a claim against a co party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein (R6 S8)

Real Party In Interest

A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise provided by law or these rules, every action must be prosecuted or defended in the name of the real party in interest(R3 S2)

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Indispensable Party

An indispensable party is a party in interest without whom no final determination can be had of an action who shall be joined either as plaintiff or defendant (R3 S7)

Necessary Party

A necessary party is a party who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action (R3 S8)

Who is a proper party?

A proper Party is the same as a necessary party, a party who is not indispensable but who is ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action (R3 S8)

Party those presence is necessary to adjudicate the whole controversy, but those whose interests are so far separable that final decree can be made in their absence without affecting them (Quisumbing vs CA GR 93335 9/13/1990)

Representative party

R3 S3

Party acting in a fiduciary capacity. The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. It may be:

- Trustee of an express trust- Guardian- Executor- Administrator

- A party authorized by law or these ruleso (agent acting in his own name and

for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal)

Pro Forma Party

Parties who are required to be joined as co parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule

EXAMPLE: Spouses- husband and wife shall sue or be sued jointly, except as provided by law (R3 S4)

Quasi Party

Parties in whose behalf a class or representative suit is brought

Not a real party in interest: Remedy?

MOTION TO DISMISS on the ground of failure to state cause of action

Granted- refile

Denied:

I will file an answer within the balance of the period prescribed by Rule 11 to which i am entitled at the time of serving my motion, but not less than 5 days in any event, computed from my receipt of notice of denial. Then, proceed with the trial. In case of adverse decision I will appeal the judgment and assign as error the denial of the motion to dismiss.

However, if the denial is tainted with GAD amounting to lack or excess of jurisdiction, then I will file petition for certiorari under Rule 65.

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JOINDER OF PARTIES

Requisites:

1. Right to relief arises out of the same transaction or series of transactions

2. Jurisdiction over plaintiffs and defendants can be obtained

3. There is question of law or fact common to all plaintiffs or defendants

4. Such joinder is not otherwise proscribed by the provisions of the rules on jurisdiction and venue

R3 S6

All persons in whom or against whom any right to relief in respect to or arising out of the same or series of transactions is alleged to exist, either jointly, severally, or in the alternative, may, except as otherwise provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest.

Non joinder/Misjoinder of partiesnot a ground for motion to dismiss

IF so, remedy:

Amendment of the pleading (Rule 3 in relation to Rule 10

Cause of Action

Act or omission by which a party violates a right of another (R2 S2)

What are the elements of a cause of action?

1. Plaintiff exercises a legal right2. Correlative obligation the part of defendant

to respect plaintiff’s legal right3. Defendant violates plaintiff’s legal right in a

manner contrary to law, morals, good customs, public order, public policy

*STATE ALL CAUSES OF ACTION in the PLEADING!

IF NOT, remedy:

M2D R16 S1g- failure to state cause of action

GRANTED: refile; amend pleading

Denied:



Joinder of Causes of Action (R2 S5)

A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions:

A. That the party joining the causes of action shall comply with the rules on joinder of parties

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B. The joinder shall not include special civil actions and actions governed by Special Rules

Special Civil Actions:

1. Interpleader (R62)2. Declaratory Relief (R63)3. Review of Judgments and Final orders or

resolutions of COMELEC, CoA (R64)4. Certiorari, Prohibition, Mandamus (R65)5. Quo Warranto (R66)6. Expropriation (R67)7. Foreclosure of Real Estate Mortgage (R68)8. Partition (R69)9. Forcible Entry and Unlawful Detainer (R70)10. Contempt (R71)

INCLUDES: SPECIAL PROCEEDINGS (SEGTARHHCVJCDC +)

Sum of money + Foreclosure of Mortgage = CANNOT BE JOINED! (latter is a special civil action)

Hence, sue in alternative / either or

C. Where the claims pertain to different venues or jurisdictions, the joinder shall be allowed in the RTC provided that it falls within the jurisdiction of said court and the venue lies therein

D. Where the claims in all causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction

If you are counsel for plaintiff, and the causes of action are not joined, remedy?

File a motion to amend the complaint (as a matter or right before a responsive pleading is filed, or with leave of court after a responsive pleading is filed if the amendment is substantial—Here, di ko alam kung substantial to...) – R10 S2 and 3

Splitting a Single Cause of Action:

It is the act of dividing or indivisible cause of action into several causes of actions and bringing several actions thereon

R2 S3

A party may not institute more than one suit for a single cause of action

R2 S4

If 2 or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for dismissal of the others.

Supposing, the plaintiff split a single cause of action, remedy?

As defendant, I will file a motion to dismiss on the ground of litis pendencia or res judicata (R16 S1 e or f)

GRANTED, remedy: APPEAL (dismissal is with prejudice)

DENIED:



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PLEADING / PARTS OF A PLEADING

Rule 7 S1

The caption sets forth:

a. Name of the courtb. Title of the actionc. Docket number if assigned

The title of the action indicates the names of the parties. They shall be named in the original complaint or petition. But in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated.

R7 S2

The body of the pleading shall set forth its:

1. Designation2. Allegation of the claims or defenses3. Relief prayed for4. Date of the pleading

Paragraph

The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified each of which shall contain a statement of a single act of circumstances so far as can be done with convenience.

A paragraph may be referred to by its number in all succeeding pleadings.

Headings

When 2 or more causes of action are joined, the statement of the first shall be prefaced by the words first cause of action, of the second by second cause of action and so on for the others.

When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words answer to the second cause of action or answer to the second cause of action and so on; and when one or more paragraphs are addressed to several causes of action, they shall be prefaced by words to that effect.

Relief

The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just and equitable.

Date

Every pleading shall be dated

R7 S3

Every pleading must be signed by the party or counsel representing him stating in either case his address which should not be a post office box. The signature of counsel constitutes a certification by him that

1. he has read the pleading,2. that to the best of his knowledge,

information or belief there is good ground to support it, and

3. that it is not interposed for delay

An unsigned pleading produces no legal effect

However, the court may, in its discretion, allow such deficiency to be remedied if it appear that the same was due to mere inadvertence and not intended for delay.

1. Counsel who deliberately files unsigned pleading

2. Signs a pleading in violation of these rule, 3. or alleges scandalous or indecent matter

therein,

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4. Or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action

R7 S4

Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified, or accompanied by affidavit.

A pleading is verified by an affidavit that

1. the affiant has read the pleading2. that the allegations therein are true and

correct of his personal knowledge or based on authentic records

A pleading required to be verified which contains a verification based

1. on information and belief or2. upon knowledge, information and belief3. or lacks a proper verification

shall be treated as an unsigned pleading

Is a jurat a part of a pleading?

The general rule is that pleadings need not be verified. However, if the law or the Rules require that a pleading be verified, verification is done by way of affidavit. In an affidavit, there is a need for jurat to be present. Hence, in a verified pleading, a jurat becomes part of a pleading.

What are the pleadings that need to be verified?

Petition for relief from judgment or order (R38 S3)

Petition for review from RTC to CA (R42 S1)

Petition for review from CTA and q-j agencies to the CA (R43 S5)

Appeal by certiorari from the CA to SC (R45 S4)

Petition for annulment of judgment or final orders and resolutions (R47 S4)

Complaint for injunction (R58 S4)

Application for appointment of receiver (R59 S1)

Application for support pendent lite (Rule 61 S1)

(all initiatory pleadings)

Original Complaint

Permissive Counterclaim

Cross Claim

3rd 4th etc party complaint

Complaint in intervention

Petition

(all Special Civil Actions)

Interpleader (R62)

Declaratory Relief and Similar Remedies (R63)

Review of Judgments and Final Orders or

Resolutions of COMELEC, CoA (R64)

Petitions for certiorari, prohibition, mandamus (R65)

Quo Warranto (R66)

Expropriation (R67)

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Foreclosure of Real Estate Mortgage (Rule 68)

Partition (R69)

Forcible Entry and Unlawful Detainer (R70)

Contempt (R71)

(all Special Proceedings)

Settlement of Estate of Deceased (R73-90)

Escheat (R91)

Petition for guardianship of minors (AM __-__-__-SC)

Petition for guardianship of incompetents (R92-97)

Petition for custody of minors in relation to habeas corpus, AM __-__-__-SC)

Trusteeship (R98)

Petition for Domestic Adoption (Domestic Adoption Act, )

Petition for inter country adoption (Inter Country Adoption Act, )

Habeas Corpus (R102)

Writ of Amparo ( )

Writ of Habeas Data ( )

Change of Name (R103)

Clerical Error Act ( )

Cancellation or Correction of Entries in the Civil Registry (R108)

Voluntary Dissolution of Corporations (Corporation Code )

Judicial Approval of Voluntary Recognition of Minor Natural Children (Family Code,

)

Constitution of the Family Home (Family Code, )

Declaration of Absence and Presumptive

Death (R107 in relation to Civil and Family Code )

Petition for declaration of Nullity and Annulment of Marriage ( )

Petition for legal separation ( )

Pleadings not required be verified in the manner and form prescribed by S4 of this Rule but the same must be under oath:

Denial of genuineness and due execution of actionable document (R8 S8)

Denial of allegations of usury (R8 S11)

Motion to set aside default order (R9 S3b)

Answer to written interrogatories (R25 S2)

Answer to request for admission (R26 S2)

The following pleadings or motion with affidavit or affidavits of merit:

Motion to postpone for absence of evidence (R30 S3)

Motion to postpone for illness of a party or counsel (R30 S4)

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Motion for summary judgment or opposition thereto (R35 S1,2,3,5)

Motion for new trial on the ground of fraud, accident, mistake, or excusable negligence or opposition thereto (r37 S2)

Petition for relief from judgment or order (R38 S3)

Third party claim (R39 S16)

Proof required of a redemptioner (R39 S30)

Motion for preliminary attachment (R57 S3)

Motion for dissolution of preliminary injunction (R58 S6)

Application for writ of replevin (R60 S2)

Claim against estate of a decedent (R86 9)

Motion for new trial on the ground of newly discovered evidence in criminal cases (R121 S4)

Does the answer need to be verified?

As a general rule, answers need not be verified, save for following instances:

Answer to allegations of usury in a complaint to recover usurious interests (R8 S11)

When the answer is based on an actionable document (R8 S8)

Answer under the Revised Rules on Summary Procedure

Answer in Small Claims Cases

If the pleading is not verified, as counsel for plaintiff, remedy?

File for judgment on the pleadings under Rule 34 S1, on the ground of admission of material allegations of the adverse party’s pleadings. Ground is based on the fact that an answer is filed, but there is no genuine issue because the allegations are deemed admitted.

R34 S1

Grounds for judgment on the pleadings:

Answer fails to tender an issueAnswer admits the material allegations of the adverse party’s pleading

Who can verify a pleading?

A party need not sign the verification.

The following may sign verification:

PartyParty’s representativeParty’s LawyerAny person who personally knows the truth of the facts alleged in the pleading

How about an authorized representative? Can he verify?

Yes, if armed with proper authority from the party (Through SPA?)

R7 S5- certification against forum shopping

Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading assisting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith,

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1. that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi judicial agency, and, to the best of his knowledge, no such other claim or action is pending therein

2. if there is no such other pending action or claim, a complete statement of the present status thereof

3. if he should thereafter learn that the same or similar action or claim is filed or is pending, he shall report that fact within 5 days therefrom to the court where his aforesaid complaint or initiatory pleading has been filed

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or pleading but shall be cause for dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.

Submission of a false certification or non compliance with any of the undertakings therein shall constitute indirect contempt of court without prejudice to corresponding administrative and criminal actions.

If acts of party or counsel clearly constitute wilful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice, direct contempt, and cause for administrative sanctions.

Forum Shopping:

Forum shopping is an act of malpractice of filing multiple suits in different courts either simultaneously or successively, involving the same parties, and asking the courts to rule on the same or related causes and/or to grant the same or substantially the same relief

3 ways of committing forum shopping:

Filing multiple cases based on the same cause of action and with the same prayer the previous not having been resolved (litis pendencia)

Filing multiple cases based on the same cause of action and with the same prayer, the previous having been resolved with finality (res judicata)

Filing multiple cases based on same causes of action but with different prayers (splitting cause of action on the ground of litis pendencia or res judicata)

Pleadings requiring certification against forum shopping:


Original complaintPermissive counterclaimCross claim3rd 4th etc party complaintComplaint in interventionPetition

What is stated in certification against forum shopping:

R7 S5

The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith:

1. That he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi judicial agency and, to the best of his knowledge, no such other action or claim is pending therein

29



2. If there is such other pending claim or action, a complete statement of the present status thereof

3. If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within 5 days therefrom to the court wherein his aforeseaid complaint or initiatory pleading has been filed

States the effects of: (R7 S5)

Failure to attach certification against forum shopping

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or pleading but shall be cause for dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.

Remedy is file motion to dismiss R16 S1j, and if granted, plaintiff’s remedy is to refile the case with the required certification, unless if declared by the court as dismissal with prejudice, hence, remedy is appeal

Submission of a falser certification or non compliance of any of the undertakings therein

Submission of a false certification or non compliance of any of the undertakings therein shall constitute indirect contempt of court without prejudice to corresponding administrative and criminal actions

Willful and deliberate forum shopping

If the acts of party or counsel clearly constitute wilful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice, direct contempt, and cause for administrative sanctions.

Serves as FINAL ORDER, hence, appeal is the proper remedy if motion to dismiss under R16 S1j is granted

Remedies in case of failure to attach certification against forum shopping:

As counsel for defendant, file motion to dismiss under Rule 16 S1j on the ground that a condition precedent has not been complied with.

Motion to dismiss was granted, remedy?

As plaintiff, refile the case, on the ground that the dismissal is without prejudice.

If the plaintiff committed wilful and deliberate forum shopping, and the complaint was dismissed, remedy?

As plaintiff, i will file notice of appeal under Rule 41, because the dismissal is without prejudice, hence, in the nature of a final order.

Define, enumerate, each pleadings:

Complaint (R6 S3)The complaint is the pleading alleging the plaintiff’s cause or causes of action.

Counterclaim (R6 S6)Any claim which a defending party may have against an opposing party

Compulsory Counterclaim (R6 S7)A counterclaim which being cognizable by the regular courts of justice arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of

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third parties of whom the court cannot acquire jurisdiction

Permissive Counterclaim (R6 S7)A counterclaim which being cognizable by the regular courts of justice does not arise out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and may require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction

Cross claim (R6 S8)Any claim by one party against a co party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein

3rd 4 th etc party complaint (R6 S11) A claim that a defending party may, with leave of court, file against a person not a party to the action, called a 3rd 4th etc party defendant for contribution, indemnity, subrogation, or any other relief in respect of his opponent’s claim

Complaint in intervention (R19 S1)Pleading filed by an intervenor if he answers a claim against either or all of the original parties

Answer in intervention (R19 S3)Filed by intervenor if he unites with the defending party in resisting a claim against the latter

Answer (R6 S4)Pleading in which a defending party sets forth his defenses

Counter counterclaim (R6 S9)A counterclaim that may be asserted against an original counterclaimant

Counter crossclaimA cross claim which may be filed against an original cross claimant

Counterclaim

Original complaint

A vs B

Counterclaim

Counter Counter Claim

Cross Claim

A vs B and C

(Original Complaint)

Cross Claim

Counter Cross Claim

Third Party Complaint

A vs B vs C (for CISA)

C is impleaded for CISA

Complaint In intervention

A vs B

C (or)

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C wants to be impleaded in the action

THIRD PARTY COMPLAINT

COMPLAINT IN INTERVENTION

Rule 6 Rule 19

A claim that a defending party may, with leave of court, file against a person not a party to the action, called a 3rd 4th etc party defendant for contribution, indemnity, subrogation, or any other relief in respect of his opponent’s claim

Pleading filed by an intervenor if he answers a claim against either or all of the original parties

Intervenor is any person who has a legal interest in the matter in ligitation, or in the success of either of the parties, or who has an interest against both parties, or who is so situated as to be adversely affected by the distribution or other disposition of property in the custody of the court or of an officer thereof

Third party is impleaded in the suit for CISA

Third party has legal interest and wants to be impleaded in the suit


Requires payment of docket fees

Permissive Counterclaim vs Compulsory Counterclaim (Simplified version)

Permissive CC Compulsory CC

Does not arise out of or is connected with the transaction or occurrence that is the subject matter of the opposing party’s claim

Arises out of or is connected with the transaction or occurrence that is the subject matter of the opposing party’s claim

Needs verification and certification against forum shopping

Not

Docket fee is required to be paid

Docket fees are suspended

Failure to file answer results in declaration of default

not

may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction

Does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction

Not barred even if not set up in the action

Barred if not set up in the action

Initiatory pleading Not an initiatory pleading

3PC vs Third party claim

Third Party Complaint Third Party Claim

Initiated by way of complaint

By way of affidavit

Filed before the court Filed before the sheriff

For CISA Terceria

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Pleading Affidavit

Docket fees are required to be paid

Not

Lis Pendens vs Litis Pendencia

Lis Pendens Litis Pendencia

“buyer beware”

Notice to buyer of existence of an adverse claim

Filing multiple suits in different courts involving same parties, same causes of action, same facts, same relief, the identity of the 2 cases such that any judgment that may be rendered in one case, regardless of which party is successful, would amount to res judicata in the other case

Notice A ground for motion to dismiss under Rule 16

Simultaneous or after filing of the original complaint/pleading asserting a claim,

PROVISIONAL REMEDIES may be availed of, ancillary to the main action for protection and preservation of rights while the main action is pending

PROVISIONAL REMEDIES

- Temporary, auxiliary, ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending

The following are the provisional remedies:

1. Preliminary Attachment (Rule 57)2. Preliminary Injunction (Rule 58)3. Receivership (Rule 59)4. Replevin (Rule 60)5. Support Pendente Lite (Rule 61)

NOTE: Not Exclusive!

Protection orders

Provisional orders

Production orders

Witness protection orders

See: RA 9262, Rules on Nullity/Annulment of Marriage/Legal Separation, Petition for Custody of Minors, Writ of Amparo, Writ of Habeas Data

NOTE ALSO:

Injunction and replevin can be main actions in themselves

PROVISIONAL REMEDIES

A. Preliminary Attachment (Rule 57)

When filed? (R57 S1)

At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of judgment that may be recovered in the following cases (See grounds)

Grounds for preliminary attachment (NOTE: TINATANONG SA BAR!)

Rule 57 S1

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a. In an action for recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi contract, delict or quasi delict against a party who is about to depart from the Phils with intent to defraud his creditors

b. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a wilful violation of duty

c. In an action to recover the possession of property unjustly or fraudulently taken, detained, or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person

d. In an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof

e. In an action against a party who has removed or disposed of his property, or is about to do so with intent to defraud his creditors

f. In an action against a party who does not reside and is not found in the Phils, or on whom summons may be served by publication

Requirements: (Rule 57 S3)

1. By way of motion or by way of complaint

2. Verified application through Affidavit attached to motion or complaint

- Stating the grounds- That there is no sufficient security

3. Allegation of the ground necessitating the

need for preliminary attachment

4. Posting of bond in an amount to be determined by the court

How is attachment applied for?

By way of motion? Or by way of complaint?

EITHER

HOW?

At the commencement of the complaint

- By verified complaint

At any time before judgment

- By verified motion

Cany you apply for writ of attachment before the MTC?

YES.

In all instances?

YES. Because under Summary Procedure, not a prohibited pleading

FE/UD- No

Amount 200k MM- yes

100k- no

Ordinary Civil Actions- yes

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When is it necessary to issue summons?

In case of implementation of the preliminary attachment (3rd stage)

Stages:

- Publication- Order/Execution

o BOTH ARE EX PARTE- Implementation

o With Summons

How attached?

- Garnishment- Levy on attachment

o Annotated on back of title, warning on subsequent buyer subject to outcome of the case

Remedy in case of issuance of writ of attachment:

R57 S12 and S13

S12- Motion to discharge attachment upon giving of counterbond

S13- Motion to quash the writ of attachment on the ff grounds:

- That the writ was improperly or irregularly issued or enforced

- That the bond is insufficient

If the attachment is excessive, the discharge shall be limited to the excess

Order of denial of motion to quash:

- INTERLOCUTORY, hence,

o M4R R65 S4o Certiorari R65 S1, R41 S1b

Purpose of the bond:

- To answer for damages incurred by the adverse party in case writ of attachment is improperly or irregularly enforced

Writ of Preliminary Attachment

Writ of Replevin

Covers real or personal property

Covers only personal property

At the commencement of the action or at any time before entry of judgment

Commencement of the action or at any time before answer

Amount of the bond is the value of the obligation (fixed by the court)

Amount of the bond is double the amount of the personal property

May be resorted to even if property is in the possession of a third person

Can be sought only when defendant is in actual possession of the property

B. Preliminary Injunction (Rule 58)

Injunction

- Judicial writ, process, or proceeding whereby a party is ordered to do or refrain from doing a particular act

Preliminary Injunction

- An order granted at any stage of an action or proceeding prior to the judgment requiring a party or a court, agency, or a person to refrain a particular act or acts

Preliminary Mandatory Injunction

- An order requiring the performance of a particular act or acts

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Denial- interlocutory

- Remedy: certiorari

If FJ- appeal

Can preliminary injunction be issued ex parte?

NO (?). TRO- yes

Writ of preliminary injunction

TRO

A writ granted at any stage of action or proceeding prior to the judgment or final order, requiring a party or a court, agency or person from a particular act or acts. It may also require performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction

An order to restrain particular act or acts of a party for a limited period of time

GROUNDS for preliminary injunction (R58 S3):

a. That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually

b. That the commission, continuance, or non performance of the act or acts complained of during the litigation would probably work injustice to the applicant, or

c. That a party, court, agency, or a person is doing, threatening, or is attempting to do,

or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual

Irreparable damage and injury

- Of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court of law or where there is no standard by which their amount can be measured with reasonable accuracy

How do you avail?

By way of MOTION or by way of VERIFIED COMPLAINT

IF by verified complaint, at the commencement of the action or before entry of judgment, INCORPORATED IN THE BODY OF THE COMPLAINT

If by motion, then by an application for relief complying with the Rules on Motion:

1. In writing, [except those made upon in open court or in the course of a hearing or trial ] (R15 S2)

2. Must be verified and accompanied by an affidavit of merit if the ground for the motion is FAME

3. Shall state the following (R15 S3)

a. Relief sought to be obtainedb. Grounds upon which it is based

andc. If required by these Rules or

necessary to prove facts alleged therein, shall be supported by supporting affidavits and other papers

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4. Motion is set for hearing by applicant (R15 S4)

5. Notice of hearing addressed to all parties concerned, specifying the time and date of hearing which must not be later than 10 days after the filing of the motion (R15 S5)

6. Motion and notice of hearing must be served at least 3 days before the date of hearing (3 day notice rule)

7. Proof of service of the motion

R13 S13

Proof of personal service shall consist of:

- Written admission of party served or- Official return of the server or- Affidavit of the party serving containing a

full statement of the date, place, and manner of service

If by service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with S7 of this Rule.

If service is by registered mail, proof shall be made by such affidavit and registry receipt issued by the mailing office

The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof, the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

8. If the motion is not served to the other party by personal service, such mode resorted to must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed (R13 S11)

Effect of failure to comply with Sections, 4, 5, 6 of Rule 15?

1. *the motion shall be treated as a worthless piece of paper which the clerk of court has no right to receive and the court has no authority to act upon (mere scrap of paper)

2. It does not interrupt the running of the prescriptive/reglementary period for the filing of the requisite pleading

3. It will be ground for denial of the motion4. The motion shall be considered as not filed

HOW?

At the commencement of the complaint


At any time before judgment

- By verified motion

Status Quo Order

- Order issued by the court to maintain the last, peaceable, actual, uncontested condition of the parties before the action or proceeding

TRO- order restraining particular act or acts of a party for a limited period of time; can be issued ex parte

(RULE 58- AM 7-7-12)

Sec. 5. Preliminary injunction not granted without notice; exception. No preliminary injunction shall be granted without hearing and prior notice to the party or persons sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can

37



be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the twenty-day period, the court must order said party or person to show cause at a specified time and place, why the injunction should not be granted. The court shall also determine, within the same period, whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order.

However, subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance, but shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein.

In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining order is deemed automatically vacated. The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect, and no court shall have authority to extend or renew the same on the same ground for which it was issued.

However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60) days from service on

the party or person sought to be enjoined. A restraining order issued by the Supreme Court or a member thereof shall be effective until further orders. l

The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition within six (6) months from the issuance of the writ.

“Lifetime” (R57 S5 in relation to AM 7-7-12)

- Effective only for a period of 20 DAYS from service on the party or person sought to be enjoined.

o Court to order said party or person to show cause at a specified time and place why injunction should not be granted, w/n P injunction should be granted, and accordingly issue the corresponding order

- IF the matter is of EXTREME URGENCY, applicant will suffer grave injustice and irreparable injury, executive judge of multi sala court or presiding judge of single sala court may issue EX PARTE TRO

o Effective for only 72 HOURS from issuance,

But shall immediately comply with provisions of the next preceding section as to service of summons and documents to be served

- Within the 72 hours, judge to conduct summary hearing to determine whether the TRO can be extended until application for preliminary injunction can be heard,

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o Total period of effectivity of TRO shall NOT EXCEED 20 DAYS, including the original 72 hours provided therein

CA issues: effective for 60 DAYS from service on the party or person sought to be enjoined

SC or member issues: effective until further orders

AGAIN...

TRO- order restraining acts of a party for a limited period of time

20 days

72 hours (ex parte)- extreme urgency

20 days non extendible

Can the court issue injunction ex parte?

NO!- requires notice and hearing

Can MTC issue TRO?

Ordinary Civil Actions- Pwede

Forcibly Entry / UnlawFul Detainer- YES

R70 S15

Court may grant preliminary injunction, in accordance with the provisions of R58 thereof, to prevent defendant from committing further acts of dispossession against plaintiff.

A possessor deprived of possession through Fe or UD may, within 5 days from filing of complaint, present a motion in the action for FE UD for issuance of writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within 30 days from filing thereof

R70 S20

Upon motion of plaintiff, within 10 days from perfection of appeal to the RTC, the latter may issue a writ of preliminary mandatory injunction to restore plaintiff in possession if the court is satisfied that

- defendant’s appeal is frivolous or dilatory, or

- that the appeal of plaintiff is prima facie meritorious

REMEDIES IN CASE OF PRELIMINARY INJUNCTION:

Granted: (Rule 57 S6)

- quash the writ based on:

1. upon showing of insufficiency2. on other grounds upon affidavits of the

party or person enjoined3. if it appears after hearing that although

applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as a case may be, would cause irreparable damage to the party or person enjoined while applicant can be fully compensated for such damages he may suffer

Other requirements for quashal of writ:

1. filing of bond in amount fixed by court conditioned that he will pay all damages which applicant may suffer by the denial or dissolution of the injunction or restraining order

Denied:

- M4R- Certiorari Rule 65

Can there be injunction in criminal cases?

YES, in case of preliminary injunction with respect to preliminary investigation (general rule, no, but the enumerations are the exceptions)

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1. When prejudicial to the rights of the accused

2. When there is need for protecting the Constitutional rights of the accused

3. To Prevent the long arm of the law from being vindictive

4. When prejudicial question is involved in the case

5. In case of criminal prosecution under an invalid law

Can MTC issue preliminary injunction?

YES, except in:

Case falling under Summary Procedure, if the claim being 100k (Small Claims), EXCEPT:

- FE and UDo R70- preliminary mandatory

injunction and preliminary prohibitory injunction are allowed

Prohibitory Injunction ProhibitionProvisional remedy Special civil actionRule 58 Rule 65An order granted at any stage of an action or proceeding prior to the judgment requiring a party or a court, agency, or a person to refrain a particular act or acts

Petition in case a person exercising J, QJ, Ministerial Function acted without jur or with GAD amounting to lack or excess of jurisdiction, for respondent to desist from further proceedings

Mandatory Injunction MandamusProvisional Remedy Special Civil ActionRule 58 Rule 65An order requiring the performance of a

Requires performance of a ministerial act or to

particular act or acts desist from excluding another from a right or office (ministerial)

Directed against a party Directed against a Judicial or quasi judicial bodies exercising ministerial functions

Provisional remedy Original actionBy way of motion By way of petition

C. Receivership (Rule 59)

- Provisional remedy to preserve a property subject of litigation from further loss, wastage, damage, dissipation for the protection of another person

Where applied for?

1. Court where action is pending2. CA3. SC

Grounds: (R59 S1)

a. When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it

b. When it appears in an action by the mortgagee for the foreclosure of mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the

40



mortgage debt, or that the parties have so stipulated in the contract of mortgage

c. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when execution has been returned unsatisfied or when judgment obligor refuses to apply his property in satisfaction of the judgment or otherwise to carry the judgment into effect

d. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation

During pendency of appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court.

REQUIREMENTS:

1. Verified motion in a complaint / Verified complaint at commencement of action (R59 S1)

2. Bond by applicant in an amount to be fixed by the court to pay such person against whom application is presented to pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause(R59 S2)

3. Oath and Bond by receiver to faithfully discharge of his duties in an action or proceeding and obey court orders

IF pending appeal,


IF after judgment,

- By way of motion

NOTE: Receivership as provisional remedy applies to all civil actions, while receivership of corporation is an original action applicable only to corporations under the Corporation Code of the Philippines

Receivership with appointment of receiver: pwede

Receivership with MTC: pwede, except in Small Claims

General powers of receiver:

R59 S6

Subject to the control of the court in which the action or proceeding is pending, a receiver shall have the power to

1. Bring and defend, in such capacity, actions in his own name

2. Take and keep possession of the property in controversy

3. To receive rents

4. To collect debts due to himself, as receiver or to the fund, property, estate, person, corporation to which he is the receiver

5. To compound for and compromise the same

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6. To make transfers

7. To pay outstanding debts

8. To divide the money and other property that shall remain among the persons legally entitled to receive the same

9. To do such acts respecting the property as the court may authorize

However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action.

No action may be filed by or against a receiver without leave of the court which appointed him

Termination of receivership; compensation of receiver

R59 S8

Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for receiver no longer exists, it shall, after due notice to all interested parties and hearing,

1. settle the accounts of the receiver,

2. direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them,

3. and order the discharge of the receiver from further duty as such

The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires.

D. REPLEVIN (Rule 60)

- A provisional remedy for recovery of personal property / reacquisition of personal property subject of litigation

Can be a provisional remedy or a main action

- If a main action, then it is an action for recovery of unlawfully withheld personal property in the possession of another

Jurisdiction/Venue:

RTC or MTC (300k-400k OMM MM higher lower)

REQUIREMENTS: (R60 S2)

1. Verified Application (by affidavit)/complaint before service of answer

Facts:

a. That applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof

b. That the property is wrongfully detained by adverse party, alleging cause of detention thereof according to the best of his knowledge, information, and belief

c. That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody

d. The actual market value of the property

2. Posting of bond by applicant in double the value of the property stated in the affidavit mentioned, for return of the property to adverse party if such return be adjudged, and for payment to adverse party of such

42



sum as he may recover from the applicant in the action

Denied, REMEDY:

Counterbond double the amount of property

E. SUPPORT PENDENTE LITE (Rule 61)

- Amount of support provisionally fixed by the court in favour of the person or persons entitled thereto during the pendency of an action for support

IMMEDIATELY EXECUTORY!

Where filed?

FAMILY COURT

Why not in MTC? Because action for support is incapable of pecuniary estimation

(Exception: Criminal cases falling under MTC jurisdiction?)

When available?

- Action for support- Relief sought is support for applicant- Nullity of marriage- Annulment of marriage- Legal separation- Custody of minors in relation to habeas

corpus- Criminal cases:

o Rapeo RA9262

S1- Application

At

- the commencement of the proper action or proceeding,

- or at any time prior to the judgment or final order,

o a verified application for support pendentee lite may be filed by any party

stating the grounds for the claim and the financial conditions of both parties, and

commenced by affidavits, depositions, or other authentic documents in support thereof

S2- Comment

A copy of the application and all supporting documents

- shall be served upon adverse party, o who shall have 5 days to comment

thereon unless a different period is

fixed by the court upon his motion.

The comment shall be verified and shall be accompanied by affidavits, depositions, or other authentic documents in support thereof.

S3- Hearing

1. After the comment is filed, or 2. after the expiration of the period for its

filing, a. the application shall be set for

hearing not more than 3 days thereafter

The facts in issue shall be proved in the same manner as if proved for evidence on motions.

S4- Order

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The court shall determine provisionally

1. the pertinent facts, and

shall render such order as justice and equity may require,

- having due regard to the probable outcome and such other circumstances as may aid in the proper resolution of the question involved.

If the application is granted,

- the court shall fix o the amount of money to be

provisionally paid, o or such other forms of support as

should be provided, taking into account the

necessities of the applicant and the

resources or means of the adverse party, and

terms of payment or mode for providing the support.

If the application is denied, the principal case shall be tried and decided as early as possible.

S5- enforcement of order

If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion,

- issue an order of execution against him, o without prejudice to his liability for

contempt.

When the person ordered to give support pendente lite refuses or fails to do so,

- any third person who furnished that support to the applicant may, after due notice and hearing in the same case,

o obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide such support.

S6- Support in criminal cases

In criminal cases

1. where the civil liability includes support for the offspring as a consequence of the crime

2. and civil aspect thereof has not been waived, reserved, or instituted prior to its filing,

a. the accused may be ordered to provide support pendente lite to the child born to the offended party allegedly because of the crime.

The application therefore may be filed successively by the

- offending party, - her parents, - grandparents, - or guardian - and the state in the corresponding criminal

case during its pendency, o in accordance with the procedure

established in this Rule.

S7- Restitution

When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefor,

- it shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of actual payment,

o without prejudice to the right of recipient to obtain reimbursement

44



in a separate action from the person legally obliged to give the support.

Should recipient fail to reimburse said amounts, the

- person who provided the same may likewise

o seek reimbursement thereof in a separate action from the person legally obliged to give such support.

Failure of action for support pendente lite, REMEDY:

- move for motion for execution

DENIED,

- file petition for indirect contempt, for disobedience to lawful order of the court

SPECIAL CIVIL ACTIONS

(discussed in this stage because initiatory pleadings are filed, by complaint or by petition, as the case may be)

SCA initiated by complaint

SCA initiated by petition

- Interpleader (62)- Foreclosure of

mortgage (68)- Forcible entry /

UD (70)- Partition (69)- Expropriation

(67)

- declaratory relief (62)

- review of adjudication of comelec, coa (64)

- c, m, p (65)- qw (66)- contempt (71)

1. Interpleader (62)2. Declaratory Relief and other similar

remediesv (63)3. Review of judgments, final orders,

resolutions of CoA, COMELEC (64)

4. Certiorari, Prohibition, Mandamus (65)5. Quo Warranto (66)6. Expropriation (67)7. Foreclosure of Real Estate Mortgage (68)8. Partition (69)9. Forcible Entry/Unlawful Detainer (70)10. Contempt (71)

Governed by Special Rules, Rules on ordinary civil actions apply in a suppletory manner (OR is it the other way? R1 states governed by rules on ordinary civil actions, subject to specific rules prescribed in a special civil action)

Examples:

VENUE

MOTION TO DISMISS

DEMURRER TO EVIDENCE

PARTS OF A PLEADING

INTERPLEADER (Rule 62)

- Initiated by way of complaint

S1- When proper

Whenever

- conflicting claims upon the same subject matter

o are or may be made against a person who claims no interest whatever in the subject matter or

o an interest in which in whole or in part is not disputed by claimants,

he may bring an action against conflicting litigants to compel them to interplead and litigate their several claims among themselves

45



NOTE: Person in possession has no legal interest

Interpleader InterventionRule 61 Rule 19Without leave of court With leave of courtOriginal / Special Civil action

Ancillary to main action

Filed by complaint for interpleader

If for plaintiff- complaint in intervention

If for defendant- answer in intervention

At any time Before judgment

JURISDICTION:

RTC or MTC 20-50 real 300-400 personal higher lower

VENUE:

Real- R4 S1

Personal- R4 S2

S2- Order

Upon filing of the complaint, the court shall

- issue an order requiring the conflicting claimants to interplead with one another.

If the interests of justice so require,

- the court may direct in such order o that the subject matter be paid or

delivered to the court.

S3- Summons

Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order.

S4- Motion to dismiss

Within the time for filing an answer, each claimant may

- file motion to dismiss on the ground of impropriety of the interpleader action or

- on other appropriate grounds specified in Rule 16.

The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the remaining period, which shall not be less than 5 days in any event, reckoned from the notice of denial. (See Rule 16 S4)

S5- Answer and other pleadings

Each claimant shall file his answer setting forth his claim within 15 days from service of the summons upon him,

- serving a copy thereof upon each of the other conflicting claimants,

o who may file their reply thereto as provided in these Rules.

If any claimant fails to plead within the time therein fixed, the court may, on motion,

- declare him in default and - thereafter render judgment barring him

from any claim in respect to the subject matter.

The parties in an interpleader action may file counterclaims, cross claims, 3rd party complaints and responsive pleading thereto, as provided in these Rules.

S6- Determination

After the pleadings of the conflicting claimants have been filed, and pre trial has been conducted in accordance with these Rules,

46



- the court shall proceed to determine their respective rights and adjudicate their several claims.

In case of adverse Resolution,

Appeal pursuant to R40-42

DECLARATORY RELIEF AND OTHER SIMILAR REMEDIES (R63)

Objective: (R63 S1)

Interpretation/Construction of:

o deed, o will, o contract, or o other written instrument, or

determining validity of:

o statute, o executive order, o regulation, o ordinance, or o any other governmental regulation

OTHER SIMILAR REMEDIES CONTEMPLATED which applies the provisions of this Rule:

- reformation of an instrument

NOTE: INSTRUMENT, not the elements of the instrument—if such, e subject of another proceeding to, annulment of contract

- quiet title to real property or remove clouds therefrom

- consolidate ownership

In case of pacto de retro sale or foreclosure of mortgage, not necessarily owner agad, hence, file for consolidation of ownership under this Rule

(EXCLUSIVE) hence, if not, then not subject here

NOTE: DECLARATORY RELIEF is the only civil action (special vis a vis ordinary) that can be filed even before breach or violation thereof

JURISDICTION/VENUE:

Declaratory Relief:

- RTC- incapable of pecuniary estimation

Queting of title:

- MTC or RTC 20-50 OMM MM lower higher

Consolidation of ownership:


Reformation of contracts:


Can the SC entertain petition for declaratory relief?

NO. BP129- RTC EO Jur, actions incapable of pecuniary estimation

Requirements:

S2- Parties

All persons who have or claim any interest which would be affected by the declaration shall be made parties, and

- no declaration shall, except as provided in these Rules,

o prejudice the rights of persons not parties to the action.

S3- Notice on Sol Gen

In any action which involves validity of

- statute, - EO, or

47



- regulation, or - any other governmental regulation,

o The Sol Gen shall be notified by the party assailing the same and

shall be entitled to be heard upon such question

S4- Local government ordinances

In any action involving the validity of a local government ordinance,

- the corresponding prosecutor or attorney of the LGU involves shall be similarly notified and entitled to be heard.

If such ordinance is alleged to be unconstitutional, the Sol Gen shall also be notified and entitled to be heard.

In case of adverse resolution

- APPEAL R41o (R40 to RTC if Quieting in MTC)

REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COMMISSION

ON AUDIT (Rule 64 [but applying Rule 65])

Constitutional Basis:

A9A S7 (basis of Rule 64)

Each Commission shall decide by majority of all its Members in any case or matter brought before it within 60 days from date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the SC on

certiorari by the aggrieved party within 30 days from receipt of a copy thereof.

COVERAGE: (R64 S1)

Judgments, final orders, resolutions of COMELEC, CoA

S1- Scope

Final orders or judgments of COA and COMELEC

S2- Mode

SC- petition for certiorari under Rule 65

S3- Time

Within 30 days from notice of judgment

IF M4r denied, filed within remaining period and not less than any event reckoned from notice of the denial

NO FRESH PERIOD RULE, only in 40 41 42 43 45

S4- Docket, lawful fees

Pay, + 500 for costs

S5- Form/Contents

1. Verified petition, 18 copies, with certified true copy of judgment

2. Respondent is Comelec or CoA, person interested in sustaining

3. Finding of fact supported by substantial evidence, final and non reviewable

4. State specific material dates showing it was filed on time

48



5. Accompanied by sworn certification against forum shopping

6. Proof of service of its copy on commission and adverse party, and of payment of docket and other lawful fees

S6- order to comment

- Within 10 days from notice of order or judgment, by respondent, or else, dismissed

Grounds for dismissal

1. Non compliance with form and contents2. Non payment of docket and 500 for costs3. Filed manifestly for delay4. Questions are too unsubstantial to warrant

further proceedings

S7- Comments of respondents

- 18 copies- No other pleading may be filed unless

required or allowed by court

S8- Effect of filing

Filing of certiorari will not stay execution of judgment, FO, resolution sought to be reviewed, unless SC shall direct otherwise upon such terms as may be just

Petitioner may apply for TRO or preliminary injunction to stay execution

Rule 65 Rule 64Applies to orders of judicial, quasi judicial court or tribunals

Applies to judgments, final orders, resolutions of CoA and COMELEC

60 days from denial of motion for reconsideration (AM 7-7-

30 days from notice of judgment or final order or resolution sought to

12-SC) be reviewedMotion for reconsideration is required

NOT

Petition filed before RTC, CA, SC

Petition filed before SC

Rule 43 Rule 64Appeal/Petition for review of decisions of Quasi Judicial Bodies

Petition for review of judgments and final orders or resolutions of COMELEC and CoA

15 days from notice of award, final judgment, resolution

30 days from notice of judgment or final order sought to be reviewed

With the CA With the SC

CERTIORARI, PROHIBITION, MANDAMUS (Rule 65)


A8 S1 P2

Judicial Power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

A8 S5 P2

- Review- Revise- Reverse- Modify- Affirm

o On appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

6. All cases in which constitutionality or validity of any

49



a. treaty,b. international or executive

agreementc. lawd. presidential decreee. proclamationf. orderg. instructionh. ordinancei. regulation

i. is in question

7. all cases involving the legality of anya. taxb. impostc. assessmentd. tolle. any penalty imposed in relation

thereto

8. all cases in which the jurisdiction of any lower court is in issue

9. all criminal cases in which the penalty imposed is reclusion perpetua or higher

10. all cases in which only an error or question of law is involved

What is the MATERIAL DATES RULE?

As far as Rule 65 is concerned, the following material dates must be stated in the verified petition or else, the petition would be denied:

1. Notice of the order or judgment2. Date of the filing of the motion for

reconsideration3. Date of the denial of the motion for

reconsideration

Certiorari

- Special civil action directed to an inferior court, tribunal, board or officer directing judicial or quasi judicial functions, to annul or modify proceedings of such court, tribunal, board or officer in the event that the same has acted with grave abuse of discretion amounting to lack or excess of jurisdiction

o Seeks to correct errors of jurisdiction

Prohibition

- Special civil action directed against any tribunal, board, officer or person exercising judicial, quasi judicial, or ministerial functions, to desist from further proceedings in the event that the same acted with grave abuse of discretion amounting to lack or excess of jurisdiction

Mandamus

- Special civil action directed against any tribunal, corporation, board, officer or person, to do the act required to be done to protect the rights of petitioner and to pay damages sustained by petitioner by reason of the respondent’s wrongful act, in the event that the same unlawfully neglected in the performance of ministerial duty or unlawfully excluded another from use and enjoyment of a right or office to which such other is entitled

QUALIFICATIONS in ALL 3:

- that there is no plain, speedy, or adequate remedy in the ordinary course of law

Certiorari Mandamus Prohibitiondiscretionary Ministerial Discretionary and

ministerialTo annul order To order

performanceTo restrain performance

60 days from receipt of final judgment or order or from denial of motion for reconsideration

Against entity or Against entity or Against entity or

50



person exercising j or ej function

person exercising ministerial function

person exercising j, ej, ministerial function

Without or GAD Unlawful neglect of ministerial duty or excluded another from a right or office

Without or GAD

Correct errors of jurisdiction

Performance of act or desist from excluding another from a right or office

To restrain or prevent usurpation of jurisdiction

Errors of Jurisdiction Errors of JudgmentCourt acted with GAD amounting to lack or excess of jurisdiction

Misapprehension of law or facts by the court

Action of the court Valid proceedingCorrectible by certiorari Correctible by appealRule 65 Rules 40-43, 45

General Rule: M4R is required to allow the court to correct its errors

Exception:

1. where the order is a patent nullity, as where the court has no jurisdiction

2. where question raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon by the lower court

3. where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interest of the government or the petitioner or the subject of the action is perishable

4. where under the circumstances, a motion for reconsideration would be useless

5. where petitioner was deprived of due process, and there is extreme urgency for relief

6. where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable

7. where the proceedings in the lower court are a nullity for lack of due process

8. where the proceeding were ex parte or in which the petitioner had no opportunity to object

9. where the issue raised is one purely of law or where public interest is involved

REQUIREMENTS:

1. verified petition in 7 legible copies

2. it should be filed not later than 60 days from notice of judgment, order or resolution sought to be assailed or from denial of M4R

3. contain full names and addresses of petitioners and respondents, concise statement of matters involved, factual background of the case, grounds relied upon for the relief prayed for

4. accompanied by clearly legible duplicate originals or certified true copies of award, judgment, order, resolution, ruling subject

5. certification against forum shopping

6. pay docket and lawful fees, 500 for costs

7. serve copy upon adverse party or parties and the court

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8. service and filing to be done personally, with explanation if not done personally

General rule:

Certiorari is not a substitute for lost appeal

Except:

- denial of due process

- appeal is not a remedyo no appeal or no plain, speedy,

adequate remedy

- court without jurisdiction

- when deprived of substantial rights

Note: in the cases, in event of denial of petition, and in exercise of original jurisdiction, remedy is APPEAL

MTC to RTC- Rule 40

RTC to CA- Rule 41 (original), Rule 42 (appellate)

CA to SC- Rule 45

The above-stated is the PRINCIPLE OF HIERARCHY OF COURTS

- superior courts would not take cognizance of a case brought before it unless the case has been decided by the lower courts in the exercise of its jurisdiction

Same principle in certiorari:

MTC to RTC- 60 days

RTC to CA- 60 days

CA to SC- 60 days

65 vs 45 (simplified)

Rule 65 Rule 4560 days 15 DaysMotion for reconsideration required

Not

Questions of jurisdiction Questions of lawSC, CA, RTC SCSpecial civil action Mode of appeal/petition

for review

Rule 65 as amended by Am 7-7-12:

Sec. 4. When and where to file the petition.

The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days counted from the notice of the denial of the motion.

If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of the courts appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals.

In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction.

NO MORE EXTENSION OF TIME IS GIVEN TO FILE CERTIORARI!

52



M4R based on Rule 65 M4R based on Rule 37Of interlocutory order, as preparation to file certiorari

Of final judgment or final order, not including interlocutory orders

QUO WARRANTO (Rule 66)

- proceeding or writ issued by the court to determine the right to the use or exercise of an office, position or franchise and to oust the person holding or exercising such office, position or franchise if his right is unfounded or if he had forfeited his right to enjoy the privilege

2 kinds of quo warranto:

1. usurpation of public office

2. dissolution of a de facto corporation

Rule 66 S1

An action for usurpation of a public office, position, or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

a. a person who usurps, intrudes into, or unlawfully holds or exercises a public office, position, or franchise

b. a public officer who does or suffers an act which by provision of law constitutes a ground for the forfeiture of his office

c. an association which acts as a corporation within the Phils without being legally incorporated or without lawful authority to act

*Sol Gen commences action (S2, S3)

Period: (S11)

Within 1 YEAR

- after cause of ouster or right of petitioner to hold such office, or position arose

Within 1 YEAR (action for damages)

- after entry of judgment establishing petitioner’s right to the office in question

in short...

within 1 YEAR from usurpation of public office

REMEDY IF DENIED: Appeal

Jurisdiction and Venue:

RTC, CA, SC

If Solicitor General files- RTC, CA, SC

If other person files- R4 S1 R4 S2

Quo Warranto Election Code

Quo Warranto Rule 66

Election Code Rules of CourtCOMELEC, RTC. MTC RTC, CA, SCOmnibus Election Code Basis: A8 Consti, R66Not Subject to BP129Can be filed with MTC Cannot be filed with

MTCContest right of elected public officer to hold public office

Show title to public office or exercise public franchise

Ineligibility or disqualification of person elected to hold the office

Usurpation, forfeiture, illegal association

Within 10 days after proclamation of candidate

Within 1 year from usurpation of office

Filed by any voter Filed by government or person entitled to the office

53



Expropriation (Rule 67)

Eminent Domain- right and authority of the State to acquire private property for public use upon observance of due process and payment of just compensation

Expropriation- procedure to be observed in the exercise of the right of eminent domain


A3 S9

Private property shall not be taken for public use without payment of just compensation

Jurisdiction: RTC, incapable of pecuniary estimation (BP129)

Venue: Where the property is located

Basis: (action involving title to or real property under R4 S1)

CANNOT BE FILED WITH SC, because under EO jur of RTC

NOTE: Expropriation is an instance where multiple appeals are filed (30 day record on appeal in case of multiple appeal)

Why? 3 orders issued under Rule 67:

1. order of compensation2. order of expropriation3. final order of just compensation

Remedy of person after expropriation, no payment made:

- recover property from expropriator within 5 years after non payment

FORECLOSURE OF MORTGAGE (Rule 68)

(Tan, Handbook on Civil Procedure and pleadings, pp 142-145)

Foreclosure

- action by which a mortgagee or pledge or any other lien holder cuts off the right of debtor whose property is pledged, because of default in meeting the obligation

Foreclosure of Mortgage

- termination of all the rights of the mortgagor in the property covered by the mortgage

Manner of foreclosure of mortgage:

Rule 68 S1

Contents of action:

1. date and due execution of mortgage

2. assignments, if any

3. names and residences of mortgagor and mortgagee

4. description of mortgaged property

5. statement of date of the note or other documentary evidence of the obligation secured by the mortgage

6. amount claimed to be unpaid thereon

7. names and residences of all persons having of claiming interest in the property subordinate in right to that of the holder of

54



the mortgage, all of whom shall be made defendants in the action

Nature of Action:

- QUASI IN REM- Service of summons by publication

Jurisdiciton/Venue:

MTC-RTC 20-50 OMM MM lower higher

Where real property or portion thereof is situated (R4 S1)

Classification of Foreclosure of Mortgage:

1. JUDICIAL FORECLOSURE

To have the property seized and sold by the court order to the end that the proceeds thereof be applied to payment of plaintiff’s claim

2. EJ FORECLOSURE

Possession of property sold may be given to purchaser by sheriff after the period of redemption had expired, unless there is a third person actually holding the property adversely to the mortgagor

Remedies of Mortgagee in case of default of mortgagor/waiver of right to foreclose:

a. Judicial or extrajudicial foreclosure of mortgage

b. Filing of ordinary action to collect debt

- Here, under b, deemed to have waived his right to proceed against the property in a foreclosure proceeding

Right of Redemption Equity of Redemption

Exists in EJ foreclosure Exists in J foreclosureBy mortgagee within 1 year from registration of the sale in the Office of the Registry of Deeds

By mortgagor during not less than 90 days nor more than 120 days from entry of judgment or foreclosure or even after foreclosure sale but before judicial confirmation of the same

J Foreclosure, no right of redemption, except only if morgagee is a bank

PARTITION (Rule 69)


- Separation, division, assignment of a thing held in common among those to whom it may belong

Classes of partition:

1. Voluntary - division of property by the act of the parties themselves

2. Compulsory - partition by judicial proceedings at the instance of one or more of the co tenants without regard to the wishes of the other co tenants

Kinds of Partition

1. Total - all the things are divided among the participants

2. Partial - when some of the things are divided, the rest remaining in community ownership

3. Provisional - when it is temporary or conditional, until a final or definite division is made

55



4. Definite - when the resulting division is permanent, final, and absolute

5. Judicial - takes place when court intervenes and approves the petition

6. Extrajudicial - division may be made by testator himself or by some person named by deceased or amicably by interested heirs by common agreement (Rule 74 S1)

R69 S1

A person having the right to compel partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property

Covers: REAL or PERSONAL PROPERTY

Jurisdiction/Venue:

MTC RTC 20-50 300-400 OMM MM lower higher

R4 S1 R4 S2

In case of adverse resolution:

MULTIPLE APPEALS- 30 day record on appeal (R69 S2)

Why? (tingin ko lang)

Orders under Rule 69:

1. Order of partition2. Order of accounting

NOTE: Partition is one mode of settlement of estate of the deceased (relate to R75-77)

FORCIBLE ENTRY AND UNLAWFUL DETAINER (Rule 70 in relation to Rules on Summary Procedure)

(issue is that of possession)


Real Action + Action in personam- involves possession of real property, binding upon the parties

NOTE: 3 kinds of recovery of real property

1. Accion interdictal - summary action for recovery of physical possession of the property where dispossession has lasted for more than 1 year; FE or UD

2. Accion publiciana - plenary action for recovery of real right of POSSESSION

3. Accion reivindicatoria - action for recovery of OWNERSHIP

Ejectment- form of action by which possessory titles to corporeal hereditariments may be tried and possession obtained which lies to regain possession of real property, with damages for illegal detention

2 kinds: FE and UD

Forcible Entry Unlawful DetainerPerson in physical possession of land was deprived of possession through FISTS

Withholding by a person of possession of land or building

Unlawful ab initio Legal but becomes illegalNot require demand to vacate

Pay AND vacate; jurisdictional

Prove prior possession until deprived

No need to prove prior physical possession

1 y from date of actual entry on land

1 year from date of last demand

Filed by: R70 S1

Person deprived of possession of land or building by FISTS, or lessor, vendor, vendee, other person

56



against whom possession of any land or building is unlawfully withheld

Jurisdiction/Venue:

MTC of the place where property or portion thereof is situated (R4 S1)

Proceedings SUMMARY IN NATURE! (Rules on Summary Procedure)

Pertinent Provisions of the Rules on Summary Procedure:

(note the same... applies to all cases subject to Rules on Summary Procedure, ESPECIALLY PROHIBITED

PLEADINGS AND MOTIONS)

S3- Pleadings

The only pleadings allowed to be filed are the:

1. Complaints2. Compulsory counterclaims3. Cross claims pleaded in the answer4. Answers thereto

VERIFIED!

S4- Duty of the CourtAfter the court determines that the case falls under summary procedure, it may, from an examination of the allegations therein and such evidence as may be attached thereto, dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action. If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule shall apply.

S5- AnswerWithin 10 days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except for lack of jurisdiction over the subject matter. Cross claims and compulsory

counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross claims shall be filed and served within 10 days from service of the answer in which they are pleaded.

- Within 10 DAYS from service of summonso Rule 70o Summ Pro

S6- Effect of Failure to answerShould the defendant fail to answer the complaint within the period above provided, the court, motu proprio or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. Provided, however, that the court may in its discretion reduce the amount of damages and AF claimed for being excessive or otherwise unconscionable. This is without prejudice to applicability of R15 S4 of the Rules of Court, if there are 2 or more defendants.

S7- Preliminary conference; appearance of partiesNot later than 30 days after the last answer is filed, a preliminary conference shall be held. The rules on pre trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule.

The failure of the plaintiff to appear in the preliminary conference shall be cause for dismissal of the complaint. The defendant who appears in the absence of plaintiff shall be entitled to judgment on his counterclaim in accordance with S6 hereof. All cross claims shall be dismissed.

If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with S6 hereof. This Rule shall not apply where one of 2 or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference.

S8- Record of Preliminary ConferenceWithin 5 days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to:

57



a. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof

b. The stipulations or admissions entered into by the parties

c. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which effect the judgment shall be rendered within 30 days from issuance of the order

d. A clear specification of material facts which remain controverted

e. Such other matters intended to expedite the disposition of the case

S9- Submission of affidavits and position papersWithin 10 days from receipt of the order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them.

S10- Rendition of judgmentWithin 30 days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment.

However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matter to be clarified, and require the parties to submit affidavits or other evidence on the said matters within 10 days from receipt of said order. Judgment shall be rendered within 15 days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the same.

The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.

S18- Referral to Lupon

Cases requiring referral to the Lupon under the provisions of PD1508 where there is no showing of compliance with such requirement, shall be dismissed without prejudice and may be revived only after such requirement shall have been complied with.

S19- Prohibited pleadings and motionsThe following pleadings, motions, or petitions shall not be allowed in the cases covered by this Rule:

a. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the preceding section

b. Motion for a bill of particulars

c. Motion for new trial, or for reconsideration of a judgment, or for opening of trial

d. Petition for relief from judgment

e. Motion for extension of time to file pleadings, affidavits, or any other paper

f. Memoranda

g. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court

h. Motion to declare defendant in default

i. Dilatory motions for postponement

j. Reply

k. Third party complaints

l. Interventions

S20- AffidavitsThe affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in

58



evidence, and shall show their competence to testify to the matters stated therein.

A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record.

S21- AppealThe judgment or final order shall be appealable to the appropriate RTC which shall decide the same in accordance with S22 of BP129. The decision of the RTC in civil cases governed by this Rule including forcible entry and unlawful detainer, shall be immediately executor, without prejudice to a further appeal that may be taken therefrom. S10 of Rule 70 shall be deemed repealed.

- 15 DAYS from notice of judgment or final order, notice of appeal + bond to RTC

o NO M4R (prohibited pleading)

However, if RTC decision adverse, (in exercise of appellate jurisdiction), M4R pwede na

- MTC Summary Procedure, only up to MTC level lang

o Once the case was elevated to RTC, it is no longer summary, but is governed by rules on Ordinary Civil Actions

Injunction in FE and UD:

Forcibly Entry / UnlawFul Detainer- YES

R70 S15

Court may grant preliminary injunction, in accordance with the provisions of R58 thereof, to prevent defendant from committing further acts of dispossession against plaintiff.

A possessor deprived of possession through Fe or UD may, within 5 days from filing of complaint, present a motion in the action for FE UD for issuance of writ of preliminary mandatory injunction to restore him

in his possession. The court shall decide the motion within 30 days from filing thereof

R70 S20

Upon motion of plaintiff, within 10 days from perfection of appeal to the RTC, the latter may issue a writ of preliminary mandatory injunction to restore plaintiff in possession if the court is satisfied that

- defendant’s appeal is frivolous or dilatory, or

- that the appeal of plaintiff is prima facie meritorious

CONTEMPT (Rule 71)


Contempt

- wilful disregard or disobedience to court, acting in opposition to authority, justice, dignity

Contempt of Court

- conduct which tends to bring authority and administration of law into disrespect or to interfere with or prejudice parties litigant or their witnesses during litigation

2 classifications of contempt:

1. Direct Contempt (R71 S1)2. Indirect Contempt (R71 S2)

DISCUSSION:

1. DIRECT CONTEMPT (S1)

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- A remedy

Acts covered:

- Misbehaviour in presence of or so near the court as to obstruct or interrupt proceedings before the same

- Disrespect toward the court

- Offensive personalities towards people in court

- Refusal to be sworn or to answer as a witness

- Refusal to subscribe an affidavit or deposition when lawfully required to do so

Punishment:

(RTC/of equivalent or higher rank)

F: not exceeding 2k OR

I: not exceeding 10 days, OR BOTH

(lower court)

F: not exceeding 200

I: not exceeding 1 day, OR BOTH

Remedy: CERTIORARI or PROHIBITION (R71 S2)

2. INDIRECT CONTEMPT (S3)

- Main / Original actiono Can be filed in RTC or MTC

Actions covered:

a. Misbehaviour of an officer of a court in the performance of his official duties or in his official transactions

b. Disobedience of or resistance to a lawful writ, process, order, judgment of a court, including act of person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs possession given to the person adjudged to be entitled thereof

Note highlighted: case in MTC where case is pending

- If after ejectment, re entered the property, indirect contempt (relate to Rule 70)

c. Any abuse of or any unlawful interference with the processes or proceedings of the court not constituting direct contempt as under S1

d. Improper conduct tending, directly or indirectly, to impede, obstruct, degrade administration of justice

e. Assuming to be an attorney or officer of the court and acting as such without authority

f. Failure to obey subpoena duly served

g. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an

60



order or process of a court held by him

Remedy: (R71 S11)

Appeal to proper court as in criminal cases

Direct Contempt Indirect ContemptIn presence of a judge, motu proprio or upon motionCant initiate InitiateIn presence or so near judge

Not in presence of judge, disobey court order

Rem: certiorari Rem: appealremedy Original action

Upon filing of complaint, plaintiff may opt to file notice of lis pendens with the register of deeds

Notice of Lis Pendens

“buyer beware”Notice to buyer of existence of an adverse claimIt is not a pleadingThere is need to register it with the register of deeds

Rule 13

Section 14

In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated

a notice of the pendency of the action

Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby

Only from the time of filing such notice for record shall

a purchaser,

or encumbrancer

of the property affected thereby,

be deemed to have constructive notice of the pendency of the action, and

only its pendency against the parties designated by their real names

The notice of the lis pendens hereinabove mentioned

may be cancelled

only upon order of the court,

after proper showing that

the notice is for the purpose of molesting the adverse party, or

that it is not necessary to protect the rights of the party who caused it to be recorded

FILING AND SERVICE of the pleading

Differentiate: Filing from service

R13 S2

Filing is the act of presenting the pleading or paper to the clerk of court.

Service is the act of providing a party with a copy of the pleading or paper concerned.

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What are the papers required to be filed and served under Rule 13?

(PAMNOJDORS)

Pleading subsequent to the complaintAppearanceWritten Motion NoticeOrderJudgmentDemandOffer of judgmentResolutionSimilar papers

What are the modes of service of pleading? (R13 S5)

Personal Service (R13 S6)Service by Registered Mail (R13 S7)Substituted Service (R 13 S8)

How is it done?

Personal Service

R13 S6

Service of papers may be made

By delivering personally a copy to the party or his counsel orBy leaving it in his office with the clerk or a person having charge thereof

If no person is found in his office or his office is not known or he has no office, then,

By leaving the copy between the hours of 8 in the morning and 6 in the evening at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing therein

NOTE: NO TENDERING under Rule 13 S6!

Sa summons lang yon, when defendant refuses to accept the same

Service by mail

R13 S7

Service by registered mail shall be made by

depositing the copy in the post office, in a sealed envelopeplainly addressed to the party or his counsel at his office, if known,otherwise, at his residence, if known,with postage fully prepaid and with instructions to the postmaster to return the mail to the sender after 10 days if undelivered

If no registry service is available in the locality of either in the sender or the addressee, service may be done by ordinary mail.

IF defendant refuses both modes of service, resort to:

Substituted Service

R13 S8

If service of pleadings, motions, notices, resolutions, orders, or other papers cannot be made under the 2 preceding section, the office and place of residence of the party or his counsel being unknown, service may be made by:

Delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail

The service is complete at the time of such delivery.

Note: Wag ipaghalo ang provisions ng Rule 13 and Rule 14!!!

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Effect of non compliance with personal service?

Note: Service other than personal service

R13 S11

Whenever practicable, the service and filing of pleadings and other papers shall be done personally.

Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally.

A violation of this rule may be cause to consider the paper as not filed.

State in detail: Effects

1. A violation of this rule may be cause to consider the paper as not filed (R13 S11)

2. The pleading/paper would not be admissible in court

3. Would not toll the running of the reglementary period

4. In case of defendant, it will NOT RESULT in defendant being declared in default

5. Rather, the pleading produces no legal effect

When is service deemed completed?

Personal Service (R13 S10)

Personal service is complete upon actual delivery or by handling a copy to defendant

Service by mail (R13 S10)

Service by ordinary mail is complete upon the expiration of 10 days after mailing, unless the court otherwise provides.

Service by registered mail is complete upon actual receipt by the addressee or after 5 days from the date he received the first notice of the postmaster, whichever date is earlier.

Substituted Service (R13 S8)

Substituted service is complete at the time of delivery of the copy to the clerk of court, with proof of failure of both personal service or service by mail.

What is constructive service of pleading?

R13 S10

Service by registered mail is complete..

..after 5 days from the date he received the notice of the postmaster, whichever date is earlier

FILING- Rule 13 S1- with the office with the clerk of court

Required in ALL INITIATORY PLEADINGS

+ PAYMENT OF THE REQUISITE DOCKET FEES (See Rule 1 Section 5)

Pag kulang, court to order correct paymentNOTE: Docket fees are suspended in compulsory counterclaims (SC Resolution 9-21-04)

IF you cannot pay docket fees, REMEDY?

File a motion to be declared as pauper litigant (R3 S21)

R3 S21- A party may be authorized to litigate his action, claim, or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is the one who has no money or

63



property sufficient and available for food, shelter, and basic necessities for himself and his family

Such authority shall include

an exemption from payment of

- docket and - other lawful fees, and - of transcript of stenographic notes

which the court may order to be furnished him

The amount of docket and other lawful fees which the indigent was exempted from paying

- shall be a lien on any judgment rendered in the case favorable to the indigent,

o unless the court otherwise provides

Any adverse party

may contest the grant of such authority

at any time before the judgment is rendered by the trial court

If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property,

the proper docket and other lawful fees shall be

assessed and collected by the clerk of court

If payment is not made within the time fixed by the court,

execution shall issue or the payment thereof,

without prejudice to such other sanctions as the court may impose

After filing of the complaint and the payment of the requisite legal fees,

III. SERVICE OF SUMMONS

Summons

Writ or process in the name of the RP, issued by the Branch clerk of court informing the defendant of the filing of the case against him, to file an answer within the reglementary period, or else, be declared in default

Office of the Clerk of Court

Branch Clerk of Court

Office Person

Receives complaint and payment of the docket fees

Serves summons upon the defending party

2 kinds of summons:

1. Original Summons- issued by the branch clerk of court to the defendants upon the filing of the complaint and the payment of the requisite docket fees

2. Alias Summons- issued by the branch clerk of court upon motion of the plaintiff in case the summons are lost, destroyed, improperly served, or there is defect in the manner or form of service

Summons Subpoena

a writ or a process issued to a defending party by the clerk of court, delivered by a sheriff, his deputy, or proper court office, or any suitable person authorized by the

(R21 S1)

A process directed to a person requiring him to attend and to testify at the hearing or trial of an action, or at any

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court issuing the summons, with the purpose of obtaining jurisdiction over the person of the defendant and giving him notice that an action has been commenced against him

investigation conducted by competent authority or for the taking of his deposition. (Subpoena ad testificandum)

A process directed to a person requiring him to bring with him any books, documents, or other things under his control (Subpoena duces tecum)

Purpose is to obtain jurisdiction over person of defendant, and to give notice to defendant that an action has been commenced against him, ordering defendant to answer the complaint within the time fixed by these Rules, and unless defendant answers, plaintiff will take judgment by default and may be granted the relief applied for (R14 S2)

Order for a person to appear and to testify at a hearing, action, investigation, or for taking of his deposition OR to produce books, documents, or other things under his control (R21 S1)

Served on the defendant May be served to a non-party

Does not need tender of kilometrage and other fees

Needs tender of kilometrage, attendance fee, and reasonable cost of production fee

Original or alias Ad testificandum or duces tecum

Upon filing of the complaint and payment of requisite docket fees

During trial or investigation

Note: significant to know whether the action is in personam, in rem, or quasi in rem—for purpose of service of summons

FE and UD- in personam actions

IN PERSONAM

Service in personSubstituted service

IN REM

Service in personSubstituted ServicePublicationExtraterritorial Service

QUASI IN REM

Service in personSubstituted servicePublication

Can you serve summons by mail?

NO

How to serve summons?

Service in person on defendant (R14 S6)

The summons shall be served by handing a copy thereof to the defendant in person.

Tendering summons to defendant (R14 S6)

In case defendant refuses to receive or sign for it, by tendering it to him, done through:

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1. Leaving copy of the summons to the defendant who refuses to receive it

2. The officer serving the summons shall make an affidavit addressed to the court stating that the time, place, manner of service of summons, and that despite efforts to try and serve the summons in person on defendant, the same refused to receive it, as well as the manner of non-receipt

Substituted Service of Summons on defendant (R14 S7)

Requisites;

Impossibility of the personal service of summons within a reasonable timeThe efforts exerted to locate the person to be served

To whom served / how?

By leaving copies of the summons at:

1. Defendant’s residence with some person of suitable age and discretion then residing therein or

2. By leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof

Through process server or upon motion- by service of summons by substituted service

How is a person deemed of suitable age and discretion?

1. Of legal age2. With sufficient knowledge and

comprehension that what he is receiving on behalf of defendant are summons notifying defendant that a suit was brought against the same, AND PREFERABLY KNOWS HOW TO SPEAK ENGLISH

Service by publication in a newspaper of general circulation

R14 S15

Service by leave of court by publication in a newspaper of general circulation in such place and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant.

Suffices under the following instances:

1. Upon defendant designated as unknown owner or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry (R14 S14)

2. When defendant does not reside and is not found in the Philippines, and the action: (AREA—R14 S15)

- Affects personal status of the plaintiff or - Relates to, or the subject of which, is

property within the Philippines in which defendant has or claims a lien or interest, actual or contingent, or

- In which the relief demanded consists, wholly or in part, in Excluding the defendant from any interest therein or

- The property of the defendant has been Attached within the Philippines

3. When defendant ordinarily resides in the Philippines but who is temporarily out of it (R14 S16)

Can there be personal service of summons in in rem actions?

Yes. R14 S15 states that when defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or

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relates to, or the subject of which, is property within the Philippines in which defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding defendant from any interest therein, or the property of defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by:

1. Personal service as under S6**

2. By publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of defendant, or

3. In any other manner the court may deem sufficient

Substituted Service vs Extraterritorial Service of Summons

Substituted Service Extraterritorial Service

Requisites;

Impossibility of the personal service of summons within a reasonable time

The efforts exerted to locate the person to be served

To whom served / how?

By leaving copies of the summons at:

Defendant’s residence with some person of suitable age and discretion then residing therein or

Arises in case defendant is non resident, in abroad, action in rem, by way of personal service outside of Phils, by publication in a newspaper of general circulation, or in any other manner the court may deem sufficient

By leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof

Through process server or upon motion- by service of summons by substituted service

R14 S14

In any action where the defendant is designated as an unknown order, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order.

- Instance where in personam, yet publication is allowed (exception to the general rule)

o Identity is unknown or whereabouts are unknown

Defective service of summons, remedy:

M2D Rule 16 S1a, that the court has no jurisdiction over the person of the defending party

3 options of the court:

1. GRANT M2D- as plaintiff, refile the case, unless tainted with grave abuse of discretion

2. DENY M2D

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As defendant, following Rule 16 S4, I will file an answer within the balance of the period prescribed by Rule 11 to which I am entitled at the time of serving my motion, but not less than 5 days in any event, computed from my receipt of notice of denial. Then proceed with the trial, and when the decision is adverse against me, I will file an appeal assigning as error the denial of the motion to dismiss. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court, I will file for certiorari under Rule 65.

3. ISSUANCE OF ALIAS SUMMONS

Can Rule 16 S1a be a ground for Motion to dismiss under Rules on Summary Procedure?

YES. General rule, motion to dismiss not allowed, except #1 instance, lack of jurisdiction over the person of the defending party (RULES ON SUMMARY PROCEDURE)

Reason: the court cannot proceed with the case without jurisdiction over the person of the defending party

Exception to exception: SMALL CLAIMS

To whom summons are made?

1. Ordinary defendant

Upon an entity without juridical personality

R14 S8

When persons associated as an entity without a juridical personality are sued under the name by which they are generally or commonly known,

service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought.

Upon Prisoners

R14 S9

When defendant is a prisoner confined in a jail or institution, service may be effected upon him by the officer having the management of such jail or institution who is deputized as a special sheriff for said purpose.

Upon Minors and Incompetents

R14 S10

When defendant is a minor, insane, or otherwise an incompetent, service shall be made upon him personally or on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In case of a minor, service shall be made on his father or mother.

Upon domestic private juridical entity

R14 S11

When the defendant is a corporation, partnership, or association organized under the laws of the Philippines without a juridical personality, service may be made on the President, Managing Partner, General Manager, Corporate Secretary, Treasurer, or In House Counsel

NOTE: the LIST IS EXCLUSIVE!!!!!

Service upon foreign private juridical entity

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R14 S12

When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines.

Service upon public corporations

R14 S13

When the defendant is the Republic of the Philippines, service shall be made on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct.

Service upon defendant whose identity or whereabouts are unknown

R14 S14

In any action where the defendant is designated as an unknown order, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order.

Extraterritorial Service

R14 S15

When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of plaintiff or relates to, or the

subject of which, is property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in party, in excluding defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under S6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than 60 days after notice, within which the defendant must answer.

Upon residents temporarily out of the Philippines

R14 S16

When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section.

If summons cannot be served because non resident, unknown, or out of the Phils, as plantiff, what is your remedy?

Convert action in personam to quasi in rem

A vs B Corporation, action for sum of money. Amend the complaint, action for sum of money WITH ATTACHMENT OF PROPERTY. Hence, summons by publication can already be made.

Court acquires jurisdiction over the RESBecause nature of the case has become quasi in rem

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(relate to Rule 10)

As far as amendment of the pleading, is summons required to be served?

YES, in the following instances:

1. Substantial not merely formal amendment

2. Other parties are impleaded

3. With respect to third party complaint, serve upon third party defendant (relate to R6 S11)

4. With respect to fourth party complaint, serve upon 4th party defendant (relate to R6 S11)

NOT in:

1. Complaint in intervention- because third person submitted to jurisdiction of the court

2. Not in permissive counterclaim- because defendant aka original plaintiff is already a party to the action, jurisdiction over him in original complaint was already taken from the start

3. In case of formal not substantial amendments

May bayad ba summons?

WALA!

Pag pinaserve mo sa process server, meron, but not required (abutan mo na lang para hindi kawawa, sige ka, baka hindi i serve)

Relate Rule 14 to Rule 57

Order of attachment, writ of attachment, issued ex parte

To implement, serve summons


Ex parte issuance of preliminary injunctionTo implement, serve summons

Court not to issue injunction unless there is invalid service of summons

Notice and hearing

EXCEPTION TO SERVICE OF SUMMONS:

Voluntary appearance

1. Filed responsive pleading2. Submitted to jurisdiction of the court,

EXCEPT:

When questioning the jurisdiction of the court

Rule 14 S20

S20- Voluntary appearance

The defendant’s voluntary appearance shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.

Can the court dismiss a case motu proprio for lack of jurisdiction over the person of the defending party for defective service of summons?

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NO!

Dismissal shall only be by MOTION!Motion to dismiss

Rule 9 S1 (relate to Rule 16) provides for the following instances when the court may dismiss a case motu proprio:

Lack of jurisdiction over the subject matterLitis pendenciaRes judicataPrescription

DOES NOT INCLUDE: lack of jurisdiction over the person of the defending party (Wala to!)

After service of summons,

IV. REFER TO THE FOLLOWING:

Motion to Dismiss (Rule 16)

Motion for Bill of Particulars (Rule 12)

Motion to amend the pleading (Rule 10)

Motion for Extension of Time to File Responsive Pleading (Rule 11)

Motion for Summary Judgment (Rule 35)

Order of Default/Judgment by Default (Rule 9)

ONE-AT-A-TIME,

A. MOTION TO DISMISS (Rule 16)

Motion to dismiss

A motion to dismiss in an application for relief filed by an original defendant, a defendant in a permissive counterclaim, cross claim, 3rd 4th etc party complaint, complaint in intervention, filed within the time for but before filing the answer to the complaint or pleading asserting a claimAfter service of summons, before filing of a responsive pleading

NOTE: Motion to dismiss is not a pleading! It is not a responsive pleading! Hence, if there is motion to dismiss, the complaint may still be amended as a matter of right even if there is a motion to dismiss!

Grounds for motion to dismiss:

Rule 16 S1 states that within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on basis of the following grounds:

a. That the court has no jurisdiction over the person of the defending party

Relate to R14

Jurisdiction over defendant may be acquired by: voluntary appearance or by valid service of summons, except if appearance is to question the jurisdiction of the court

GRANTED:

Refile Move for alias summons

DENIED:

File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion, but not less than 5 days in any event, computed from receipt of notice of denial. Then proceed with the trial, and when the decision is adverse, file an appeal assigning as error the denial

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of the motion to dismiss. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court, file for certiorari under Rule 65.

b. That the court has no jurisdiction over the subject matter of the claim

NOTE:

Subject matter (BP129- conferred by law)Exclusive original jurisdiction of courts, if not within, then M2D is proper

GRANTED:

- Refile + docket fees OR- Amend complaint to confer jurisdiction (no

need for docket fees)

DENIED:

File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion, but not less than 5 days in any event, computed from receipt of notice of denial. Then proceed with the trial, and when the decision is adverse, file an appeal assigning as error the denial of the motion to dismiss. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court, file for certiorari under Rule 65.

c. That venue is improperly laid

Note: Rule 4

GRANTED:

Refile, except if GAD, then certiorari Rule 65

DENIED:

File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time

of serving motion, but not less than 5 days in any event, computed from receipt of notice of denial. Then proceed with the trial, and when the decision is adverse, file an appeal assigning as error the denial of the motion to dismiss. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court, file for certiorari under Rule 65.

d. That plaintiff has no legal capacity to sue

GRANTED:

Refile

DENIED:


e. That there is another action pending between parties for the same cause

aka LITIS PENDENCIA

Elements:

1. Identity of parties or at least such parties representing the same interests in both actions

2. That there is substantial identity in the cause of action and in the relief sought, the relief being founded on the same facts

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3. Identity in the two cases would be such that any judgment that may be rendered in one, regardless of which party is successful, would amount to res judicata in the other case

Which should be dismissed in case of litis pendencia? The 1 st , 2 nd , 3 rd , 4 th action?

The later case(s) would be dismissed.

GRANTED:

Appeal

DENIED:


f. That the action is barred by prior judgment or by the statute of limitations

Aka RES JUDICATA

Elements:

There is previous final judgment or order

The previous final judgment is a judgment upon the merits

Jurisdiction over the subject matter and the parties by the court rendering it

There must be identity of the parties, of subject matter, and of cause of action between the first and second actions

Aka PRESCRIPTION

GRANTED:

Appeal

DENIED:


g. That the pleading asserting the claim states no cause of action

Aka FAILURE TO STATE CAUSE OF ACTION

GRANTED:

RefileAmend the pleading

DENIED:


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h. That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished

GRANTED:

Appeal

DENIED:


i. That the claim on which the action is founded is unenforceable under the Statute of Frauds

(note: 1403, NCC)

GRANTED:

Appeal

DENIED:



j. That a condition precedent for filing the claim has not been complied with

GRANTED:

General Rule: refile plus comply with condition precedent, EXCEPT:

In case of wilful and deliberate forum shopping, which operates as dismissal with prejudice, hence,

In the latter case, Appeal

In case of non exhaustion of administrative remedies,

Exhaust then refile

DENIED:


MOTU PROPRIO DISMISSAL: (see underlined below)

Rule 9 S1

Defenses and objections not pleaded

either in a motion to dismiss or

in the answer

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are deemed waived

However, when it appears from the pleadings or the evidence on record that

1. the court has no jurisdiction over the subject matter,

2. that there is another action pending between the parties for the same cause, or

3. that the action is barred by prior judgment or by statute of limitations,

the court shall dismiss the claim

NOTE ALSO: Rule 7 S5

Hence, summing up Rule 16,

WITH PREJUDICE- e, f, h, i of Rule 16

WITHOUT PREJUDICE- the rest of Rule 16

Rule 50 S1- Motion to dismiss appeal

An appeal may be dismissed by the CA on its own motion or on that of appellee, on the following grounds:

1. Failure of the record on appeal to show on its face that the appeal was taken within the period prescribed by these Rules

2. Failure to file notice of appeal or the record on appeal within the period prescribed by these Rules

3. Failure of appellant to pay the docket and other lawful fees prescribed in S5 of R40 and S4 Rule 41

4. Unauthorized alterations, omissions, or additions in the approved record on appeal as provided in S4 of Rule 44

5. Failure of appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules

6. Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in S13 par a, c, d, f of Rule 44

7. Failure of appellant to take necessary steps for the correction or completion of the record within the time limited by the court in its order

8. Failure of appellant to appear at the preliminary conference under R48 or to comply with orders, circulars, or directive of the court without justifiable cause, and

9. The fact that the order or judgment appealed from is not appealable

Side note: RULES ON MOTION

Note requirements of written motion:

1. Notice of hearing (Due process)- 3 daay notice rule

2. Set hearing 10 days after filing of the motion

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3. Proof of service (different from proof of mailing, only as far as filing)

- To see whether the adverse party was able to receive the motion

4. IF by registered mail, accompanied by proof of service, explanation why not done via personal service (R13 S11)Other party files comment or objection

5. File reply to comment

IF requisites are not complied with,

1. *the motion shall be treated as a worthless piece of paper which the clerk of court has no right to receive and the court has no authority to act upon (mere scrap of paper)

2. It does not interrupt the running of the prescriptive/reglementary period for the filing of the requisite pleading

3. It will be ground for denial of the motion

4. The motion shall be considered as not filedExecution of the act subject of the motion, because it would be deemed as a final order

If act is adversely ruled due to non compliance with the Rules on Motion, file M4R within 15 days (Rule 37)

LITIGATED MOTION NON LITIGATED MOTION

Comply with requisites for written motion

If not, would affect the

No need to comply with all the requirements, but with need to hear on the motion

right of parties IF not, then not set for hearing

What is a motion?

R15 S1

A motion is an application for relief other than by a pleading

What are the kinds of motions?

Motion ex parte / Non Litigated MotionMade without the presence of or notification to the other party because the question generally presented is not debatable

Motion of courseMovant is entitled to the relief or remedy sought as a matter of discretion on the part of the court

Litigated MotionMotion made with notice to the adverse party to give him an opportunity to oppose it

Special MotionA motion addressed to the discretion of the court

Examples of Litigated Motions:

Motion to dismiss

Motion to declare defendant in default

Motion for summary judgment

Motion for judgment on the pleadings

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Motion for new trial

Motion for reconsideration

Motion to dismiss complaint upon plaintiff’s motion

Motion to lift order of default

Motion to declare a party in direct contempt

Motion for demurrer to evidence

Motion for consolidation or severance of case

Motion for trial by commissioner

Motion to strike out evidence or testimony off the record

Examples of non-litigated motions:

Motion to reset pre trial

Motion to postpone pre trial

Motion to extend time for filing pleadings

Motion to set case for pre trial

Motions that need to be verified:

Motion for relief from judgment

Motion to lift order of default

Motion to postpone trial

Motion for new trial on ground of FAME

All motions for provisional remedies:

Motion for preliminary attachment

Motion for dissolution of preliminary injunction

Motion for writ of replevin

Motion in support pendent lite

Motion to postpone for absence of evidence

Motion to postpone for illness of a party or counsel

Rule 16- relate to Rule 10

Amendment as a matter of right if a motion to dismiss is filed- PWEDE! Because motion to dismiss is NOT a responsive pleading

Motion to dismiss- not a pleading

Position paper- not a pleading

Memorandum- not a pleading

Amendment if order granting motion to dismiss, pwede, for as long as the motion is final and executory

OF the 10 grounds,

Motion to dismiss after a responsive pleading,

PWEDE, raise as affirmative defense, then set the motion to dismiss for hearing

B. MOTION FOR BILL OF PARTICULARS (R12)

(Note: Different from motion for bill of particulars in Criminal Procedure)

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Motion for Bill of Particulars in Civ Pro

Motion for Bill of Particulars in Crim Pro

Rule 12 R116 S9

May be filed before responding to a pleading

May be filed before arraignment

Address any matter in the pleading not averred with sufficient definiteness or particularity

Address alleged defects in the criminal complaint or information

Purpose is to prepare responsive pleading

Purpose is to enable properly to plead and prepare for trial

Note: the motion is a LITIGATED MOTION

To clarify ambiguities

Done before filing of a responsive pleading

What is a bill of particulars?

R12 S1 states that a bill of particulars is a more definite statement of any matter which is not averred with sufficient definiteness or particularity, with the purpose of aiding in the preparation of a responsive pleading.

When do you file bill of particulars?

R12 S1 states that a bill of particulars is filed before responding to a pleading, following the reglementary periods provided for under R11. (If the pleading is a reply, the motion must be filed within 10 days from service thereof)

Requirements for filing Bill of Particulars:

(R12 S1 in relation to R15)

1. A written motion by the defending party before the court for a bill of particulars

2. If the pleading is a reply, the motion must be filed within 10 days from service

3. The motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired

4. The motion is to be filed before the filing of responsive pleading

5. In writing

6. Hearing of motion set by applicant

7. Notice of hearing shall be addressed to all the parties concerned not later than 10 days from the filing of the motion

8. Motion and notice of hearing must be served at least 3 days before the date of hearing

9. Proof of service

The motion for bill of particulars is denied. Remedy?

R12 S5

After service of the Bill of Particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion which shall not exceed 5 days in any event

Effect of order of failure to comply to file Bill of Particulars

R12 S4

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If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed, or make such order as it deems just.

(File a motion to strike out the pleading)

Motion for Bill of Particulars:

Granted: Clarify, file bill of particulars

Denied, answer within the plenary period

IS bill of particulars part of a pleading?

YES!

R12 S6 provides that a bill of particulars becomes part of the pleading for which it is intended.

C. MOTION TO AMEND THE PLEADING (Rule 10)

Amendment, as provided under R10 S1, is the process of:

1. Adding or striking out an allegation or name of any party or

2. Correcting a mistake in the name of a party or a written or inadequate allegation or description in any other respect,

a. So that the actual merits of the controversy may speedily be determined,

b. Without regard to technicalities,c. And in the most expeditious and

inexpensive manner

IN SHORT:

Amendment is the process of adding or striking out or correcting a name or allegation

Amendment as a matter of right

- To correct alterations in a PLEADING (not in a motion)

Kinds of amendments:

1. Amendment as a matter of right: (R10 S2)

A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or in the case of a reply, at any time within 10 days after it is served.

- Once the pleading is amended, the old pleading is no more, EXCEPT, admissions made in the old pleading

2. Amendment by leave of court: (R10 S3)

Except as provided in the next preceding section, substantial amendments may be made only upon leave of court

- Amendment is substantial- A responsive pleading had already been

served

3. Formal Amendments (R10 S4)

A defect in the designation of the parties or other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party.

4. Amendments to conform or to authorize presentation of evidence (R10 S5)

When issues not raised in the pleadings are tried with the express or implied consent of parties, they shall be treated as if raised in the pleadings,

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pleadings may be amended to conform to the evidence, and failure to amend does not affect the result of the trial of these issues

- With already presentation of evidence, but as far as allegations are concerned, there is discrepancy, so, amendment is allowed to conform to evidence

o NOTE: meron din to sa criminal procedure

5. Substantial amendments

Amendment of the pleading which would change the original cause of action

6. Amendment to confer jurisdiction

Amendment as a matter of right, so far as no responsive pleading is served

Question: Amendment as a matter of right, there is second motion to amend (not once as a matter of right), is the second motion to amend a matter of right or a matter of discretion?

(Question unanswered yet)

If there is no responsive pleading yet- amendment as a matter of right

Once- matter of discretion

Amendment as a matter of right

DENIED: remedy- MANDAMUS

Amendment with leave of court (after the filing of a responsive pleading)

DENIED: Remedy?

Certiorari Rule 65 in relation to Rule 41 S1Order is interlocutory

Relate Rule 10 to Provisional Remedies

If the original complaint or verified complaint has provisional remedies, and the original is superseded by amendment, any provisional remedy is affected by amendment

Amendment of complaint, which includes prayer for writ of attachment, the provisional remedy shall be DISSOLVED.


- When the answer does not allege cross claim, counterclaim,

o Remedy: AMENDMENT of the pleading

- Answer omitted counterclaim or cross claim,

o Remedy is to AMEND the answer

Relate to Rule 2

- In case of non joinder of causes of action,o AMEND the pleading

Relate to Rule 3

- Related to joinder of parties,o AMEND the complaint

Related to Rule 14 and Rule 57

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- In personam to quasi in rem, publication is allowed

- Substantial amendmento Service of summons required

- Amendment of complaint to join another party,

o Need to serve summons

Amendment of the answer? 3PC? 4PC? Complaint in intervention?

PWEDE!- amendment of the pleadings naman ang tinutukoy eh

Amended Pleading Supplemental Pleading

Refers to facts existing at the time of the commencement of the action

Refers to facts arising after the filing of the original pleading

Takes the place of the original pleading

Taken together with the original pleading

Can be made as matter of right when no responsive pleading has yet been filed

Always with leave of court

When amended pleading is filed, a new copy of the entire pleading must be filed

A substantial pleading does not require the filing of a new copy of the entire pleading

Amendment as a matter of right is to be answered before the filing of the responsive pleading, (within 15 days after being served with a copy thereof)—(R11 S3)

A supplemental pleading may be answered within 10 days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as

Amendment by leave of court is to be answered within 10 days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed (R11 S3)

answer to the supplemental complaint if no new or supplemental answer is filed (R11 S7)

Supersedes original pleading

Supplements original pleading

With or without leave of court

With leave of court

Relate to Rule 16

The court may either deny the motion to dismiss, grant the motion to dismiss, or ORDER THE AMENDMENT OF THE PLEADING

Is there amendment of the pleading in summary procedure?

YES

- As a matter of right- As a matter of discretion

o NO PROHIBITION under the Rules on Summary Procedure

D. MOTION FOR EXTENSION OF TIME TO FILE RESPONSIVE PLEADING (Rule 11)

Rule 11 S11

Section 11

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Upon motion and on such terms as may be just,

the court may extend the time to plead provided in these Rules

The court may also, upon like terms,

allow an answer or

other pleading to be filed

after the time fixed by these Rules

Extend, BASED ON CAUSE

Not a litigated motion

no need for hearing, notice, and filing

3 day notice rule- further motion 3 days before hearing

10 daysmotion set for hearing at least 10 days

Is bill of particulars allowed in Summary Procedure?

NO (Prohibited pleading)

Motion to dismiss in Summary Procedure?

NO (prohibited pleading)

EXCEPT:

1. lack of jurisdiction over the person of the defending party

2. lack of jurisdiction over the person of the defendant

3. failure to comply with the Barangay Conciliation Proceedings

EXCEPTION TO EXCEPTION:

Small Claims Cases- motion to dismiss absolutely hindi pwede

E. SUMMARY JUDGMENT (Rule 35)

Summary judgment

- judgment rendered by the court without trial if it clearly appears that there exists no genuine issue or controversy as to any material fact, except as to the amount of damages

S1 and 2- PLAINTIFF or DEFENDANT Files

Plaintiff- at any time after the pleading in answer thereto has been served

Defendant- at any time

NOTE: LITIGATED MOTION

GRANTED:

- remedy is APPEALo final judgment on the merits

DENIED:

- pleado there is issue, but there is no

genuine issue

Maganda ka? Maganda ka nga

ORDER OF DEFAULT / JUDGMENT BY DEFAULT (Rule 9)

Order of Default Judgment by Default

Order issued by the court where defendant failed to file answer

Decision or judgment by the court after order of default and presentation

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of evidence ex parte by plaintiff

ORDER OF DEFAULT

Rule 9 S3 provides that a defending party who fails to file an answer to an initiatory pleading within the time allowed therefor may be declared in default.

DEFENDING PARTY INCLUDES:

In a permissive counterclaim- original plaintiffIn a 3PC- 3rd party defendantIn a cross claim- co defendant

Requirements for declaration of default: (R9 S3)

1. The court must have validly acquired jurisdiction over the person of the defendant either by service of summons or voluntary appearance

2. Proof of service of summons on the defendant

3. The defendant fails to answer within the time allowed therefore

4. Written motion by claiming party to declare defendant in default (NOT oral motion!)(state R15 requirements)

Plaintiff failed to file answer, be declared in default

(R9 in relation to Rule 6)

NATURE OF ORDER OF DEFAULT: interlocutory (making reference to R41)

REMEDY:

MOTION TO LIFT ORDER OF DEFAULT

Verified, FAME, Affidavit of Merit (note what it is, and in what instances required [all FAME])

Granted: File answer

Denied,

FILE MOTION FOR RECONSIDERATION

- S4 R65- Interlocutory

o NOT Rule 37 as basis (because Rule 37 applies only to Final orders)

Denied,

CERTIORARI RULE 65 with TRO or injunction

- Dahil pag wala, at may order of default, tuloy tuloy na + judgment of default

NOTE: umaakyat to hanggang SC- Ordinary and Special Civil actions (from MTC), [not Spec Pro]

MTC

(all special civil actions, original actions in exercise of original jurisdiction, final judgment)

ORDINARY CIVIL ACTION

Order of default

DENIED,


DENIED,

Certiorari Rule 65 RTC with TRO (S7 R9 amended by AM 7-7-12)

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DENIED,

Motion for reconsideration Rule 37 with RTC

DENIED,

Notice of appeal with CA Rule 41 (original jurisdiction of RTC ang certiorari Rule 65)—apply Neypes, doctrine of hierarchy of courts

DENIED,

CA M4R Rule 52

DENIED,

SC R45 Petition for Review on Certiorari apply Neypes, Hierarchy of courts

DENIED,

SC M4R Rule 52

DOCTRINE OF HIERARCHY OF COURTS

Higher courts will not entertain any case brought before it unless the same is decided before the lower courts

Effect of order of default:

- Lose standing- Not to participate at the trial but shall be

entitled to notices- Entitled to 2 copies of decision, resolution,

substantially amended pleadings

R9 S3 in relation to Rule 10

- Order of default issued by court, there is amendment of the pleading, order of default is dissolved

R9 in relation to Modes of Discovery

- R29o Due to refusal to comply with the

modes of discovery, the refusing party may be declared in default

In case of motion to declare defendant in default, there is one more remedy:

- File motion to admit answero Mawawala ang motion to declare

defendant in default dahil may answer na eh

Summary Proceedings

Motion to declare defendant in default is a PROHIBITED PLEADING

As plaintiff in such a case, file MOTION TO RENDER JUDGMENT

As defendant, don’t file motion to admit answer

- It is equal to motion for extension of time to file pleadings

o PROHIBITED PLEADING

ETO DISKARTE MO, ikaw ang defendant

- Go to office of the clerk of court, file your answer, at pag ayaw tanggapin, file it by registered mail

o Pag nag argue ang kalaban, motion to strike out answer, WEH!

R1 S6- Liberal application of the rules, HENCE, you can file answer

Summary Procedure

Given 10 days to answer from receipt of service of summons

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JUDGMENT BY DEFAULT

Nature: Final Judgment

R9 in relation to R11

Based on presentation of evidence ex parte

BEFORE JUDGMENT BECOMES FINAL AND EXECUTORY:

REMEDY:

Motion to set aside judgment or final order due to FAME

Denied,


Denied,

CERTIORARI Rule 65 with TRO/injunction- PREFERRED over appeal

- Because appeal is not the adequate, speedy remedy

o Judgment kasi is based on evidence ex parte- no evidence to review because no evidence in the first place is presented by defendant

GENERAL RULE: certiorari is not a substitute for lost appeal;

EXCEPTION: when appeal is not a speedy, adequate remedy

Denied. Remedy?

File a motion for reconsideration of the judgment or final resolution within 15 days from service thereof before the CA, with proof of service on the adverse party.

Basis: R52 S1

Denied. Remedy?

File a petition for review on certiorari before the SC raising only questions of law which must be distinctly set forth, within 15 days from notice of the denial of petitioner’s motion for reconsideration filed in due time after notice of the judgment.

Basis: R45 S2 and R45 S1-- CA judgment, final order, or resolution can be elevated to the SC raising only questions of law

Denied. Remedy?

File a motion for reconsideration of the judgment or final resolution within 15 days from service thereof before the SC, with proof of service on the adverse party.

Basis: R52 S1

AFTER FINALITY OF JUDGMENT:

Any of the following remedies:

1. File petition for relief from judgment, order, or other proceeding on the ground of entry of such judgment or final order, or any other proceeding is thereafter taken against a party in a court through FAME (Rule 38 S1)

2. File petition for annulment of judgment or final order or resolution on the ground of extrinsic fraud (R47 S1 and 2)

3. File petition for certiorari (Rule 65)

4. Collateral Attack

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V. FILING OF ANSWER

Answer- the pleading setting forth the defending party’s defenses

(Bears the same parts of a pleading)

WITHIN WHEN?

What are the responsive pleadings?

Rule 6 of the Rules of Court in relation to Rule 11 provides for the following responsive pleadings:

Answer to the original complaint

Compulsory counterclaim

Answer to the permissive counterclaim

Answer to cross claim

Answer to 3rd 4th etc party complaint

Answer to complaint in intervention

Reply

Answer to amended complaint

Answer to amended counterclaim

Answer to amended cross claim

Answer to amended 3rd 4th etc party complaint

Answer to amended complaint in intervention

Answer to supplemental complaint

Rejoinder

Answer to counter counterclaim

Answer to counter cross claim

Answer to amended counter counterclaim

Answer to amended counter cross claim

Discuss the periods to answer to responsive pleadings under Rule 11 of the Rules of Court:

1. Answer to the original complaint

R13 S1

Defendant shall file answer to the complaint within 15 days after service of summons, unless a different period is fixed by the court

R13 S2

Where the defendant is a foreign private juridical entity and service of summons is made:

- to a resident agent, answer shall be filed within 15 days from service of summons to him

- when it has no resident agent but has an agent or officer in the Philippines, answer shall be filed within 15 days after service of summons to said agent or officer

- if it has no resident agent nor an agent or officer, and summons is made on the proper government office designated by law to receive the same (SEC), which will then send a copy thereof by registered mail within 10 days to the home office of the foreign private corporation, answer shall be filed within 30 days after receipt of summons by the home office of the foreign private entity

R14 S15

In case of summons by publication, answer shall be filed within the time specified in the order granting

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leave to serve summons by publication which shall not be less than 60 days after notice, within which the defendant must answer.

In case of a non resident defendant in whom extraterritorial service of summons is made, the period to answer should be at least 60 days.

2. Compulsory counterclaim

(note above periods?)

3. Answer to permissive counterclaim

R11 S4

A permissive counterclaim must be answered within 10 days from service

4. Answer to cross claim

R11 S4

A cross claim must be answered within 10 days from service

5. Answer to 3 rd 4 th etc party complaint

R11 S5

Time to answer a 3rd 4th etc party complaint shall be governed by the same rule as the answer to the complaint (hence, follow R11 S1, 2 plus amendments)

6. Answer to complaint in intervention

R19 S4

The answer to the complaint in intervention shall be filed within 15 days from notice of the order admitting the same, unless a different period is fixed by the court

7. Reply

R11 S6

A reply may be filed within 10 days from service of the pleading responded to

8. Answer to amended complaint

R11 S3

Where plaintiff files amended complaint as a matter of right, the defendant shall answer the same within 15 days after being served with a copy thereof

Where its filing is not a matter of right, the defendant shall answer the amended complaint within 10 days from notice of the order admitting the same

9. Amended CC, Amended 34etc PC, Amended CII

R11 S3 (note the period) shall apply to the answer to an amended counter claim, amended cross claim, amended 3rd 4th etc party complaint, amended complaint in intervention

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10. Answer to supplemental complaint

R11 S7

A supplemental complaint may be answered within 10 days of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as answer to the supplemental complaint if no new or supplemental answer is filed.

11. Rejoinder

(?)

R11 S4 (?)

Answer within 10 days from service

17-18.

R11 S3 (?)—note the periods

Answer may raise counterclaim or cross claim

Answer in third party complaint- Can you raise Counterclaim or cross claim?

YES!

But, if counterclaim against counterclaim, counter counterclaim

IF cross claim against cross claim, then counter cross claim

Counterclaim Cross Claim

Any claim which a defending party may have against the opposing party

Any claim by one party against a co party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein

Compulsory Counterclaim

Permissive Counterclaim

Arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim

Does not arise out of nor is necessarily connected with the subject matter of the opposing party’s claim

Does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction

It may require for its adjudication the presence of third parties over which the court cannot acquire jurisdiction

Barred if not set up in the action

Not barred even if not set up in the action

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Need not be answered, not result in default

Must be answered or else defendant can be declared in default

Not an initiatory pleading

Initiatory pleading

Docket fees are suspended

With docket fees

Omitted counterclaim or cross claim

REMEDY: amend the answer

Motion to dismiss with counterclaim

If permissive counterclaim, PWEDEKasi, independent sa main action

Counterclaim with respect to Rule 17

Pwede, proceed after service of answer (Rule 17 S1 and 2)

Counterclaim with respect to Rule 18

Plaintiff failed to appear in pre trial, case is dismissed with prejudice, without prejudice to counterclaim

DEFENSES and DENIALS

What are the types of defenses?

1. Negative defense

R6 S5

Negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action.

2. Affirmative defense

R6 S5

An affirmative defense is an allegation of new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include:

a. Fraudb. Statute of limitationsc. Released. Paymente. Illegalityf. Statute of fraudsg. Estoppelh. Former recoveryi. Discharge in bankruptcyj. Any other matter by way of confession and

avoidance

Ground for motion to dismiss (if M2D not filed or M2D denied), may be pleaded as an affirmative defense in the answer

Motion to set affirmative defense for hearing,

- Equivalent to motion to dismisso During hearing, defending party to

present evidence first INVERTED TRIAL

Affirmative defense is granted, case is dismissed. Remedy?

APPEAL (Because trial is on the merits)

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With respect too negative defenses, note SPECIFIC DENIALS

What is a negative pregnant?

- General denials are deemed admissions

Plaintiff’s remedy in such a case?

- JUDGMENT ON THE PLEADINGS (Rule 34)

Kinds of Denials:

1. Specific Absolute Denial

- By specifically denying the averment and whenever practicable, setting forth the substance of the matters relied upon for such denial

With support dapat

Specifically deny par 2 __ for being untrue, the truth of the matter is that...

2. Partial specific denial

- Part admission and part denial

With support dapat

3. Disavowal of knowledge

- By an allegation of lack of knowledge or information sufficient to form a belief as to the truth or falsity of the averment in the opposing party’s pleading

In good faith, or else, deemed an admission

Specific denial in par __ __ __ for lack of knowledge to truth or belief of the same

Specific not necessarily Specific Denial

Answer- no need to verify

EXCEPT:

1. Actionable Document

- Document which creates rights, which serves as basis for filing of the complaint

2. Usury in a complaint

3. Summary procedure

4. Answer with permissive counterclaim

Not denied under oath an actionable document such as deed of sale or mortgage,

Failure to verify = deemed admittedHENCE, judgment on the pleadings

Except:

1. Fraud/forgery2. Not a party to the actionable document

After jurisdiction is acquired by court, parties may resort to:

VI. MODES OF DISCOVERY

Rules 23-28

- Depositions pending action (under R23)- Depositions before action or pending

appeal (R24)- Interrogatories to parties under R25- Admission by adverse party (R26)

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- Production or inspection of documents or things under (Rule 27)

- Physical and mental examination of persons under (Rule 28)

Discussing each:

1. Depositions pending action (R23)

Deposition- a written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for cross examination

Aka depositions de bene esse

May be taken with leave of court when:

1. After jurisdiction has been obtained over any defendant or over the property which is the subject of the action but before an answer has been filed

2. Deposition of a person confined in prison

May be taken without leave of court:

1. After answer and deponent is not confined in prison

Scope of examinations:

1. Matter which is relevant to the subject of the pending action

2. Not privileged3. Not restricted by a protective order

2. Depositions before action or pending appeal (Rule 24)

Aka perpetuam rei memoriam

- Objective is to perpetuate testimony of a witness for future use

o Taken conditionally, to be used at the trial only in case deponent is not available

- Do not prove existence of any right and the testimony perpetuated is not in itself conclusive proof, either of the existence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever hadBUT, in the absence of any objection to its taking, and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition

3. Interrogatories to parties (R25)

- Purpose is to elicit facts from any adverse party

- Answers may also be used as admissions of the adverse party

- Written interrogatories and the answers thereto must be both filed and served, hence, the answers may constitute as judicial admissions

4. Admission by Adverse Party under Rule 26

- Purpose is to expedite trial and relieve parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry

- An admission made is for the purpose of the pending action only and cannot be used in other proceedings

5. Production or inspection of documents or things under Rule 27

- Applies only to a pending action and the documents or things subject of the motion must only be those within the possession, control, or custody of a party

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The documents to be produced must have the following requisites:

1. Should not be privileged2. Should constitute or contain evidence

material to any matter involved in the action and which are in the party’s possession, custody, or control

3. In a petition for production of papers and documents, they must be sufficiently described and identified, or else, the petition will not prosper

This mode of discovery does not authorize the opposing party or clerk or other functionaries of the court to distrain the articles or deprive the person who produced the same of their possession, even temporarily

6. Physical and Mental Examination of Persons under Rule 28

- This mode of discovery is available in an action in which the mental or physical condition of a party is in controversy, usually arising in controversy in proceedings for guardianship over an imbecile or insane person, while the physical condition of the party is generally involved in physical injuries cases

- Since the results of the examination are intended to be made public, the same are not covered by physician-patient privilege

Use of depositions:

1. Impeach adverse party’s witness (relate to evidence)

2. Residing 100 km away, sick or infirm

R23 R24- Relate to R134 (Deposition)

Interrogatories/Admission by adverse party

1. File answer or comment, or else, the facts are deemed admitted, no issue, hence, judgment on the pleadings

Production/Inspection of documents or things

For photographing, copying, inspecting

Production or Inspection of Documents or Things

Subpoena

Mode of discovery Process

By motion By request

Production or Inspection of Documents or Things

Original of Evidence in Custody of Adverse

Party

Mode of discovery Exception to the best evidence rule

By motion By notice

If there is no original document, because such is in the presence of adverse party, the requesting party can ask for production of the original by way of notice

Without prior knowledge as to contents

With prior knowledge of contents of the document, because the requesting party has the secondary evidence

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Mental and Physical examination of Persons vs Hospitalization of Insane Persons

Hospitalization of Insane Persons

Physical and Mental examination of persons

Governed by Rule 101 Governed by Rule 28

Special proceeding Mode of discovery

File a petition File a motion

Filed by Regional Director of DOH

Any party may avail of

Another remedy which may be availed of:

MOTION TO DISMISS BY PLAINTIFF (Rule 17)

What are the grounds for dismissal under Rule 17?

1. Dismissal upon notice by plaintiff (R17 S1)

- At any time before service of the answer or of a motion for summary judgment

Before filing responsive pleading or motion for summary judgment

2. Dismissal upon motion by plaintiff (R17 S2)

Upon approval of the court andUpon such terms and conditions as the court deems proper

With answer, by way of motion without prejudice to counterclaim

May be filed independently or separately

3. Dismissal due to fault of plaintiff, when for justifiable cause,

Plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint

Plaintiff fails to prosecute his action for an unreasonable length of time

Plaintiff fails to comply with these Rules or any order of the court

What is the 2 dismissal rule? What are its elements?

(R17 S1) -..the notice of dismissal by plaintiff operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim

Elements of 2 dismissal rule: (R17 S1)

1. First complaint filed by plaintiff before court of competent jurisdiction

2. At any time before service of answer or of motion for summary judgment, plaintiff filed notice of dismissal of the first complaint, which the court granted (effect without prejudice)

3. Second complaint filed by plaintiff involving an action based on or including the same claim before court of competent jurisdiction

4. At any time before service of answer or of motion for summary judgment, plaintiff filed notice of dismissal of the second complaint based on or including the same claim as the first complaint

Effect of 2 dismissal rule (R17 S1):

The second notice of dismissal shall operate as an adjudication upon the merits.

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Exceptions to 2 Dismissal Rule:

1. 1st action is not related to the second action

2. Court dismissing the second action is a court not of competent jurisdiction

Nature of Dismissal of actions under Rule 17:

(S1), upon notice by plaintiff

Unless otherwise stated in the notice, the dismissal is without prejudice,

(*2 dismissal rule) ..except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim

(S2), upon motion of plaintiff

The dismissal shall be without prejudice, unless otherwise specified in the order

(S3), due to fault of plaintiff

The dismissal shall have the effect of an adjudication upon the merits unless otherwise declared by the court

What are your remedies, as plaintiff, in such cases?

S1- dismissal upon notice by plaintiff

refile the case (unless the 2-dismissal rule applies [?])

or if so declared with prejudice, appeal the dismissal

S2- dismissal upon motion of plaintiff

Refile the case

If the court declares that the dismissal is with prejudice, appeal the dismissal

S3- dismissal due to fault of plaintiff

Appeal the dismissal

If the court declares that the dismissal is without prejudice, refile the case

Another:

JUDGMENT ON THE PLEADINGS (Rule 34)

S1

Where the answer

- fails to tender an issue or - otherwise admits the material allegations of

the adverse party’s pleading,

the court may, on motion of that party, direct judgment on such pleading

However, in an action for declaration of

- nullity or - annulment of marriage or - for legal separation,

the material facts alleged in the complaint shall always be proved

Exception that JoP be on motion:

- if at pre trial court finds that judgment on the pleadings is proper, it can render such judgment motu proprio

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Allegations not deemed admitted by filing of judgment on the pleadings:

- irrelevant allegations- immaterial allegations- allegations of damages in the complaint

Judgment on the Pleadings

Summary Judgment

3 day notice rule 10 day notice rule

Filed by plaintiff Filed by defendant

Based solely on the pleadings

Based on pleadings, depositions, admissions, affidavits

Answer fails to tender an issue or there is an admission of material allegations

No genuine issue between the parties

On the merits Interlocutory or on the merits

There is answer filed If filed by plaintiff, filed at any time before answer is served

If filed by defendant, may be filed at any time even before answer

VII. REPLY (R6 S10)

A pleading, the office or function of which is to deny or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters.

If a party does not file such reply, all the new matters alleged in the answer are deemed controverted.

R11- may be filed within 10 days from service of the pleading responded to

VIII. REJOINDER

Second pleading on the party on the part of defendant being his answer to the plaintiff’s replicationAnother form of responsive pleading

IX. PRE TRIAL (Rule 18)

Rule 18 S1 COMPLETE:

AFTER the LAST PLEADING ASSERTING A CLAIM has been served and filed, or AFTER the EXPIRATION OF THE TIME FOR FILING THE LAST PLEADING ASSERTING A CLAIM, a pre trial is to be conducted upon motion ex parte by plaintiff that the case be set for pre trial

Pre Trial Conference- yes

Answer


Answer to cross claim

Answer to third party complaintAnswer to complaint in intervention

Reply to answer

Reply to answer to permissive counterclaim

Reply to answer to cross claim

Reply to answer to third party complaint

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Reply to answer to complaint in intervention

Rejoinder

By MOTION

If the motion is not filed, is the case dismissed for failure to prosecute?

- Techinically, yes, but ff R1 S6 (liberal construction,

o It is not dismissed

Hence, if plaintiff failed to file motion ex parte that the case be set for pre trial, the clerk of court shall issue notice of pre trial conference

Pre Trial in Criminal Cases

Pre Trial in Civil Cases

Mandatory requirement

After arraignment, within 30 days from the date the court acquires jurisdiction over the accused

After the last pleading asserting a claim has been served and filed

Rule 118 Rule 18

No pre trial brief Pre trial brief is required to be filed and served

Counsel of accused and prosecutor are required to appear

Parties and counsel are required to appear

Non appearance may be excused only if valid cause is shown, or representative shall appear in behalf duly authorized in writing to

enter into amicable settlement, submit to ADR, enter into stipulations of facts and of document

Failure of counsel of accused or prosecutor to appear, and without acceptable excuse for lack of cooperation, court may impose proper sanctions or penalties

Presence of private offended party is not required (as only required to appear at arraignment)

Failure of plaintiff to appear, dismissal of the case with prejudice, unless otherwise ordered by the court

Failure of defendant to appear, plaintiff to present evidence ex parte

Prê trial agreement is in writing, signed by accused and counsel, or else, cannot be used against accused

Signed by parties and counsel (?)

Considerations in pre trial conference:

Plea bargainingStipulation of facts

Marking of identification of evidence of the parties

Waiver of objections to admissibility of

Considerations in pre trial:

Possibility of amicable settlement or submission to alternative modes of dispute resolution

Simplification of the issues

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evidence

Modification of order of trial if accused admits the charge but interposes a lawful defense

Such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case

Necessity or desirability of amendments to the pleadings

Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof

Limitation on the number of witnesses

Advisability of preliminary conference of issues to commissioner

Propriety of rendering judgment on the pleadings, summary judgment, dismissing the action should a valid ground therefor be found to exist

Advisability or necessity of suspending the proceedings

Such other matters as may aid in the

prompt disposition of the action

(simplified)

Pre Trial In Criminal Pre Trial in Civil

After arraignment After last pleading asserting a claim has been served and filed

No pre trial brief With pre trial brief

Order of pre trial signed by accused and counsel so admissions are binding

Failure to appear, sanctions against counsel and prosecutor

Failure to appear by plaintiff, dismissal of case with prejudice

Failure to appear by defendant, plaintiff to present evidence ex parte

What are the purposes of pre-trial?

(Rule 18 S2)

The court shall consider:

a. The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution

b. The simplification of the issues

c. The necessity or desirability of amendments to the pleadings

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d. The possibility of obtaining stipulations of admissions of facts and of documents to avoid necessary proof

e. The limitation of the number of witnesses

f. The advisability of a preliminary conference of issues to a commissioner

g. The propriety of rendering judgment on the pleadings or summary judgment or of dismissing the action should a valid ground therefore the found to exist

h. The advisability or necessity of suspending the pleadings

i. Such other matters as may aid in the prompt disposition of the action

S6- Pre trial brief

The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least 3 days before the date of the pre trial, their respective pre trial briefs which shall contain, among others:

a. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof

b. A summary of stipulated facts and proposed stipulation of facts

c. The issues to be tried or resolved

d. The documents or exhibits to be presented, stating the purpose thereof

e. A manifestation of their having availed or their intention to avail themselves of

discovery procedures or referral to commissioners

f. The number and names of the witnesses, and the substance of their respective testimonies

Failure to file the pre trial brief shall have the same effect as failure to appear at the pre trial.

PRE TRIAL BRIEF

Required to be filed at least 3 days before the Pre Trial Conference

Ensure na really good, for filing memoranda

(all remedies, may bayad, bawat pleading)—pagkakitaan

Failure to file at pre trial brief = failure to appear at pre trial, same effect

Requisites for appearance at the pre trial:

(R18 S4)

1. Duty of the parties and their counsel to appear at the pre trial

2. The non-appearance of a party may be excused only if a valid cause is shown therefor or IF A REPRENTATIVE SHALL APPEAR IN HIS BEHALF FULLY AUTHORIZED IN WRITING

If party a NATURAL PERSON- representative is armed with SPECIAL POWER OF ATTORNEY

If party is a JURIDICAL PERSON (corporations or partnerships)- representative is armed with BOARD RESOLUTION (Board resolution is binding upon the entire corporation, because the Board of Directors

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[in case of stock corporations] or the Board of Trustees [in case of non stock corporations] are the ones who make the decisions of the corporation through Board Resolution-- note that Board Resolution prevails over SPA)

Effects of failure to appear at the pre trial:

Plaintiff fails to appear

R18 S5

The failure of plaintiff to appear at the pre trial conference when so required shall be cause for the dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court.

Defendant fails to appear

R18 S5

The failure of defendant to appear at the pre trial conference shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.

Remedies in case of failure to appear by plaintiff / defendant:

Plaintiff fails to appear

Plaintiff can file an appeal, unless the dismissal is ruled to be without prejudice, which in such a case, defendant would be avail of the remedy of refiling the case or filing a petition for certiorari under Rule 65

Defendant fails to appear

NOTE: Defendant WILL NOT BE DECLARED IN DEFAULT! Likewise, there is no such thing under the

1997 Rules on Civil Procedure AS IN DEFAULT (sa luma to)

When defendant fails to appear, 4 SCENARIOS ARE CONTEMPLATED:

- Issuance of order allowing ex parte presentation of evidence/before presentation of evidence

- Order allowing ex parte presentation of evidence was issued, plaintiff presents ex parte evidence

- Before judgment becomes final and executory

- After judgment becomes final and executory

ORDER ALLOWING PLAINTIFF’S PRESENTATION OF EVIDENCE EX PARTE

REMEDIES: The order is interlocutory, hence,

File motion for reconsideration, based on R65 S4 and R41 S1

- R65 (4)- ..whether such m4r is required or not..

- R41 (1)- the order allowing ex parte presentation of evidence is an interlocutory order, hence, no appeal may be taken from it

If M4R denied, file petition for certiorari under Rule 65

- R41 (1)- the order allowing ex parte presentation of evidence is an interlocutory order, no appeal may be taken from it, hence, aggrieved party may file the appropriate special civil action under Rule 65, which includes certiorari

PRESENTATION OF EVIDENCE EX PARTE

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Conducted by Court of CLERK OF COURT

- Clerk of court, a LAWYERo Hence, if judge delegated to clerk

of court who is not a lawyer, BAWAL

Can clerk of court charge Commissioner’s Fee?

BAWAL accdg sa Manual of Clerk of Court (ugat ng corruption)

The only time na pwede is when he is not an employee of a court

REMEDIES:

File a motion for reconsideration + Set aside the Evidence Ex parte

- on the ground that the order is contrary to law [R37]? OR,

- that, the order allowing ex parte presentation of evidence is an interlocutory order) if you fail this, the evidence shall form part of the records of the case – kawawa ka cge

If the motion for reconsideration + motion to set aside is denied, file a petition for certiorari under Rule 65

R41 (1)- the order allowing ex parte presentation of evidence is an interlocutory order, no appeal may be taken from it, hence, aggrieved party may file the appropriate special civil action under Rule 65, which includes certiorari

Before judgment becomes final and executory

REMEDIES:

- Appeal the judgment (Rule 41) or

- File motion for reconsideration (Rule 37) or

Ground: that the evidence is insufficient to justify the decision or final order

- File a motion for new trial (Rule 37)

Ground: FAME which ordinary prudence could not have guarded against and by reason of which such aggrieved party has been impaired in his right

After judgment becomes final and executory

REMEDIES:

- File Relief from judgment, order, or other proceedings under Rule 38 or

o GROUND: any proceeding is thereafter taken against the party in any court through FAME

- File for annulment of judgment, final order, or resolution under Rule 47 or

o GROUND: extrinsic fraud

- File petition for certiorari under Rule 65 oro GROUND: GAD amounting to lack

or excess of jurisdiction on the part of the tribunal exercising judicial functions, and there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law

- Make a collateral attack on the judgment

Pre Trial Order

- Order issued by the court stating what transpired during the pre trial conference

o Can be amended accordinglyo By filing motion to amend or

correct the pre trial order, within 5

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days after receipt of the pre trial order

o NO NEED for counsel to sign the pre trial order

Pre Trial conference- relates to judicial admissions under Rule 129

Adverse party admits your proposals/stipulations

- Deemed admitted

Cause of action admitted by defendant,

- Rule 18 in relation to Rule 34 JUDGMENT ON THE

PLEADINGSConclusive on part of admitter, for purposes of substantial justice

Pre Trial

- May be delegated to clerk of court who is a lawyer

After PRE TRIAL,

X. TRIAL

The best part of law practice

(Rule 30 in relation to Rule 132 S4, 5, 6, 7, 8)

A proceeding where parties present evidence and ends in oral argument

With respect to examination of witnesses

Pre trial brief (see above) presented in trial

All witnesses in pre trial brief to be presented

Before witness is presented, offer of testimony, in accordance with purpose in pre trial brief

1. PROPONENT’S / PLAINTIFF’S TESTIMONIES AND EVIDENCE IN CHIEF as well as that of witnesses

With respect to Rule 7 (parts of a pleading) stating the cause of action in the body of the pleading

Ultimate facts to be proven during the trial of the case

ORDER:

Direct Examination

- Transform allegations of the complaint in the body of the pleading

- Cause of action- Direct testimony- Show sinumpaang salaysay

HOW, WHEN, WHERE, WHAT, WHY

CONSIDER violations and exceptions:

Leading Questions

- Avoid except in preliminary matters- Propound answers which proponent desires

NOTE EXCEPTIONS: hostile witnesses, minors, adverse party, preliminaries

Is your name Ms X? Leading

Is your age 27? Leading

Misleading questions

Cross Examination

Requires knowledge of:

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- Facts- Evidence- Defenses

Leading questions are allowed

Totoo bang ikaw ay maganda? Leading

Obtain affirmative answers- GOOD

Line of questioning:

Is it not a fact you are 1 of... YES

Executed sometime, etc... YES

NOTE: Lead mo papunta sayo

- Test credibility of witness, test credibility of testimony

- Not from the mouth of credible witness, but from credible testimony

o WHY? Asa TSN- pag may mali, ipa correct

TSN is best evidence of what transpired during trial

To impleach testimony of witness

To refresh memory of the witness

Ididiscuss din to isa isa sa memorandum

Re Direct Examination

Re establish what was destroyed during the cross examination

Re Cross Examination

Destroy what was re established in the re direct examination

NOTE: Identify all witnesses

Offer of Testimony Offer of Evidence

Made at the time the witness is presented on the witness stand

After termination of presentation of evidence of prosecution

Evidence in chief

Evidence supporting allegations in the complaint

After presentation of all witnesses,

Offer of evidence

Then,

Comment or objection

- Secondary- Not identical

Then,

Order of admission/Exclusion of evidence

Admitted; Exh A, Exh B

Excluded: Exh C, etc

TENDER OF EXCLUDED EVIDENCEConsidered by CA in appeal

After PLAINTIFF RESTS ITS CASE,

(defendant may file) DEMURRER TO EVIDENCE (Rule 33)

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D2E vs M2D (simplified)

D2E M2D

Rule 33 Rule 16

After plaintiff rests its case

Before filing of responsive pleading

That plaintiff has shown no right of relief

10 grounds

If granted, case dismissed

If granted but on appeal order of dismissal is reversed, defendant is deemed to have waived the right to present evidence

If granted, case dismissed, remedy depends:

With prejudice- appeal

Without prejudice- refile

Both by way of motion

NOTE: in summary proceedings, no trial, no demurrer to evidence

In Criminal Cases,

There is demurrer to evidence in Summary Procedure

- Constitutional Right to Due process

Demurrer to evidence in Civil Procedure

Demurrer to evidence in Criminal Procedure

Rule 33 Rule 119 S23

No leave of court required


If with leave of court,

accused could present evidence if demurrer is denied

If without leave of court, accused could not present evidence if demurrer is denied

If court finds that evidence is insufficient (plaintiff has shown no right to relief), complaint dismissed as demurrer is granted

If court finds that prosecution’s evidence is insufficient, demurrer granted, accused is acquitted

Judgment of acquittal not appealable, hence, DJ sets in

Judgment of dismissal is appealable

If demurrer is granted but on appeal, order of dismissal is reversed, defendant is deemed to have waived the right to present evidence

(NO res judicata in dismissal due to demurrer)

Judgment of acquittal is not appealable; DJ sets in

Plaintiff files motion to deny motion due to demurrer to evidence

Court may motu proprio deny motion

If court denies demurrer, defendant will present evidence

If court denies demurrer,

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With LoC- accused may present evidence

W/O LoC- accused can no longer present evidence and submits case for decision based on prosecution’s evidence

(simplified version)

D2E Civil D2E Criminal

Rule 33 Rule 119 S23


If granted, but on appeal is reversed, defendant loses the right to present evidence, case submitted for decision

With LoC- if denied, accused presents evidence

Without LoC- if denied, defendant cannot present evidence

After plaintiff rests its case, no D2E or D2E denied no appeal,

2. DEFENDANT’S EVIDENCE IN CHIEF

Prove allegations in the body of the answer (R7 S1)

Order:

Direct Examination

Cross Examination

Re Direct Examination

Re Cross Examination

Formal offer of evidence

Comment

Objection

Offer

Tender of excluded evidence

DEFENDANT RESTS ITS CASE

Note: No more D2E- Rule 33- after PLAINTIFF rests its case...

3. REBUTTAL EVIDENCE

Purpose is to rebut defendant’s evidence in chief

Order: (same as previously stated)

4. SUR REBUTTAL EVIDENCE

Purpose is to rebut the rebuttal

Order: (Same as previously stated)

5. MEMORANDUM

Narration of facts of the case, issues, no cause of action, no defenses, but only contain discussions

After trial,

XI. JUDGMENT (Rule 36)

Declares rights/reliefs of partiesFinal consideration and determination of a court of competent jurisdiction upon the

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matters submitted to it in an action or proceeding

S1- Rendition of judgments and final orders:

A judgment or final order determines the merits of a case, shall be

- in writing, - personally and directly prepared by the

judge, - stating clearly and distinctly the facts and

the law on which it is based,- must contain a dispositive part, - signed by him, and - filed with the clerk of court

CONSTITUTIONAL BASIS:

A8 S14—(basis for Rule 36)

No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.

No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without starting the legal basis therefor.

Kinds of Judgments:

JUDGMENT UPON A COMPROMISE

- Judgment rendered by the court on the basis of compromise agreement entered into by the parties

- Immediately executory upon signing of compromise agreement in absence of motion to set aside on the ground of FAME

- Has effect of res judicata- Compromise agreement May be submitted

to by parties at any stage of a case, even after F and E, even without court approval

(A2028-2046, NCC)

Court could render judgment upon a compromise, and, in case of breach of any of the conditions, the party may ask the court for execution of judgment.

JUDGMENT UPON CONFESSION

Judgment rendered by court when a party expressly agrees to the other party’s claim or acknowledges validity of the claim against him

Judgment upon compromise

Judgment by confession

Provisions and terms are settled and agreed upon by the parties to the action and which is entered by the consent of the court

An affirmative and voluntary act of defendant himself. The court exercises a certain amount of supervision over the entry of judgment

2 kinds of judgment by confession:

Judgment by Cognovit actionem

Defendant after service instead of entering a plea, acknowledged and confessed that plaintiff’s cause of action was just and rightful

Judgment by Confession Relicta Verificatione

After pleading and before trial, defendant both confesses the plaintiff’s cause of action and withdrew or abandoned his plea or other allegations, whereupon judgment was

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entered against him without proceeding to trial

Remedies to judgment by consent, confession, compromise:

File motion to set aside

If denied, file petition for certiorari under Rule 65 (R41 S1)

JUDGMENT UPON THE MERITS

Judgment that is rendered after consideration of the evidence submitted by the parties during the trial of the case

CLARIFICATORY JUDGMENT

Judgment rendered to clarify an ambiguous judgment or one difficult to comply with

JUDGMENT NON PRO TUNC

Now for thenJudgment intended to enter into the record the acts which had already been done, but which do not appear in the records

JUDGMENT SIN PERJUICIO

Without prejudiceRefers to dismissal of a case without prejudice to its being refiled

JUDGMENT BY DEFAULT (R9 S3)

Judgment rendered by the court following an order of default, granting the claiming party the relief prayed for on the basis of his evidence presented ex parte by plaintiff

JUDGMENT ON THE PLEADINGS (R34)

Judgment rendered by the court upon motion by plaintiff where the answer of defendant

fails to tender an issue or otherwise admits the material allegations of the adverse party’s pleading

SUMMARY JUDGMENT (R35)

Judgment rendered by the court if the pleadings, supporting affidavits, depositions and admissions of plaintiff or defendant show that:

except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law

SEVERAL JUDGMENT

R36 S4

Judgment rendered by the court where in an action against several defendants, the court renders judgment against one or more of them, leaving the action to proceed against the others

SEPARATE JUDGMENT

R36 S5

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Judgment rendered disposing of a claim among several others presented in a case after a determination of issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of said claim

SPECIAL JUDGMENT

R39 S11

Judgment requiring performance of an act other than execution of judgments for money execution of judgments for a specific act, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person can be held liable for contempt for disobedience of such special judgment

JUDGMENT FOR SPECIFIC ACTS

R39 S10

Judgment of a court directing a party to execute a conveyance of land or personal property or to deliver deeds or other documents, or to perform any other specific act in connection therewith

JUDGMENT ON DEMURRER TO EVIDENCE

R33

judgment rendered by court dismissing case upon motion of defendant, made after plaintiff rested his case, on the ground that upon the facts presented by plaintiff and

the law on the matter, plaintiff has not shown any right to relief

CONDITIONAL JUDGMENT

Judgment wherein effectivity of such depends upon occurrence or non occurrence of an event

FINAL JUDGMENT

Judgment which disposes of the whole subject matter or terminates the particular proceedings or action, leaving nothing to be done by the court but to enforce in execution what has been determined

AMENDED JUDGMENT

Aka clarified judgment; it is an entirely new judgment, which supersedes an original judgment rendered by the court

SUPPLEMENTAL JUDGMENT

Judgment of the court which serves to bolster or add to the original judgment, and does not take place nor extinguish the original judgment

Conclusiveness of judgment

Res Judicata (note above)

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Stare Decisis

Obiter Dictum

Law of the Case

If after judgment is promulgated, the judgment is ambiguous and difficult to comply,

MOTION FOR CLARIFICATORY JUDGMENT

XII. REMEDIES BEFORE JUDGMENT BECOMES FINAL AND EXECUTORY:

Motion for reconsideration (Rule 37)

Motion for New Trial (Rule 37)

Reopening of Trial (Rule 119)

Appeal (Rules 40-43, 45)

1. Motion for Reconsideration (Rule 37)

R37 S1

Within the period for taking an appeal, a motion for reconsideration may move for reconsideration on the grounds that:

a. Damages awarded are excessive

b. Evidence is insufficient to justify the decision or final order

c. That the decision or order is contrary to law

NOTE: M4R here is directed against judgment or final order, not an interlocutory order which preceded petition for certiorari (R41 S1 in relation to R65 yon)

NOTE: Interlocutory orders are non appealable (AM 7-7-12-SC)

Under Summary Procedure, BAWAL ang M4R and MNT R37 (General Rule)

Exception: If against interlocutory order

2. Motion for New Trial (Rule 37)

- Motion to Rehear a case already decided by court but before judgment thereon becomes final and executory,

filed within the period for taking an appeal, to set aside the judgment or final order order and grant a new trial based on the ff grounds materially affecting substantial rights of a party: (R37 S1)

1. FAME which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his right or

2. Newly discovered evidence which he could not, with reasonable diligence, have discovered and produced at the trial and which if presented would probably alter the result

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3. Reopening of Trial (civil in relation to criminal procedure- R119 S24)

Reopening of the proceedings to avoid miscarriage of justice

Civil- for reasons of EQUITY

For criminal cases- for reason of admission of additional evidence

4. APPEAL (Rules 40-43, 45)

- from the judgment, order of denial, assignment of errors

o FINAL ORDER- decision or the denial of M4R or MNT

15 days- ordinary appeal

30 days- record on appeal (Spec Pro, Multiple Appeals- Expropriation, Partition)

Neypes vs CA

Fresh Period to Appeal:

15 days from denial of M4R/MNT

30 days from denial of M4R/MNT

MTC decisionsRTC decisions in exercise of original jurisdiction

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MTC

RTC

CA

SC

SC M4R Rule 52

Notice / Record on Appeal under R40

Petition for Review under Rule 42

(from RTC decisions in exercise of appellate jurisdiction)

M4R Under Rule 37

M4R Under Rule 52

Petition 4 review on certiorari under Rule 45

RTC

CA

SC

SC M4R Rule 52

Notice or Record on appeal under Rule 41

M4R Under Rule 37

M4R Under Rule 52

Petition 4 review on certiorari under Rule 45



Notice/Record on Appeal

In case of Record on Appeal, appellant’s Brief 45 days to file record on appeal

Rule 40 Rule 41 Rule 42 Rule 43 Rule 45

Memorandum of appeal

Appellant’s Brief

Petition for Review

Petition For Review

Petition for Review on Certiorari

Notice or Record on appeal

Notice or record on appeal

Petition for Review

Petition for Review (Appeal?)

Petition for Review on Certiorari

Of MTC decisions

Of RTC Decisions original jurisdiction

Of RTC decisions appellate jurisdiction

Of quasi judicial bodies

Of CA, Sandiganbayan, CTA, RTC decisions

Questions of fact law or both


Questions of fact law, or both


Questions of law

To RTC To CA To CA To CA To SC

General Rule:

Finding of fact of CA are final and conclusive and cannot be reviewed on appeal to SC:

EXCEPTIONS:

1. When finding is grounded entirely on speculations, surmise, conjecture

2. When inference is manifestly absurd, mistaken, or impossible

3. When judgment is premised on a misrepresentation of facts

4. When there is GAD in appreciation of facts

5. When findings of fact are conflicting6. When CA in making its findings went

beyond the issues of the case and the same is contrary to both the admissions of appellants and appellees

7. When findings of fact of CA are at variance with those of the trial court, the SC has to review the evidence in order to arrive at the correct findings based on record

8. When findings of fact are conclusions without citation of specific evidence on which they are based

9. When facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by respondents

10. when findings of fact of the CA is premised on supposed evidence and is contradicted by evidence on record

11. when certain material facts and circumstances which have been overlooked by the trial court which, if taken into account, would alter the result of the case in that they would entitle accused to acquittal

REMEDIES AFTER JUDGMENT BECOMES FINAL AND EXECUTORY:

1. Petition for relief from Judgment (Rule 38)

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S1- Petition for relief from judgment, orders, other proceedings

When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through FAME, he may file a petition in such court and in the same case praying that the judgment, order, or proceeding be set aside

- OTHER PROCEEDING INCLUDES:o Order or writ of executiono Order dismissing appeal

S2- Petition for relief from denial of appeal

When judgment or final order is rendered by court in any case, and a party thereto, by FAME, has been prevented from taking an appeal, he may file a petition in such court and in the same case and praying that the appeal be given due course.

Filed within 60 days from knowledge of judgment and within 6 months from entry of judgment

- Relate to appealo Failure to appeal due to FAME

2. Petition for Annulment of judgment (Rule 47)

RTC exclusive original jurisdiction to CA

MTC exclusive original jurisdiction to RTC

Ground: extrinsic fraud

Annulment of judgment

- Remedy in law independent of the case where the judgment sought to be annulled

was rendered and may be availed of though the judgment has been executed

Important condition:

- Petitioner failed to move for MNT, appeal from, file petition for relief against, or take other appropriate remedies assailing questioned judgment or final order or resolution through no fault attributable to him

S2- Grounds

1. Extrinsic or collateral fraud2. Lack of jurisdiction over subject matter and

over the person

3. Certiorari under Rule 65

4. Collateral Attack

EXECUTION OF JUDGMENT

- Nothing left for the court but to enforce its decision

Execution

- remedy afforded by law for the enforcement of a judgment

- object is to obtain satisfaction of the judgment on which the writ is issued

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BY MOTION- 5 years

AFTER 5 years

Revival of Judgment- 10 YEARS, by MOTION

Execution as a matter of right (R39 S1)

Execution shall issue as a matter of right, on motion,

1. upon judgment or order that disposes of the action or proceeding

a. upon expiration of period to appeal therfrom if no appeal has been duly perfected

NOTE: (rules on motion)

- ministerial on the part of the court

IF DENIED, mandamus or appeal is the proper remedy

Nature of writ of execution:

R39 S8

The writ of execution is issued in the name of RP and shall state:

e. Name of court which granted the motion

f. Case number

g. Dispositive portion of the judgment or order subject of the execution

h. Shall require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms

Rule: Matter of right on part of winning party (execution), and court cannot refuse

Except:

1. When judgment turns out to be incomplete or conditional

2. Judgment is novated by parties

3. Equitable grounds like change in situation of the parties which makes execution inequitable

4. Execution is enjoined

5. Judgment has become dormant

6. Execution is unjust or impossible

When proper to Quash Writ of Execution:

1. Change in situation of parties renders execution inequitable

2. Issued against the wrong party

3. Issued without authority

4. Improvidently issued

5. Defective in substance

6. Judgment is already satisfied

7. Controversy was never submitted to the court

Rule: Dispositive portion of decision is the part that becomes subject of execution

Except:

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1. When there is ambiguity in the dispositive portion

2. Where extensive and explicit discussion and settlement of the issue is found in the body of the decision

S2- Discretionary Execution

Discretionary Execution Execution as a matter of right

May issue before lapse of period to appeal, and even during appeal

Period to appeal has already lapsed, no appeal is perfected

Discretionary upon the court; there is inquiry on whether there is good reason for execution

Ministerial duty of the court provided there are no supervening events

S2- Discretionary execution

a. Execution of a judgment or a final order pending appeal

On motion of the prevailing party with notice to the adverse party filed in the trial court

- while it has jurisdiction over the case and - is in possession of either the original record

or the record on appeal, as the case may be, o at the time of the filing of such

motion, said court may, in its discretion,

order execution of a judgment or final order even before the expiration of the period to appeal

After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court.

Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.

b. Execution of several, separate, or partial judgments

A several, separate, or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal.

Grounds:

1. Insolvency of judgment debtor2. Wastage of asset by judgment debtor

Court may, in its discretion, order an execution before expiration of the time within which to appeal, provided,

1. There is motion for execution filed by winning party

2. There is notice of said motion to the adverse party

3. There are good reasons stated in a special order after due hearing

Supersedeas Bond

- Bond filed by petitioner and approved by court before the judgment becomes final and executor and conditioned upon performance of the judgment appealed from, in case it be affirmed wholly or in part

Remedy in case of execution as matter of discretion,

- CERTIORARIo Interlocutory, without prejudice to

the outcome of appeal

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S4- Judgments not stayed by appeal

(Exception to general rule)

In the following cases:

1. Injunction2. Receivership3. Accounting4. Support5. Other judgments declared to be

immediately executory unless otherwise ordered by trial court

S6- Execution by motion or independent action

Modes of enforcement:

1. By motion within 5 years from date of entry

2. By independent action for revival of judgment after 5 years from entry and before it is barred by statute of limitations which is 10 years from entry under 1144, NCC

Revival of judgment S6 Revival of judgment S34Independent action Carried out through

filing of a motion in court

Assumes there is no execution within first 5 years

Assumes that judgment is executed within first 5 years

Party who files the action is the judgment creditor himself, or his assignee, or his successor in intereest

Party who files such motion is not the original judgment creditor but he is the highest bidder in the public auction

Filed due to lapse of 5 year period

Filed because movant is deprived of property purchased

S6 N/A to:

1. Judgments for support2. Contempt orders in unauthorized re-entry

on land by ejected defendant3. Issuance of writs of possession and4. Special proceedings and land registration

cases

S9- Award of judgments of money, how enforced

1. Immediate payment on demand2. Satisfaction by levy3. Garnishment of debts and credits

Levy

- Act by which officer sets apart or appropriates part of whole property of judgment debtor for purposes of execution sale

Garnishment

- Act of appropriation by the court when property of debtor is in the hands of a third person

Attachment GarnishmentRefers to corporate property in possession of judgment debtor

Refers to money, stocks, credits, other incorporeal property which belong to judgment debtor but is in the possession or under control of a third person

S10- Execution of judgments for specific act

1. Conveyance, delivery of deeds, other specific acts vesting title

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2. Sale of real or personal property3. Delivery or restitution of real property4. Removal of improvements on property

subject of execution5. Delivery of personal property

S13- Property Exempt from Execution:

1. Judgment obligor’s family home as provided by law, or the homestead in which he resides, and the land necessarily used in connection therewith

2. Ordinary tools and implements personally used by him in his trade, employment, or livelihood

3. 3 horses, 3 cows, 3 carabaos, other beasts of burden such as judgment obligor may select necessarily used by him in his ordinary occupation

4. Necessary clothing and articles for ordinary personal use, including jewelry

5. Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding 100k pesos

6. Provisions for individual or family use sufficient for 4 months

7. Professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, other professionals, not exceeding 300k pesos in value

8. One fishing boat and accessories not exceeding total value of 100k pesos owned by a fisherman and by the lawful use of which he earns his livelihood

9. So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the 4 months preceding the levy as are necessary for support of his family

10. Lettered gravestones

11. Monies, benefits, privileges, annuities accruing or in any manner growing out of any life insurance

12. Right to receive legal support, or money or property obtained as such support, or any pension or gratuity from government

13. Persons specially exempted by law

BUT not article or species of articles of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon.

S16- Proceedings where property claimed by third person

Remedies of 3rd party claimant:

1. Summary hearing before court of competent jurisdiction

2. Terceria or third party claim filed with sheriff

3. Action for damages on the bond posted by judgment creditors

4. Independent reivindicatory action

Terceria

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- A person claiming property levied upon may execute affidavit of title or right of possession over the property

o Such affidavit must state the grounds of such right or title

o The affidavit shall be served upon officer making a levy and a copy thereof must also be served upon the judgment oblige

Note: Cumulative remedies

Ordinary sale on execution

Sale in judicial foreclosure of mortgage

Need not be confirmed by court

Must be confirmed by court in order to divest rights in the property of the parties and to vest the rights in the purchaser

Right of redemption exists

No right of redemption except when mortgagee is a bank or a banking institution

Title is acquired after expiration of redemption period when final deed of conveyance is executed

Title is acquired upon confirmation and registration of the foreclosure sale

S30- Proof required of redemption

Redemptioner must produce to officer, or person from whom he seeks to redeem, and serve with his notice to the officer:

1. A copy of the judgment or final order certified by the clerk of court wherein the judgment or final order is entered

2. If he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by RD, or

3. An original or certified copy of any assignment necessary to establish his claim, or

4. An affidavit executed by him or his agent showing the amount then actually due on the lien

S32- Rents, Earnings, Income of property pending redemption

Rights of judgment debtor:

1. Remain in possession of property

2. Cannot be ejected

3. Use the property in the same manner it was previously used

4. Make necessary repairs to buildings thereon while he occupies the property

5. Use it in the ordinary course of business

6. Collect rents, earnings, and income derived from the property until expiration of the period of redemption

S35- Remedies of judgment creditor in aid of execution

1. If execution is returned unsatisfied, he may cause examination of judgment debtor as to his property and income

2. He may cause examination of debtor of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession

3. If after examination, the court finds property of the judgment debtor, either in

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his own hands or that of any person, the court may order the property applied to the satisfaction of the judgment

A party or other person may be compelled, by order or subpoena, to attend before the court or commissioner to testify as provided by S36 and S37

4. If court finds the earnings of the judgment debtor are more than sufficient for his family’s needs, it may order payment in instalments

5. Court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interference with such property

6. If court finds that the judgment debtor has an ascertainable interest in real property either as mortgagor, mortgagee or otherwise, and his interest can be ascertained without controversy, the court may order the sale of such interest

7. If the person alleged to have the property of the judgment debtor or be indebted to him, claims an adverse interest in the property or denies the debt, the court may authorize judgment creditor to institute an action to recover the property, forbid is transfer and may punish disobedience for contempt

S47- Effect of judgment or final order

Res judicata

- Bar by former judgment/direct estoppel by judgment


- Estoppel by verdict, estoppel by record, collateral estoppel by judgment or preclusion of issues or rule of auter accion pendent, covers par c

Public Policy Principle

- Inalterability of final and executory judgment

Decisions of court must be immutable at some definite period of time


- Issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action

Bar by former judgment Conclusiveness of judgment

Identity of parties, subject matter, causes of action

Identity of parties and subject matter

First judgment constitutes absolute bar to all matters directly adjudged and those that might have been adjudged

First judgment is conclusive only as to matters directly adjudged and actually litigated in the first action. Second action can be prosecuted

Has the effect of preclusion of claims

Has the effect of preclusion only to issues

Law of the case

- Refers to the legal conclusions announced on a first appeal, whether on the general law or the law as applied to the concrete facts, not only prescribe the duty and limit the power of the trial court to conduct

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obedience and conformity thereto, but they become and remain the law of the case in all other steps, whether in the lower court or in the appellate court on a subsequent appeal

S48- Effect of foreign judgment or final orders

Public policy principle

- Judgment by a court is enforceable only within its territorial jurisdiction

Effect of foreign judgments

- Provided that the tribunal has jurisdiction

1. In case of judgment against a specific thing,a. Judgment is conclusive upon title

to the thing

2. In case of judgment against a person,a. Judgment is presumptive evidence

of a right as between the parties and their successors in interest by a subsequent title

2 ways of giving effect to a foreign judgment:

1. Ordinary action to enforce the foreign judgment may be filed in court or

2. It may be pleaded in an answer or motion to dismiss

In both instances, judgment may be repelled by evidence of:

1. Want of jurisdiction2. Want of notice3. Collusion4. Fraud

Effect of foreign judgment:

R39 S8

The effect of a foreign judgment or final order of a tribunal of a foreign country, having jurisdiction to render judgment or final order is as follows:

a. In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing and

b. In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title

In either case, a judgment or final order may be repelled by evidence of:

1. Want of jurisdiction2. Want of notice to a party3. Collusion4. Fraud5. Clear mistake of law or fact

LAST NOTES ON CIVIL PROCEDURE

Note latest Rules on ADR (2009) in relation to Rule 18

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