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PRE-WEEK NOTES IN REMEDIAL LAW

SUMMARY OF REMEDIES IN CIVIL PROCEDURE:

BARANGAY LAW:

NON-REFERRAL OF THE CASE WITH THE BARANGAY:

Remedy: Defendant may file a Motion to Dismiss the case on the ground of
prematurity or failure to state a cause of action under Sec. 1 part (g), Rule 16
or based on failure to comply with the condition precedent.
AMICABLE SETTLEMENT / COMPROMISE AGREEMENT / NON-COMPLIANCE
Remedies: Execution of the amicable settlement within six (6) months after
date of settlement under Sec. 417 of R.A. 7160.
Repudiation of the settlement within ten (10) days from the date of
settlement by sworn statement on the ground that the consent was initiated
by fraud violence, or intimidation under Sec. 418 of R.A. 7160
Annulment of Compromise Agreement
Issuance of Certificate to file Action
In case the monetary claims does not exceed P100,000.00 file
complaint for small claims with MTC/MCTC.
RULE 2: CAUSE OF ACTION:
RULE 2, SEC. 4: SPLITTING OF CAUSE OF ACTION
Remedy for the defendant: Motion to Dismiss under Sec. 1 (e) Rule 16, on
the ground of litis pendentia or if there is already a final decision in the first
action on the ground of res indicate.
Remedy for the plaintiff appeal the order granting the motion to dismiss
since it is a final order;
RULE 2, SEC. 5: SEVERAL CAUSES OF ACTION:
Remedies: If there are several cause of actions between the same partiesjoinder of causes of action under Sec. 5, Rule 2

File a separate actions on the other causes of action not joined without
prejudice on the joint trial or consolidation of action under Sec. 1, Rule
31, or;

File an action to amend the pleadings joining the non-joined causes of


action.
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SEC. 6, RULE 2: MISJOINDER OF CAUSES OF ACTION:


Remedy: Motion to Serve and to try the case separately.
RULE 6: PARTIES TO THE ACTIONS:
SEC. 2, RULE 3: REAL PARTY IN INTEREST:
Remedy for the defendant: If the case is not brought in the name or against
the real party in interest a Motion to Dismiss may be filed on the ground that
the complaint states no cause of action under Sec. 1 (g), Rule 16.
Remedy for the plaintiff: Refile the case.
SEC. 10, RULE 3: UNWILLING CO-PLAINTIFF:
Remedy: Make the unwilling plaintiff as one of the defendants or implead the
said unwilling co-plaintiff.
SEC. 11, RULE 3: MISJOINDER OR NON-JOINDER OF PARTIES:
Not a ground for the dismissal of the action.
Remedies: Motion to Implead or strike out as a party defendant
In case of misjoinder a separate action can be filed against the party
misjoined.
Any claim against a misjoined party may be severed and proceeded
with separately.
SEC. 16, RULE 3 DEATH OF A PARTY:
Remedy: Motion for Substitution of parties.
SEC. 20, RULE 3: DEATH OF A PARTY ON A CONTRACTUAL MONEY CLAIMS:
Remedy: Before entry of judgment action shall continue, and decision shall
be enforced against the estate of the deceased under Rule 86.
SEC. 21, RULE 3: PAUPER LITIGANT:
Remedies: Motion to Prosecute as Pauper Litigant:
On the part of the adverse party he may file an Opposition to the
Motion contesting the grant of such authority by showing that the plaintiff
has means of livelihood or properties.
RULE 4: VENUE OF ACTIONS:
Remedy for the defendant: In case of improper venue, defendant may file a
Motion to Dismiss on the ground that the venue is improperly laid under Sec.
1 par. (C) Rule 16.
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Remedy for the plaintiff: Refile the case.


RULE 7: PARTS OF PLEADINGS:
Sec. 3, Rule 7: Unsigned Pleadings:
Remedies: The court may allow the parties to correct the deficiency, and sign
the pleading.
Lawyer may be subjected to appropriate disciplinary action.
Sec. 4, Rule 7: Verification:
Remedies: Pleadings may be amended or the court may order that the
pleading be verified at the discretion of the court.
On the part of the opposing party, in case the pleading in unverified
contrary to the requirements of the rules, the adverse party may move to
strike out the pleading from the record of the case (Sec. 12, Rule 8)

Sec. 5, Rule 7: Violation of Forum Shopping:


ON THE PART OF THE DEPENDING PARTY:
Remedy: File a motion to dismiss for failure to comply with the rules on forum
shopping or condition precedent under Sec. 1(j), Rule 16 in relation to Sec. 5,
Rule7.
ON THE PART OF THE CLAIMING PARTY:
Remedy: In case of dismissal, the party may re-file the case, because the
dismissal is without prejudice unless it is a gross and deliberate violation the
dismissal is with prejudice.
RULE 8: MANNER OF MAKING ALLEGATIONS:
Sec. 8, Rule 8: Actionable Document:
Remedy: Denial under oath and set forth what he claims to be the facts,
unless he is not party to the document otherwise its genuineness and due
execution is deemed admitted, and judgment on the pleadings maybe
availed of:
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Sec. 10, Rule 8: Material allegations in the complaint:


Remedies: Specific denial plus the substance of his denial, except amount of
unliquidated damages.
No specific denial, otherwise, it is an admission. Motion for Judgment
on the pleading under Rule 34.
RULE 9: EFFECT OF FAILURE TO PLEAD:
Sec. 3, Rule 9: Default:
For the Plaintiff:
Remedy: In case of defendant failed to file his answer. Motion to Declare
defendant in default with proof of service and notice of hearing.
For the Defendant:
ORDER OF DEFAULT:
Remedies: In case of order of default, file a Motion to Lift order of default
under oath on the ground of FAME with affidavit of merit in accordance with
Sec. 3, Rule 9. In case it is denied, file a Motion for Reconsideration, if
denied, file a petition for certiorari under Rule 65, the Order being
interlocutory (Sec. 1 Rule 41; and if denied file a Motion for
Reconsideration, and if denied file a Petition for Review on Certiorari under
Rule 45;
Or file a Motion to Admit answer together with the attached Answer
before the rendition of the judgment by default.
Petition for Relief from the final Order of Default on the ground of FAME
with affidavit of merit.

JUDGMENT BY DEFAULT:
Remedies: In case of judgment by default on the ground of FAME with
affidavit of merit.
In case of denial, file a Motion for Reconsideration, and if denied file a
Petition for certiorari under Rule 65 or file an appeal.
RULE 10: AMENDMENT OF PLEADING:
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Sec. 2, Rule 10: Amendment as a matter of right:


ON THE PART OF THE PLAINTIFF:
Remedies: Motion to Amend Pleadings with the attached Amended Pleading
before the filing of responsive pleading even there is already a Motion to
Dismiss.
In case of denial of the motion (as a matter of right), file a petition for
mandamus
under
Sec. 3, Rule 65, since it is ministerial for the court to allow amendment
before the filing of responsive pleadings being a matter of right.
In case of lack of actions, amendment to confer jurisdiction before the
filing of responsive pleading.
ON THE PART OF THE DEFENDANT:
Remedies: Defending
Pleading/Complaint.

party

may

file

an

Answer

to

the

Amended

Depending party may also file his Comment/Opposition to the Motion


to amend pleadings.
Sec. 3, Rule 10: Amendment with leave of court:
ON THE PART OF THE PLAINTIFF:
Remedies: After service of pleading. Motion for leave of Court to Amend
Pleading with the attached Amended Pleading.
In case of denial, file a petition for certiorari under Rule 65, since
amendment after the filing of responsive pleading is discretionary on the part
of the court.
ON THE PART OF THE DEFENDING PARTY:
Remedies: Defending party may file an Answer to the Amended Pleading /
Complaint.
Defending party may also file his Comment/Opposition to the Motion to
amend pleading.
Sec. 5, Rule 10: Amendment to Conform to Evidence:
Remedy: Motion to Amend Pleading to Conform to Evidence - issues not
raised in the pleading were tried with the consent of the parties.
Sec. 6, Rule 10: Supplemental Pleading:
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Remedy: Motion to File Supplemental Pleading: If there is a need to


supplement the original complaint/pleading.
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS:
Sec. 4, Rule 11: Answer to Complaint, Counterclaim or Cross-claim:
ON THE PART OF THE DEFENDING PARTY:
Remedy: Upon receipt of the Summons with attached Complaint and
annexes, or the counterclaim or cross-claim, defending party shall file his
Answer within the reglementary period provided by the rules 15, 30, 60 or 10
days as the case may be.
ON THE PART OF THE PLAINTIFF / COUNTER-CLAIMANT / CROSS-CLAIMANT:
Remedies: In case of failure to file an Answer to the Complaint, permissive
counterclaim or cross-claim, file a Motion to declare the defending party in
Default and ask judgment granting such relief as may be warranted in the
pleading.
RULE 12: BILL OF PARTICULARS:
Sec. 1, Rule 12: Bill of Particulars:
For the Defendant:
Remedy: Ambiguity in the allegation in the pleadings. Motion for Bill of
Particulars.
For the Plaintiff:
Remedy: In case of ambiguity in the pleadings, plaintiff may amend his
Complaint / Pleading (Rule 10);
Sec. 4, Rule 12: Non-compliance with the Order of Particulars:
Remedy: Move for the striking of the pleading or the portion thereof (Sec. 4,
Rule 12)
Sec. 5, Rule 12: Denial of the Motion for Bill of Particulars:
Remedy: The moving party may file his responsive pleading/Answer withn
the remaining period, but not less than five (5) days (Sec. 15, Rule 12)
RULE 13: SERVICE OF PLEADING:
Sec. 14, Rule 13: Notice of Adverse Claim:
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Remedies: action affecting title or right of possession of real property. File an


Affidavit of Adverse Claim and Notice of Lis Pendens before the Register of
Deeds where the property is located:
Petition to Cancel Notice of Lis Pendens / Adverse Claim
In case of denial aggrieved party may file an appeal to the Land
Registration Authority en consulta.
RULE 14: SUMMONS:
Sec. 6, Rule 14: Tender of Summons:
Remedy: If the defendant refuses to receive or sign the summons by
tendering it to him.
Sec. 7, Rule 14: Substituted Service:
Remedy: If summons cannot be serve personally for justifiable reasons,
plaintiff may file a Motion to Serve Summons by Substituted Service.
Sec. 12, Rule 14: Service of summons upon domestic private juridical entity:
ON THE PART OF THE PLAINTIFF:
Remedy: Summons shall be served to the president, managing partner,
general manager, corporate secretary, treasurer, or in house counsel. In case
of non-compliance, plaintiff may move for the issuance and service of an
alias summons;
In case the summons cannot be served on the officers of the
corporation, plaintiff may amend his complaint and apply a writ of
attachment under Rule 57, thereby converting the action to action quasi-in
rem, and therefore service of summons can be made by publication.
ON THE PART OF THE DEFENDING PARTY:
Remedy: Defending party may move for the dismissal of the case on the
ground of lack of jurisdiction over the person of the defending party under
Sec. 1(a) of Rule 16 due to improper service of summons.
Sec. 14, Rule 14: Service of Summons by Publication:
Remedy: If the identity or whereabouts of the defendant is unknown file
Motion to Serve summons by publication.
This applies to any actions.
Sec. 15, Rule 14: Extra-Territorial Service:
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Remedy: Defendant does not reside and not found in the Philippines affecting
his personal status or property in the Philippines, file a Motion to Serve
summons by publication of extra territorial service.
RULE 15: MOTION:
Remedy: In case of failure to comply with Sections 4 (hearing of motion), 5
(notice of hearing) & 6 (proof of service) of Rule 15, the motion shall be
considered as a mere scrap of paper, considered not filed the clerk of court
has no right to receive and the court has no right to act upon, and the
adverse party may move for the denial of the said motion, and does not tell
the running of prescriptive period to file the appeal / remedy.
RULE 15: MOTION TO DISMISS:
Sec. 1, Rule 16: Motion to Dismiss:
If the motion to dismiss is denied:
Remedy: File an Answer within the remaining period to file the same raising
the same grounds as an affirmative defenses proceed to trial and in case of
adverse decision appeal the decision unless the denial is attendant with
grave abuse of discretion, file a motion for reconsideration and if denied,
then file a petition for certiorari under Rule 68.
If the motion to dismiss if granted:
Remedies:
1. Lack of jurisdiction over the person of the defendant. REFILING of the
case;
2. Lack of jurisdiction over the subject matter. REFILING of the case with
the proper court; in case of denial CERTIORARI and/or PROHIBITION;
3. Improper venue. REFILING of the case with the proper venue; or if
erroneously denied PROHIBITION;
4. No legal capacity to sue. REFILING of the case.
5. Litis pendentia. DISMISSAL OF ONE OF THE ACTION
6. Barred by prior judgment / prescription. APPEAL
7. No cause of action. REFILING
8. Paid, waived, abandoned or extinguished. APPEAL
9. Statute of fraud. APPEAL
10.
Condition precedent. REFILING
RULE 17: DISMISSAL OF ACTION:
Sec. 1, Rule 17: Dismissal of action by notice:

Remedies: Notice of dismissal before the filing of the answer or summary


judgment; dismissal is without prejudice unless otherwise stated in the
notice issued by the court to be with prejudice.
Remedy of the claiming party: If without prejudice, refile, if with prejudice
appeal.
Sec. 2, Rule 17: Dismissal upon motion of the plaintiff:
Remedies: Motion to Dismiss complaint, dismissal without prejudice; with
prejudice to the right of the defendant to file a separate claim.
Remedy of the plaintiff, refile if without prejudice, appeal if with prejudice.
Sec. 3, Rule 17: Dismissal due to the fault of the plaintiff:
Remedies: Motion to Dismiss for failure to prosecute dismissal with prejudice
unless ordered by the court to be without prejudice; without prejudice to the
right of the defendant to prosecute his claim separately.
RULE 18: PRE-TRIAL CONFERENCE:
Sec. 5, Rule 18: Failure to Appear:
NON APPEARANCE ON THE PART OF THE PLAINTIFF:
Remedies: If plaintiff failed to appear the defendant may move that plaintiff
be declared non-suited and ask for the dismissal of the action; dismissal
shall be with prejudice unless ordered by the court.
Plantiffs remedy is to file a Motion for Reconsideration and if denied
Appeal from the Order or Dismissal the same being a final order;
NON-APPEARANCE ON THE PART OF THE DEFENDANT:
Remedies: If the defendant failed to appear, plaintiff may move for the
presentation of his evidence ex-parte and judgment can be rendered based
on the evidence of the plaintiff.

Before the rendition of judgment the remedy of the defendant is to file


a Motion for Reconsideration of the Order allowing the presentation of the
evidence ex-parte and if denied with grave abuse of discretion Petition for
Certiorari under Rule 65;
In case there is already a judgment, defendant may file a Motion for
New Trial under Sec. 1 of Rule 37 on the ground of FAME and in case of denial
Appeal from the decision and the order denying the new trial;
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In case the judgment is already final and executory, defendant may file
a Petition for Relief From Judgment under Rule 38 on the ground of FAME or
Petition for Annulment of Judgment under Rule 47 on the ground of FRAUD.
Sec. 6 Rule 6: Pre-Trial Brief:
Remedies: Failure to file pre-trial brief has the same effect as failure to
appear, please see remedies.
Pre-trial Order:
Remedy: In case of error in the Pre-trial Order, parties may move for the
amendment/correction of Pre-trail Order.
RULE 19: INTERVENTION:
Sec. 1, Rule 19: Who may intervene:
Remedies: If a person has a legal interest in the case, file a Motion for Leave
of Court to Intervene and if granted, file a complaint in intervention.
ON THE PART OF THE INTERVENOR:
Remedy: In case of improper denial, the remedy of the intervenor is to
Appeal the Order being final order.
ON THE PART OF THE ORIGINAL PARTIES:
Remedy: in case of improper denial the remedy of the original parties to the
case may file a Motion for Reconsideration on the Order granting the
amendment and if denied, file a Petition for Certiorari and Prohibition.
QUASHAL OF SUBPOENA:
Sec. 4, Rule 21: Quashal of Subpoena:
Remedy: If subpoena is unreasonable and oppressive or the books or
documents are irrelevant, the said person may file a Motion to Quash
Subpoena.
Sec. 9, Rule 21: Contempt:
Remedy: Failure to comply with the subpoena, the person subject of
subpoena may be cited for Contempt under Rule 71.

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RULES 23-29: MODES OR DISCOVERIES / REFUSAL:


Remedies: Contempt:

Payment of reasonable expenses including attorneys fees;


Striking of the pleadings or parts or stay of proceedings;
Dismissing the action or proceedings or any part thereof;
Judgment by default;
Arrest of any party or agent.

RULE 30: TRIAL


Sec. 3, Rule 30: Postponement due to absence of evidence:
Remedy: Absence of evidence Motion to Postpone
Sec. 4, Rule: Postponement due to Illness:
Remedies: In case of illness of party or counsel, file a Motion to Postpone the
Hearing Due to Illness.
RULE 31: CONSOLIDATION OR SEVERANCE:
Sec. 1, Rule 31: Consolidation:
Remedy: Action involving same questions of law and facts file a Motion for
Consolidation of Cases:
SEVERANCE:
Remedy: For convenience and to avoid prejudice Motion for Severance of
Cases / Separate Trial.

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