KUPALOURD RULES 6-9

REM 1 BRONDIAL

(BRONDI) Audio No. 3

PART 3 Aug 30 2013
prosecution does not have to present anymore
evidence in chief. So after the presentation of
evidence in chief on the part of the accused, the
prosecution now will have to present rebuttal
evidence. Wala na yung evidence in chief. Rebuttal
evidence na. In civil cases, nakalagay diyan in Rule 6
Affirmative Defenses.. ano yon?
Payment, Prescription
The enumeration is not exclusive there are other. But
if you interpose then you admit the allegations in the
complaint but you put up another. Kasi ang payment,
you borrowed money in the amount of 100K,
admission, YES borrowed 100k but I paid that
already,
Or my claim is oo nga I borrowed 100K but you
cannot judge me anymore why? It has prescribed La
Robis Case. Phil Vet Bank v La Robis. Prescription.
So ano na gagawin ngayon? Present now defendants
evid to establish prescription. So that we will not be
wasting so much time rather than for the plaintiff to
present evidence. Ayun na in-admit na na may utang
siya pero hindi mo na masingil kasi prescribed so
establish now prescription. While this is established,
pwede ka mag rebuttal evidence. OK? So this has
something to do with the different kinds of defenses
namely the negative and affirmative defense. Yung
specific denial. So this is 6 Rule 6.
RULE 7. Parrts of Pleading. IMPORTANT- Sec
3,4,5
SEC. 3. Signature and Address.
SEC. 4 Verification
SEC. 5 Certification Against Forum Shopping
Memorize niyo na ngayon 105% lalabas sa bar yan.
BUT not in remdial law, in legal forms. Pag pinagawa
kayo ng pleadings kahit kailangan o hindi kailangan
ilagay niyo na ang verifications.

Yung caption. Yung mga ganon.

Rep of the Phil. RTC. Branch 42. Manila.

Page

*hindi ko pa to naayos, plain audio transcribe

lang to + ging at the end

Juan dela Cruz plaintiff yun ang caption

COMPLAINT
After complaint you allege individually.
After that, Signature and Address.
Q: Is it necessary? Is it mandatory that the one who
prepares the pleading must be the legal counsel? OR
that it must be signed by the legal counsel? NO. its
not necessary. For purposes of the Bar, its not
necessary. In actual practice, you better call for a
lawyer. Baka kumalaboso ka sa procedure diba? BUT
the plaintiff can do that by himself, diba? If it is doing
it by counsel, the counsel signs. The counsel signs the
pleading BUT THE COUNSEL CANNOT SIGN THE
VERFICATION and/or CERTIFICATION AGAINST
FORUM SHOPPING. It must be signed by the parties
themselves.
Supposed there are 10 parties, the general rule is
that they must ALL sign. Thats the general rule. It is
only signed by 1. Will that defeat the pleading? That
will be considered unsigned? DEPENDE. What have we
discussed re: co-ownership kanina as indispensable
parties. CO-OWNERS-PLAINTIFFS under the case of
Iglesia ni Cristo v Ponferrada, even if only one of the
co-owners signed, that will suffice in the verification.
BUT if they are DEFENDANTS, hindi naman kailangan
ng verification don sa defense ano. As a matter of
rule, only exceptional, when there is actionable
document.
BUT anyway, discussed in this verification, the
VERIFIANT (?), the VERIFIER will state that he caused
the preparation of the pleading; that he has read and
understood all the allegations therein and that the
same are true and correct based on his personal
knowledge. Pag nilagay mo, based on information and
belief, that is not a sufficient allegation in you
verification.
Pag dating don sa address, under circulars of the SC,
the address is not complete, you have also if it is
through a lawyer you have also to write under your
name your PTR, IBP, MCLE Compliance and your Roll
number. Itong apat na to, mandatory. Now, what is

the effect if that is not complied with? The pleading is

deemed unsigned and if it is unsigned, it is not
deemed filed. Yon ang effect.
Now, how about certification against FORUM
SHOPPING which is more important which is more
stringent as a requirement. Verification or certification
against forum shopping.
As the plaintiff or defendant as the cased may be, you
state that there is no other case pending between the
same parties before any court tribunal body or agency
that should you come to know of any pending case
between the parties, you undertake to inform the
honorable court within a period of 5 days from
knowledge therefrom. That is cert against forum
shopping.
Why do I say that this is more stringent than the
verification? Because verification may be corrected or
if you miss the verification, you can still ask and
submit verification even after you have filed the
pleading or amend it, it is subject to correction. BUT
lack of certification against forum shopping is A
GROUND FOR THE DISMISSAL OF THE CASE. So mas
importante yung certification against forum shopping.
We will be tie-ing this up later on when we go to rule
16. One of the grounds paragraph E Sec 1 of Rule 16.
That there is another action pending between the
same parties for the same cause. Th/at is partly
forum shopping a ground for a motion to dismiss.

PART 4 Aug 30 2013 (Notes not Transcript)

Rule 8 Manner of Making Allegations in the
Pleadings
Tie up with parts of the pleading

KUPALOURD RULES 6-9

REM 1 BRONDIAL

Then you make now the allegation. Specific

allegation. Rule 8 regarding allegation nakalagay don
specific allegation, but more importantly how do you
allege fraud? Fraud must be alleged with particularity.
You cannot allege, for example, DEFENDANT
FRAUDULENTLY acted that will be insufficient
allegation. You have to state with particularity what
constituted fraud in order to be a sufficient allegation
in the complaint.
Condition of the mind, self explanatory you cannot
state that with particularity. Nobody knows what
youre thinking about. Kaya nga under the law, you
commit only a crime once youve done an overt act.
Pag iniisip mo lang, walang crime yan. So how can
you allege that with particularity? NO WAY.
How do you allege a judgment? When you allege a
judgment you dont have to state whether the
judgment was rendered with or without jurisdiction
altho in the rules of evidence, Rule 129, what need
not be proved. Judicial admission and Judicial Notice.
How about a judgment there? Kelangan that you have
to present a copy of the judgment and establish
that it was a valid judgment- what is a valid
judgment? that is was rendered by a court of
competent jurisdiction.
IMPORTANT- Rule 8 ay Sec 7 and 8. Actionable
Documents.
What is an actionable document? It is a certain kind
of document on the basis of which the right of action
is anchored so that if you are claiming for payment of
a certain sum of money based on a promissory note,
then the PN is the actionable document.
Sec 7 of Rule 8 tells you how do you allege an
actionable document? One way is you copy the terms
and cond of the actionable document verbatim in your
pleading. Ngayon kung maigsi lang, kung PN, you can

genuineness of a document simply means that the

party whose
signature it bears admits that he signed it or that it
was signed by
another for him with his authority that at the time it
was signed
it was in words and figures exactly as set out in the
pleading of
the party relying upon it that the document was
delivered and
that any formal requisites required by law, such as a
seal, an
acknowledgment, or revenue stamp, which it lacks,
are waived by
him.

Sec 7. How do you answer an allegation based on

actionable document? Before the break, I told you
that an answer does not have to be verified because
it is not an initiatory pleading but if the complaint
bases its action or its right of action on actionable
document, then IT IS REQUIRED THAT THE ANSWER
MUST BE VERIFIED. WHY? Because exactly SEC 8 of
Rule 8 says how do you allege your answer to the
complaint based on actionable document? You must
specifically deny the document under oath.
Meaning to say that your answer must be verified.
Now, what is the effect if the answer is not verified?
You are considered to have admitted the authenticity
and due execution of document.

SO if the document, if you are not a party to the

document which is used as a basis on his claim,
then you dont have anymore to have your
answer verified. But you have to deny of course but
the denial is simple denial, specific denial or lack of
knowledge or information but you dont have
anymore verification of the pleading. There is no
more necessity for having the pleading verified or
taking under oath.

coopy that in your pleading itself. But if it is a Deed of

Sale con. Of 3 pages, pag kinopya mo yon andon na
yung pleading mo. Wala na. So what is the other
form? You get only that part of the actionable doc
which is exactly the basis of your claim and then
attach a copy of the actionable doc so halimbawa, it is
a deed of sale and then your action is annulment of
the deed of sale. And you action is Annul of a Deed of
Sale? Why are you annulling the deed of sale?
Because the parties thereto are not capacitated. The
party is a minor. So yun lang na subject na yon ang ia- allege mo, but your basis is still actionable
document, you have to attach a copy of the
actionable document.

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Don sa body, the first allegation is JURISDICTIONAL

FACTS, kung ano ang kaso. Kunwari partition, ang
unang allegation don will be the capacity or the
qualification of the party-plaintiff and part-defendant.
Thats why you say there plaintiff is of legal age
residing at ______, while defendant is also of legal
age residing at_________, where he may be served
with summons and other processes of this Hon.
Court.

Authenticity and due execution was already decided

by the SC in the case of Benguet exploration. That
when you speak of authenticity and due execution,
YOU ARE NOT ADMITTING the terms and conditions of
the doc, you are only admitting that the terms found
in the document- they were never changed, that doc
was delivered, that the doc was signed and that the
doc consists of all the formalities required by law.
YUN LANG ANG AUTHENTICITY AND DUE
EXECUTION.YOU ARE Not deemed admitted the
contents of the doc. Whoever uses it must establish
the content of the document, and establish by other
pieces of evidence or testimonial evidence. What you
are considered to have admitted are the
AUTHENTICITY and DUE EXECUTION which consist of
the 4 that I have stated.
Benguet Exploration v CA:
The admission of the due execution and

RULE 9 Effect of Failure to Plead

Sec 3 ng Rule 9 malimit itanong
Sec 1 is what we discussed as residual prerogative.
The authority of the appellate court to dismiss the
case moto proprio on the basis of the grounds stated
in Sec 1 of Rule 9 res judicata, litis pendentia, statute
of limitations lack of jurisdiction. MOTO PROPIO
In the Rules of Court are they only grounds when
courts may dismiss MOTO PROPRIO? Meron pang tatlo
Sec Rule 17 Dismissal of Action. Failure to present
evidence in chief for unreasonable time, failure to
comply with the order of the court tatlo yan! So not
only based on Sec1 of Rule 9.
A comp counterclaim precisely by its very nature, if
not interposed DEEMED WAIVED. Sec 2. Is that
absolute? NO. Exception is found Sec 10 of Rule, ang
tawag don omitted counterclaim. When a
counterclaim is omitted by reason of excusable
negligence, inadvertence, and all these. Then you can
still interpose a counterclaim thru amendment. So
that is Sec 2.

KUPALOURD RULES 6-9

REM 1 BRONDIAL

BUT AS IN default which used to be part of the rules,

under Rule 18, failure to submit a pretrial brief and
failure to appear at pretrial, they are no longer
available. Meaning to say, they are no longer grounds
to declare a party AS IN Default. And after that,
presentation of evidence, on the basis evidence,
judgment is rendered. Sa ngayon, no need. BUT you
only ask the court to allow you to submit evidence on
the basis of which judgment will be rendered.
To declare a party in default, it requires a MOTION.
The court cannot declare a party in default MOTO
PROPRIO. It requires a motion on the part of the
pleader to whom no answer was filed. If the plaintiff
files an action, then the defendant fails to file an
answer within the required period, the plaintiff must
file a motion to declare defendant in default. What
kind of a motion is that? Under rule 15 on
motion,there are 2 kinds. It is either a ltitigated
motion or non litigated motion. And motion to
declared defendant in default is a litigated motion.
Hence, because it is a litigated motion, you have to
comply with Sec 4, 5 and 6 of Rule 15 because only a
non litigated motion does not require compliance with
4,5 and 6. Ano ba yon? The motion must be in
writing, it must be served on the adverse party,
it must be set for hearing. Now, let me divert a
little going now to Rule 15 because of litigated
motion.
You will note that under Rule 15 Sec 4,5, and 6 ito
nga yung requirement. You have there 2 specific
principles. What you call the 3-day notice rule and the
10-day setting rule. What is the 3-day notice rule? It
requires that in cases of litigated motion, the adverse
party must receive a copy of the motion 3 days before
the scheduled hearing. Dont confuse that with the
10-day setting rule. It requires that the motion must

be set for hearing within a 10-day period from the

time you file the motion.

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Sec. 3 is DEFAULT. On the outset, let me tell you that

there used to be declaration IN default and
declaration AS IN default. The latter no longer applies
under the present dispensation. Wala ng declaration
AS IN default. Declaration IN DEFAULT. Isa nalang.
And the only ground for declaration of a party in
default is when such party fails to file an answer
within the required prescriptive period. May a
plaintiff be declared in default? YES with regard
to permissive counterclaim because it must be
answered. SO if he has not answered, he can be
declared in default.

Suppose you file the motion by reg mail, it is almost

impossible that you will be able to comply with the
10-day setting rule. If you are a practicing lawyer in
Manila, and your case is in Davao, you file a motion
thru reg mail, can you possibly set it within the 10day period in comp with Rule 15, so that if you dont,
your motion will be dismissed or will be considered as
a mere scrap of paper? How could that be? NO.
because the 10-day setting rule in relation to the 3day notice rule, the latter is preferred over the
former. Because there are certain instances when the
10-day notice rule is impossible to comply with. Ito
nga sinasabi ko alangan naman mamasahe ka by
airplane papunta sa Davao para just to comply with
the 10-day setting rule. Pag mga ganon, you have
always to file it by reg mail. Pag sinet mo for hearing
within the 10-day period in comp with the 10-day
setting rule, baka 10 days na hindi pa nadating mail
mo ron, so balewala. So in case of conflict between
the 10-day setting rule and the 3-day notice rule,
comply with the 3-day notice rule which is
MANDATORY. But the 10-day setting rule, there is
exception depending on the circumstances.
We went to rule 15 because precisely of Rule 9. A
motion to declare defendant in default. So you file a
motion, a litigated motion, you set it for hearing and
once it is heard, you send copies, the court may
either grant or deny it.
If the court grants the motion to declare defendant in
default for example, what happens now to the
defendant? The effect. The defendant loses
personality in the court, but that does not mean the
defendant will already be will not be anymore
entitled to the processes from the court because the
Rule is very specific that even if a party has been
declared in default, he only loses his personality
before the court but he is entitled to the processes
from the court. What do you mean by that? ALL
ORDERS OF THE COURT the defaulted party is still
entitled to a copy of those orders, but he can no
longer participate in the proceedings.
So how does he regain his personality before the
court? There is only one remedy and that is a motion
to set aside the order of default and this is also a
litigated motion. Walang ibang remedy. Do you recall

a recent case relative thereto? The case of Tansipek

when he was declared in default, he filed an MR, and
when it was denied he went up saying, why was it
denied? I want an MR. The SC said NO, their dismissal
was correct because there is only one remedy against
an order of default, NO OTHER AND THAT REMEDY IS
A MOTION TO SET ASIDE THE ORDER OF DEFAULT.
BDO v TANSIPEK:
Respondent Tansipeks remedy against the Order of
Default was erroneous
from the very beginning. Respondent Tansipek should
have filed a
Motion to Lift Order of Default, and not a Motion for
Reconsideration,
pursuant to Section 3(b), Rule 9 of the Rules of
Court:
(b) Relief from order of default.
A party declared in default may at any time after
notice thereof
and before judgment file a motion under oath to set
aside the
order of default upon proper showing that his failure
to answer
was due to fraud, accident, mistake or excusable
negligence and
that he has a meritorious defense. In such case, the
order of
default may be set aside on such terms and
conditions as the
judge may impose in the interest of justice. A Motion
to Lift Order
of Default is different from an ordinary motion in that
the Motion
should be verified and must show fraud, accident,
mistake or
excusable neglect, and meritorious defenses. The
allegations of (1)
fraud, accident, mistake or excusable neglect, and (2)
of
meritorious defenses must concur.
Now, the order of default, after a default order is
issued by the Court so the other party having lost his
personality, must be sent a copy of the order of
default. If he does not file a motion to set aside the
order of default what follows? JUDGMENT BY
DEFAULT. Kaya tatandaan niyo, that there can be no
judgment by default without being preceded by an
order of default. A judgment by default rendered by a
court without being preceded by an order of default is

KUPALOURD RULES 6-9

REM 1 BRONDIAL
procedure when a motion to declare defendant in
default, unlawful detainer, is a prohibited pleading
BUT here, that is again an exception because you are
cross referred here to Rule 9.

in the subject matter (if the case is for recovery of

property, he must have an interest in the property,
ex: he may be the
owner/mortgagor/mortgagee/possessor of the
property).

While an order of default can be remedied only by

one remedy, which is a litigated motion to set aside
order of default, your remedy against a judgment by
default all remedies against a final judgment are
available against a judgment by default namely, New
Trial, Reconsideration and Appeal.

(GING) RULES 6 TO 9: PLEADINGS AND

DEFAULTS

You must never confuse an intervention with an

interpleader. The basic distinction is that while an
intervenor, E, has interest in the subject matter, an
interpleader has no interest in the subject matter.

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subject to certiorari, grave abuse of discretion

amounting to lack of jurisdiction. It must always be
preceded by an order of default. After which,
judgment by default.

A Plaintiff

Iisa lang ang exception. Wala ng iba under the Rules

and you find that in the Modes of Discovery
particularly RULE 29 Sec 3 par c where a judgment of
default can be rendered by the court without being
preceded by an order of default. Failure to comply
with the order on the Modes of Discovery.

B Defendant

Partial default. Meron bang partial default? Kung

ibibigay ang partial default, it will be about unlawful
detainer and forcible entry. BAKIT? When you go to
Rule 70, bawal ang default kasi it is a prohibited
pleading. But if you try to look at Rule 70, you are
cross referred to Rule 9 talking about partial default.
SO can one be declared in partial default? NO NEED
bec Rule 70 speaks already of multiple partiesdefendant, A v XYZ X filed an answer Y and Z did
not file an answer. During the pretrial, Y and Z
appeared but X did not. Can X be declared in default?
Wala na ngang AS IN default diba for failure to appear
at the pretrial? Can Y and Z be partially be declared in
default because even in Rule 70, specific Rule cross
refers you to Rule 9. Partial Default. Ano ang sagot?
Consider the defense. If a defense is common is
applicable to all defendants, then you cannot declare
as in partial default. BUT if a defense of a defendant
only applies as to him, then there can be partial
default.

C Co-defendant

Halimbawa, payment common defense yan. Kung

obligation, obligation of X Y Z 100K and X answered
saying we have paid 100K. Y and Z did not answer.
Ano pa ang utang ni Y and Z edi wala na. Ang
importante, X can now get a reimbursement or
contribution for Y and Z. But suppose the defense of
X is a particular defense, like minority, if X says he is
a minor, it does not mean that Y and Z are also
minors. So that is particular diba so you have to look
at pag pinresent ito in problem form, alam niyo na
ang principles. Pwede i-tie up yon sa summary

A files a complaint against B. B files an answer. A files

a reply.
These are the major pleadings: complaint, answer
and reply.

B files a cross-claim against C. C can also file a crossclaim against B. B or C may interplead D.
D third-party defendant
In relation to D, C would be a third-party plaintiff.
If D impleads Y, D would be a fourth-party plaintiff
and Y would be a fourth-party defendant.
C can also file a complaint (a third party complaint).
D can file a fourth party complaint.
D can answer the third-party complaint through an
answer to a third party complaint. When D answers,
that is also an answer to the original complaint
because there could be no third-party complaint
without the original complaint.
The claim of B against A is a separate and distinct
pleading called the counterclaim. The counterclaim is
not the answer; it is the complaint of the defendant
against the plaintiff. As answer to the counterclaim is
not the reply. The reply is the response to the answer
but the answer to the counterclaim is an answer to
the counterclaim of the defendant as against the
plaintiff.
E intervenor
E is an outsider; an intervenor under Rule 19. He is
never impleaded by any of the parties. He impleads
himself. Rule 19 provides that he must have interest

RULE 6 Kinds of Pleadings

Rule 6, Section 1. Pleadings defined. Pleadings
are the written statements of the respective claims
and defenses of the parties submitted to the court for
appropriate judgment.
Rule 6, Section 2. Pleadings allowed. The
claims of a party are asserted in a complaint,
counterclaim, cross- claim, third (fourth, etc.)-party
complaint, or complaint- in-intervention.
Third-party defendant is someone different
from the original parties, for purposes of
contribution, indemnification or
subrogation. The answer must already
include allegations against the original
complaint.
Complaint and Answer

Rule 6, Section 3. Complaint. The complaint is

the pleading alleging the plaintiff's cause or causes of
action. The names and residences of the plaintiff and
defendant must be stated in the complaint.
Rule 6, Section 4. Answer. An answer is a
pleading in which a defending party sets forth his
defenses.
The complaint constitutes the allegations or
the claim of the plaintiff against the
defendant. The defendants answer is the
response to the claim of the plaintiff. The
answer constitutes defenses.
Defenses: Negative and Affirmative
Rule 6, Section 5. Defenses. Defenses may
either be negative or affirmative.

KUPALOURD RULES 6-9

REM 1 BRONDIAL

An affirmative defense is an allegation of a new

matter which, while hypothetically admitting the
material allegations in the pleading of the claimant,
would nevertheless prevent or bar recovery by him.
The affirmative defenses include fraud, statute of
limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in
bankruptcy, and any other matter by way of
confession and avoidance.
2 modes of negative defense:
specific denial give the reason for your
denial
lack of knowledge sufficient to form belief
as to the truth of the claim
Affirmative defense admission of the allegation but
you put up a new subject matter so as to avoid the
claim. Ex: defendant borrowed P100,000 from the
plaintiff. If you invoke an affirmative defense, youll
say that you have paid the P100,000 that you
borrowed from the plaintiff. In effect, you are
admitting that you borrowed money but you put up a
new matter, which is payment, to avoid the claim.
There are several kinds of affirmative defenses: fraud,
statute of limitations, release, payment, illegality,
statute of frauds, estoppel, former recovery,
discharge in bankruptcy, and any other matter by
way of confession and avoidance. This list is not
exclusive.
In the rules of evidence, when you put up an
affirmative defense, whether in civil or criminal cases,
you have what you call reverse trial.
Reverse trial is a process whereby the defendant puts
up an affirmative defense and therefore, there is an
admission already on his part of the allegations in the
pleading. That is why you reverse the trial.
In criminal cases, there are no pleadings, except the
information. The information is read, under Rule 116,
before the start of the trial (during arraignment) and
then the accused puts up an affirmative defense (ex.
self-defense in a murder case). It amounts to saying
that he admits the allegations. When this happens,
there is reverse trial. There is no need to prove that
the accused killed the victim because he already

admitted it. There is no need to show evidencein-chief. The trial starts with the accused and he
puts up the defense of self-defense. If it is necessary,
the prosecution puts up rebuttal evidence.

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A negative defense is the specific denial of the

material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.

Negative pregnant a term in contradiction. When

you invoke negative pregnant, in effect, you are
admitting what you seek to deny. Thats why you can
never use negative pregnant if the allegation is a
simple declarative sentence.
Example: Defendant borrowed money from the
plaintiff in the amount of P100,000. This is a simple
declarative sentence so you cannot invoke here
negative pregnant.
But if you qualify that in such manner that it becomes
a compound, complex declaration, then negative
pregnant might come out:
Defendant borrowed money from the plaintiff in the
amount of P100,000 when the plaintiff was playing
basketball.
I deny that I borrowed money from the plaintiff in the
amount of P100,000 when the plaintiff was playing
basketball. This is a negative pregnant because it
proves that he did borrow money, but not at the time
the plaintiff he was playing basketball.
Counterclaims: Compulsory and Permissive
Rule 6, Section 6. Counterclaim. A counterclaim
is any claim which a defending party may have
against an opposing party.
Rule 6, Section 7. Compulsory counterclaim. A
compulsory counterclaim is one which, being
cognizable by the regular courts of justice, arises out
of or is connected with the transaction or occurrence
constituting the subject matter of the opposing
party's claim and does not require for its adjudication
the presence of third parties of whom the court
cannot acquire jurisdiction. Such a counterclaim must
be within the jurisdiction of the court both as to the
amount and the nature thereof, except that in an
original action before the Regional Trial Court,
the counter-claim may be considered compulsory
regardless of the amount.
Counterclaim it is neither an answer nor a reply. It
is the complaint of the defendant against the plaintiff.
It is a totally separate pleading.

2 kinds of counterclaim:
compulsory is that which arises from the same
transaction or series of transactions
permissive does not arise from the same
transaction
Rule 6, Section 8. Cross-claim. A cross-claim is
any claim by one party against a co-party arising out
of the transaction or occurrence that is the subject
matter either of the original action or of a
counterclaim therein. Such cross-claim may include a
claim that the party against whom it is asserted is or
may be liable to the cross-claimant for all or part of a
claim asserted in the action against the crossclaimant.
Cross-claim between the defendants. This is the
complaint of the co-defendant against his codefendant for purposes of contribution, subrogation or
indemnification.
B borrowed money from A in the amount of
P500,000. A knows the P500,000 will be used by B
and C. B did not pay. A can file a case impleading
alternative defendants. B, in the same case, can file a
cross-claim against his co- defendant asking for
contribution.
Rule 6, Section 9. Counter-counterclaims and
counter- crossclaims. A counter-claim may be
asserted against an original counter-claimant.
A cross-claim may also be filed against an original
cross- claimant.
Reply
Rule 6, Section 10. Reply. A reply is a pleading,
the office or function of which is to deny, or allege
facts in denial or avoidance of new matters alleged by
way of defense in the answer and thereby join or
make issue as to such new matters. If a party does
not file such reply, all the new matters alleged in the
answer are deemed controverted.
If the plaintiff wishes to interpose any claims
arising out of the new matters so alleged, such
claims shall be set forth in an amended or
supplemental complaint.
Reply response to an answer.

KUPALOURD RULES 6-9

REM 1 BRONDIAL

Exceptions:
(1) when the answer sets up a
new matter, there is a necessity of a reply.
(2) When the defendant avails of
an actionable document, you
have to file a reply. Otherwise,
the authenticity and due
execution of the document are
deemed admitted.
Rule 8, Section 7. Action or defense based on
document. Whenever an action or defense is
based upon a written instrument or document, the
substance of such instrument or document shall be
set forth in the pleading, and the original or a copy
thereof shall be attached to the pleading as an
exhibit, which shall be deemed to be a part of the
pleading, or said copy may with like effect be set
forth in the pleading.
Rule 8, Section 8. How to contest such
documents. When an action or defense is founded
upon a written instrument, copied in or attached to
the corresponding pleading as provided in the
preceding section, the genuineness and due execution
of the instrument shall be deemed admitted unless
the adverse party, under oath specifically denies
them, and sets forth what he claims to be the facts,
but the requirement of an oath does not apply when
the adverse party does not appear to be a party to
the instrument or when compliance with an order for
an inspection of the original instrument is refused.

RULE 7 Parts of a Pleading

Rule 7, Section 1. Caption. The caption sets
forth the name of the court, the title of the action,
and the docket number if assigned.
The title of the action indicates the names
of the parties. They shall all be named in
the original complaint or petition; but in
subsequent pleadings, it shall be sufficient
if the name of the first party on each side
be stated with an appropriate indication
when there are other parties.
Their respective participation in the case
shall be indicated.

The address must not be a post-office box address.

Otherwise, the prescriptive period will not lie because
it will depend upon when you get your mails in your
post- office box.

Paragraphs. The allegations in the body of a

pleading shall be divided into paragraphs so
numbered to be readily identified, each of which shall
contain a statement of a single set of circumstances
so far as that can be done with convenience. A
paragraph may be referred to by its number in all
succeeding pleadings.

Based on certain circulars of the SC, in every

pleading, what is necessary is not only the signature
and the address. There are 4 more items necessary:
(1) Roll Number, (2) IBP Number, (3) PTR Number,
(4) MCLE Exemption Number.

Headings. When two or more causes of action are

joined the statement of the first shall be prefaced by
the words "first cause of action,'' of the second by
"second cause of action", and so on for the others.

Rule 7, Section 4. Verification. Except when

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

When one or more paragraphs in the answer are

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

A pleading is verified by an affidavit that the affiant

has read the pleading and that the allegations therein
are true and correct of his [personal] knowledge and
belief.

Rule 7, Section 2. The body. The body of the

pleading sets forth its designation, the allegations of
the party's claims or defenses, the relief prayed for,
and the date of the pleading.

Page

General rule: The reply is not necessary because if

you do not put up a reply, it means you controvert
the allegations in the answer.

Relief. The pleading shall specify the relief sought,

but it may add a general prayer for such further or
other relief as may be deemed just or equitable.
Date. Every pleading shall be dated.
Rule 7, Section 3. Signature and address.
Every pleading must be signed by the party or
counsel representing him, stating in either case his
address which should not be a post office box.
The signature of counsel constitutes a certificate by
him that he has read the pleading; that to the best of
his knowledge, information, and belief there is good
ground to support it; and that it is not interposed for
delay.
An unsigned pleading produces no legal effect.
However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended
for delay. Counsel who deliberately files an unsigned
pleading, or signs a pleading in violation of this Rule,
or alleges scandalous or indecent matter therein, or
fails promptly report to the court a change of his
address, shall be subject to appropriate
disciplinary action.

Verification and Certification

A pleading required to be verified which contains a

verification based on "information and belief", or upon
"knowledge, information and belief", or lacks a proper
verification, shall be treated as an unsigned pleading.
Rule 7, Section 5. Certification against forum
shopping. The plaintiff or principal party shall
certify under oath in the complaint or other initiatory
pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed
therewith: (a) that he has not theretofore
commenced any action or filed any claim involving the
same issues in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no such
other action or claim is pending therein; (b) if there is
such other pending action or claim, a complete
statement of the present status thereof; and (c) if he
should thereafter learn that the same or similar action
or claim has been filed or is pending, he shall report
that fact within five (5) days therefrom to the court
wherein his aforesaid complaint or initiatory pleading
has been filed.
Failure to comply with the foregoing requirements
shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be
cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion
and after hearing. The submission of a false
certification or non-compliance with any of the
undertakings therein shall constitute indirect
contempt of court, without prejudice to the

KUPALOURD RULES 6-9

REM 1 BRONDIAL

While verification is not mandatory, certification

against forum shopping is mandatory because
there are only pleadings that require verification
but all pleadings require certification against
forum shopping. While lack of verification is easily
remediable by amendment, certification against forum
shopping cannot be remedied so it leads to dismissal
of the case.
Who may verify? It should only be the party. Counsel
cannot verify. Neither can the counsel sign the
certification against forum shopping. The exception
is when the party is a juridical entity and the counsel
is an in-house counsel on the basis of the doctrine
laid down in Iglesia ni Cristo vs Ponferrada.

Suppose there are multiple parties, the rule provides

all the parties must verify. So if there are 5 plaintiffs,
all the
5 plaintiffs must verify. If only one verifies, that is
erroneous but correctible. The exception is in cases
of co-ownership and they are the plaintiffs, but not
when they are defendants. So that co-owners, in
effect, are indispensable parties defendants. In the
case of plaintiffs, they are not indispensable since
only one is an indispensable party co-owner.

A.

Allegations in Pleadings
Rule 8, Section 1. In general. Every pleading
shall contain in a methodical and logical form, a
plain, concise and direct statement of the ultimate
facts on which the party pleading relies for his
claim or defense, as the case may be, omitting the
statement of mere evidentiary facts.
If a defense relied on is based on law, the
pertinent provisions thereof and their applicability
to him shall be clearly and concisely stated.
Rule 8, Section 2. Alternative causes of action
or defenses. A party may set forth two or
more statements of a claim or defense

alternatively or hypothetically, either in one cause

of action or defense or in separate causes of action
or defenses. When two or more statements are
made in the alternative and one of them if made
independently would be sufficient, the pleading is
not made insufficient by the insufficiency of one or
more of the alternative statements.

Page

corresponding administrative and criminal actions. If

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

Rule 8, Section 3. Conditions precedent. In

any pleading a general averment of the
performance or occurrence of all conditions
precedent shall be sufficient.
Rule 8, Section 4. Capacity. Facts showing
the capacity of a party to sue or be sued or the
authority of
a party to sue or be sued in a
representative capacity or the legal existence of an
organized association of person that is made a
party, must be averred. A party desiring to raise
an issue as to the legal existence of any party or
the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific
denial, which shall include such supporting
particulars as are peculiarly within the pleader's
knowledge.
Rule 8, Section 5. Fraud, mistake, condition
of the mind. In all averments of fraud or
mistake the circumstances constituting fraud or
mistake must be stated with particularity. Malice,
intent, knowledge, or other condition of the mind
of a person may be averred generally.
Rule 8, Section 6. Judgment. In pleading a
judgment or decision of a domestic or foreign
court, judicial or quasi-judicial tribunal, or of a
board or officer, it is sufficient to aver the judgment
or decision without setting forth matter showing
jurisdiction to render it.

How do you allege an actionable document? Section

7 provides the answer. To allege an actionable
document, you either (1) copy the document
verbatim in your pleading; or (2) copy the basis of
your claim and attach a copy of the document.
Use the first mode if your document is short like a
promissory note. Use the second mode if your
document is quite lengthy like a contract of mortgage
consisting of 20 pages.
Rule 8, Section 8. How to contest such
documents. When an action or defense is
founded upon a written instrument, copied in or
attached to the corresponding pleading as provided
in the preceding section, the genuineness and due
execution of the instrument shall be deemed
admitted unless the adverse party, under oath
specifically denies them, and sets forth what he
claims to be the facts, but the requirement of an
oath does not apply when the adverse party does
not appear to be a party to the instrument or when
compliance with an order for an inspection of the
original instrument is refused.
You contest the actionable document by specifically
denying it under oath. The pleading must contain a
jurat (subscribed and sworn to before me).
Otherwise, the authenticity and due execution of the
document are deemed admitted. Only authenticity
and due execution, not the contents of the
document.
Rule 8, Section 9. Official document or act.
In pleading an official document or official act, it is
sufficient to aver that the document was issued or
the act done in compliance with law.

Actionable Documents

Specific denial

Rule 8, Section 7. Action or defense based on

document. Whenever an action or defense is
based upon a written instrument or document, the
substance of such instrument or document shall be
set forth in the pleading, and the original or a copy
thereof shall be attached to the pleading as an
exhibit, which shall be deemed to be a part of the
pleading, or said copy may with like effect be set
forth in the pleading.

Rule 8, Section 10. Specific denial. A

defendant must specify each material allegation of
fact the truth of which he does not admit and,
whenever practicable, shall set forth the substance
of the matters upon which he relies to support his
denial. Where a defendant desires to deny only a
part of an averment, he shall specify so much of it
as is true and material and shall deny only the
remainder. Where a defendant is without
knowledge or information sufficient to form a belief
as to the truth of a material averment made to the
complaint, he shall so state, and this shall have
the effect of a denial.

Actionable documents are those which is the basis

of ones claim or defense.

KUPALOURD RULES 6-9

REM 1 BRONDIAL

Rule 8, Section 12. Striking out of pleading or

matter contained therein. Upon motion made
by a party before responding to a pleading or, if no
responsive pleading is permitted by these Rules,
upon motion made by a party within twenty (20)
days after the service of the pleading upon him, or
upon the court's own initiative at any time, the
court may order any pleading to be stricken out or
that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out
therefrom.
Rule 9 Effect of Failure to Plead
Residual prerogatives, as laid down in Katon vs
Palanca, is the authority of the appellate court to
dismiss a case motu proprio pursuant to the grounds
under Section 1 of Rule 9. They are: res judicata,
litis pendentia, prescription, lack of jurisdiction and
statute of limitation.
Rule 9, Section 1. Defenses and objections not
pleaded.

may be dismissed upon motion of the defendant or

upon the court's own motion, without prejudice to
the right of the defendant to prosecute his
counterclaim in the same or in a separate action.
This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise
declared by the court.

Page

Rule
8,
Section
11.
Allegations
not
specifically denied deemed admitted.
Material averment in the complaint, other than
those as to the amount of unliquidated damages,
shall be deemed admitted when not specifically
denied. Allegations of usury in a complaint to
recover usurious interest are deemed admitted if
not denied under oath.

Thus, the 8 grounds by which the court can dismiss

a case motu proprio are:
(1) res judicata (Section 1, Rule 9)
(2) litis pendentia (Section 1, Rule 9)
(3) lack of jurisdiction (Section 1, Rule 9)
(4) statute of limitation (Section 1, Rule 9)
(5)

(6)

failure of any party to appear for the

presentation of evidence in chief (Section 3,
Rule 17)
plaintiffs failure to prosecute his action for an
unreasonable length of time (Section 3, Rule
17)

(7) plaintiffs failure to comply with these Rules or any

order of the court (Section 3, Rule 17)
(8) the rule in summary procedure
(9) small claims (kupalourd) ? The circular does not say
so. Bec. Motions are prohibited in SM as well as
Small Claims, BAKA PWEDE
Waiver of Defenses and Objections; Default

Defenses and objections not pleaded either in a

motion to dismiss or in the answer are deemed
waived. However, when it appears from the
pleadings or the evidence on record that the court
has no jurisdiction over the subject matter, that
there is another action pending between the same
parties for the same cause, or that the action is
barred by a prior judgment or by statute of
limitations, the court shall dismiss the claim.

This is not absolute. Sec. 10 of Rule 11 Omitted

Counterclaim. Thru oversight inadvertence, can still
institute counterclaim.

Tie this up with Section 3, Rule 17: Dismissal

due to fault of plaintiff. If, for no justifiable
cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the
complaint, or to prosecute his action for an
unreasonable length of time, or to comply with
these Rules or any order of the court, the complaint

Rule 9, Section 3. Default; declaration of. If

the defending party fails to answer within the time
allowed therefor, the court shall, upon motion of the
claiming party with notice to the defending party,
and proof of such failure, declare the defending
party in default. Thereupon, the court shall proceed
to render judgment granting the claimant such relief

Rule 9, Section 2. Compulsory counterclaim,

or cross- claim, not set up barred. A
compulsory counterclaim, or a cross-claim, not set
up shall be barred.

as his pleading may warrant, unless the court in its

discretion requires the claimant to submit evidence.
Such reception of evidence may be delegated to the
clerk of court.
(a) Effect of order of default. A party in default shall
be entitled to notice of subsequent proceedings
but not to take part in the trial.
(b) Relief from order of default. A party declared in
default may at any time after notice thereof and
before judgment file a motion under oath to set
aside the order of default upon proper showing
that his failure to answer was due to fraud,
accident, mistake or excusable negligence and that
he has a meritorious defense. In such case, the
order of default may be set aside on such terms
and conditions as the judge may impose in the
interest of justice.
(c)Effect of partial default. When a pleading
asserting a claim states a common cause of action
against several defending parties, some of whom
answer and the others fail to do so, the court shall
try the case against all upon the answers thus
filed and render judgment upon the evidence
presented.
(d) Extent of relief to be awarded. A judgment
rendered against a party in default shall not
exceed the amount or be different in kind from
that prayed for nor award unliquidated damages.
Where no defaults allowed. If the defending party
in an action for annulment or declaration of nullity of
marriage or for legal separation fails to answer, the
court shall order the prosecuting attorney to
investigate whether or not a collusion between the
parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the
evidence submitted is not fabricated.
Under the 1997 Rules of Court, when may a
party be declared in default? There is only one
ground for declaring a party in default: failure
to file responsive pleading within the
prescriptive period. Now, there is no more
declaration of a party AS IN default that used
to be in the 1964 (even 1940) Rules of Court
that has been deleted by the 1997 Rules of
Court.
FAILURE TO FILE RESPONSIVE PLEADING
WITHIN THE PRESCRIPTIVE PERIOD within

KUPALOURD RULES 6-9

REM 1 BRONDIAL

such a manner as to ensure its receipt by the

other party at least three (3) days before the date
of hearing, unless the court for good cause sets
the hearing on shorter notice.

15 days from the time

summons is receipt OR
Or from voluntary
appearance

Page

Must be in writing

A files a case against B for unlawful detainer and

forcible entry and summons was served upon B on
January 5. On February 5, B has not yet filed an
answer. Can B be declared in default for failure to
file his answer? No, the case is covered by the Rules
of Summary Procedure and an order of default or a
motion to declare defendant in default is a
prohibited pleading.

Rule 15, Section 5. Notice of hearing. The

notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of
the hearing which must not be later than ten (10)
days after the filing of the motion.

If there is only one ground, the 2 other grounds in

the 1960 Rules of Court to declare a party AS IN
default have been eliminated: (1) when a party fails
to appear at the pre-trial; or (2) the party fails to
file a pre-trial brief.

Rule 15, Section 6. Proof of service

necessary. No written motion set for hearing
shall be acted upon by the court without proof of
service thereof.

Now, if the plaintiff does not appear at the pre-trial,

it will be nonsuited and result to a dismissal.
Defendant can present evidence ex parte on his
counterclaim. If the defendant fails to appear at the
pre-trial or submit a pre-trial brief, the plaintiff
can present evidence ex parte. There is no
need to declare them as in default.
To declare a party in default because of failure to file
responsive pleading within the required period, the
other party must file a motion. There is no
declaration in default motu proprio. It must
always be through a litigious/litigated motion
(must comply with 4,5,6 of Rule 15).
There are 2 kinds of motions:
(1) litigated motion and
(2) non-litigated (or oral) motion. Since a motion to
declare a party in default is a litigated motion, it
must comply with section 4 (must be in writing, and
comply with 3-day notice rule), section 5 (10-day
setting rule), and section 6 (copy of pleading must
be served upon the adverse party) of Rule 15.
REQUISITES OF LITIGATED MOTION
Rule 15, Section 4. Hearing of motion.
Except for motions which the court may act upon
without prejudicing the rights of the adverse party,
every written motion shall be set for hearing by
the applicant.
Every written motion required to be heard and the
notice of the hearing thereof shall be served in

Must set for hearing

Must be served

3-day notice rule a copy of the pleading must be

received 3 days before the scheduled hearing (not
must be sent). If the motion day is a Friday, it
must be received not later than Tuesday. Under
computation of time in Rule 22, you must always
exclude the first day and include the last day.
Rule 22, Section 1. How to compute time.
In computing any period of time prescribed or
allowed by these Rules, or by order of the court, or
by any applicable statute, the day of the act or
event from which the designated period of time
begins to run is to be excluded and the date of
performance included. If the last day of the period,
as thus computed, falls on a Saturday a Sunday, or
a legal holiday in the place where the court sits,
the time shall not run until the next working day.
10-day setting rule you have to set the hearing
within a period of 10 days from the filing of a
motion. If there is a conflict between the 2, what
should prevail over which? The 3-day notice rule
must prevail, because the 10-day setting rule is
addressed to the court while the 3- day notice rule
is addressed to the adverse party. The adverse
party must not be prejudiced.
When the party is supposed to file a responsive
pleading within 15 days from receipt of the
summons (ex. defendant receives the summons
with the copy of the complaint) and he fails to file
his answer to the complaint within 15 days from

receipt thereof,
the plaintiff can go to the court
and file a motion to declare the defendant in default.
It is a litigated motion and it must comply with
sections 4, 5 and 6 of Rule 15.
The plaintiff may also be declared in default in a
case where the defendant files a permissive
counterclaim (thus, the plaintiff must file an
answer). What is the effect if a party is declared in
default? He loses his personality before the court.
When he loses his personality before the court, he
can no longer participate in the proceedings.
How can he regain his personality before the court?
There is only one way according to the SC which
was discussed in Banco de Oro vs Tansipek: Even
if you lose your personality before the court because
you have been declared in default, you are still
entitled to notices. You are only deprived of
participation in the trial but you are still entitled to
processes. In this case, the defaulted party filed a
motion for reconsideration. SC held that a motion
for reconsideration is not a valid remedy. There
is one remedy: a motion to set aside the order of
default. This motion is also a litigated motion and
must conform to Sections 4, 5, 6 of Rule 15. When
the motion to set aside the order of default is
granted by the court, then you regain your
personality before the court.
There is only one remedy
available to a party dec in
default, another litigated
motion to set aside the
order of default
If you do not regain your personality in court, what
follows an order of default (if order of default not set
aside)? A judgment by default. While there is only
one remedy against an order of default (which is a
motion to set aside the order of default), there are
several remedies against a judgment by default.
Because it is a judgment, all the remedies against a
judgment may be availed of such as motion for
reconsideration, motion for new trial and appeal.
General rule: An order of default must always
precede a judgment by default. There can be no
judgment by default without order of default.
Exception: Where a judgment by default may be
granted by the court without being preceded by an
order of default: refusal to comply with the modes
of discovery (Rule 29, Section 3(c)). Court may
render judgment by default with prior order of

KUPALOURD RULES 6-9

REM 1 BRONDIAL

(c)An order striking out pleadings or parts thereof, or

staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or
any part thereof, or rendering a judgment by
default against the disobedient party; xxx

10

Rule 29, Section 3. Other

consequences. If any party
or an officer or managing agent
of a party refuses to obey an
order made under section 1 of
this Rule requiring
him
to
answer designated questions,
or an order under Rule 27 to
produce any document or other
thing for inspection, copying, or
photographing or to permit it to
be done, or to permit entry
upon land or other property or
an order made under Rule 28
requiring him to submit to a
physical or mental examination,
the court may make such
orders in regard to the refusal
as are just, and among others
the following: xxx

May a plaintiff be decalred in default? Yes, by failure

to file an Answer to a permissive counterclaim. But
this does not result to dismissal of his
claim/complaint. He loses personality before the court
as to the said counterclaim.

Page

default.

What if plantiff begins to present evidence re: his

complaint which is included in his Answer to which he
was declared in default? Consider this. Papaano mo
masasagot? The answer is on the Rules of Evidence.
That is objectionable. He must be very careful not to
present evidence related to the counterclaim. In
actual practice, its very very difficult.
The point here: anyone who is bound to file a
responsive pleading may be declared in default for
failure to do that within the responsive pleading.
Walang default sa declaration of nullity or annulment
of marriage, legal separation.
A files a case against B for 100K. Summons was
served upon B on January 5. It was already Jan 25
and B has not filed his answer to the complaint yet.
May A file a motion to declare be in default? NO,
because in small claims motion to declare defendant
in default is a prohibited pleading. This is a dishonest
question.

Rule 9, Section 3(b): Relief from order of

default. A party declared in default may at any
time after notice thereof and before judgment file a
motion under oath to set aside the order of default
upon proper showing that his failure to answer was
due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. In
such case, the order of default may be set aside on
such terms and conditions as the judge may impose
in the interest of justice.
A Motion to Lift Order of Default is different from an
ordinary motion in that the Motion should be
verified; and must show fraud, accident, mistake or
excusable neglect, and meritorious defenses. The
allegations of
(1) fraud, accident, mistake or excusable neglect, and
(2) of meritorious defenses must concur.