CIVIL PROCEDURE NOTES PRELIMINARIES Remedial Law Branch of law which prescribes the method of enforcing the rights

or obtaining redress for their invasions What are the sources of Remedial Law? 1. 1987 Constitution 2. BP 129 (Judiciary Reorganization Act of 1980) as amended by RA7691 (Act expanding the jurisdiction of MTCs, MuTCs, MCTCs 3. Rules of Court 4. Supreme Court Administrative Matters and Circulars 5. Supreme Court decisions 6. New Civil Code 7. Family Code 8. Local Government Code (RA 7160), particularly the Katarungang Pambarangay Law 9. Special Laws and amendments Has no vested rights Governs rights and transactions which took place (retroactive) SC is expressly empowered to promulgate procedural rules 10. Rules of Procedure on Small Claims 11. Revised Manual of the Clerk of Court

Remedial Law vs Substantive Law Substantive 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 Makes vested rights possible Prospective in application Remedial Law Refers to the legislation providing means or methods whereby causes of action may be effectuated, wrongs redressed, and relief obtained (adjective law)

Differentiate: Civil Actions, Special Proceedings, Criminal Actions Special Proceedin gs A remedy by which a party seeks to establish a status, a right, or a particular fact (Rule 1 S3c) Criminal Procedure The State prosecutes a person for an act or omission punishable by law (Rule 1 S3b) Civil Action A party sues another for the enforceme nt or protection of a right, or the prevention or redress of a wrong

Cannot be enacted by SC

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)

A proceeding wherein a

person is prosecuted by the State for acts or omissions committed in violation of penal laws, and to impose the correspond ing penalty provided for by penal laws 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) May involve only one party Initiated by petition Governed by the Revised Rules of Criminal Procedure

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

NOT based on a cause of action

punishable by law

action

CONSTITUTIONAL PROVISIONS Relating to CIVIL PROCEDURE A8 S1 Both are governed by the Rules for ordinary civil actions, subject to specific rules prescribed for a special civil action (R1 S3a) 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? Sandiganbayan Family Courts (RA 8369) Court of Tax Appeals

Involves the State against the accused Initiated by complaint (but filed in court by Information ) Based on an act or omission

Involves 2 or more parties Initiated by complaint, or, in some special civil actions, by petition Based on a cause of A3 S1

Sharia Court

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.

Except Habeas Corpus,

A3 S9(Basis of Rule 67)

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

the privilege of the writ or the extension thereof, and must promulgate its decision thereon within 30 days from its filing.

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 P2(Basis of Rule 56) A8 S5 P1 The Supreme Court shall have the following powers: Exercise original jurisdiction over cases affecting: o o Ambassadors Other public ministers and consuls 1. All cases in which constitutionality or validity of any a. treaty, b. international or executive agreement c. law d. presidential decree e. proclamation f. 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. order 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:

Over petitions for o o o o o Certiorari Prohibition Mandamus Quo warranto Habeas corpus

g. instruction h. ordinance i. regulation i. is in question

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

2. all cases involving the legality of any a. tax b. impost c. assessment

d. toll e. any penalty imposed in relation thereto

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

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

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

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

A8 S5 P5 (basis of Rules of Court) The SC shall have the power to promulgate rules concerning: 1. Protection and enforcement of constitutional rights 2. Pleading, practice, procedure in all courts 3. Admission to practice of law 4. Integrated Bar 5. 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

Rule 30

Rule 36

Rule 39

limitations and circumstances prescribed by the statute

Venue Place where action is instituted May be waived

Jurisdiction Power of court to hear and decide a case Jurisdiction over subject matter and over nature of action are conferred by law and cannot be waived Substantive Cannot be subject of the agreement of the parties A ground for motu proprio dismissal

Appellate Jurisdiction Power 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

Procedural May be changed by written agreement of the parties Not a ground for motu proprio dismissal, except in Summary Procedure

Concurrent / Confluent / Coordinate 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

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

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

Original Jurisdiction Power 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

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

Special or Limited Jurisdiction One which restricts the courts jurisdiction only to particular cases and subject to such limitations as may be provided by the governing law.

Jurisdiction conferred by law and filed at the first instance (NOTE: all civil actions) It is confined to particular causes, or which can be exercised only under the

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

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

Jurisdiction of the court to the exclusion of all other courts

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

Exclusive Original Jurisdiction Power 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 Jurisdiction Refers to geographical area within which the courts powers can be exercised In civil cases, assumes importance in case of venue of real or mixed action In criminal cases, consideration of territory and locus of crime determine venue and jurisdiction Territorial jurisdictions: SC and CA National RTC Regional jurisdiction Inferior courts Territorial jurisdiction as defined by SC in BP129 *Power of tribunal considered with reference to the territory within which it is to be exercised.

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 Jurisdiction Power of the courts to settle issues which are incidental to main issue

Appeal by Certiorari Rule 45

Petition for Certiorari Rule 65 Petition is based on questions of jurisdiction, whether

Delegated Jurisdiction

Petition is based on questions of law

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 Directed against interlocutory order of the court or where there is no appeal or any plain, speedy, or adequate remedy Filed not later than 60 days from notice of judgment, order, or resolution sought to be reviewed Unless a writ of preliminary injunction or temporary restraining order is issued, the petition does not stay the challenged proceeding Court is in exercise of its appellate jurisdiction and power of review Petition shall be filed with the Supreme Court

the period shall not only be interrupted but another 60 days shall be given to petitioner (SC Admin Matter 0203) Court exercises original jurisdiction

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

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

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

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. Ambassadors 2. Other public ministers and consuls 3. Over petitions for:

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 or for new trial is required; if a motion for reconsideration or new trial is filed,

a. Certiorari b. Prohibition c. Mandamus d. Quo warranto e. 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

Motion for reconsideration is not required

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

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)

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

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

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 personnel 2. Over Justices 3. Over Judges 4. Practice of Law 5. Members of the Integrated Bar

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)

CA decisions Appealable to SC under Rule 45

RTC jurisdiction, first instance, including Special Civil Actions

R45 S1- a party desiring to appeal by certiorari from a judgment or final order or resolution of

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

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

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)

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

RTC Exclusive Original Jurisdiction: 1. In all actions in which the subject of litigation is incapable of pecuniary estimation (refer to 902-A below)

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

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

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 50k Except actions of FE and UD of lands and buildings, original jurisdiction of which is conferred with MTC, MuTC, MCTC

9. In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorneys 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 decedents 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.

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

(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

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

MTC 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 (note: baligtarin ang RTC jurisdiction, below 2050, 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

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

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)

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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

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

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

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

In Civil Procedure, SC-CA-RTC-MTC In Criminal Procedure, SC-CASANDIGANBAYAN-RTC-MTC

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

Commencement of a Civil Action: 6. admiralty and maritime cases where the demand or claim does not exceed 300k OMM or does not exceed 400k MM 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.

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

DOCKET FEES- needed to acquire jurisdiction over the case

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

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

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

Jurisdiction over defendant By voluntary appearance or service of summons

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against him Jurisdiction over subject matter Conferred by law Jurisdiction over the issue Determined by allegations in the complaint Reason for the action Remedy or means afforded or the consequent relief Remedial right given to a person because of occurrence of the alleged facts A matter of right and depends on substantive law

Jurisdiction over the res By actual or constructive seizure of property by way of attachment or execution

Formal statement of operative facts that give rise to a remedial right Matter of procedure and depends on the pleadings filed by the parties Not affected by affirmative defenses (fraud, prescription, estoppel, etc)

Action, Cause of Action, Right of Action (Simplified Version) Action Suit to enforce ones right or for the prevention or redress of a wrong Cause of Action Act or omission by which a party violates a right of another Right of Action Remedial right to file a suit based on cause of action

Affected by affirmative defenses

Original Distinctions: Action Suit filed in court for enforcemem t or protection of a right, or the prevention or redress of a wrong (R1 S3) Cause of Action Act or omission by which a party violate a right of another (R2 S2) Right of Action 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

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

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Involves privity of contract/personal property (A416-417 of NCC in consideration) Venue: R4 S2

Directed against the thing itself Jurisdiction over person of defendant is not required

Directed against particular persons Jurisdiction over person of defendant is required

Directed against particular persons Jurisdiction over the person of the defendant is not required as long as jurisdiction over the res is acquired A proceeding to subject the interest of a named defendant over a particular property to an obligation or lien burdening it Judgment is binding upon particular persons

Mixed Action

Action affecting title to or possession of real property + Privity of Contract Venue: R4 S1 A proceeding to determine the state or condition of a thing An action to impose a responsibilit y or liability upon a person directly

2ND GROUP: for purposes of determining jurisdiction/service of summons Action In Rem Action which binds the whole world Note: all Special Proceedings are in rem actions Summons/notification by PUBLICATION

Action in Personam Action which binds the parties

Judgment is binding on the whole world

Action Quasi In Rem Action which binds interests o o o o Foreclosure of mortgage Partition Attachment Any interest or lien on real property Probate proceeding, Examples:

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

Examples:

Action for specific performance

Action for partition

cadastral proceeding,

Action in rem

Action in personam

Action Quasi in Rem

Action for breach of contract

Action to foreclose real estate mortgage

special proceedings

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Real Action Ownership or possession of real property is involved

Personal Action Personal property is sought to be recovered or where damages for breach of contract are sought Founded on privity of contract 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) Example:

Mixed Action Both real and personal properties are involved

sought to be recovered or where damages for breach of contract are sought Founded on privity of contract

against particular persons, may be real action, personal action, mixed action Not necessarily; because the action may also be real or mixed R4 S1 or R4 S2 may govern, depending on whether the action is real action or personal action

Founded on privy of real estate Filed in the court where the property or any part thereof is situated (R4 S1)

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

Filed in court where plaintiff or any of defendants reside, at option of plaintiff (R4 S2)

Mixed Action Both real and personal properties are involved Founded on both privity of real estate and privity of contract

Quasi In Rem Action Both real and personal properties may also be involved Action directed against particular persons, but jurisdiction over defendant is not required as long as jurisdiction over the res is acquired Rules on personal actions govern (?)

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

Example:

Real Action Ownership or possession of real property is involved Filed in court where property or portion thereof is situated A proceeding founded on privity

In rem action Action directed against the thing itself Not necessarily; depends on whether the action is real, personal, mixed A proceeding to determine state or

Accion reivindicator ia

Action for a sum of money

Accion publiciana with a claim for damages

Personal Action Personal property is

Action in personam An action directed

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

condition of a thing Judgment is binding upon the whole world

Third party complaint 4th party complaint Complaint in intervention Petition In special civil actions In special proceedings

PLEADING (R6 S1) Sworn written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment

Counter counter claim Counter cross claim Counter Counter Claim Any claim which defending party in a counterclaim may have against the original counterclaimant COMPULSORYArises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing partys claim Counter Cross Claim Any claim which a defending party in a cross claim may have against the original cross claimant Can be an initiatory pleading, if permissive

Complaint (R6 S3) The complaint is the pleading alleging the plaintiffs 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 PERMISSIVE- does not arise of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing partys claim

RESPONSIVE PLEADING A pleading that responds to allegations in the adverse partys pleading

Initiatory Pleadings Original complaint Permissive counterclaim Cross claim Responsive Pleadings

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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 Reply Answer to counter counter claim Answer to counter cross claim Complaint in interventio n 4th party complaint Third party complaint Cross claim

counterclaim

Answer to third party complaint

Answer to fourth party complaint

Answer to complaint in intervention

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 In special civil actions Petition

Comment or objection to petition

Compulsory counterclaim

In special proceedings

Reply

Initiatory Pleading A pleading that initiates an action

Responsive Pleading A pleading that responds to allegations in the adverse partys pleading

Counter counter claim

Answer to counter counter claim

Counter cross claim

Answer to counter cross claim

Original complaint

Answer to original complaint

Permissive counterclai m

Answer to permissive

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

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certification against forum shopping, and not need for payment of docket fees (Note: compulsory counterclaim, docket fees are suspended)

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: Instances when verification is needed: S408, LGC 1. where one party is the government or any subdivision or instrumentality thereof

Actionable document

Allegations of usury

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

Answer to permissive counterclaim

Succeeding pleadings in special proceedings

3. offenses where there is no private offended party

Complaint- a pleading alleging plaintiffs cause and causes of action

4. where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon

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

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

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

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

7. where one of the parties is a juridical entity

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)

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 Venue of Barangay Conciliation Proceedings: 10. where the actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendent lite where the action may otherwise be barred by the statute of limitations S409, LGC Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon of said barangay

11. in case of labor disputes

12. action to annul a judgment upon a compromise

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

13. CARL disputes

14. Disputes involving traditions of an indigenous cultural community

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

Does the Exclusive Original Jurisdiction of the RTC on actions involving those incapable of pecuniary estimation include provisional remedies as falling within the category?

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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1. File the case before the proper court 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. 2. 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.

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.

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.

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.

** 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

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

buyer beware

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Notice to buyer of existence of an adverse claim o o It is not a pleading There is need to register it with the register of deeds

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

II.

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

Complaint (R6 S3) The complaint is the pleading alleging the plaintiffs 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 (?)

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

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)

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

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 Venue

Can be subject to stipulation of the parties

State: Rules on venue

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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 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

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

EXCLUSIVITY OF VENUE- NOTE: Rule 4 SHALL NOT APPLY... if R4 S4 1. The parties have validly agreed in writing 2. The agreement in writing was made before the filing of the action 3. Exclusive venue is stipulated Atty Tans comment: Rule 4 of the Rules of Court did not provide for MAY, but SHALL

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.

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

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

3rd 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 opponents claim (R6 S11)

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 3 rd 4th etc party defendant. Plaintiff includes: Counter counterclaimant Counter cross claimant

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)

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)

Indispensable Party

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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)

(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)

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) 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)

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)

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:

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 rules

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

2. Jurisdiction over plaintiffs and defendants can be obtained

What are the elements of a cause of action? 1. Plaintiff exercises a legal right 2. Correlative obligation the part of defendant to respect plaintiffs legal right 3. Defendant violates plaintiffs 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: 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.

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 parties- not a ground for motion to dismiss IF so, remedy: Amendment of the pleading (Rule 3 in relation to Rule 10

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

Cause of Action

24

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

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:

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

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

25

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.

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

PLEADING / PARTS OF A PLEADING Rule 7 S1 The caption sets forth: a. Name of the court b. Title of the action c. 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 S3 R7 S2 The body of the pleading shall set forth its: 1. Designation 2. Allegation of the claims or defenses 3. Relief prayed for 4. Date of the pleading 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 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. 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

26

2. Signs a pleading in violation of these rule, 3. or alleges scandalous or indecent matter therein, 4. Or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action

o o o o o o

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)

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 pleading 2. 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 or 2. upon knowledge, information and belief 3. or lacks a proper verification shall be treated as an unsigned pleading

(all initiatory pleadings) o Original Complaint o Permissive Counterclaim o Cross Claim o 3rd 4th etc party complaint o Complaint in intervention o Petition (all Special Civil Actions) o Interpleader (R62) o Declaratory Relief and Similar Remedies (R63) o Review of Judgments and Final Orders or o Resolutions of COMELEC, CoA (R64) o Petitions for certiorari, prohibition, mandamus (R65) o Quo Warranto (R66) o Expropriation (R67) o Foreclosure of Real Estate Mortgage (Rule 68) o Partition (R69) o Forcible Entry and Unlawful Detainer (R70) o Contempt (R71) (all Special Proceedings) o Settlement of Estate of Deceased (R73-90) o Escheat (R91) o Petition for guardianship of minors (AM __-__-__-SC) o Petition for guardianship of incompetents (R92-97) o o Petition for custody of minors in relation to habeas corpus, AM ____-__-SC) Trusteeship (R98)

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? o Petition for relief from judgment or order (R38 S3)

27

o o o o o o o o o o

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 ( )

o o

o o o o o o o o

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)

o o o o o

Does the answer need to be verified? As a general rule, answers need not be verified, save for following instances: o Answer to allegations of usury in a complaint to recover usurious interests (R8 S11) o When the answer is based on an actionable document (R8 S8) o Answer under the Revised Rules on Summary Procedure o 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 partys 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 issue Answer admits the material allegations of the adverse partys pleading

Pleadings not required be verified in the manner and form prescribed by S4 of this Rule but the same must be under oath: o Denial of genuineness and due execution of actionable document (R8 S8) o Denial of allegations of usury (R8 S11) o Motion to set aside default order (R9 S3b) o Answer to written interrogatories (R25 S2) o Answer to request for admission (R26 S2) The following pleadings or motion with affidavit or affidavits of merit: o Motion to postpone for absence of evidence (R30 S3) o Motion to postpone for illness of a party or counsel (R30 S4)

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Who can verify a pleading? A party need not sign the verification. The following may sign verification: Party Partys representative Partys Lawyer Any person who personally knows the truth of the facts alleged in the pleading

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.

How about an authorized representative? Can he verify? Yes, if armed with proper authority from the party (Through SPA?)

Forum Shopping: 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, 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 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)

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

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

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

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)

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Pleadings requiring certification against forum shopping: Initiatory Pleadings Original complaint Permissive counterclaim Cross claim 3rd 4th etc party complaint Complaint in intervention Petition

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, plaintiffs remedy is to refile the case with the required certification, unless if declared by the court as dismissal with prejudice, hence, remedy is appeal

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 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

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.

States the effects of: (R7 S5) Failure to attach certification against forum shopping

Motion to dismiss was granted, remedy?

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

parties of whom the court cannot acquire jurisdiction

Cross claim (R6 S8) 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. 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 4th etc party complaint (R6 S11) Define, enumerate, each pleadings: Complaint (R6 S3) The complaint is the pleading alleging the plaintiffs cause or causes of action. 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 opponents claim

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

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

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 partys claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction 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

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 partys claim and may require for its adjudication the presence of third

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

Counter crossclaim

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A cross claim which may be filed against an original cross claimant

THIRD PARTY COMPLAINT Rule 6 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 opponents claim

COMPLAINT IN INTERVENTION Rule 19 Pleading filed by an intervenor if he answers a claim against either or all of the original parties

Counterclaim Original complaint A vs B

Counterclaim

Counter Counter Claim

Cross Claim A vs B and C

(Original Complaint) Cross Claim

Counter Cross Claim

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 Complaint A vs B vs C (for CISA) C is impleaded for CISA Third party is impleaded in the suit for CISA Third party has legal interest and wants to be impleaded in the suit

Complaint In intervention A vs B C (or) C wants to be impleaded in the action Initiatory Pleadings

Requires payment of docket fees

Permissive Counterclaim vs Compulsory Counterclaim (Simplified version) Permissive CC Compulsory CC

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Does not arise out of or is connected with the transaction or occurrence that is the subject matter of the opposing partys claim Needs verification and certification against forum shopping Docket fee is required to be paid Failure to file answer results in declaration of default may 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 Initiatory pleading

Arises out of or is connected with the transaction or occurrence that is the subject matter of the opposing partys claim Not

Docket fees are required to be paid

Not

Lis Pendens vs Litis Pendencia Lis Pendens buyer beware Litis Pendencia 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 A ground for motion to dismiss under Rule 16

Docket fees are suspended not

Notice to buyer of existence of an adverse claim

Does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction Barred if not set up in the action Not an initiatory pleading

Notice

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

3PC vs Third party claim Third Party Complaint Initiated by way of complaint Filed before the court For CISA Pleading Third Party Claim By way of affidavit Filed before the sheriff Terceria Affidavit

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:

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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! o o o o o 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

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

NOTE ALSO: o Injunction and replevin can be main actions in themselves

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

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)

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

Grounds for preliminary attachment (NOTE: TINATANONG SA BAR!) Rule 57 S1 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

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)

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1. By way of motion or by way of complaint

100k- no Ordinary Civil Actions- yes

2. Verified application through Affidavit attached to motion or complaint

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

Stating the grounds That there is no sufficient security

3. Allegation of the ground necessitating the need for preliminary attachment

Implementation o With Summons

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

How attached? How is attachment applied for? By way of motion? Or by way of complaint? EITHER Garnishment Levy on attachment o Annotated on back of title, warning on subsequent buyer subject to outcome of the case

HOW? At the commencement of the complaint By verified complaint 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 irregularly issued or enforced That the bond is insufficient or

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

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

Order of denial of motion to quash:

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INTERLOCUTORY, hence, o o M4R R65 S4 Certiorari R65 S1, R41 S1b

Denial- interlocutory Remedy: certiorari

If FJ- appeal Can preliminary injunction be issued ex parte?

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

NO (?). TRO- yes

Writ of Preliminary Attachment Covers real or personal property At the commencement of the action or at any time before entry of judgment Amount of the bond is the value of the obligation (fixed by the court) May be resorted to even if property is in the possession of a third person

Writ of Replevin Covers only personal property Commencement of the action or at any time before answer Amount of the bond is double the amount of the personal property Can be sought only when defendant is in actual possession of the property

Writ of preliminary injunction 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

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

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

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

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

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

36

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

c. If required by these Rules or necessary to prove facts alleged therein, shall be supported by supporting affidavits and other papers

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

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 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)

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)

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

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

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.

3. Shall state the following (R15 S3)

a. Relief sought to be obtained b. Grounds upon which it is based and

37

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 motion 4. The motion shall be considered as not filed

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 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

HOW? At the commencement of the complaint By verified 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)

38

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. -

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, 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... 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 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?

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,

Ordinary Civil Actions- Pwede Forcibly Entry / UnlawFul Detainer- YES R70 S15 Court may grant preliminary injunction, in accordance with the provisions of R58 thereof,

39

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 defendants dilatory, or appeal is frivolous or

or dissolution of restraining order Denied: M4R Certiorari Rule 65

the

injunction

or

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) 1. When prejudicial to the rights of the accused

that the appeal of plaintiff is prima facie meritorious

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

REMEDIES IN INJUNCTION:

CASE

OF

PRELIMINARY

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

Granted: (Rule 57 S6) quash the writ based on:

4. When prejudicial question is involved in the case

1. upon showing of insufficiency 2. on other grounds upon affidavits of the party or person enjoined 3. 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

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 UD o R70preliminary mandatory injunction and preliminary prohibitory injunction are allowed

Prohibitory

Prohibition

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Injunction Provisional remedy Rule 58 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

Special civil action Rule 65 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 Mandamus Special Civil Action Rule 65 Requires performance of a ministerial act or to desist from excluding another from a right or office (ministerial) Directed against a Judicial or quasi judicial bodies exercising ministerial functions Original action By way of petition

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

Mandatory Injunction Provisional Remedy Rule 58 An order requiring the performance of a particular act or acts

Directed against a party

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

Provisional remedy By way of motion

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

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

Where applied for? 1. Court where action is pending 2. CA 3. SC Grounds: (R59 S1)

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

41

court of origin and the receiver appointed to be subject to the control of said court.

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

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

2. Take and keep possession property in controversy

of

the

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. 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

3. Oath and Bond by receiver to faithfully discharge of his duties in an action or proceeding and obey court orders IF pending appeal, By verified complaint

5. To compound for and compromise the same

6. To make transfers

IF after judgment, By way of motion 7. To pay outstanding debts

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

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

Receivership with appointment of receiver: pwede Receivership with MTC: pwede, except in Small Claims

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

General powers of receiver: R59 S6

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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,

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

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

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

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.

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 D. REPLEVIN (Rule 60) 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 sum as he may recover from the applicant in the action

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

Denied, REMEDY: Counterbond double the amount of property

Jurisdiction/Venue: RTC or MTC (300k-400k OMM MM higher lower)

E. SUPPORT PENDENTE LITE (Rule 61) REQUIREMENTS: (R60 S2) Amount of support provisionally fixed by the court in favour of the person or

43

persons entitled thereto during pendency of an action for support IMMEDIATELY EXECUTORY! Where filed? FAMILY COURT

the

authentic documents support thereof

in

S2- Comment A copy of the application and all supporting documents shall be served upon adverse party, o who shall have comment thereon 5 days to

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 o Rape RA9262

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.

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

S4- Order 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,

44

the court shall fix o the amount of money to be provisionally paid, 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.

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 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. may be filed

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.

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

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.

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.

S6- Support in criminal cases In criminal cases 1. where the civil liability includes support for the offspring as a consequence of the crime

45

Failure of action for support pendente lite, REMEDY: move for motion for execution

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

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 - Interpleader (62) - Foreclosure of mortgage (68) - Forcible entry / UD (70) - Partition (69) - Expropriation (67) 1. Interpleader (62) 2. Declaratory Relief remediesv (63) and other similar SCA initiated by petition - declaratory relief (62) - review of adjudication of comelec, coa (64) - c, m, p (65) - qw (66) - contempt (71) 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 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 no legal

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 Interpleader Rule 61 Without leave of court Original / Special Civil action Filed by complaint for interpleader NOTE: Person interest

in possession has

Intervention Rule 19 With leave of court Ancillary to main action If for plaintiffcomplaint in intervention

46

At any time JURISDICTION:

If for defendantanswer in intervention Before judgment

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)

RTC or MTC 20-50 real 300-400 personal higher lower VENUE: Real- R4 S1 Personal- R4 S2

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.

S2- Order Upon filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another.

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.

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.

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

S3- Summons Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order. S6- Determination After the pleadings of the conflicting claimants have been filed, and pre trial has been conducted in accordance with these Rules, the court shall proceed to determine their respective rights and adjudicate their several claims.

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.

In case of adverse Resolution, Appeal pursuant to R40-42

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DECLARATORY RELIEF AND OTHER SIMILAR REMEDIES (R63) Objective: (R63 S1) Interpretation/Construction of: o o o o deed, will, contract, or other written instrument, or

Declaratory Relief: RTC- incapable of pecuniary estimation

Queting of title: MTC or RTC 20-50 OMM MM lower higher

Consolidation of ownership: RTC- incapable of pecuniary estimation

Reformation of contracts: RTC- incapable of pecuniary estimation

determining validity of: o o o o o statute, executive order, regulation, ordinance, or any other regulation governmental 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. Can the SC entertain petition for declaratory relief? NO. BP129- RTC EO Jur, actions incapable of pecuniary estimation

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

NOTE: INSTRUMENT, not the elements of the instrumentif such, e subject of another proceeding to, annulment of contract quiet title to real property or remove clouds therefrom

S3- Notice on Sol Gen consolidate ownership In any action which involves validity of statute, EO, or 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

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:

48

S1- Scope 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. Final orders or judgments of COA and COMELEC

S2- Mode SC- petition for certiorari under Rule 65

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

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

In case of adverse resolution APPEAL R41 o (R40 to RTC if Quieting in MTC)

S4- Docket, lawful fees 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 COMELEC, CoA orders, resolutions of S6- order to comment 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 5. Accompanied by sworn against forum shopping certification

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

49

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

Grounds for dismissal 1. Non compliance with form and contents 2. Non payment of docket and 500 for costs 3. Filed manifestly for delay 4. Questions are too unsubstantial warrant further proceedings to

Rule 43 Appeal/Petition for review of decisions of Quasi Judicial Bodies 15 days from notice of award, final judgment, resolution With the CA

Rule 64 Petition for review of judgments and final orders or resolutions of COMELEC and CoA 30 days from notice of judgment or final order sought to be reviewed With the SC

S7- Comments of respondents 18 copies No other pleading may be filed unless required or allowed by court

CERTIORARI, PROHIBITION, MANDAMUS (Rule 65) Constitutional Basis: 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:

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 Applies to orders of judicial, quasi judicial court or tribunals 60 days from denial of motion for reconsideration (AM 7-7-12-SC) Motion for reconsideration is required Petition filed before RTC, CA, SC

Rule 64 Applies to judgments, final orders, resolutions of CoA and COMELEC 30 days from notice of judgment or final order or resolution sought to be reviewed NOT Petition filed before SC

6. All cases in which constitutionality or validity of any a. treaty,

50

b. international or executive agreement c. law d. presidential decree e. proclamation f. order

2. Date of the filing of the motion for reconsideration 3. 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 jurisdiction correct errors of

g. instruction h. ordinance i. regulation i. is in question

7. all cases involving the legality of any a. tax b. impost c. assessment d. toll e. any penalty imposed in relation thereto Prohibition -

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

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 respondents 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

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 judgment

QUALIFICATIONS in ALL 3: that there is no plain, speedy, or adequate remedy in the ordinary course of law

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Certiorari discretionary

Prohibition Discretionary and ministerial To annul order To order To restrain performance performance 60 days from receipt of final judgment or order or from denial of motion for reconsideration Against entity Against entity Against entity or person or person or person exercising j or exercising exercising j, ej, ej function ministerial ministerial function function Without or GAD Unlawful Without or GAD neglect of ministerial duty or excluded another from a right or office Correct errors Performance of To restrain or of jurisdiction act or desist prevent from excluding usurpation of another from a jurisdiction right or office

Mandamus Ministerial

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

Errors of Jurisdiction Court acted with GAD amounting to lack or excess of jurisdiction Action of the court Correctible by certiorari Rule 65

Errors of Judgment Misapprehension of law or facts by the court Valid proceeding Correctible by appeal Rules 40-43, 45

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

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

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. 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

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. where there is an urgent necessity for the resolution of the question and any

52

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

Note: in the cases, in event of denial of petition, and in exercise of original jurisdiction, remedy is APPEAL MTC to RTC- Rule 40

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

RTC to CA(appellate)

Rule

41

(original),

Rule

42

CA to SC- Rule 45 The above-stated is HIERARCHY OF COURTS the PRINCIPLE OF

5. certification against forum shopping

6. pay docket and lawful fees, 500 for costs

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

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

Same principle in certiorari: MTC to RTC- 60 days RTC to CA- 60 days

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

CA to SC- 60 days

65 vs 45 (simplified) General rule: Certiorari is not a substitute for lost appeal Except: denial of due process Rule 65 60 days Motion for reconsideration required Questions of jurisdiction SC, CA, RTC Special civil action Rule 45 15 Days Not Questions of law SC Mode appeal/petition review of for

appeal is not a remedy o no appeal or no plain, speedy, adequate remedy

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

court without jurisdiction

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

when deprived of substantial rights

53

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! M4R based on Rule 65 Of interlocutory order, as preparation to file certiorari M4R based on Rule 37 Of final judgment or final order, not including interlocutory orders

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

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 -

Within 1 YEAR (action for damages) after entry of judgment establishing petitioners right to the office in question

in short... within 1 YEAR from usurpation of public office REMEDY IF DENIED: Appeal

2 kinds of quo warranto: 1. usurpation of public office

Jurisdiction and Venue: RTC, CA, SC

54

If Solicitor General files- RTC, CA, SC If other person files- R4 S1 R4 S2

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

Quo Warranto Election Code Election Code COMELEC, RTC. MTC Omnibus Election Code Not Can be filed with MTC Contest right of elected public officer to hold public office Ineligibility or disqualification of person elected to hold the office Within 10 days after proclamation of candidate Filed by any voter

Quo Warranto Rule 66 Rules of Court RTC, CA, SC Basis: A8 Consti, R66 Subject to BP129 Cannot be filed with MTC Show title to public office or exercise public franchise Usurpation, forfeiture, association illegal

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 compensation 2. order of expropriation 3. final order of just compensation

Within 1 year from usurpation of office Filed by government or person entitled to the office

Remedy of person after expropriation, no payment made: recover property from expropriator within 5 years after non payment

FORECLOSURE OF MORTGAGE (Rule 68) 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 (Tan, Handbook on 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 Civil Procedure and

Foreclosure of Mortgage Constitutional Basis: A3 S9 Private property shall not be taken for public use without payment of just compensation Manner of foreclosure of mortgage: Jurisdiction: RTC, estimation (BP129) incapable of pecuniary Rule 68 S1 termination of all the rights of the mortgagor in the property covered by the mortgage

55

Contents of action: 1. date and due execution of mortgage

To have the property seized and sold by the court order to the end that the proceeds thereof be applied to payment of plaintiffs claim 2. EJ FORECLOSURE

2. assignments, if any

3. names and residences of mortgagor and mortgagee

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

4. description of mortgaged property

Remedies of Mortgagee in case of default of mortgagor/waiver of right to foreclose: a. Judicial or extrajudicial foreclosure of mortgage

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

b. Filing of ordinary action to collect debt 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 the mortgage, all of whom shall be made defendants in the action Here, under b, deemed to have waived his right to proceed against the property in a foreclosure proceeding

Nature of Action: QUASI IN REM Service of summons by publication

Right of Redemption Exists in EJ foreclosure By mortgagee within 1 year from registration of the sale in the Office of the Registry of Deeds

Jurisdiciton/Venue: MTC-RTC 20-50 OMM MM lower higher Where real property or portion thereof is situated (R4 S1)

Equity of Redemption Exists in J foreclosure 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 Classification of Foreclosure of Mortgage: 1. JUDICIAL FORECLOSURE PARTITION (Rule 69)

56

(Tan, Handbook on pleadings, pp 148-149) -

Civil

Procedure

and

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:

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. Compulsorypartition by judicial proceedings at the instance of one or more of the co tenants without regard to the wishes of the other co tenants

MTC RTC 20-50 300-400 OMM MM lower higher R4 S1 R4 S2

In case of adverse resolution: Kinds of Partition 1. Total- all the things are divided among the participants MULTIPLE APPEALS- 30 day record on appeal (R69 S2) Why? (tingin ko lang) Orders under Rule 69: 2. Partial- when some of the things are divided, the rest remaining in community ownership 1. Order of partition 2. Order of accounting

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

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

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

FORCIBLE ENTRY AND UNLAWFUL DETAINER (Rule 70 in relation to Rules on Summary Procedure) (issue is that of possession)

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

(Tan, Handbook on pleadings, pp 153-158)

Civil

Procedure

and

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)

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

57

property where dispossession has lasted for more than 1 year; FE or UD

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

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

3. Accion reivindicatoriarecovery of OWNERSHIP

action

for

The only pleadings allowed to be filed are the: 1. Complaints 2. Compulsory counterclaims 3. Cross claims pleaded in the answer 4. Answers thereto

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 Person in physical possession of land was deprived of possession through FISTS Unlawful ab initio Not require demand to vacate Prove prior possession until deprived 1 y from date of actual entry on land Filed by: R70 S1 Person deprived of possession of land or building by FISTS, or lessor, vendor, vendee, other person against whom possession of any land or building is unlawfully withheld Unlawful Detainer Withholding by a person of possession of land or building Legal but becomes illegal Pay AND vacate; jurisdictional No need to prove prior physical possession 1 year from date of last demand

VERIFIED!

S4- Duty of the Court After 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- Answer Within 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.

Jurisdiction/Venue: MTC of the place where property or portion thereof is situated (R4 S1) Proceedings SUMMARY IN NATURE! (Rules on Summary Procedure)

Within 10 DAYS from service of summons o Rule 70

58

Summ Pro

S6- Effect of Failure to answer Should 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.

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 S7- Preliminary parties conference; appearance of e. Such other matters intended to expedite the disposition of the case

Not 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.

S9- Submission of affidavits and position papers Within 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.

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.

S10- Rendition of judgment 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. Within 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.

S8- Record of Preliminary Conference Within 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: a. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof

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.

59

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

h. Motion to declare defendant in default

i. 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. j.

Dilatory motions for postponement

Reply

k. Third party complaints

l. S19- Prohibited pleadings and motions The 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

Interventions

S20- Affidavits The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein.

b. Motion for a bill of particulars

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.

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

S21- Appeal The 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.

d. Petition for relief from judgment

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

f.

Memoranda

15 DAYS from notice of judgment or final order, notice of appeal + bond to RTC o NO M4R (prohibited pleading)

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

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

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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

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

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 defendants dilatory, or appeal is frivolous or 2 classifications of contempt: 1. Direct Contempt (R71 S1) 2. Indirect Contempt (R71 S2)

DISCUSSION: 1. DIRECT CONTEMPT (S1)

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

that the appeal of plaintiff is prima facie meritorious

Offensive personalities towards people in court

CONTEMPT (Rule 71)

Refusal to be sworn or to answer as a witness

(Tan, Handbook on pleadings, pp 162-166)

Civil

Procedure

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

Contempt

Punishment:

61

(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 c. Any abuse of or any unlawful interference with the processes or proceedings of the court not constituting direct contempt as under S1 Note highlighted: case in MTC where case is pending If after ejectment, re entered the property, indirect contempt (relate to Rule 70)

Remedy: CERTIORARI or PROHIBITION (R71 S2)

2. INDIRECT CONTEMPT (S3)

Main / Original action o Can be filed in RTC or MTC

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

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

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

f.

Failure to obey subpoena duly served

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

g. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him Remedy: (R71 S11) Appeal to proper court as in criminal cases

Direct Contempt In presence of a judge, motu proprio or upon motion Cant initiate In presence or so near judge

Indirect Contempt

Initiate Not in presence of judge, disobey court

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Rem: certiorari remedy

order Rem: appeal Original action

only its pendency against the parties designated by their real names

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

The notice of the lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that

Notice of Lis Pendens buyer beware Notice to buyer of existence of an adverse claim It is not a pleading There is need to register it with the register of deeds

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

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

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.

What are the papers required to be filed and served under Rule 13? (PAMNOJDORS) Pleading subsequent to the complaint Appearance Written Motion Notice Order Judgment Demand Offer of judgment Resolution

63

Similar 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)

plainly 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:

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 or By 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 partys or counsels 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 R13 S8

Substituted Service

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!!!

Effect of non compliance with personal service? Note: Service other than personal service

Service by mail R13 S7 Service by registered mail shall be made by depositing the copy in the post office, in a sealed envelope 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

64

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.

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

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

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 payment NOTE: Docket fees are suspended in compulsory counterclaims (SC Resolution 9-21-04)

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. 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 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

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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

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

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

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 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 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

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

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

III. Summons

SERVICE OF 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 Office Branch Clerk of Court Person

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

Purpose is to obtain jurisdiction over

66

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) Served on the defendant Does not need tender of kilometrage and other fees Original or alias Upon filing of the complaint and payment of requisite docket fees

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)

IN REM Service in person Substituted Service Publication Extraterritorial Service QUASI IN REM Service in person Substituted service Publication

Can you serve summons by mail? May be served to a non-party Needs tender of kilometrage, attendance fee, and reasonable cost of production fee Ad testificandum or duces tecum During trial or investigation 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: 1. Leaving copy of the summons to the defendant who refuses to receive it

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

FE and UD- in personam actions

IN PERSONAM Service in person Substituted service

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

67

Substituted Service of Summons on defendant (R14 S7) 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: 1. Defendants residence with some person of suitable age and discretion then residing therein or 2. By leaving the copies at defendants 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 age 2. 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

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: (AREAR14 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 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**

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.

68

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

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

R14 S14 3. In any other manner the court may deem sufficient 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

Substituted Service vs Extraterritorial Service of Summons Substituted 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: Defendants residence with some person of suitable age and discretion then residing therein or By leaving the copies at defendants office or regular place of business with some competent person in charge thereof Extraterritorial Service 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

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 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

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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.

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.

3. ISSUANCE OF ALIAS SUMMONS Upon Minors and Incompetents 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 Upon domestic private juridical entity R14 S11 1. Ordinary defendant 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 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. 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.

To whom summons are made?

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.

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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.

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

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.

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 RES Because nature of the case has become quasi in rem

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

(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

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To implement, serve summons 3. With respect to third party complaint, serve upon third party defendant (relate to R6 S11)

Court not to issue injunction unless there is invalid service of summons Notice and hearing

4. With respect to fourth party complaint, serve upon 4th party defendant (relate to R6 S11)

EXCEPTION TO SERVICE OF SUMMONS: Voluntary appearance

NOT in: 1. Complaint in intervention- because third person submitted to jurisdiction of the court

1. Filed responsive pleading 2. Submitted to jurisdiction of the court,

EXCEPT: 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

When questioning the jurisdiction of the court Rule 14 S20 S20- Voluntary appearance

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)

The defendants 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.

Relate Rule 14 to Rule 57 Order of attachment, writ of attachment, issued ex parte To implement, serve summons

Can the court dismiss a case motu proprio for lack of jurisdiction over the person of the defending party for defective service of summons? NO! Dismissal shall only be by MOTION! Motion to dismiss

Relate Rule 14 to Rule 58 Ex parte issuance of preliminary injunction

Rule 9 S1 (relate to Rule 16) provides for the following instances when the court may dismiss a case motu proprio:

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Lack of jurisdiction over the subject matter Litis pendencia Res judicata Prescription DOES NOT INCLUDE: lack of jurisdiction over the person of the defending party (Wala to!)

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 claim After 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!

After service of summons, IV. REFER TO THE FOLLOWING:

Motion to Dismiss (Rule 16)

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

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)

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

Order of Default/Judgment by Default (Rule 9)

GRANTED: Refile Move for alias summons DENIED:

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

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

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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)

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: 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.

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.

e. That there is another action pending between parties for the same cause (aka LITIS PENDENTIA)

aka LITIS PENDENCIA 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 2. That there is substantial identity in the cause of action and in the relief sought, the relief being founded on the same facts Elements: 1. Identity of parties or at least such parties representing the same interests in both actions

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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

There must be identity of the parties, of subject matter, and of cause of action between the first and second actions GRANTED:

Which should be dismissed in case of litis pendencia? The 1st, 2nd, 3rd, 4th action? The later case(s) would be dismissed.

Appeal 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.

GRANTED: Appeal 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.

g. That the pleading asserting the claim states no cause of action Aka FAILURE TO STATE CAUSE OF ACTION GRANTED: Refile Amend the pleading

f.

That the action is barred by prior judgment (aka RES JUDICATA) or by the statute of limitations (aka PRESCRIPTION)

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.

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

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h. That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished GRANTED: Appeal 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.

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: 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.

i.

That the claim on which the action is founded is unenforceable under the Statute of Frauds

(note: 1403, NCC) GRANTED: Appeal 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.

MOTU PROPRIO DISMISSAL: (see underlined below) Rule 9 S1 Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived

j.

That a condition precedent for filing the claim has not been complied with

However, when it appears from the pleadings or the evidence on record that

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1. the court has no jurisdiction over the subject matter,

4. Unauthorized alterations, omissions, or additions in the approved record on appeal as provided in S4 of Rule 44

2. that there is another action pending between the parties for the same cause, or

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

3. that the action is barred by prior judgment or by statute of limitations,

the court shall dismiss the claim

6. Absence of specific assignment of errors in the appellants 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

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

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. Failure to file notice of appeal or the record on appeal within the period prescribed by these Rules

2. Set hearing 10 days after filing of the motion 3. Failure of appellant to pay the docket and other lawful fees prescribed in S5 of R40 and S4 Rule 41

3. Proof of service (different from proof of mailing, only as far as filing)

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To see whether the adverse party was able to receive the motion

written motion

requirements, but with need to hear on 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

If not, would affect the right of parties IF not, then not set for hearing

What is a motion? 5. File reply to comment R15 S1 A motion is an application for relief other than by a pleading 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) What are the kinds of motions? Motion ex parte / Non Litigated Motion Made without the presence of or notification to the other party because the question generally presented is not debatable

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

Motion of course Movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court

3. It will be ground for denial of the motion

4. The motion shall be considered as not filed Execution 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 Motion made with notice to the adverse party to give him an opportunity to oppose it

Special Motion A motion addressed to the discretion of the court

LITIGATED MOTION Comply with requisites for

NON LITIGATED MOTION No need to comply with all the Examples of Litigated Motions:

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Motion to dismiss Motion to postpone pre trial Motion to declare defendant in default Motion to extend time for filing pleadings

Motion for summary judgment

Motion for judgment on the pleadings

Motion to set case for pre trial

Motion for new trial

Motions that need to be verified: Motion for relief from judgment

Motion for reconsideration Motion to lift order of default Motion to dismiss complaint upon plaintiffs motion

Motion to postpone trial

Motion to lift order of default

Motion for new trial on ground of FAME

Motion to declare a party in direct contempt

All motions for provisional remedies:

Motion for preliminary attachment Motion for demurrer to evidence Motion for dissolution of preliminary injunction

Motion for consolidation or severance of case

Motion for writ of replevin Motion for trial by commissioner Motion in support pendent lite Motion to strike out evidence or testimony off the record Examples of non-litigated motions: Motion to reset pre trial Motion to postpone for absence of evidence

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Motion to postpone for illness of a party or counsel

pleading

and prepare for trial

Note: the motion is a LITIGATED MOTION 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 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)

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) Motion for Bill of Particulars in Civ Pro Rule 12 May be filed before responding to a pleading Address any matter in the pleading not averred with sufficient definiteness or particularity Purpose is to prepare responsive Motion for Bill of Particulars in Crim Pro R116 S9 May be filed before arraignment Address alleged defects in the criminal complaint or information

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 Purpose is to enable properly to plead

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5. In writing

Denied, answer within the plenary period

6. Hearing of motion set by applicant

IS bill of particulars part of a pleading? YES!

7. Notice of hearing shall be addressed to all the parties concerned not later than 10 days from the filing of the motion

R12 S6 provides that a bill of particulars becomes part of the pleading for which it is intended.

8. Motion and notice of hearing must be served at least 3 days before the date of hearing

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)

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 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)

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

Motion for Bill of Particulars: Granted: Clarify, file bill of particulars

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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

5. Substantial amendments Amendment of the pleading which would change the original cause of action

6. Amendment to confer jurisdiction 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 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)

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.

If there is no responsive pleading yetamendment as a matter of right Once- matter of discretion

Amendment as a matter of right DENIED: remedy- MANDAMUS

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, 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

Amendment with leave of court (after the filing of a responsive pleading) DENIED: Remedy? Certiorari Rule 65 in relation to Rule 41 S1 Order 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

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Amendment of complaint, which includes prayer for writ of attachment, the provisional remedy shall be DISSOLVED.

PWEDE!- amendment of the pleadings naman ang tinutukoy eh

Relate Rule 10 to Rule 6 When the answer does not allege cross claim, counterclaim, o Remedy: AMENDMENT of the pleading

Amended Pleading Refers to facts existing at the time of the commencement of the action Takes the place of the original pleading Can be made as matter of right when no responsive pleading has yet been filed When amended pleading is filed, a new copy of the entire pleading must be filed 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)

Supplemental Pleading Refers to facts arising after the filing of the original pleading Taken together with the original pleading Always with leave of court

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

A substantial pleading does not require the filing of a new copy of the entire pleading 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 answer to the supplemental complaint if no new or supplemental answer is filed (R11 S7)

Related to Rule 14 and Rule 57 In personam to quasi in rem, publication is allowed Substantial amendment o 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?

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

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filed (R11 S3) Supersedes original pleading With or without leave of court Supplements original pleading With leave of court 3 day notice rule- further motion 3 days before hearing 10 days- motion set for hearing at least 10 days

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 bill of particulars allowed in Summary Procedure? NO (Prohibited pleading)

Motion to dismiss in Summary Procedure? NO (prohibited 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

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

D. MOTION FOR EXTENSION OF TIME TO FILE RESPONSIVE PLEADING (Rule 11) Rule 11 S11 Section 11 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

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

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GRANTED: remedy is APPEAL o DENIED: plead o there is issue, but there is no genuine issue final judgment on the merits

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

Maganda ka? Maganda ka nga ORDER OF DEFAULT / JUDGMENT BY DEFAULT (Rule 9) Order of Default Order issued by the court where defendant failed to file answer Judgment by Default Decision or judgment by the court after order of default and presentation of evidence ex parte by plaintiff 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)

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.

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)

DEFENDING PARTY INCLUDES: In a permissive counterclaim- original plaintiff In a 3PC- 3rd party defendant In 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

Denied,

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CERTIORARI RULE 65 with TRO or injunction Dahil pag wala, at may order of default, tuloy tuloy na + judgment of default

Higher courts will not entertain any case brought before it unless the same is decided before the lower courts

NOTE: umaakyat to hanggang SC- Ordinary and Special Civil actions (from MTC), [not Spec Pro]

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

MTC (all special civil actions, original actions in exercise of original jurisdiction, final judgment) ORDINARY CIVIL ACTION Order of default DENIED, Motion for reconsideration DENIED, Certiorari Rule 65 RTC with TRO (S7 R9 amended by AM 7-7-12) 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 -

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 R29 o 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 answer o 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

DOCTRINE OF HIERARCHY OF COURTS

As defendant, dont file motion to admit answer

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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

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

Summary Procedure Given 10 days to answer from receipt of service of summons 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 petitioners 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

JUDGMENT BY DEFAULT Nature: Final Judgment R9 in relation to R11 Based on presentation of evidence ex parte

BEFORE JUDGMENT BECOMES FINAL AND EXECUTORY: Denied. Remedy? REMEDY: Motion to set aside judgment or final order due to FAME Denied, Motion for reconsideration Denied, CERTIORARI Rule 65 with TRO/injunctionPREFERRED over appeal Because appeal is not the adequate, speedy remedy AFTER FINALITY OF JUDGMENT: Any of the following remedies: 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

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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)

Answer to complaint in intervention

Reply

2. File petition for annulment of judgment or final order or resolution on the ground of extrinsic fraud (R47 S1 and 2)

Answer to amended complaint

3. File petition for certiorari (Rule 65)

Answer to amended counterclaim

4. Collateral Attack

Answer to amended cross claim

V.

FILING OF ANSWER

Answer to amended 3rd 4th etc party complaint

Answer- the pleading setting forth the defending partys 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

Answer to amended complaint in intervention

Answer to supplemental complaint

Rejoinder

Answer to counter counterclaim

Compulsory counterclaim

Answer to counter cross claim

Answer to the permissive counterclaim

Answer to amended counter counterclaim

Answer to cross claim Answer to amended counter cross claim Answer to 3rd 4th etc party complaint

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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

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

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

5. Answer to 3rd 4th 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)

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

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

R14 S15 In case of summons by publication, answer shall be filed within the time specified in the order granting 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.

7. Reply R11 S6 A reply may be filed within 10 days from service of the pleading responded to

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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 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

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

Counterclaim Any claim which a defending party may have against the opposing party

Cross Claim 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

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.

Compulsory Counterclaim Arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing partys claim Does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction Barred if not set up in the action

Permissive Counterclaim Does not arise out of nor is necessarily connected with the subject matter of the opposing partys claim

11. Rejoinder

R11 S4 (?) Answer within 10 days from service

17-18. R11 S3 (?)note the periods

It may require for its adjudication the presence of third parties over which the court cannot acquire jurisdiction Not barred even if not set up in the

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action Need not be answered, not result in default Not an initiatory pleading Docket fees are suspended Must be answered or else defendant can be declared in default Initiatory pleading With docket fees

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. Fraud b. Statute of limitations

Omitted counterclaim or cross claim REMEDY: amend the answer

c. Release d. Payment e. Illegality

Motion to dismiss with counterclaim If permissive counterclaim, PWEDE Kasi, independent sa main action

f.

Statute of frauds

g. Estoppel h. Former recovery i. Discharge in bankruptcy Any other matter by way of confession and avoidance

Counterclaim with respect to Rule 17 Pwede, proceed after service of answer (Rule 17 S1 and 2)

j.

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 dismiss o During hearing, defending party to present evidence first INVERTED TRIAL

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

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

to the truth or falsity of the averment in the opposing partys pleading

What is a negative pregnant? General denials are deemed admissions

In good faith, or else, deemed an admission Specific denial in par __ __ __ for lack of knowledge to truth or belief of the same

Plaintiffs remedy in such a case? JUDGMENT ON THE PLEADINGS (Rule 34) Specific not necessarily Specific Denial Answer- no need to verify Kinds of Denials: 1. Specific Absolute Denial EXCEPT: 1. Actionable Document

By specifically denying the averment and whenever practicable, setting forth the substance of the matters relied upon for such denial

Document which creates rights, which serves as basis for filing of the complaint

2. Usury in a complaint With support dapat Specifically deny par 2 __ for being untrue, the truth of the matter is that... 3. Summary procedure

4. Answer with permissive counterclaim 2. Partial specific denial

Part admission and part denial

Not denied under oath an actionable document such as deed of sale or mortgage, Failure to verify = deemed admitted HENCE, judgment on the pleadings Except:

With support dapat

3. Disavowal of knowledge

1. Fraud/forgery 2. Not a party to the actionable document

By an allegation of lack of knowledge or information sufficient to form a belief as

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After jurisdiction is acquired by court, parties may resort to: VI. MODES OF DISCOVERY

3. Not restricted by a protective order

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) Production or inspection of documents or things under (Rule 27) Physical and mental examination of persons under (Rule 28)

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

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 privileged

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 had BUT, 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

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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

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

5. Production or inspection of documents or things under Rule 27 Use of depositions: 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 1. Impeach adverse partys witness (relate to evidence) 2. Residing 100 km away, sick or infirm

The documents to be produced must have the following requisites: 1. Should not be privileged 2. Should constitute or contain evidence material to any matter involved in the action and which are in the partys 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

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 Mode of discovery Subpoena

Process By request

6. Physical and Mental Examination of Persons under Rule 28

By motion

This mode of discovery is available in an action in which the mental or physical condition of a party is in controversy,

Production or Inspection of Documents or Things

Original of Evidence in Custody of Adverse Party

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Mode of discovery By motion

Exception to the best evidence rule By notice

1. Dismissal upon notice by plaintiff (R17 S1)

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

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 and Upon such terms and conditions as the court deems proper

With answer, by way of motion without prejudice to counterclaim

Mental and Physical examination of Persons vs Hospitalization of Insane Persons Hospitalization of Insane Persons Physical and Mental examination of persons Governed by Rule 28 Mode of discovery File a motion Any party may avail of

May be filed independently or separately

3. Dismissal due to fault of plaintiff, when for justifiable cause,

Governed by Rule 101 Special proceeding File a petition Filed by Regional Director of DOH

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

Another remedy which may be availed of: MOTION TO DISMISS BY PLAINTIFF (Rule 17) What are the grounds for dismissal under Rule 17? Plaintiff fails to comply with these Rules or any order of the court

What is the 2 dismissal rule? What are its elements?

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(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

Unless otherwise stated in the notice, the dismissal is without prejudice,

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.

(*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 [?])

Exceptions to 2 Dismissal Rule: 1. 1st action is not related to the second action

or if so declared with prejudice, appeal the dismissal

S2- dismissal upon motion of plaintiff 2. Court dismissing the second action is a court not of competent jurisdiction Refile the case

Nature of Dismissal of actions under Rule 17: (S1), upon notice by plaintiff

If the court declares that the dismissal is with prejudice, appeal the dismissal

S3- dismissal due to fault of plaintiff

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Appeal the dismissal

Judgment on the Pleadings 3 day notice rule Filed by plaintiff Based solely on the pleadings

Summary Judgment 10 day notice rule Filed by defendant Based on pleadings, depositions, admissions, affidavits No genuine issue between the parties

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 partys pleading, Answer fails to tender an issue or there is an admission of material allegations On the merits There is answer filed

Interlocutory or on the merits If filed by plaintiff, filed at any time before answer is served

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, VII.

If filed by defendant, may be filed at any time even before answer

the material facts alleged in the complaint shall always be proved

REPLY (R6 S10)

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

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

Allegations not deemed admitted by filing of judgment on the pleadings: irrelevant allegations immaterial allegations allegations of damages in the complaint

VIII.

REJOINDER

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Second pleading on the party on the part of defendant being his answer to the plaintiffs replication Another form of responsive pleading

Reply to answer to complaint in intervention

Rejoinder IX. PRE TRIAL (Rule 18) 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 Pre Trial Conference- yes It is not dismissed

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

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

Answer Pre Trial in Criminal Cases Answer to permissive counterclaim Pre Trial in Civil Cases

Mandatory requirement After arraignment, within 30 days from the date the court acquires jurisdiction over the accused Rule 118 No pre trial brief After the last pleading asserting a claim has been served and filed Rule 18 Pre trial brief is required to be filed and served Parties and counsel are required to appear

Answer to cross claim

Answer to third party complaint Answer to complaint in intervention

Reply to answer Counsel of accused and prosecutor are required to appear

Reply to answer to permissive counterclaim

Reply to answer to cross claim

Reply to answer to third party complaint

Non appearance may be excused only if valid cause is shown, or representative shall appear in behalf

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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 Failure of plaintiff to appear, dismissal of the case with prejudice, unless otherwise ordered by the court

Waiver of objections to admissibility of evidence

Simplificatio n of the issues

Failure of defendant to appear, plaintiff to present evidence ex parte

Modification of order of trial if accused admits the charge but interposes a lawful defense

Necessity or desirability of amendments to the pleadings

Presence of private offended party is not required (as only required to appear at arraignment)

Pr trial agreement is in writing, signed by accused and counsel, or else, cannot be used against accused Considerations in pre trial conference:

Signed by parties and counsel (?)

Such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case

Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof

Limitation on the number of witnesses

Considerations in pre trial:

Plea bargaining Stipulation of facts

Marking of identification of evidence of the parties

Possibility of amicable settlement or submission to alternative modes of dispute resolution

Advisability of preliminary conference of issues to commissione r

Propriety of rendering judgment on the pleadings, summary judgment,

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dismissing the action should a valid ground therefor be found to exist

Failure to appear by defendant, plaintiff to present evidence ex parte

What are the purposes of pre-trial? (Rule 18 S2)

Advisability or necessity of suspending the proceedings

The court shall consider: a. The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution

Such other matters as may aid in the prompt disposition of the action

b. The simplification of the issues

c. The necessity or desirability of amendments to the pleadings

d. The possibility of obtaining stipulations of admissions of facts and of documents to avoid necessary proof (simplified) Pre Trial In Criminal After arraignment Pre Trial in Civil After last pleading asserting a claim has been served and filed With pre trial brief 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 Failure to appear by plaintiff, dismissal of case with prejudice e. The limitation of the number of witnesses

f.

The advisability of a preliminary conference of issues to a commissioner

No pre trial brief Order of pre trial signed by accused and counsel so admissions are binding Failure to appear, sanctions against counsel and prosecutor

h. The advisability or necessity of suspending the pleadings

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i.

Such other matters as may aid in the prompt disposition of the action

Required to be filed at least 3 days before the Pre Trial Conference Ensure na really good, for filing memoranda

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:

(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: a. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof (R18 S4) 1. Duty of the parties and their counsel to appear at the pre trial

b. A summary of stipulated facts and proposed stipulation of facts

c. The issues to be tried or resolved

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

d. The documents or exhibits to be presented, stating the purpose thereof

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 [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)

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. Effects of failure to appear at the pre trial: PRE TRIAL BRIEF R18 S5 Plaintiff fails to appear

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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.

After judgment becomes final and executory

ORDER ALLOWING PLAINTIFFS 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

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

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

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

PRESENTATION OF EVIDENCE EX PARTE Conducted by Court of CLERK OF COURT Clerk of court, a LAWYER o Hence, if judge delegated to clerk of court who is not a lawyer, BAWAL

Can clerk of court charge Commissioners 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

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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

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

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

File for annulment of judgment, final order, or resolution under Rule 47 or o GROUND: extrinsic fraud

File petition for certiorari under Rule 65 or o 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

Before judgment becomes final and executory REMEDIES: Appeal the judgment (Rule 41) or -

Make a collateral attack on the judgment

File motion for reconsideration (Rule 37) or

Pre Trial Order Order issued by the court stating what transpired during the pre trial conference o Can be amended accordingly By filing motion to amend or correct the pre trial order, within 5 days after receipt of the pre trial order

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

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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

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

Cause of action admitted by defendant, Rule 18 in relation to Rule 34 JUDGMENT ON THE PLEADINGS

Conclusive 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

HOW, WHEN, WHERE, WHAT, WHY CONSIDER violations and exceptions: Leading Questions Avoid except in preliminary matters Propound answers which proponent desires

The best part of law practice

NOTE EXCEPTIONS: hostile witnesses, minors, adverse party, preliminaries Is your name Ms X? Leading

(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

Is your age 27? Leading

Misleading questions

All witnesses in pre trial brief to be presented Before witness is presented, offer of testimony, in accordance with purpose in pre trial brief

Cross Examination Requires knowledge of: Facts Evidence Defenses

1. PROPONENTS / PLAINTIFFS TESTIMONIES AND EVIDENCE IN CHIEF as well as that of witnesses

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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

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, 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 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 EVIDENCE

Re Direct Examination Re establish what was destroyed during the cross examination

Considered by CA in appeal

After PLAINTIFF RESTS ITS CASE, Re Cross Examination Destroy what was re established in the re direct examination NOTE: Identify all witnesses Offer of Testimony Offer of Evidence Rule 33 After plaintiff rests (defendant may file) DEMURRER TO EVIDENCE (Rule 33) D2E vs M2D (simplified) D2E Rule 16 Before filing of M2D

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its case That plaintiff has shown no right of relief If granted, case dismissed

responsive pleading 10 grounds If court finds that evidence is insufficient (plaintiff has shown no right to relief), complaint dismissed as demurrer is granted

could not present evidence if demurrer is denied If court finds that prosecutions evidence is insufficient, demurrer granted, accused is acquitted

If granted, case dismissed, remedy depends:

If granted but on appeal order of dismissal is reversed, defendant is deemed to have waived the right to present evidence

With prejudiceappeal Without prejudicerefile Judgment of dismissal is appealable

Judgment of acquittal not appealable, hence, DJ sets in Judgment of acquittal is not appealable; DJ sets in

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

If demurrer is granted but on appeal, order of dismissal is reversed, defendant is deemed to have waived the right to present evidence

Demurrer to evidence in Civil Procedure Rule 33 No leave of court required

Demurrer to evidence in Criminal Procedure Rule 119 S23 With or without leave of court

(NO res judicata in dismissal due to demurrer) Plaintiff files motion to deny motion due to demurrer to evidence If court denies demurrer, defendant will present evidence Court may motu proprio deny motion

If with leave of court, accused could present evidence if demurrer is denied

If court denies demurrer,

With LoC- accused may present evidence

If without leave of court, accused

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W/O LoC- accused can no longer present evidence and submits case for decision based on prosecutions evidence

Objection Offer Tender of excluded evidence DEFENDANT RESTS ITS CASE Note: No more D2E- Rule 33- after PLAINTIFF rests its case...

(simplified version) 3. REBUTTAL EVIDENCE D2E Civil Rule 33 With or without leave of court D2E Criminal Rule 119 S23 With LoC- if denied, accused presents evidence Purpose is to rebut defendants evidence in chief Order: (same as previously stated)

If granted, but on appeal is reversed, defendant loses the right to present evidence, case submitted for decision

Without LoC- if denied, defendant cannot present evidence

4. SUR REBUTTAL EVIDENCE

Purpose is to rebut the rebuttal Order: (Same as previously stated)

After plaintiff rests its case, no D2E or D2E denied no appeal, 2. DEFENDANTS EVIDENCE IN CHIEF

5. MEMORANDUM

Narration of facts of the case, issues, no cause of action, no defenses, but only contain discussions

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 Declares rights/reliefs of parties Final consideration and determination of a court of competent jurisdiction upon the matters submitted to it in an action or proceeding S1- Rendition of judgments and final orders: After trial, XI. JUDGMENT (Rule 36)

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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

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 partys claim or acknowledges validity of the claim against him

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. Judgment upon compromise Provisions and terms are settled and agreed upon by the parties to the action and which is entered by the consent of the court Judgment by confession An affirmative and voluntary act of defendant himself. The court exercises a certain amount of supervision over the entry of judgment

Kinds of Judgments: JUDGMENT UPON A COMPROMISE

2 kinds of judgment by confession: Judgment by Cognovit actionem

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

Defendant after service instead of entering a plea, acknowledged and confessed that plaintiffs cause of action was just and rightful

Judgment by Confession Relicta Verificatione

After pleading and before trial, defendant both confesses the plaintiffs cause of action and withdrew or abandoned his plea or other allegations,

(A2028-2046, NCC)

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whereupon judgment was entered against him without proceeding to trial

Refers to dismissal of a case without prejudice to its being refiled

Remedies to judgment by consent, confession, compromise: File motion to set aside

JUDGMENT BY DEFAULT (R9 S3)

If denied, file petition for certiorari under Rule 65 (R41 S1)

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 UPON THE MERITS

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 partys pleading

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

SUMMARY JUDGMENT (R35)

JUDGMENT NON PRO TUNC

Judgment rendered by the court if the pleadings, supporting affidavits, depositions and admissions of plaintiff or defendant show that:

Now for then Judgment intended to enter into the record the acts which had already been done, but which do not appear in the records 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

JUDGMENT SIN PERJUICIO R36 S4 Without prejudice

SEVERAL JUDGMENT

Judgment rendered by the court where in an action against several defendants,

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the court renders judgment against one or more of them, leaving the action to proceed against the others

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

SEPARATE JUDGMENT

R36 S5 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

CONDITIONAL JUDGMENT

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 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

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

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,

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and does not take place nor extinguish the original judgment

Reopening of Trial (Rule 119)

Conclusiveness of judgment

Appeal (Rules 40-43, 45)

Res Judicata (note above)

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

Stare Decisis

Obiter Dictum

b. Evidence is insufficient to justify the decision or final order

c. That the decision or order is contrary to law Law of the Case 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) If after judgment is promulgated, the judgment is ambiguous and difficult to comply, MOTION FOR CLARIFICATORY JUDGMENT 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

XII.

REMEDIES BEFORE JUDGMENT BECOMES FINAL AND EXECUTORY:

2. Motion for New Trial (Rule 37)

Motion for reconsideration (Rule 37)

Motion for New Trial (Rule 37)

Motion to Rehear a case already decided by court but before judgment thereon becomes final and executory,

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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

30 days from denial of M4R/MNT

MTC decisions
MTC
M4R Under Rule 37

RTC
Notice / Record on Appeal under R40 Petition for Review under Rule 42 (from RTC decisions in exercise of appellate jurisdicti on)

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

CA

M4R Under Rule 52

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

Petitio n4 review on certior ari under

SC

SC M4R Rule 52

4. APPEAL (Rules 40-43, 45) RTC decisions in exercise of original jurisdiction

RTC

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:

M4R Under Rule 37

Notice or Record on appeal under Rule 41

CA

M4R Under Rule 52

SC

15 days from denial of M4R/MNT

Petitio n4 review on certior ari under

SC M4R Rule 52

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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 Notice/Record on Appeal In case of Record on Appeal, appellants Brief 45 days to file record on appeal 5. When findings of fact are conflicting 6. 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

Rule 40

Rule 41

Rule 42

Rule 43 Petition For Review Petition for Review (Appeal ?) Of quasi judicial bodies

Rule 45

Memorand um of appeal Notice or Record on appeal

Appellan ts Brief

Petition for Review Petition for Review

Petition for Review on Certiorari Petition for Review on Certiorari

Notice or record on appeal

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

Of MTC decisions

Of RTC Decision s original jurisdicti on

Of RTC decision s appellat e jurisdicti on Question s of fact law, or both To CA

Of CA, Sandiganba yan, CTA, RTC decisions

8. When findings of fact are conclusions without citation of specific evidence on which they are based

Questions of fact law or both

Question s of fact law or both To CA

Questio ns of fact law or both To CA

Questions of law

To RTC

To SC

9. When facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by respondents

General Rule: Finding of fact of CA are final and conclusive and cannot be reviewed on appeal to SC: EXCEPTIONS:

10. when findings of fact of the CA is premised on supposed evidence and is contradicted by evidence on record

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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

RTC exclusive original jurisdiction to CA MTC exclusive original jurisdiction to RTC Ground: extrinsic fraud

REMEDIES AFTER JUDGMENT BECOMES FINAL AND EXECUTORY: 1. Petition for relief from Judgment (Rule 38) 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 o Order or writ of execution Order dismissing appeal

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- 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.

S2- Grounds 1. Extrinsic or collateral fraud 2. Lack of jurisdiction over subject matter and over the person

3. Certiorari under Rule 65

Filed within 60 days from knowledge of judgment and within 6 months from entry of judgment

4. Collateral Attack

Relate to appeal o Failure to appeal due to FAME EXECUTION OF JUDGMENT

2. Petition for Annulment of judgment (Rule 47)

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Nothing left for the court but to enforce its decision

g. Dispositive portion of the judgment or order subject of the execution

Execution remedy afforded by law enforcement of a judgment for the h. Shall require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms

object is to obtain satisfaction of the judgment on which the writ is issued

BY MOTION- 5 years AFTER 5 years Revival of Judgment- 10 YEARS, by MOTION Rule: Matter of right on part of winning party (execution), and court cannot refuse Except: 1. When judgment turns incomplete or conditional out to be

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

2. Judgment is novated by parties

3. Equitable grounds like change in situation of the parties which makes execution inequitable

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

4. Execution is enjoined

5. Judgment has become dormant

6. Execution is unjust or impossible

When proper to Quash Writ of Execution: f. Case number 1. Change in situation of parties renders execution inequitable

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2. Issued against the wrong party a. Execution of a judgment or a final order pending appeal 3. Issued without authority On motion of the prevailing party with notice to the adverse party filed in the trial court 5. Defective in substance 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 6. Judgment is already satisfied at the time of the filing of such motion, said court may, in its discretion, 7. Controversy was never submitted to the court order execution of a judgment or final order even before the expiration of the period to appeal

4. Improvidently issued

Rule: Dispositive portion of decision is the part that becomes subject of execution Except: 1. When there is dispositive portion ambiguity in the

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.

2. Where extensive and explicit discussion and settlement of the issue is found in the body of the decision

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.

S2- Discretionary Execution Discretionary Execution May issue before lapse of period to appeal, and even during appeal Discretionary upon the court; there is inquiry on whether there is good reason for execution Execution as a matter of right Period to appeal has already lapsed, no appeal is perfected Ministerial duty of the court provided there are no supervening events

Grounds: 1. Insolvency of judgment debtor 2. Wastage of asset by judgment debtor

S2- Discretionary execution

Court may, in its discretion, order an execution before expiration of the time within which to appeal, provided,

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1. There is motion for execution filed by winning party

Modes of enforcement: 1. By motion within 5 years from date of entry

2. There is notice of said motion to the adverse party

3. There are good reasons stated in a special order after due hearing

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

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

Revival of judgment S6 Independent action Assumes there is no execution within first 5 years Party who files the action is the judgment creditor himself, or his assignee, or his successor in intereest Filed due to lapse of 5 year period

Remedy in case of execution as matter of discretion, CERTIORARI o Interlocutory, without prejudice to the outcome of appeal

Revival of judgment S34 Carried out through filing of a motion in court Assumes that judgment is executed within first 5 years Party who files such motion is not the original judgment creditor but he is the highest bidder in the public auction Filed because movant is deprived of property purchased

S4- Judgments not stayed by appeal (Exception to general rule) In the following cases: 1. Injunction 2. Receivership 3. Accounting 4. Support 5. Other judgments declared to be immediately executory unless otherwise ordered by trial court S6 N/A to: 1. Judgments for support 2. Contempt orders in unauthorized reentry on land by ejected defendant 3. Issuance of writs of possession and 4. Special proceedings registration cases and land

S9- Award enforced

of

judgments

of

money,

how

S6- Execution by motion or independent action

1. Immediate payment on demand

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2. Satisfaction by levy 3. Garnishment of debts and credits

which he resides, and the land necessarily used in connection therewith

Levy Act by which officer sets apart or appropriates part of whole property of judgment debtor for purposes of execution sale

2. Ordinary tools and implements personally used by him in his trade, employment, or livelihood

Garnishment Act of appropriation by the court when property of debtor is in the hands of a third person

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

Attachment Refers to corporate property in possession of judgment debtor

Garnishment 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

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

S10- Execution of judgments for specific act 1. Conveyance, delivery of deeds, other specific acts vesting title 2. Sale of real or personal property 3. Delivery or restitution of real property 4. Removal of improvements on property subject of execution 5. Delivery of personal property 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

S13- Property Exempt from Execution: 1. Judgment obligors family home as provided by law, or the homestead in 9. So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the 4 months

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preceding the levy as are necessary for support of his family

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 The affidavit shall be served upon officer making a levy and a copy thereof must also be served upon the judgment oblige

10. Lettered gravestones

o 11. Monies, benefits, privileges, annuities accruing or in any manner growing out of any life insurance

Note: Cumulative remedies 12. Right to receive legal support, or money or property obtained as such support, or any pension or gratuity from government

Ordinary sale on execution Need not be confirmed by court

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.

Right of redemption exists

S16- Proceedings where property claimed by third person Remedies of 3rd party claimant: 1. Summary hearing before competent jurisdiction court of

Title is acquired after expiration of redemption period when final deed of conveyance is executed

Sale in judicial foreclosure of mortgage Must be confirmed by court in order to divest rights in the property of the parties and to vest the rights in the purchaser No right of redemption except when mortgagee is a bank or a banking institution Title is acquired upon confirmation and registration of the foreclosure sale

S30- Proof required of redemption 2. Terceria or third party claim filed with sheriff 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

3. Action for damages on the bond posted by judgment creditors

4. Independent reivindicatory action

2. If he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by RD, or

Terceria

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3. An original or certified copy of any assignment necessary to establish his claim, or

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

4. An affidavit executed by him or his agent showing the amount then actually due on the lien

3. If after examination, the court finds property of the judgment debtor, either in his own hands or that of any person, the court may order the property applied to the satisfaction of the judgment

S32- Rents, Earnings, pending redemption

Income

of

property 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

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. If court finds the earnings of the judgment debtor are more than sufficient for his familys needs, it may order payment in instalments

4. Make necessary repairs to buildings thereon while he occupies the property

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

5. Use it in the ordinary course of business 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

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

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

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Law of the case S47- Effect of judgment or final order Res judicata Bar by former judgment/direct estoppel by judgment 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 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

Conclusiveness of judgment Estoppel by verdict, estoppel by record, collateral estoppel by judgment or preclusion of issues or rule of auter accion pendent, covers par c

S48- Effect of foreign judgment or final orders Public Policy Principle Inalterability judgment of final and executory Public policy principle Judgment by a court is enforceable only within its territorial jurisdiction

Decisions of court must be immutable at some definite period of time

Effect of foreign judgments Provided that jurisdiction the tribunal has

Conclusiveness of judgment 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 1. In case of judgment against a specific thing, a. Judgment is conclusive upon title to the thing

Bar by former judgment Identity of parties, subject matter, causes of action First judgment constitutes absolute bar to all matters directly adjudged and those that might have been adjudged Has the effect of preclusion of claims

Conclusiveness of judgment Identity of parties and subject matter 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 only to issues

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

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2. It may be pleaded in an answer or motion to dismiss

LAST NOTES ON CIVIL PROCEDURE Note latest Rules on ADR (2009) in relation to Rule 18

In both instances, judgment may be repelled by evidence of: 1. Want of jurisdiction 2. Want of notice 3. Collusion 4. 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 jurisdiction 2. Want of notice to a party 3. Collusion 4. Fraud 5. Clear mistake of law or fact

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