Civ Pro Notes.for-distribution

7/31/2019 Civ Pro Notes.for-distribution

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BASICS

Remedial Law is divided into 4 parts:

1. Civil Procedure from, Rules 1 to 71;

2. Special Proceedings, Rules 72 to 109;

3. Criminal Procedure, Rules 110 to 127; and

4. Evidence, Rules 128 to 134

Civil Procedure is a SUBSTANTIVE LAW, not a Procedural Law.

Procedural Law - provides for rules and methods ofprocedures on the enforcement of a right or redress of awrong.

Substantive Law - these are laws which create, define andprovides for rights and duties.

GENERAL RULE: The rules on Civil Procedure governjudicial proceedings.

Except:

1. Suppletory in character in AdministrativeProceedings, and only applies to such in the absenceof applicable rules in the action.

2. Also suppletory in character with respect to Section4, Rule 1. (LENCIN Land Registration, Election,Naturalization, Cadastral Proceedings, InsolvencyProceedings and those not herein provided)

Bar Exam Question (1986)

Question: What is a Civil Action, Criminal Action, and Special

Proceeding?

Answer: Civil action is a suit filed in court for theenforcement or protection of a right, or redresses a wrong,while Criminal Action is a suit filed in court for theprosecution of a person for acts or omissions or violation ofpenal laws. Lastly, Special Proceeding is a remedy by which aparty seeks to establish a status, a right or a particular fact.

Bar Exam Question (2009)

Question: Is an action for presumptive death a specialproceeding?

Answer:Yes. When we talk of special proceedings, it seeksto establish a status, a right or a particular fact. Thisproceeding establishes the fact of death of the particularperson.

Civil procedure is divided into 3:

1. Rule 1-56 (Governing Ordinary Civil Actions)

2. Rule 57-61 (Governing the Rules on ProvisionalRemedies)

3. Rule 62-71 (Governing Special Civil Actions)

Question: Are the provisional remedies provided for in Rules

57 to 61 exclusive?

Answer: NO.

Question: Are the rules enumerated in Rules 62 to 71exclusive?

Answer:YES.


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(We will discuss these rules later in full detail.)

Question: How do we apply the Rules of Court? (itsapplicability)

Answer: Liberally. Refer to Section 6 Rule 1.

Atty. Tan Tip: If you cant cite any rules in your answer, youcan refer to this.

Please take note that Special Proceedings and SpecialCivil Actions are NOT THE SAME. Even if they are bothgoverned by special rules, they are not the same, and theycover different actions.

SOURCES OF CIVILPROCEDURE

Sources of Civil Procedure:

1. 1987 Philippine Constitution

2. Rules 1-71 of the Rules of Court

3. B.P. 129 Judiciary Reorganization act of 1980

4. R.A. 7691 Act expanding the jurisdiction of the MTC

5. R.A. 7160 Local Government Code of 1990 (whichgoverns the rules on Katarungang PambarangayunderSections 399-422)

6. Administrative Rules and Circulars of the SupremeCourt

7. Provisions of the Civil Code of the Philippines

8. Jurisprudence

9. 1991 Revised Rules on Summary Procedure

10.Rules on Small Claims

(and there may be more)

Lets first go to the provisions of the Constitution.

1. The rules of court governs judicial proceedings,wherein the paramount consideration is? DueProcess under Article 3 Section 1. Due processaffords the right to be heard, right to presentevidence, right to be present in all stages of theproceedings, etc. (No person shall be deprived of life,liberty and property without due process of law, nor


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shall any person be denied the equal protection of thelaws.)

2. As asked in the 2007 Bar Exam: What is Judicial Poweras far as Paragraph 1 of Article 8 Section 1 isconcerned Judicial Power shall be vested in onesupreme court and in such lower courts as may be

established by law. The courts established by law arethose provided for in B.P. 129.

3. Expanded definition ofJudicial Power under thesecond paragraph ofArticle 8 Section 1. (JudicialPower includes the duty of the courts of justice tosettle actual controversies involving rights which arelegally demandable and enforceable, and todetermine whether of not there has been grave abuseof discretion amounting to lack or excess ofjurisdiction on the part of any branch or

instrumentality of the Government). This is theconstitutional basis of Rule 65.

4. Article 8 Section 14. (No decision shall be renderedby any court without expressing therein clearly anddistinctly the facts and the law on which it is based.No petition for review or motion for reconsideration ofa decision of the court shall be refused due course ordenied without stating the legal basis thereof.) Relatethis with Rule 36.

5. We also have the original jurisdiction of the SupremeCourt as provided for in Article 8 Section 5.

- Cases affecting ambassadors, public ministers andconsuls.

- Petitions for Certiorari, Prohibition, Mandamusunder Rule 65; Quo Warranto under Rule 66; andHabeas Corpus. This is also the constitutional basisof Writ of Amparo (Bar Exam Question 1991)

- Review, revise, reverse, modify or affirm on appeal

or certiorari. This is the constitutional basis of

Rule 45. It is Rule 45 if it involves question of LAW.Rule 65 if it involves questions of JURISDICTION.

- And all the rest under paragraph 2.

6. The Administrative Jurisdiction of the Supreme Court isprovided for in Article 8 Section 5, Paragraph 5.

7. Article 6 Section 30. (No law shall be passedincreasing the appellate jurisdiction of the SupremeCourt as provided in this constitution without itsadvice and concurrence.)

8. Article 3 Section 9 Provides for the constitutionalbasis of Rule 67. (Private property shall not be takenfor public use without just compensation)

9. Article 9-A Section 7. Decisions of the constitutionalcommissions shall be reviewable by the Supreme

Court by way of petitions for certiorari, within 30 daysfrom notice thereof. This is the constitutional basisof Rule 64.

Note: Now, why are these constitutional provisionsimportant? Because if these are not asked in the bar examsunder Remedial Law, it may be asked in Constitutional Law,or vice versa. Also, if you cant cite any of the Rules in youranswers, you can always go back to their constitutionalbases.

JURISDICTION

Jurisdiction Power of the court to hear and decide a case,and execute its judgment or orders.

Sources of Jurisdiction Rules include B.P. 129, R.A. 7691(MTC), Constitution, P.D. 902-A (SEC), etc.


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I. SUPREME COURT

A. Original (provided in the Constitution) (Originalmeans that it can be filed in the court directlyon the first instance)

1. Cases affecting ambassadors, public

ministers and consuls. (Concurrentwith RTC)

2. Petitions for Certiorari, Prohibition,Mandamus under Rule 65; Quo Warrantounder Rule 66; Habeas Corpus and Writ ofAmparo. (Concurrentwith RTC, CA and SB)

B. Appellate

1. Review, revise, reverse, modify or affirm onappeal or certiorari. (Rule 45) Note: onquestions of law - It is a doubt or issue,

regarding the applicability of uncertainprovisions of law, or what particularprovisions of law apply in a given set offacts.

C. Administrative

1. Disciplinary action cases against, judges,lawyers, and employees of the judiciary.

II. COURT OF APPEALS (MNL, CEB, CDO)

A. Original

1. Petitions for Certiorari, Prohibition,Mandamus under Rule 65; Quo Warrantounder Rule 66; Habeas Corpus and Writ ofAmparo. (Concurrentwith RTC, SC and SB)BUT, it is exclusive original, when thesubject of the Certiorari, Prohibition andMandamus is the interlocutory orders of the

RTC. Also, Annulment of Judgment ofRTC under Rule 47 is exclusive original inthe CA.)

B. Appellate (under B.P. 129)

1. Review of the decision of the Regional TrialCourt in the exercise of its originaljurisdiction (Rule 41)

2. Review of the decision of the Regional TrialCourt in the exercise of its appellatejurisdiction (Rule 42)

3. Decisions of the quasi-judicial bodies asprovided for in Rule 43. (note that this doesNOT include NLRC, COA and COMELEC)

4. Decisions of the Office of the Ombudsman inAdministrative Complaints.

III.REGIONAL TRIAL COURTS

A. Original

1. Petitions for Certiorari, Prohibition,Mandamus under Rule 65; Quo Warranto

under Rule 66; Habeas Corpus and Writ ofAmparo. (Concurrentwith CA, SC and SB)

B. Exclusive Original

1. All civil actions, subject matter of which isincapable of pecuniary estimation. (It meansthat there can be no conversion to amonetary consideration. Example, usury,quieting of title (63),expropriation (67)action for support, breach of contract,

specific performance, annulment of title, etc)


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2. All civil actions which involve the title to, orpossession ofreal property, or anyinterest therein, where the assessed valueof the property EXCEEDS 20k/outside MM,or 50k/within MM. (Asked in 1996 BarExam)

3. Probate proceedings, testate or intestateGROSS VALUE, 300-400, outside-within,exceeding.

4. Claims for sum of money, exclusive ofinterest, damages of whatever kind,attorneys fees, litigation expense. 300-400,outside-within, exceeding.

5. Admiralty and maritime cases. Amount ofclaim, 300-400, outside-within, exceeding.

6. Cases falling under PD 902-A, the SecuritiesRegulation Code. (i.e. intra-corporatedisputes)

7. Contract of Marriage or Marital Relations.

8. Cases not falling under the jurisdiction ofany court or tribunal.

9. Juvenile and Domestic Relations Court.

10.Family Courts.

11.Annulment of Judgment of MTC decidedcases (Section 10 Rule 47)

C. Appellate

1. Decisions of the MTC in the exercise of itsoriginal jurisdiction. (Rule 40)

IV.METROPOLITAN/MUNICIPAL/MUNICIPAL CIRCUITTRIAL COURTS

- Please note that actions falling under thejurisdiction of the MTC has 2 natures: Summaryand Ordinary.

A. Summary

1. Unlawful Detainer and Forcible Entry (Rule 70)

2. Small Claims claims under 100k

3. Claims, except probate, the amount of whichdoes not exceed 100k outside, 200k withinMetro Manila.

B. Ordinary

(Just reverse those given in RTC jurisdiction above)

Questions: Why the need to discuss jurisdiction?

Answer: Because if you file your case in a court withoutjurisdiction the case is DISMISSIBLE under Section 1 Rule16 Paragraph B. It can be dismissed MOTU PROPIO or uponMOTION on this ground. (Without Prejudice, REMEDY is Re-filethe Suit)


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Question: What are the distinction between Jurisdiction andVenue?

Answer:

JURISDICTION VENUE

Jurisdiction is conferredby law

Venue may be conferred bythe agreement of the parties

Jurisdiction is substantive Venue is procedural

Jurisdiction cannot bewaived

Venue can be waived

Jurisdiction establishesthe relation between theparties and the court

Venue establishes therelation between the parties

ACTIONS

Question: How do you commence and action before thecourt?

Answer: By filing the necessary complaint before the Clerkof Court (Office of the Clerk of Court) and pay thecorresponding docket fees.

Question: What if there was no payment of Docket Fees?

Answer: This rule: RELAX the rules, ORDER PAYMENT, andthen DISMISSAL. Remedy of other party is MTD (Rule 16)Paragraph J (Condition Precedent).

Question: What is an action?


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Answer: It is a suit filed before the court to enforce orprotect a right.

Kinds of action under the rules:

A. As to Venue

1. Personal

2. Real

3. Mixed

PERSONAL REAL MIXED

Founded onprivity ofcontract

Title to orpossession of realproperty, or anyinterest therein

Privity of both Realand Personalproperties

Filed at theresidence ofplaintiff ordefendant, atthe election ofthe plaintiff

Filed where theproperty is locatedor where a portionthereof is located

Either of the two(residence orlocation)

Note: when we talk of REAL PROPERTY, refer to Article 415 ofthe Civil Code

B. As to Jurisdiction/Service of Summons

1. Action in Rem

2. Action in Personam

3. Action Quasi in Rem

In Rem InPersonam

Quasi InRem

Directed against

the thing itself

Directed against

particular persons

Directed against

particular persons

Jurisdiction overperson of thedefending partyNOT required

Jurisdiction overperson of thedefending party ISrequired

Jurisdiction overthe Res is required

Personal,Substituted andPublication

Personal andSubstitutedservice ofsummons, (as a

general rule,publication isnot allowed,except, section14, rule 14 whereaboutsand identityunknown)

Personal,Substituted andPublication

To determinethe state or

condition of a

To impose aresponsibility or

liability upon a

To subject theinterest of a


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thing person person to a lien

Binding to thewhole world

Binding to theparties

Binding uponparticular persons

Question: In forcible entry and unlawful detainer, what isthe nature of the action?

Answer: Analyze first the question. Answer as to Jurisdiction,as to Venue and as to its governing rules. The case involvespossession of real property, therefore, for the purpose ofVenue, it is a Real Action. While for purpose of service ofsummons and jurisdiction, it is an Action in Personam,because it binds the parties in the action. For the purposes ofgoverning rules, it is a summary procedure, as provided

under Rule 70.

Question: What is the nature of a case for sum of money?

Answer: It involves personal property, so for the purpose ofVenue, it is a Personal Action. For purposes of jurisdiction, itis in Personam because it binds the parties to the action. Forpurposes of governing rules it can be either ordinary orspecial summary proceedings (as to Small Claims).

Question: What is the nature of a case for Partition?

Answer: For the purpose of Venue, it is a Real Action as itinvolves real property. For purposes of jurisdiction andservice of summons, It is Quasi in Rem because it does not

only bind the parties involved, but also constitutes a lien overthe property.

Question: What is the nature of a case for Foreclosure ofMortgage?

Answer: For the purpose of Venue, it is a Real Action as itinvolves real property. For purposes of jurisdiction andservice of summons, it is Quasi in Rem because it constitutesa lien over the property.

KATARUNGANGPAMBARANGAY


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GENERAL RULE: All actions (initiatory) shall be filed firstbefore the Barangay for conciliation.

Except:

1. If one of the parties is the government

2. One of the parties is a public officer in the exercise ofhis functions

3. Offense punishable by more than 1 year an/or morethan 5k

4. No private offending party

5. Real Properties located in differentCities/Municipalities

Exception: Parties agree to submit issue to a Lupon

6. Parties who reside in different Cities/Municipalities

Exception: If such Barangays adjoin each other ANDparties agree

7. Juridical Entities (Bar Exam Question 1991)

8. Labor Cases

9. Resident abroad

Whenever not included in the exceptions, compliance isREQUIRED, and it must be duly alleged in the complaint.

Remedy for non-compliance: MTD (Section 1 Rule 16Paragraph J)

Note: In summary proceedings, generally, MTD is notallowed. But this ground, together with Lack of Jurisdictionover the Subject Matter, are exemptions. But the exceptionto the exception are Small Claims cases. In the latter,absolutely no MTD allowed.

Question: Is Barangay Conciliation required in cases ofPermissive Counterclaim/Cross-Claim/Third Party Complaint?

Answer: General Rule:YES.

Except: If it falls under the cases in the exemptions.

Question: A filed a case against B. They already finishedBarangay Conciliation. But A died, which was substituted byhis heirs C and D. Is the Barangay conciliation requirementcomplied with respect to C and D?

Answer: No.


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Bar Exam Question 1991: Probate proceedings, but theoppositor insists that there should be Barangay Conciliation.

Answer: No need. When we talk of Probate, we talk of theEstate of the deceased. An Estate is a JURIDICAL PERSON,

which is an exemption to the rule on KatarungangPambarangay.

Purpose of Barangay Conciliation:To declog court casesand to maintain the quality of justice from indiscriminatefiling of cases.

Effect of Barangay Settlement: Same as a Court Decisionafter the lapse of10 Days. After 10 days, remedy of partiesis to file a Motion for Execution of Agreement (within 6months from date of settlement). After 6 months, fileappropriate action before the trial court.

Within 10 days, you can still contest the validity of thesettlement by filing a sworn statement before the LuponChair, with the grounds of vitiation of consent, force, orintimidation.

Remedy for non compliance of agreement: Petition forAnnulment of Compromise Agreement before the appropriatetrial court. (or ask for certificate to file action)

PREPARATION OF THEPLEADING

Bar Exam Question (1991): What is a Pleading?

Answer: It is a sworn written statement of the partiesrespective claims and defenses.

Question: Is a Motion a Pleading?

Answer: No. According to Section 1 Rule 15, a Motion is anapplication for relief other than by a pleading.

Kinds of Pleading under the rules:

1. Initiatory - are pleadings which are filed in the firstinstance before the court and commences an action ora proceeding

a. Original Complaint

b. Permissive Counterclaim

c. Cross-Claims

d. Third Party Complaints (and onwards)

e. Complaint in Intervention

2. Responsive - a pleading which responds to thepleading of the adverse party.

a. Answer

b. Compulsory Counterclaim


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c. Reply

Question: So what is the importance in knowing whether itis a initiatory or responsive pleading?

Answer: Because initiatory pleadings are verified, andcontain a certificate of non-forum shopping.

Question: What is an Answer?

Answer: It is a responsive pleading which contains thepartys defenses.

Question: Are there responsive pleadings that also need to

be verified?

Answer:Yes. These include:

1. Answer to an Actionable Document (Section 8 Rule8)

2. Answer based on Usury

3. Answers in Summary Proceedings

4. Answer to Written Interrogatories

5. Answer with Permissive/Cross-Claim Counterclaims

Note: So If an answer to a written interrogatory was notverified, the allegations therein are deemed admitted, then itneed not be proved. If it need not be proved, there is no

triable issue. Then the remedy is, Judgment on the pleadings(Rule 34).

Question: What are the distinctions between Permissive andCompulsory Counterclaims?

Answer:

Permissive Compulsory

Initiatory Pleading Responsive Pleading

Requires Certification ofNon-Forum Shopping

Does NOT requireCertification of Non ForumShopping

Requires payment ofdocket fees

Does not require payment ofdocket fees

Must be answered,otherwise, party may be

declared in default

Need note be answered. Nodefault

Not raised Not barred Not raised Barred

Question: What is a cross-claim?

Answer: It is a any claim by a party against a co-partyarising out of the transaction of occurrence that is thesubject matter of either of the original action or of acounterclaim.


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Question: What are the requirements for Intervention underRule 19?

Answer:

1. Has legal interest in the matter in litigation

2. Success of either of the parties

3. Interest against either or both

4. Situated to be adversely affected by a distribution orother disposition of the property in custody of thecourt.

Note: An intervention may either be a Complaint inIntervention, or an Answer in Intervention.

Question: What are the distinctions between Interventionunder Rule 19, and Interpleader under Rule 62?

Answer:

Intervention(19)

Interpleader(62)

Ancillary Action Separate Action

Needs a motion for leaveof court to file the action

Does not need a Motion forLeave as it is a separateaction

The one who files has aninterest in the subjectmatter in litigation

The one who files does nothave interest in the property,or his interest is uncontested

In the preparation of the Pleading, we always have to

take note of Jurisdiction. Because if the case was filed in thecourt who does not have Jurisdiction it is Dismissible MOTUPROPIO. (There is Motu Propio dismissal in cases of LitisPendencia, Res Judicata, Prescription, Jurisdiction over theSubject Matter). Refer to Section 1 Rule 9.

Lack of Jurisdiction over the Subject Matter can also bedismissed on Motion. MTD under Section 1 Rule 16 ParagraphB


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Question: Can the court dismiss a case Motu Propio basedon improperly laid Venue?

Answer: General Rule: NO

Except: In summary proceedings

Question: What is the remedy for improperly laid venue?

Answer: MTD Section 1 Rule 16 Paragraph C

CAUSE OF ACTION

Question: What is a Cause of Action? Right of Action?

Answer: Cause of Action is the act or omission by which aparty violates the rights of another. Right of Action is theright of a person to commence an action, to seek relief dueto a cause of action.

Joinder of Causes of Actions under Section 5 Rule 2.

1. It must comply with the rules on Joinder of Parties

2. It must not involve special civil actions or actionsgoverned by special rules

3. Rule on Venue and Jurisdiction

4. Aggregate Value (Totality Rule)

Question: What is the remedy for Splitting of Cause ofAction under Section 4 Rule 2?

Answer: MTD Section 1 Rule 16 Paragraph E or F

Note: Two-Fold aspects of Res Judicata are?

1. Barred by Prior Judgment


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2. Conclusiveness of Judgment

Requisites are:

1. Former Judgment is already FINAL and EXECUTORY

2. Both courts have jurisdiction over the subject matterand the parties

3. Former judgment was on the merits

4. Identity of Parties, Subject Matter, Cause of Action,Reliefs sought

Question: What is the remedy for Non-joinder of causes ofaction?

Answer: Amendment under Rule 10. Amend as a matter ofright before the answer is served.

Question: What is the remedy for Mis-joinder of causes ofaction?

Answer: Motion to Severe (Section 2 Rule 31)

Note: Mis-joinder is not a ground for dismissal (Section 6 Rule2)

PARTIES


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Question: Who is a real party in interest?

Answer: It is the party who stands to be benefited or injuredby the judgment in the suit, or the party entitled to the availsof the suit. (Section 2 Rule 3)

Question: Who is an indispensable party?

Answer: It is a party without whom no final determinationcan be had in the action. (Section 7 Rule 3)

Question: Who are representative parties?

Answer: Party bringing the action in behalf of a principal.

Question: What are the requirements for a class suit?

Answer:

1. Common or general interest

2. Many persons so numerous that it is impracticable tojoin them all as parties

3. A number of them sufficiently numerous andrepresentative as to fully protect their interests

4. They must sue or defend for the benefit of all

Question: Is class suit available in Labor Cases?

Answer:YES.

Question: What is the effect of the death of a party?

Answer: Representatives shall substitute if the actionsurvives the death of the party.

What are these actions?

1. Contractual money claims (section 20 Rule 3)

2. Foreclosure of mortgage

3. Quieting of Title (Rule 63)

4. Etc.

PARTS OF THE PLEADING

Question: What are the part of the Pleading?

Answer: As provided for in Rule 7:

1. Caption

2. Body

a. Paragraphs/Allegations

b. Headings

c. Relief/Prayer

d. Date

3. Signature and Address

4. Verification

5. Certification of non-forum shopping


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Question: What are the pleadings that need to be verified

Answer: Initiatory pleadings (and the exceptions inresponsive pleadings)

Question: How about verified Motions?

Answer:

1. Motion to lift order of default

2. Motion for New Trial/Reconsideration

3. Motion asking for Provisional Remedies

Question: Is the lack of verification in a pleading thatrequires such, a jurisdictional defect?

Answer: No.

Question: What is Forum Shopping?

Answer: There are two:

1. Act of Forum Shopping The filing of multiple suits indifferent courts, simultaneously or successively,involving the same parties, to ask the courts to rule onthe same/related causes and/or to grant the same orsubstantially the same relief.

2. Lack of Certification of Non-Forum Shopping

Question: Can there be Motu Propio dismissal in case of lackof certification of non-forum shopping?

Answer: General Rule: None.

Except: Summary Proceedings.

Question: Is Jurat a part of the pleading?

Answer: General Rule: No.

Except: If the pleading is verified, or with a certification ofnon-forum shopping, then it becomes a part of the pleading.

Question: Is Bill of Particulars a part of the pleading?

Answer: Yes.(Section 6 Rule 12)


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PROVISIONAL REMEDIES

Why discuss Provisional Remedies this early? Because therules provide that they can be availed of at thecommencement of the action. So you can incorporate theseprovisional remedies in the complaint.

Question: What are the provisional remedies under therules?

Answer:

Rule 57: Preliminary Attachment

Rule 58: Preliminary Injunction

Rule 59: Receivership

Rule 60: Replevin

Rule 61: Support Pendente Lite

Question : Is the above list exclusive?

Answer: No. Additional examples of provisional remedieswould be:

1. Temporary Custody of Children

2. Temporary Visitation Rights

3. In Writ of Amparo

4. In Writ of Habeas Data

5. In VAWC

Question: What are the kinds of Attachment?

Answer:

1. Levy it is in possession of the party.

2. Garnishment property is possession of third party.

Note: What can be attached are both personal and real

property. When it involves real property, there is annotationat the back of the title.


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Question: How do we distinguish Attachment (Rule 57) fromReplevin (Rule 60)?

Answer:

ATTACHMENT(57)

REPLEVIN (60)

Filed at thecommencement/before

judgment

Filed at thecommencement/before

service of answer

Involves real or personalproperty

Involves only personalproperty

For the security of thepayment of the obligation

To temporarily recoverunlawfully withheld personalproperty

Bond executed to theadverse party in theamount fixed by the court

Bond executed to theadverse party in the amountdouble the value of theproperty

Grounds: (Section 1 Rule 57)

1. Action for recovery of a specified amount of money ordamages EXCEPT moral or exemplary, against a partywho is about to depart from the Philippines with intentto defraud his creditors

2. Action for money or property embezzled orfraudulently misapplied or converted to his own use bya:

a. Public officer

b. Officer of a corporation

c. Attorney

d. Factor

e. Broker

f. Agent

g. Clerk

In the course of his employment as such, or by anyother person acting in a fiduciary capacity, or in willfulviolation of a duty

3. Action for recovery of possession of property unjustlyor fraudulently taken, detained or converted, when theproperty or a part thereof has been concealed,removed or disposed of, to prevent its being found

4. Action against a party who has been guilty of a fraudin contracting the debt or incurring the obligation

5. Action against a person who has removed or disposed

of his property, or is about to do so, with intent todefraud his creditors

6. Action against a person who does not reside, or notfound in the Philippines , or on whom summons maybe served by publication

Requirements:

1. Verified Complaint or Motion (if not verified, Denied)


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2. Affidavit stating the grounds for attachment underSection 1 (if no affidavit, Denied)

3. Bond (if no bond, Denied)

Stages:

1. Application (Can be Ex Parte)

2. Issuance (Can be Ex Parte)

3. Execution (Court must acquire jurisdiction over thedefending party through Service of Summons)

Note: So if the question is, can there be Ex Parte issuance ofa Writ of Attachment? The answer is Yes. But can there be anEx Parte execution of a Writ of Attachment? The answer is

no. The purpose of attachment being Quasi in Rem, itconstitutes a lien over the property of the person, defendingparty.

Question: What courts can issue Writ of Attachment?

Answer: MTC, RTC, CA, and SC.

Question: So what is the remedy of the person whoseproperty was attached?

Answer: There are two choices:

1. Motion to Discharge of the Attachment (Section 12)

- Requires a counter-bond

2. Motion to Quash the Writ of Attachment (Section 13)

- No counter-bond required

- Ground: improperly or irregularly issues, bond isinsufficient

- If attachment is excessive: discharge shall belimited to the excess

Note: Please take note of the properties not subject toexecution under Section 13 Rule 39.

Remedy Flow:


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Question: What is the remedy if a third party has a claimover the property attached?

Answer: Terceria

Speaking of MRs, lets distinguish Rules 37 from 52:

Rule 37 Rule 52

Applicable to Trial Courts Applicable to AppellateCourts

Grounds: FAME whichordinary prudence couldnot have guarded againstby reason of which, theparty was impaired of hisrights, and newlydiscovered evidence

No grounds stated in 52:They have the same grounds

Question: What is preliminary injunction?

Answer: It is a is a provisional remedy which seeks toprohibit or require the performance of an act or acts.

Kinds of Injunction:

1. Preliminary prohibitory interlocutory Adverse (65)

2. Preliminary mandatory interlocutory Adverse (65)

3. Perpetual mandatory Final Adverse (Appeal)

4. Perpetual prohibitory Final Adverse (Appeal)

Prohibitory to prohibit the performance of an act(temporary during the pendency of the action)

Mandatory to require the performance of an act(temporary during the pendency of the action)

Requirements:

1. Filed at commencement or before final judgment

2. Bond (unless exempted by the court)

3. Verified Complaint/Motion

4. Hearing and Prior Notice

Question: Can there be an ex parte injunction?

Answer: No.

Question: Can there be an ex parte TRO?


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Answer: Yes, not exceeding 20 days from service to theparty enjoined, or not exceeding 72 hours from issuance oforder (no service). (Application must show that there is greatirreparable injury that would result)

Grounds:

1. That the applicant is entitled to the relief demanded,and the relief consists in restraining the commission orcontinuance of the act or acts complained of, or inrequiring the performance of acts.

2. Commission, continuance, or non performance of theact would probably work injustice to the applicant.

3. A party, court, agency or person is doing, threatening,or attempting to do, or is procuring or suffering to be

done, some act or acts probably in violation of therights of the applicant respecting the subject of theaction or proceeding, and tending to render thejudgment ineffectual.

Question: What is irreparable injury?

Answer: Injury that cannot be remedied by monetarydamages.

Question: What is the Doctrine of Fait Accompli?

Answer: These are act performed NOT subject of injunction.

Question: What is a status quo order

Answer: it is an order issued by the court to maintain theactual uncontested condition of the parties preceding theaction.

General Rule: As a rule, a criminal action cannot be enjoinedby injunction.

Except:

1. To protect constitutional rights of the accused

2. If the prosecution of the action is more of persecutionrather than prosecution

3. Based on invalid law

4. No probable cause

5. Party is denied due process

Question: What Is the doctrine of non-interference?

Answer: Co-equal courts cannot issue injunction againsteach other.

Question: What is the purpose of the Bond?

Answer: It is for the purpose of the damages that may beincurred because of the issuance of the injunction

Question: What is the distinction between Injunction(58)and Prohibition(65)?

Answer:


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Injunction (58) Prohibition (65)

It is a provisional remedy(ancillary action)

It is a special civil action(independent action)

Requires a bond from theapplicant

No bond necessary

Question: What are the requirements for receivership?

Answer:

1. Verified complaint/motion

2. Bond by the applicant

3. Bong by the receiver

Note: If the receivership involves banking institutions, thePhilippine banking laws would apply.

Grounds:

1. The party applying has an interest in the property orfund which is the subject of the action or proceedings,and such is in danger of being lost, removed, ormaterially injured unless a receiver be appointed toadminister and preserve it.

2. In an action brought by a mortgagee for foreclosure,that the property is in danger of being wasted ordissipated or materially injured and that its value isprobably insufficient to discharge the mortgage debt,or that the parties have so stipulated in the contract ofmortgage

3. After judgment, to preserve the property during thependency of an appeal, or to dispose of it according tojudgment, or to aid in the execution of the judgment

4. When the appointment of a receiver is the mostconvenient and feasible means of preserving,administering or disposing of the property in litigation.

Note: In case of appeal, the receivership may be applied forin the court of origin.

Question: What is Replevin?

Answer: It is a remedy aimed to temporarily recoverunlawfully withheld personal property.

Note: Replevin can be an original action or a provisionalremedy

Filed with the MTC or RTC depending on value (300-400)

Application for Replevin requires a verifiedcomplaint/motion, filed at the commencement or beforeservice of the answer, there must be a double-bond.

Remedies: Motion to Discharge with a counter-bond, alsodouble the amount of the property.

If bond is insufficient, you can file a Motion to Quash the Writof Replevin.

Question: Where is Support Pendente Lite filed?

Answer: RTC, because the main action for support isincapable of pecuniary estimation, hence the ancillaryremedy of Support Pendente Lite can only be filed with theRTC.


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If there is an order, remedy for non compliance is motionfor execution under Rule 39.

If the person order to be supported is not entitled to

support, there may be a reparation or restitution in favorof the other party. (Section 7 Rule 61).

SPECIAL CIVIL ACTIONS

Question: What are special civil actions?

Answer: Suit filed in court for the enforcement or protectionof a right, or redresses a wrong, but they are governed byspecial rules.

Note: These are ALL initiatory. They also must comply withthe rules on Pleadings (as in ordinary civil actions). Rules onordinary actions are suppletory in character.

Question: What is an Interpleader?

Answer: It is a special civil action wherein the person inpossession of the property has no legal interest, or hisinterest is not contested, may file a verified petition beforethe court, for the parties claiming ownership to interpleadwith one another.

Question: Which court has jurisdiction for Interpleader?Where is the venue?

Answer: Jurisdiction depends on value (personal: 300-400)(real: 20-50). Venue depends if it involvespersonal(residence) or real(location).

Question: Who has jurisdiction over actions under Rule 63?(declaratory relief and similar remedies)

Answer: Generally RTC because these are incapable ofpecuniary estimation.

Except: Quieting of Title (real: 20-50)

Note: If the grounds for declaratory relief is not one of thosementioned in rule 62 section 1, there can be no declaratory

relief. (Deed, will contract or other instrument, statute,executive order, regulation, ordinance, governmentregulation BEFORE their breach if AFTER it is converted toan ordinary civil action)

Requirements:

1. Verified Petition

2. No actual breach

Question: Where is the venue?

Answer: Residence, except for Quieting of Title.

Question: What is the distinction between Rule 64 and Rule65?


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Answer:

Rule 64 Rule 65

Filed in SC from COA and

COMELEC

Filed with either SC, CA, RTC,

SB

Filed within 30 days fromnotice of judgment

Filed within 60 days fromnotice of judgment or denialof MR

As a rule: MR is notrequired

As a rule, MR is required

CERTIORARI, PROHIBITION ,AND MANDAMUS

Certiorari When a TRIBUNAL, BOARD, or OFFICERexercising judicial or quasi judicial functions has actedwithout or in excess of its jurisdiction, or with grave abuse ofdiscretion amounting to lack or excess of jurisdiction ANDthere is no appeal nor any plain, adequate and speedyremedy in the ordinary course of law. To annul or modifythe proceedings of said TRIBUNAL, BOARD, or OFFICER.

Prohibition When the proceedings of any TRIBUNAL,CORPORATION, BOARD, OFFICER or PERSON exercisingjudicial, quasi judicial, or ministerial functions are without orin excess of its jurisdiction, or with grave abuse of discretionamounting to lack or excess of jurisdiction AND there is noappeal nor any plain, adequate and speedy remedy in theordinary course of law. To command the respondent todesist from further proceeding in the action or matterspecified therein.

Mandamus When any TRIBUNAL, CORPORATION, BOARD,OFFICER or PERSON unlawfully neglects the performance ofan act which the law specifically enjoins as a duty resultingfrom an office, trust or station, or unlawfully excludesanother from the use and enjoyment of a right or office to

which such other is entitled to, AND there is no plain,adequate and speedy remedy in the ordinary course of law.To command the respondent to do the act required tobe done to protect the rights of the petitioner, and paydamages sustained.

Three (3) instances where 65 is used:

1. Section 1 Rule 41 (RIACE-CP)

a. Order denying a petition for reliefor any othersimilar motion seeking relief from judgment.

b. Interlocutory order

c. Order disallowing or dismissing an appeal

d. Order denying a motion to set aside a judgment byconfession, consent or compromise on the groundof vitiation of consent

e. Order ofexecution

f. Order against separate claims (third partycomplaint, cross claims, counter-claims, ) wherethe main case is still pending, unless appeal isallowed by the court

g. Order dismissing an action without prejudice

2. Grave abuse of discretion amounting to lack or excessof jurisdiction

3. No appeal, or any plain, adequate and speedy remedy


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Question: What is the Material Dates Rule?

Answer:Thedate of notice of judgment or resolution isrequired to be alleged in the petition, also the date offiling of MR, and the date of the order denying MR or MNT.

Note: Please always take note of the principle of hierarchy ofcourts in relation to Rule 65. (St. Martin Funeral Homesvs. CA)

Remedy for Adverse Judgment Appeal (because certiorariis original jurisdiction), except when by the supreme court,then the only remaining remedy is MR under 52.

Note: Include NLRC in 65. Certiorari is the remedy

Section 4 Rule 65 NO extension of time to file petition

Question: What is the distinction between 65 and 45?

Answer:

Rule 45 Rule 65

It is a mode of appeal It is a special civil action(separate)

Seeks to review finaljudgment or orders

May be directed to a finaljudgment or an interlocutory

order

Raises questions of law Raises questions ofjurisdiction

Filed within 15 days fromnotice

Filed within 60 days fromnotice

Does not require a priorMR

Generally requires a prior MR

Stays the judgmentappealed from

Generally does not stay thejudgment or order

Parties are the same Those impleaded are theones who issued the ordersubject of the petition

Filed with the SC Filed with either SC, CA, SB

and RTC

Note: 65 and 45 are MUTUALLY EXCLUSIVE

Question: What is Quo Warranto?

Answer: An action brought in the name of the republic of thePhilippines, for the usurpation of a public office, position,

franchise.

Note: This action is brought against any of the following:

1. Person who usurps, intrudes, into or unlawfully holdsor exercises a public office, position or franchise.

2. A public officer who does or suffers an act which, byprovisions of law, constitutes a ground for theforfeiture of his office


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3. An association which acts as a corporation within thePhilippines without it being legally incorporated orwithout authority so to act.

Question: Who commences the action and when is itcommenced?

Answer: The solicitor general or the public prosecutor (upondirections of the president of the Philippines) or when acomplaint is filed by a person or upon permission of thecourt) must be commenced within 1 year from cause of suchouster.

Question: Where is the venue of the action?

Answer: It can be brought only with the Supreme Court, RTCor CA exercising jurisdiction over the territorial area. But if itis the Solicitor General, it shall be brought before the RTC ofManila, CA or SC.

Question: What is Expropriation?

Answer: It is the right of eminent domain exercised by thestate or the local government units. (constitutional basis isSec 9 Art III)

Notes:

- Filed with the RTC because it is incapable ofpecuniary estimation.

- It is a REAL action therefore the VENUE is wherethe property is located.

- If exercised by the LGU, there must be anordinance to that effect, and not merely aresolution.

- In case of adverse decision APPEAL by RECORDon appeal, because it is subject of multiple appeals.

1. Order of Condemnation

2. Determination of Just Compensation

3. The order of expropriation as far as the propertyis concerned

- Remedy in case the failure on the part of thegovernment to pay the corresponding payment:File recovery of property within 5 years.

Question: Distinguish Expropriation(67) from Escheat(91)proceedings?

Expropriation(67)

Escheat (91)

Special Civil Action Special Proceedings

Acquiring private propertyfrom private entities, forpublic use

For the purpose of revertingin favor of the state,properties of a deceasedwhen there are no heirs

RTC MTC or RTC

Commenced by theSolicitor General or PublicCorporations

Commenced by SolicitorGeneral

With just compensation No compensation


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Foreclosure Proceedings

Notes:

- Jurisdiction depends on the value (20-50)

- Venue depends on LOCATION (real action)

- It is an action Quasi in Rem, hence summons canbe made through PUIBLICATION

- It is an action that SURVIVES Section 20 Rule 3 it is a contractual money claim.

- In relation to Section 1 Rule 63 (Consolidation ofownership)

- In relation to Rule 59 Receivership

Question: What is the distinction of the Right of Redemptionfrom the Equity of Redemption?

Answer:

Right ofRedemption

Equity ofRedemption

1 year from theregistration of theproperty

90 to 120 days or evenbefore the confirmation ofthe sale

Remedy for adverse judgment: Appeal under 40/41, bynotice of appeal. Take note of fresh period rule whenever anMR or MNT has been filed.

Partition

Notes:

- It is a real action or personal action depending onthe property subject of partition. Hence, venue

depends whether it is personal (residence) or real(location)

- Jurisdiction also depends on whether it is personal(400-300) or real (50-20)

- It is Quasi in Rem

- Partition is an action that SURVIVES

Remedy for adverse decision: Appeal within 30 days(multiple appeals)

Rule 70: Forcible Entry or Unlawful Detainer

Forcible Entry A person is deprived of the possession ofany land or building by force, intimidation, stealth, threats orstrategy. (FISTS)


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Unlawful detainer A lessor, vendor, vendee, or otherperson against whom the possession of any land or buildingis unlawfully withheld after the expiration or termination ofthe right to hold the possession , by virtue of contract,express or implied. (expiration of contract, breach of contract

or tolerance)

Notes:

- It is a real action (Venue Location)

- It is an action in Personam (Summons Personal orSubstituted)

- Forcible entry requires PRIOR physical possession)

one year from discovery of the FISTS- Unlawful Detainer requires a demand to

pay/comply with conditions of the lease AND tovacate (jurisdictional requirement and CONDITIONPRECEDENT) one year from last demand

- It is a summary proceeding (can be dismissedMotu Propio if lack of condition precedent)

Remedy for Adverse Decision: Appeal (40)

How to perfect the appeal :

1. Notice of appeal

2. Supersedeas Bond (to stay execution pending appeal)

3. Appeal docket fee

4. Deposits with the appellate court the amount of rentdue (after transmission of records, the defending party

is required to post monthly periodic rentals otherwise, execution pending appeal)

The Execution pending appeal can be subject to an action on65. As it is merely interlocutory.

A possessor deprived of his possession through forcible entryor unlawful detainer may, within 5 days from filing ofcomplaint, present a verified motion for the issuance of awrit of preliminary mandatory (or prohibitory)injunction to restore him in possession. Section 15 Rule70.

Question: Can the issue of ownership be resolved?Answer: Section 16 Rule 70, General Rule: No. Except toresolve only to determine the issue of possession. It is notconclusive. (up to extent of disposition only)

Re-entry after ejectment through judgment liable underSection 3 Rule 71Paragraph B. Indirect Contempt.

If there are structures: must secure first a Writ ofDemolition.

Contempt (Rule 71)

Direct Contempt misbehavior in the presence of or sonear a court as to obstruct or interrupt the proceedings


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before the same, including disrespect towards the court,offensive personalities towards others, refusal to be sworn isas a witness, or to subscribe an affidavit or deposition whenlawfully required to do so. (Motu Propio or motion)

Remedy: Prohibition or Certiorari

Indirect Contempt any of the following acts: (uponwritten complaint)

1. Misbehavior of an officer of a court in the performanceof his official duties or in his official transactions

2. Disobedience or resistance to a lawful writ, order orjudgment. Including re-entry to a property after beingejected or dispossessed.

3. Any abuse of or any unlawful interference with theprocesses or proceedings of a court not constitutingdirect contempt

4. Any improper conduct tending directly or indirectly toimpede, obstruct, or degrade the administration of

justice

5. Assuming to be an attorney or an officer of a court,and acting as such without authority

6. Failure to obey a subpoena duly served

7. The rescue, or attempted rescue of a person orproperty in the custody of an officer by virtue of anorder or process of a court held by him

Additional:

- Forum shopping

- Subpoena

- Modes of Discoveries

Remedy: Appeal plus bond 15 days

Civil Contempt is the failure to do something ordered tobe done by a court or a judge, for the benefit of the opposingparty therein. (remedial or compensatory in nature in favorof the other party) no penalty

Criminal Contempt is conduct directed against theauthority and dignity of the court or of a judge, as inunlawfully discrediting the authority of such court or judge.(punitive in nature same procedure as that of a criminalcase) with penalty

REMEDY BEFORE FILING

(Adverse Claim RealProperties)


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Adverse Claim in title to, interest over, or possession ofreal property, file an adverse claim before the Registry ofDeeds. To inform third persons of the adverse claim.

Note: this is filed before an action is filed in court.

Remedy Flow:

FILING

Filing It is the act of presenting the complaint with theClerk of Court (OCC) and payment of the Docket Fees.

Failure to pay docket fees: remedy of other party MTD (J)

RELAX ORDER PAYMENT DISMISSAL (w/o prejudice)

For indigent parties: File a motion to declare indigentparty(Section 21 Rule 3)- filed before the executive judge.

Exempted from docket fees, other lawful fees and transfer ofstenographic notes.

NOTICE OF LIS PENDENS

After filing of the complaint another remedy is Notice ofLis Pendens filed before the R.D. (Buyer Beware)

For actions affecting title to or possession of realproperty notice of the pendency of the action. In order tonotify third persons. (third persons who still transact with theproperty with a notice, is considered a buyer in bad faith)

What it includes:

1. Name of the parties

2. Object of the action

3. Description of the property

Grounds for cancellation:

1. Notice is only for the purpose ofmolesting theadverse party


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2. It is not necessary to protect the rights of the partywho caused it to be recorded.

Remedy Flow:

SUMMONS

Kinds of Summons:

1. Original writ issues by the clerk of court in the nameof the Republic of the Philippines, informing the partythat a case has been filed against him, and requiringhim to file a responsive pleading within thereglementary period.

2. Alias Writ issued by the clerk of court after theoriginal summons was not duly served

IN PERSONAM ACTION:

Personal Refusal Tender

Substituted Residence with person of suitable age/officewith person in charge

Publication General rule: NO, except Section 14 Rule 14 any action identity or whereabouts are unknown. With leaveof court.

Tender giving of the copy

Remedy forNo Summons: MTD (a) Lack of jurisdictionover the defending party. Grant, amend or deny. If grant,without prejudice re-file. Denied answer proceed withtrial appeal adverse judgment, but if with grave abuse, 65.(just refer to remedy flows in case of MTD)

Extraterritorial service:

- Does not reside or is not found in the Philippines

- Personal status or property within the Philippines,or his property is attached (in Rem/Quasi in Remon only)

- With leave of court

- By personal service or by publication


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- Copy of the summons and order of the court shallbe sent by registered mail to his last knownaddress OR IN ANY OTHER MANNER THE COURTMAY DEEM SUFFICIENT. (so, we can serve itthrough fax)

- Defendant must answer (specify reasonable time)

but not less than within 60 days after notice

Relate to Rule 10 (amendment):

Substantial No appearance with summons

Substantial With appearance no summons required

Question: Can the court acquire jurisdiction withoutsummons?

Answer: Yes. Voluntary appearance.

Note: Relate to Rule 57 (attachment). In converting an inPersonam Action to a Quasi in Rem to serve summonsthrough publication

If served to a Corporation:

1. President

2. Managing partner

3. General manager

4. Corporate secretary

5. Treasurer

6. In house counsel

REMEDIES AFTER SERVICE OFSUMMONS

What are the remedies available AFTER service of summons?

1. Motion to Dismiss (16)


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2. Motion for Bill of Particulars (12)

3. Extension of Time to File Pleading (11)

4. Summary Judgment (35)

5. Amendment (10)

6. Taking of Depositions (23)

7. Notice of Dismissal (17)

Motion to Dismiss (Rule 16)

Question: When is MTD NOT allowed?

Answer:

1. Not allowed in Special Proceedings (except jurisdictionand barangay)

2. Small Claims cases (in all grounds)

Question: What are the distinctions between 33 and 16?

Answer:

Motion toDismiss

Demurrer toEvidence

10 grounds (Section 1 Rule16)

Ground: Insufficiency ofevidence

Within the time before filinganswer

After Plaintiff has rested

Granting is with or without Granting is with prejudice (on

prejudice the merits)

Denied Answer Denied Present Evidence

Note: No 33 in Summary.

Notes:

Motu Propio Dismissal:

1. Res Judicata

2. Prescription

3. Jurisdiction over the Subject Matter

4. Litis Pendencia

5. Summary Proceedings (any of the grounds in 16)

Grounds with PREJUDICE: (Remedy is appeal)

1. Res Judicata

2. Prescription

3. Litis Pendencia

4. Claim has already been paid, waived abandonedextinguished

5. Unenforceable due to statute of frauds

In forum shopping general rule, without prejudice, exceptif gross, deliberate or intentional.


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If order is silent as to nature of dismissal: go with thegeneral rule: WITH PREJUDICE remedy is appeal. (Section 3,Rule 17)

What are the conditions precedent: (Par. J)

1. Payment of Docket Fees

2. Barangay Conciliation

3. Demand in Rule 70

4. Certificate of Non-Forum Shopping

5. Administrative Remedies

6. Earnest efforts between family members

7. Demand in consignation

Note: MTD is an omnibus motion it needs to include allobjections then available or else, deemed waived (Section 8Rule 15)

Except: (they are not waived)

1. Res Judicata

2. Prescription

3. Jurisdiction over the Subject Matter

4. Litis Pendencia

Note: in relation to rule 10 (amendments)

- Even if there is a MTD, you can still amend as amatter of right because a MTD is not a responsivepleading

- Even if there is an order granting the MTD youcan still amend as long as it is not yet final andexecutory

Question: What is the effect of an amendment to apleading?

Answer: It supersedes the previous pleading

Question: What is a Bill of Particulars

Answer: Filed before the responsive pleading, when there isambiguity in the allegations of the pleading to be respondedto. Applicable to all pleadings except in SummaryProceedings.

Note: Bill of Particulars is a part of the pleading. (Section 6Rule 12)

Failure to comply: strike out the pleading or portionsthereof to which the order was directed or make such otherorder as it may deem just.

In case ofdenial answer within time remaining, but notless than 5 days in any event.

Extension of time to file pleading (Section 11 Rule 11)


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- Based on terms as may be just (reasonablegrounds)

- Prohibited under Summary Proceedings

Summary Judgment (Rule 35)

- Except as to the amount of damages, there is NOGENUINE ISSUE as to any material fact and that themoving party is entitled to a judgment as a matterof law.

- As compared to Judgment on the Pleadings (34),the latter can only be filed by the plaintiff.

- Motion shall be served at least 10 days before thetime specified for the hearing. Adverse party may

serve opposing affidavits, depositions oradmissions at least 3 days before the hearing

Amendments (Rule 10)

Kinds:

1. Substantial new allegations, cause of actions orparties.

2. Formal clerical or typographical errors

3. As a matter of right before the service of aresponsive pleading (Ministerial duty of the court remedy in case of denial is mandamus 65)

4. As a matter of discretion after the service of thepleading. (Denial is merely interlocutory remedy iscertiorari 65)

5. Amendment to confer jurisdiction generally notallowed, except before responsive pleading (BarExam 2005)

6. Amendment to conform to evidence when issues notraised in the pleadings are tried with the express orimplied consent of the parties, they shall be treated inall respects as if they had been raised in the pleadings upon motion of any party even after judgment , butfailure to amend does not affect the result of the trial Section 5 Rule 10

In relation to Rule 2 and 3: Amendment is remedy to joinparties and cause of action

Effect of amendment: supersedes the original, but theallegations in the original pleadings are deemed an extra-judicial admission.

Effect on default (Rule 9): It needs to be lifted first as thedefault is ancillary to the original pleading.

In relation to Provisional Remedies: Amendment will liftthe provisional remedies as the provisional remedies areancillary to the original pleading.

Modes of Discoveries (Rules 23-29)

- Fishing for information whether within theknowledge of adverse parties


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Kinds:

1. Depositions Pending Action (23)

2. Depositions Before Action or Pending Appeal (24)

3. Interrogatories to Parties (25)

4. Admission of Adverse Parties (26)

5. Production or Inspection of Documents or Things (27)

6. Physical and Mental Examination of Persons (28)

Note: this list is NOT exclusive.

Question: Who takes Depositions?

Answer:

Within the Philippines:

1. Judge

2. Notary Public

3. Person authorized to administer oaths (uponagreement)

Outside the Philippines:

1. Secretary of an embassy or legation

2. Consul general

3. Consul

4. Vice consul

5. Consular agent

6. Those appointed by a letter rogatory or commission

4. Per on authorized to administer oaths (uponagreement)

Use of Depositions (Section 4 Rule 23)

+ May be used against a party who was present orrepresented at the taking of the deposition or who had duenotice thereof:

1. For the purpose of contradicting or impeaching thetestimony of a deponent as witness

2. Deposition of a party who is an officer, director ormanaging agent of a public or private corporation,may be used by adverse party for any purpose

3. Deposition of a witness, whether or not a party, maybe used by any party if the court finds that:

a. Witness is dead

b. Witness resides more than 100km away, or out ofthe country, unless his absence is procured by theparty offering the deposition

c. Unable to attend due to age, sickness, infirmity orimprisonment.

d. Unable to procure the attendance of the witnessthrough subpoena.

4. If only a part of the deposition is offered, the adverseparty may require him to introduce all of it

Effect of taking deposition: a party shall not be deemedto make a person his own witness for any purpose by takinghis deposition.


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Note: Objections are merely noted at the taking of thedeposition for purposes of consideration of the court.

Motion to Terminate or Limit Examination uponmotion or petition and upon showing that the examinationis being conducted in bad faith or in such a manner as

unreasonable to annoy, embarrass, or oppress the deponent.(Section 18 Rule 23)

Effects of Errors and Irregularities: (Section 29 Rule 23)

1. As to notice waived unless written objection ispromptly served

2. As to disqualification waived unless objected beforetaking of deposition or soon after the disqualification isknown

3. As to competency or relevancy of evidence NOTwaived, unless the ground is one which might havebeen obviated if presented at that time

4. As to oral examination and other particulars waivedunless reasonable objection

5. As to form of the written interrogatories waivedunless objection is served within the time to file

succeeding cross or other interrogatories / within 3days after service of last interrogatory

6. As to manner of preparation waived unless a motionto suppress the deposition is reasonably made

In written interrogatories:

1. Direct Interrogatories

2. Cross Interrogatories

3. Re-direct Interrogatories

4. Re-cross Interrogatories

Note: they are submitted to the person who takes thedeposition, unlike in interrogatories to parties un Rule 25.

Deposition before action or pending appeal made toperpetuate the testimony of the deponent made through averified petition before the court.

Interrogatories to parties

- To elicit material and relevant facts from any

adverse parties

- Filed AND served upon the adverse party

- Written interrogatories to be answered by him

- Answered fully in writing and shall be signed andsworn to by the person making it

- File and serve answer within 15 days after servicethereof, unless extended by the court

- Objection presented to the court within 10 daysfrom service thereof answers shall be differeduntil objections are resolved

- No party without leave of court can serve morethan one interrogatory at a time to the same party

- If not answered/not verified deemed admitted no issue judgment on the pleadings (Rule 34)


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Admission by adverse parties

- After issues have been joined

- File and serve upon any party a written request forthe admission by the latter

- Regarding the genuineness of any material and

relevant document or admission of the truth of anymaterial or relevant matter of fact set forth in therequest.

- Implied admission if not answered within timespecified, no case less than 15 days. admission isonly for the purpose of the pending action

- Withdrawal of admission is allowed (express orimplied admission) upon such terms as may be just

- Failure to file and serve party will not bepermitted to present evidence on such facts

Production or inspection of documents or things

- Upon motion showing good cause

- To produce, permit inspection, copying orphotographing of any:

a. Designated documentb. Papers

c. Books

d. Accounts

e. Letters

f. Photographs

g. Objects

h. Tangible things

NOT PRIVILEGED

- What are considered privileged:

a. Husband and wife

b. Attorney and client

c. Priest and penitent

d. Doctor and patient

e. Editor and informant

f. State

- Or order the party to permit entry upon thedesignated land or other property

Mental and Physical examination of persons

- When the mental or physical condition of the partyis in controversy. (annulment/guardianship/etc)

Dismissal of Actions under Rule 17

1. Notice of dismissal

- Before answer

- By plaintiff

- Without prejudice re-file if dismissed again, 2dismissal rule (with prejudice) appeal

2. Motion of dismissal


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- After answer

- By plaintiff

- Without prejudice /also without prejudice as to thecounterclaims.

- if dismissed again, 2 dismissal rule (with prejudice)

appeal

3. Dismissal due to fault of the plaintiff

a. Fails to appear on date of presentation of hisevidence IN CHIEF

b. Fails to prosecute his action for an unreasonablelength of time

c. Fails to comply with these rules or any orders ofthe court

- Upon motion or Motu Propio

- Generally WITH prejudice unless declaredotherwise by the court (if without prejudice re-file, if with prejudice, MR then appeal)

Default

- When the defending party fails to file an answer

within the time allowed therefor.

Requirements:

1. Proof of service of summons

2. Proof of failure to file answer within the reglementaryperiod

3. Written motion of the other party to declare defendantin default

4. Sec 4, 5 and 6 of Rule 15 (set for a hearing-not laterthan 10 days from filing of motion, notice of hearing-ensure receipt by other party at least 3 days beforedate of hearing, proof of service)

Question: Can there be an oral motion to declare defendingparty in default?

Answer: None. It must always be a written motion.

Question: What are the cases where an order of default maybe had?

Answer:

- Complaint

- Permissive counterclaim

- Permissive counter-counterclaim

- Cross-claim

- Third party complaint (4th)

- Complaint in intervention

- Written interrogatories

Note: Default is not applicable to SUMMARY proceedings. It isa prohibited motion.

Effect on the party declared in default:

1. Loses standing in the trial


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2. Entitled to subsequent notices

3. Entitled to copy of order/decision

4. Entitled to service of substantially amended pleadings

Question: Is there an order of default in cases in the MTC?

Answer: Yes, for ordinary actions. But not in Summaryproceedings.

Question: What is your remedy?

Answer: Motion to Lift Order of Default

Requirements:

- Motion must be under oath

- There must be an affidavit of merit (FAME)

Remedy Flow:

IMPORTANT NOTE: In order to STOP or STAY theproceedings in the lower court who denied the motion to lift,you must include with the 65 to RTC an application for a TRO.

Speaking of FAME, Question: What are the instances wherethere is FAME?

Answer:

- 9 (Default)

- 38 (Relief from Judgment)

- 37 (MNT)

- 47 (Annulment of Judgment)

Another remedy apart from Motion to lift order of default is:

Motion to admit answer (plus the answer) before thejudgment by default if you want to question the order ofdefault

Question: What is a judgment by default?

Answer: It is a judgment rendered by a court based on anorder by default and by the ex parte presentation ofevidence of the plaintiff.

Remedies:

1. MR (37)

2. MNT (37)

3. Lift order of Default

4. Set aside judgment by default


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Remedy Flow (from MTC):

If denied MR 37 in relation to 4/65, denied, RTC 65 becauseappeal is not the adequate and speedy remedy, filed with anapplication for TRO/Injunction to stay judgment, denied, 41 tothe CA, denied, MR 52, denied, Supreme Court 45, denied,MR 52.

ANSWER

Question: What is an Answer?

Answer: An answer is a responsive pleading stating thedefenses of the defending party.

Question: What are the kinds of denial?

Answer:

1. Absolute everything denied

2. Partial 50/50

3. Disavowal of Knowledge must be made in good faith,or else deemed admitted remedy, Judgment on thePleadings.

Affirmative Defenses:

Can be an affirmative defense grounds under Rule 16, plusbankruptcy, payment, etc.

Question: Are there responsive pleadings that also need tobe verified?

Answer:Yes. These include:

1. Answer to an Actionable Document (Section 8 Rule8)

2. Answer based on Usury

3. Answers in Summary Proceedings

4. Answer to Written Interrogatories

5. Answer with Permissive/Cross-Claim Counterclaims


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Note: if not a party to the actionable document, not neededto be under oath.Period to file responsive pleadings?

10 Summary, (also reply)

15 Ordinary

30 Corporation/Juridical Entities

60 Publication

JUDGMENT ON THEPLEADINGS

Difference ofJudgment on the Pleadings from SummaryJudgment:

JUDGMENT ONTHE PLEADINGS

SUMMARYJUDGMENT

Based solely on thepleadings

Based on pleadings,deposition, admissions, andaffidavits

Generally available onlyto the plaintiff unless thedefendant has a

Available to both plaintiff anddefendant

counterclaim

Answer fails to tender anissue or the answeradmits the materialallegations on thecomplaint

No genuine issue (only theissue on amount of damages)

3 days notice required 10 day notice required

On the merits May be interlocutory or onthe merits

Available in any actionexcept (nullity ofmarriage, annulment ofmarriage, legalseparation)

Available only for recovery ofdebt, sum of money, ordeclaratory relief

REPLY

Question: What is Reply?

Answer: it is a responsive pleading, the office or function ofwhich is to deny, or allege, facts in denial or avoidance ofnew matters alleged by way of defense in the answer.

Note: Failure to file, all the new matters are deemedcontroverted.

Note: Need not be under oath, except (actionable document

)

Another note: take note of Rejoinder.


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PRE-TRIAL

Note: It is MANDATORY.What are the remedies of a defendant who did not appear inthe pre-trial conference?

SCENARIO REMEDY/IES

There is an order allowingex parte reception ofevidence

Motion for Reconsideration

There is an order allowingex parte reception ofevidence and evidencewas already presented

Motion to set asidepresentation of evidence exparte

There is already ajudgment - not yet finaland executor

MR, MNT. Appeal

Final and Executory 38, 47, 65

Question: What is the effect of failure to file a pre-trial brief?

Answer: Same as if not appeared in the pre-trial conference

Question: What is the effect if plaintiff failed to appear?

Answer: Dismissal with Prejudice.(if without, re-file) (ifwith, appeal)

18 118

After last pleading After arraignment

With brief No brief

Plaintiff failure to appear

Dismissal (if withoutprejudice , re-file) (if withprejudice, appeal)

Failure to appear of

prosecutor or counsel,sanctions and penalties

Pre-Trial order need notbe signed

Pre-trial order signed byaccused and counsel

TRIAL

Must be co-related with Rule 132.

Note: Rule 30 not applicable to SUMMARYproceedings.

Trial Judicial proceedings for the investigation ordetermination of issues which start from the plaintiffsevidence in chief and ends with his closing arguments

Question: What is evidence in chief?

Answer: Primary evidence of the plaintiff in support of hiscause/s of action.

Please take note of order of proceedings under Rule 132


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In trial, present the pieces of evidence:

- Document

- Object

- Testimonial

Note: Must be formally offered, otherwise, no value

DEMURRER TO EVIDENCE

Demurrer to Evidence it is a remedy in the nature of amotion to dismiss by way of demurrer to evidence, madeafter the plaintiff has rested his case, where the defendant

moves to dismiss the case on the ground that upon the factsand the law, the plaintiff has shown no right to relief.

Note: Not applicable to Summary Proceedings

INTERVENTION

Question: What are the requirements for Intervention underRule 19?

Answer:

1. Has legal interest in the matter in litigation

2. Success of either of the parties


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3. Interest against either or both

4. Situated to be adversely affected by a distribution orother disposition of the property in custody of thecourt.

Note: An intervention may either be a Complaint inIntervention, or an Answer in Intervention.

JUDGMENT

Question: What is a Judgment?

Answer: it is the final ruling by a court of competentjurisdiction, determining the respective rights of the parties.

Kinds ofJudgments:1. Sin Perjuicio brief judgment containing only the

dispositive portion without prejudice to the making ofa more extensive discussion.

2. Nunc Pro Tunc A judgment intended to be enteredinto the records, acts that have already been done,but which do not yet appear on the record

3. Judgment upon Compromise judgment rendered onthe basis of a compromise agreements entered intobetween the parties.

4. Judgment upon a confession judgment rendered bythe court when a party expressly agrees to the otherpartys claim, and acknowledged its validity.

5. Special Judgment other than payment or delivery ofproperty

Question: When is the Entry of Judgment?

Answer: at the time it became final and executory.

Doctrine ofLaw of the Case whatever is once irrevocably

established as the controlling legal rule or decision betweenthe same parties in the case continues to be the law of thecase, whether correct on general principles or not, so long asthe facts on which such decision was predicated continue tobe the facts on which such decision was predicated.

Doctrine ofConclusiveness of Judgment a judgment thathas already attained finality can no longer be disturbed. (alsoreferred to as preclusion of issues or collateral estoppel

Exceptions:

1. Nunc Pro Tunc

2. Correction of Clerical Errors


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Res Judicata

Two-Fold aspects of Res Judicata are?

1. Barred by Prior Judgment

2. Conclusiveness of Judgment

Requisites are:

1. Former Judgment is already FINAL and EXECUTORY

2. Both courts have jurisdiction over the subject matterand the parties

3. Former judgment was on the merits

4. Identity of Parties, Subject Matter, Cause of Action,Reliefs sought

REMEDIES AFTER JUDGMENT

There are:

1. MNT (Rule 37)

2. MR (Rule 37)

3. MRO (Re-opening of Case)

4. Appeal

Question: What is motion for re-opening the case?

Answer: For the purpose of additional evidence, filed beforefinality of judgment. Based on equity.

MNT MR MRO


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For the purposeof setting asidethe judgment

For the purpose ofsetting aside thejudgment

For the purpose ofadditionalevidence

Filed within theperiod ofperfecting anappeal

Filed within periodof perfecting anappeal

Filed before finalityof judgment

Judgment isvacated andthere will be aTrial de Novo

Judgment isvacated andreconsidered

Presentation ofevidence

Grounds: FAMEwhich ordinaryprudence couldnot haveguarded against

other party wasimpaired of hisrights, and,newlydiscoveredevidence

Grounds: damagesawarded areexcessive,evidence isinsufficient,

decision iscontrary to law

Grounds:AdditionalEvidence

Note: Not applicable to Summary proceedings.

APPEALS


48/50

40 41 42 43 45 65

MTC -RTC

RTC CA(origina

l)

RTC CA(appellat

e)

QJB CA

RTC/CA/CTA/SB to SC

ToRTC/CA /SB/SC

15/30days(record ornotice)

15/30days(recordornotice)

15 days 15days

15 days 60 days

Facts/Law

Facts/Law

Facts/Law

Facts/Law

Facts/Law Jurisdiction

Note: 40 or 41 may either be through record or notice

REMEDIES AFTER FINALITY

Remedies:

1. Relief (38)


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2. Annulment (47)

3. Certiorari (65)

4. Collateral Attack

38 47 65Filed with thecourt thatrenderedjudgment

Filed with thehigher court

Filed with thehigher court

Grounds: ajudgment isentered throughFAME, or, FAME

has preventedparty fromtaking an appeal

Grounds: Lack ofJurisdiction andextrinsicfraud/collateral

fraud

Grounds: Error ofJurisdiction

Within 60 daysafter petitionerlearns ofjudgment ANDnot more than 6months afterjudgment is

entered

Within 4 yearsfrom discovery offraud. Before beingbarred by laches orestoppel (forjurisdiction)

Within 60 daysfrom receipt ofnotice

Remedy is 65 Remedy is 65 Remedy is Appeal

Note: 38 is not allowed in Summary Proceedings

Note: 65 can only be used in small claims cases if it isalready final and executory. Cannot be used againstinterlocutory orders in small claims.

EXECUTION

As a matter of right within 5 years from expiration ofperiod to appeal by motion ministerial applied with thecourt of origin

Exceptions:

1. When already executed by voluntary compliance byparties

2. When judgment has been novated (i.e. bycompromise)

3. When there is an injunction

4. When judgment is conditional

5. If it is inequitable/unjust due to transpired facts oroccurrences

6. After 5 years

7. Property is exempt from execution

8. For the higher interest of justice


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Grounds to Quash Writ of Execution:

1. Writ varies from judgment

2. Change in situation

3. Property is exempt

4. Controversy was never submitted to the court

5. Terms of judgment are unclear

6. It was improvidently issued

7. Defective in substance

8. Issued against the wrong party

9. Compromise

After 5 years action for revival of judgment - must bebrought within 10 years (before prescription)

As a General Rule: Execution is STAYED by appeal.

Except:

1. Expressly provided by law which are immediatelyexecutory (IRAS)

a. Injunction

b. Receivership

c. Accounting

d. Support

2. Discretionary execution

Question: What is the Remedy ofTerceria?

Answer: A claim made by a third person not a party to theaction, whose property has been subject of execution. File anaffidavit with the Sherriff stating his claims.

Question: What is the last remedy?

Answer: Motion for examination of defending party (Section37, Rule 39)

- When the return of a writ of execution against theproperty of judgment obligor shows that thejudgment remains unsatisfied.

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