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 of procedures on the enforcement of a right or redress of a wrong. Substantive Law - these are laws which create, define and provides for rights and duties.

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

Bar Exam Question (2009) Question: Is an action for presumptive death a special proceeding? Answer: Yes. When we talk of special proceedings, it seeks to establish a status, a right or a particular fact. This proceeding establishes the fact of death of the particular person.

Civil procedure is divided into 3: 1. Rule 1-56 (Governing Ordinary Civil Actions)

GENERAL RULE: The rules on Civil Procedure govern judicial proceedings. Except: 1. Suppletory in character in Administrative Proceedings, and only applies to such in the absence of applicable rules in the action. 2. Also suppletory in character with respect to Section 4, Rule 1. (LENCIN Land Registration, Election, Naturalization, Cadastral Proceedings, Insolvency Proceedings and those not herein provided) Bar Exam Question (1986) Question: What is a Civil Action, Criminal Action, and Special Proceeding?

2. Rule 57-61 (Governing the Rules on Provisional Remedies) 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 71 exclusive? Answer: YES.

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

Question: How do we apply the Rules of Court? (its applicability) Answer: Liberally. Refer to Section 6 Rule 1. Atty. Tan Tip: If you cant cite any rules in your answer, you can refer to this.

SOURCES OF CIVIL PROCEDURE

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

Please take note that Special Proceedings and Special Civil Actions are NOT THE SAME. Even if they are both governed by special rules, they are not the same, and they cover different actions.

4. R.A. 7691 Act expanding the jurisdiction of the MTC 5. R.A. 7160 Local Government Code of 1990 (which governs the rules on Katarungang Pambarangay under Sections 399-422) 6. Administrative Rules and Circulars of the Supreme Court 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? Due Process under Article 3 Section 1. Due process affords the right to be heard, right to present evidence, right to be present in all stages of the proceedings, etc. (No person shall be deprived of life, liberty and property without due process of law, nor

shall any person be denied the equal protection of the laws.) 2. As asked in the 2007 Bar Exam: What is Judicial Power as far as Paragraph 1 of Article 8 Section 1 is concerned Judicial Power shall be vested in one supreme court and in such lower courts as may be established by law. The courts established by law are those provided for in B.P. 129. 3. Expanded definition of Judicial Power under the second paragraph of Article 8 Section 1. (Judicial Power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether of not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government). This is the constitutional basis of Rule 65. 4. Article 8 Section 14. (No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis thereof.) Relate this with Rule 36. 5. We also have the original jurisdiction of the Supreme Court as provided for in Article 8 Section 5. Cases affecting ambassadors, public ministers and consuls. Petitions for Certiorari, Prohibition, Mandamus under Rule 65; Quo Warranto under Rule 66; and Habeas Corpus. This is also the constitutional basis of 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 is provided for in Article 8 Section 5, Paragraph 5. 7. Article 6 Section 30. (No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this constitution without its advice and concurrence.) 8. Article 3 Section 9 Provides for the constitutional basis of Rule 67. (Private property shall not be taken for public use without just compensation) 9. Article 9-A Section 7. Decisions of the constitutional commissions shall be reviewable by the Supreme Court by way of petitions for certiorari, within 30 days from notice thereof. This is the constitutional basis of Rule 64. Note: Now, why are these constitutional provisions important? Because if these are not asked in the bar exams under Remedial Law, it may be asked in Constitutional Law, or vice versa. Also, if you cant cite any of the Rules in your answers, you can always go back to their constitutional bases.

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.

I. SUPREME COURT A. Original (provided in the Constitution) (Original means that it can be filed in the court directly on the first instance) 1. Cases affecting ambassadors, public ministers and consuls. (Concurrent with RTC) 2. Petitions for Certiorari, Prohibition, Mandamus under Rule 65; Quo Warranto under Rule 66; Habeas Corpus and Writ of Amparo. (Concurrent with RTC, CA and SB) B. Appellate 1. Review, revise, reverse, modify or affirm on appeal or certiorari. (Rule 45) Note: on questions of law - It is a doubt or issue, regarding the applicability of uncertain provisions of law, or what particular provisions of law apply in a given set of facts. C. Administrative 1. Disciplinary action cases against, judges, lawyers, and employees of the judiciary.

RTC. Also, Annulment of Judgment of RTC under Rule 47 is exclusive original in the CA.)

B. Appellate (under B.P. 129) 1. Review of the decision of the Regional Trial Court in the exercise of its original jurisdiction (Rule 41) 2. Review of the decision of the Regional Trial Court in the exercise of its appellate jurisdiction (Rule 42) 3. Decisions of the quasi-judicial bodies as provided for in Rule 43. (note that this does NOT include NLRC, COA and COMELEC) 4. Decisions of the Office of the Ombudsman in Administrative 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 of Amparo. (Concurrent with CA, SC and SB) B. Exclusive Original 1. All civil actions, subject matter of which is incapable of pecuniary estimation. (It means that there can be no conversion to a monetary consideration. Example, usury, quieting of title (63),expropriation (67) action for support, breach of contract, specific performance, annulment of title, etc)

II. COURT OF APPEALS (MNL, CEB, CDO) A. Original 1. Petitions for Certiorari, Prohibition, Mandamus under Rule 65; Quo Warranto under Rule 66; Habeas Corpus and Writ of Amparo. (Concurrent with RTC, SC and SB) BUT, it is exclusive original, when the subject of the Certiorari, Prohibition and Mandamus is the interlocutory orders of the

2. All civil actions which involve the title to, or possession of real property, or any interest therein, where the assessed value of the property EXCEEDS 20k/outside MM, or 50k/within MM. (Asked in 1996 Bar Exam) 3. Probate proceedings, testate or intestate GROSS VALUE, 300-400, outside-within, exceeding. 4. Claims for sum of money, exclusive of interest, damages of whatever kind, attorneys fees, litigation expense. 300-400, outside-within, exceeding. 5. Admiralty and maritime cases. Amount of claim, 300-400, outside-within, exceeding. 6. Cases falling under PD 902-A, the Securities Regulation Code. (i.e. intra-corporate disputes) 7. Contract of Marriage or Marital Relations. 8. Cases not falling under the jurisdiction of any court or tribunal. 9. Juvenile and Domestic Relations Court. 10.Family Courts. 11.Annulment of Judgment of MTC decided cases (Section 10 Rule 47) C. Appellate 1. Decisions of the MTC in the exercise of its original jurisdiction. (Rule 40)

IV. METROPOLITAN/MUNICIPAL/MUNICIPAL CIRCUIT TRIAL COURTS Please note that actions falling under the jurisdiction of the MTC has 2 natures: Summary and Ordinary.

A. Summary 1. Unlawful Detainer and Forcible Entry (Rule 70) 2. Small Claims claims under 100k 3. Claims, except probate, the amount of which does not exceed 100k outside, 200k within Metro 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 without jurisdiction the case is DISMISSIBLE under Section 1 Rule 16 Paragraph B. It can be dismissed MOTU PROPIO or upon MOTION on this ground. (Without Prejudice, REMEDY is Re-file the Suit)

Question: What are the distinction between Jurisdiction and Venue? Answer:

JURISDICTION
Jurisdiction is conferred by law Jurisdiction is substantive Jurisdiction cannot be waived Jurisdiction establishes the relation between the parties and the court

VENUE
Venue may be conferred by the agreement of the parties Venue is procedural Venue can be waived Venue establishes the relation between the parties Question: How do you commence and action before the court? Answer: By filing the necessary complaint before the Clerk of Court (Office of the Clerk of Court) and pay the corresponding docket fees.

ACTIONS

Question: What if there was no payment of Docket Fees? Answer: This rule: RELAX the rules, ORDER PAYMENT, and then DISMISSAL. Remedy of other party is MTD (Rule 16) Paragraph J (Condition Precedent).

Question: What is an action?

Answer: It is a suit filed before the court to enforce or protect a right. B. As to Jurisdiction/Service of Summons Kinds of action under the rules: A. As to Venue 1. Personal 2. Real 3. Mixed 1. Action in Rem 2. Action in Personam 3. Action Quasi in Rem

In Rem
REAL
Title to or possession of real property, or any interest therein Filed where the property is located or where a portion thereof is located

PERSONAL
Founded on privity of contract Filed at the residence of plaintiff or defendant, at the election of the plaintiff

MIXED
Privity of both Real and Personal properties Either of the two (residence or location)

In Personam
Directed against particular persons Jurisdiction over person of the defending party IS required Personal and Substituted service of summons, (as a general rule, publication is not allowed, except, section 14, rule 14 whereabouts and identity unknown) To impose a responsibility or liability upon a

Quasi In Rem
Directed against particular persons Jurisdiction over the Res is required

Directed against the thing itself Jurisdiction over person of the defending party NOT required Personal, Substituted and Publication

Personal, Substituted and Publication

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

To determine the state or condition of a

To subject the interest of a

thing Binding to the whole world

person Binding to the parties

person to a lien Binding upon particular persons Question: What is the nature of a case for Partition? Answer: For the purpose of Venue, it is a Real Action as it involves real property. For purposes of jurisdiction and service of summons, It is Quasi in Rem because it does not only bind the parties involved, but also constitutes a lien over the property.

Question: What is the nature of a case for Foreclosure of Mortgage? Answer: For the purpose of Venue, it is a Real Action as it involves real property. For purposes of jurisdiction and service of summons, it is Quasi in Rem because it constitutes a lien over the property. Question: In forcible entry and unlawful detainer, what is the nature of the action? Answer: Analyze first the question. Answer as to Jurisdiction, as to Venue and as to its governing rules. The case involves possession of real property, therefore, for the purpose of Venue, it is a Real Action. While for purpose of service of summons and jurisdiction, it is an Action in Personam, because it binds the parties in the action. For the purposes of governing 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 of Venue, it is a Personal Action. For purposes of jurisdiction, it is in Personam because it binds the parties to the action. For purposes of governing rules it can be either ordinary or special summary proceedings (as to Small Claims).

KATARUNGANG PAMBARANGAY

GENERAL RULE: All actions (initiatory) shall be filed first before 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 of his functions 3. Offense punishable by more than 1 year an/or more than 5k 4. No private offending party 5. Real Properties located in different Cities/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 AND parties agree 7. Juridical Entities (Bar Exam Question 1991) 8. Labor Cases 9. Resident abroad Question: Is Barangay Conciliation required in cases of Permissive Counterclaim/Cross-Claim/Third Party Complaint? Answer: General Rule: YES. Except: If it falls under the cases in the exemptions. Whenever not included in the exceptions, compliance is REQUIRED, and it must be duly alleged in the complaint. Remedy for non-compliance: MTD (Section 1 Rule 16 Paragraph J) Note: In summary proceedings, generally, MTD is not allowed. But this ground, together with Lack of Jurisdiction over the Subject Matter, are exemptions. But the exception to the exception are Small Claims cases. In the latter, absolutely no MTD allowed.

Question: A filed a case against B. They already finished Barangay Conciliation. But A died, which was substituted by his heirs C and D. Is the Barangay conciliation requirement complied with respect to C and D? Answer: No.

Bar Exam Question 1991: Probate proceedings, but the oppositor insists that there should be Barangay Conciliation. Answer: No need. When we talk of Probate, we talk of the Estate of the deceased. An Estate is a JURIDICAL PERSON, which is an exemption to the rule on Katarungang Pambarangay. Purpose of Barangay Conciliation: To declog court cases and to maintain the quality of justice from indiscriminate filing of cases. Effect of Barangay Settlement: Same as a Court Decision after the lapse of 10 Days. After 10 days, remedy of parties is to file a Motion for Execution of Agreement (within 6 months from date of settlement). After 6 months, file appropriate action before the trial court. Within 10 days, you can still contest the validity of the settlement by filing a sworn statement before the Lupon Chair, with the grounds of vitiation of consent, force, or intimidation.

PREPARATION OF THE PLEADING

Bar Exam Question (1991): What is a Pleading? Answer: It is a sworn written statement of the parties respective claims and defenses.

Question: Is a Motion a Pleading? Answer: No. According to Section 1 Rule 15, a Motion is an application for relief other than by a pleading.

Kinds of Pleading under the rules:

1. Initiatory - are pleadings which are filed in the first instance before the court and commences an action or a 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 the pleading of the adverse party. a. Answer b. Compulsory Counterclaim

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

c. Reply

5. Answer with Permissive/Cross-Claim Counterclaims

Question: So what is the importance in knowing whether it is a initiatory or responsive pleading? Answer: Because initiatory pleadings are verified, and contain a certificate of non-forum shopping. Question: What is an Answer? Answer: It is a responsive pleading which contains the partys defenses.

Note: So If an answer to a written interrogatory was not verified, the allegations therein are deemed admitted, then it need 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 and Compulsory Counterclaims? Answer:

Permissive
Initiatory Pleading Requires Certification of Non-Forum Shopping Requires payment of docket fees Question: Are there responsive pleadings that also need to be verified? Answer: Yes. These include: 1. Answer to an Actionable Document (Section 8 Rule 8) 2. Answer based on Usury 3. Answers in Summary Proceedings 4. Answer to Written Interrogatories Must be answered, otherwise, party may be declared in default Not raised Not barred

Compulsory
Responsive Pleading Does NOT require Certification of Non Forum Shopping Does not require payment of docket fees Need note be answered. No default Not raised Barred

Question: What is a cross-claim? Answer: It is a any claim by a party against a co-party arising out of the transaction of occurrence that is the subject matter of either of the original action or of a counterclaim.

The one who files has an interest in the subject matter in litigation

The one who files does not have interest in the property, or his interest is uncontested

Question: What are the requirements for Intervention under Rule 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 or other disposition of the property in custody of the court. Note: An intervention may either be a Complaint in Intervention, or an Answer in Intervention.

In the preparation of the Pleading, we always have to take note of Jurisdiction. Because if the case was filed in the court who does not have Jurisdiction it is Dismissible MOTU PROPIO. (There is Motu Propio dismissal in cases of Litis Pendencia, Res Judicata, Prescription, Jurisdiction over the Subject Matter). Refer to Section 1 Rule 9.

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

Lack of Jurisdiction over the Subject Matter can also be dismissed on Motion. MTD under Section 1 Rule 16 Paragraph B

Intervention (19)
Ancillary Action Needs a motion for leave of court to file the action

Interpleader(62 )
Separate Action Does not need a Motion for Leave as it is a separate action

Question: Can the court dismiss a case Motu Propio based on improperly laid Venue? Answer: General Rule: NO Except: In summary proceedings

Question: What is a Cause of Action? Right of Action? Answer: Cause of Action is the act or omission by which a party violates the rights of another. Right of Action is the right of a person to commence an action, to seek relief due to a cause of action.

Question: What is the remedy for improperly laid venue? Answer: MTD Section 1 Rule 16 Paragraph C

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 actions governed by special rules 3. Rule on Venue and Jurisdiction 4. Aggregate Value (Totality Rule)

Question: What is the remedy for Splitting of Cause of Action under Section 4 Rule 2? Answer: MTD Section 1 Rule 16 Paragraph E or F

CAUSE OF ACTION

Note: 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 matter and 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 of action? Answer: Amendment under Rule 10. Amend as a matter of right before the answer is served.

Question: What is the remedy for Mis-joinder of causes of action? Answer: Motion to Severe (Section 2 Rule 31) Note: Mis-joinder is not a ground for dismissal (Section 6 Rule 2)

PARTIES

Question: Who is a real party in interest? Answer: It is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. (Section 2 Rule 3)

Answer: Representatives shall substitute if the action survives the death of the party. What are these actions? 1. Contractual money claims (section 20 Rule 3) 2. Foreclosure of mortgage

Question: Who is an indispensable party? Answer: It is a party without whom no final determination can be had in the action. (Section 7 Rule 3)

3. Quieting of Title (Rule 63) 4. Etc.

Question: Who are representative parties? Answer: Party bringing the action in behalf of a principal.

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

Question: What are the requirements for a class suit? Answer: 1. Common or general interest 2. Many persons so numerous that it is impracticable to join them all as parties 3. A number of them sufficiently numerous and representative 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.

d. Date 3. Signature and Address 4. Verification

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

5. Certification of non-forum shopping

Question: What are the pleadings that need to be verified Answer: Initiatory pleadings (and the exceptions in responsive pleadings)

Question: Can there be Motu Propio dismissal in case of lack of certification of non-forum shopping? Answer: General Rule: None. Except: Summary Proceedings.

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 Jurat a part of the pleading? Question: Is the lack of verification in a pleading that requires such, a jurisdictional defect? Answer: No. Answer: General Rule: No. Except: If the pleading is verified, or with a certification of non-forum shopping, then it becomes a part of the pleading.

Question: What is Forum Shopping? Answer: There are two: 1. Act of Forum Shopping The filing of multiple suits in different courts, simultaneously or successively, involving the same parties, to ask the courts to rule on the same/related causes and/or to grant the same or substantially the same relief. 2. Lack of Certification of Non-Forum Shopping

Question: Is Bill of Particulars a part of the pleading? Answer: Yes.(Section 6 Rule 12)

Question : Is the above list exclusive? Answer: No. Additional examples of provisional remedies would be: 1. Temporary Custody of Children 2. Temporary Visitation Rights 3. In Writ of Amparo 4. In Writ of Habeas Data

PROVISIONAL REMEDIES
Why discuss Provisional Remedies this early? Because the rules provide that they can be availed of at the commencement of the action. So you can incorporate these provisional remedies in the complaint.

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. Question: What are the provisional remedies under the rules? Answer: Rule 57: Preliminary Attachment Rule 58: Preliminary Injunction Rule 59: Receivership Rule 60: Replevin Rule 61: Support Pendente Lite

Note: What can be attached are both personal and real property. When it involves real property, there is annotation at the back of the title.

2. Action for money or property embezzled or fraudulently misapplied or converted to his own use by a: a. Public officer Question: How do we distinguish Attachment (Rule 57) from Replevin (Rule 60)? Answer: b. Officer of a corporation c. Attorney d. Factor

ATTACHMENT (57)
Filed at the commencement/before judgment Involves real or personal property For the security of the payment of the obligation Bond executed to the adverse party in the amount fixed by the court

REPLEVIN (60)
Filed at the commencement/before service of answer Involves only personal property To temporarily recover unlawfully withheld personal property Bond executed to the adverse party in the amount double the value of the property

e. Broker f. Agent g. Clerk In the course of his employment as such, or by any other person acting in a fiduciary capacity, or in willful violation of a duty 3. Action for recovery of possession of property unjustly or fraudulently taken, detained or converted, when the property 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 fraud in 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 to defraud his creditors 6. Action against a person who does not reside, or not found in the Philippines , or on whom summons may be served by publication

Grounds: (Section 1 Rule 57) 1. Action for recovery of a specified amount of money or damages EXCEPT moral or exemplary, against a party who is about to depart from the Philippines with intent to defraud his creditors

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

2. Affidavit stating the grounds for attachment under Section 1 (if no affidavit, Denied) 3. Bond (if no bond, Denied)

Ground: improperly or irregularly issues, bond is insufficient If attachment is excessive: discharge shall be limited to the excess

Stages: 1. Application (Can be Ex Parte) 2. Issuance (Can be Ex Parte) 3. Execution (Court must acquire jurisdiction over the defending party through Service of Summons) Note: So if the question is, can there be Ex Parte issuance of a Writ of Attachment? The answer is Yes. But can there be an Ex Parte execution of a Writ of Attachment? The answer is no. The purpose of attachment being Quasi in Rem, it constitutes a lien over the property of the person, defending party.

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

Remedy Flow:

Question: What courts can issue Writ of Attachment? Answer: MTC, RTC, CA, and SC.

Question: So what is the remedy of the person whose property 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

Answer: It is a is a provisional remedy which seeks to prohibit 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) Question: What is the remedy if a third party has a claim over the property attached? Answer: Terceria

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

Speaking of MRs, lets distinguish Rules 37 from 52:

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

Rule 37
Applicable to Trial Courts Grounds: FAME which ordinary prudence could not have guarded against by reason of which, the party was impaired of his rights, and newly discovered evidence

Rule 52
Applicable to Appellate Courts No grounds stated in 52: They have the same grounds

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: What is preliminary injunction?

Question: Can there be an ex parte TRO?

Answer: Yes, not exceeding 20 days from service to the party enjoined, or not exceeding 72 hours from issuance of order (no service). (Application must show that there is great irreparable injury that would result)

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

Grounds: 1. That the applicant is entitled to the relief demanded, and the relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of acts. 2. Commission, continuance, or non performance of the act 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 the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

General Rule: As a rule, a criminal action cannot be enjoined by injunction. Except: 1. To protect constitutional rights of the accused 2. If the prosecution of the action is more of persecution rather 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 against each other.

Question: What is irreparable injury? Answer: Injury that cannot be remedied by monetary damages.

Question: What is the purpose of the Bond? Answer: It is for the purpose of the damages that may be incurred because of the issuance of the injunction

Question: What is the Doctrine of Fait Accompli? Answer: These are act performed NOT subject of injunction.

Question: What is a status quo order

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

Injunction (58)
It is a provisional remedy (ancillary action) Requires a bond from the applicant

Prohibition (65)
It is a special civil action (independent action) No bond necessary

4. When the appointment of a receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation. Note: In case of appeal, the receivership may be applied for in the court of origin.

Question: What is Replevin? 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, the Philippine banking laws would apply. Grounds: 1. The party applying has an interest in the property or fund which is the subject of the action or proceedings, and such is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it. 2. In an action brought by a mortgagee for foreclosure, that the property is in danger of being wasted or dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage 3. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to judgment, or to aid in the execution of the judgment Application for Replevin requires a verified complaint/motion, filed at the commencement or before service of the answer, there must be a double-bond. Filed with the MTC or RTC depending on value (300-400) Answer: It is a remedy aimed to temporarily recover unlawfully withheld personal property. Note: Replevin can be an original action or a provisional remedy

Remedies: Motion to Discharge with a counter-bond, also double the amount of the property. If bond is insufficient, you can file a Motion to Quash the Writ of Replevin.

Question: Where is Support Pendente Lite filed? Answer: RTC, because the main action for support is incapable of pecuniary estimation, hence the ancillary remedy of Support Pendente Lite can only be filed with the RTC.

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

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 involves personal(residence) or real(location).

If the person order to be supported is not entitled to support, there may be a reparation or restitution in favor of the other party. (Section 7 Rule 61).

Question: Who has jurisdiction over actions under Rule 63? (declaratory relief and similar remedies) Answer: Generally RTC because these are incapable of pecuniary estimation.

SPECIAL CIVIL ACTIONS

Question: What are special civil actions? Answer: Suit filed in court for the enforcement or protection of a right, or redresses a wrong, but they are governed by special rules. Note: These are ALL initiatory. They also must comply with the rules on Pleadings (as in ordinary civil actions). Rules on ordinary actions are suppletory in character.

Except: Quieting of Title (real: 20-50) Note: If the grounds for declaratory relief is not one of those mentioned in rule 62 section 1, there can be no declaratory relief. (Deed, will contract or other instrument, statute, executive order, regulation, ordinance, government regulation BEFORE their breach if AFTER it is converted to an ordinary civil action)

Requirements: 1. Verified Petition 2. No actual breach

Question: What is an Interpleader? Answer: It is a special civil action wherein the person in possession of the property has no legal interest, or his interest is not contested, may file a verified petition before the court, for the parties claiming ownership to interplead with one another. Question: Where is the venue? Answer: Residence, except for Quieting of Title.

Question: What is the distinction between Rule 64 and Rule 65?

Answer: Mandamus When any TRIBUNAL, CORPORATION, BOARD, OFFICER or PERSON unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station, or unlawfully excludes another 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 to be done to protect the rights of the petitioner, and pay damages sustained.

Rule 64
Filed in SC from COA and COMELEC Filed within 30 days from notice of judgment As a rule: MR is not required

Rule 65
Filed with either SC, CA, RTC, SB Filed within 60 days from notice of judgment or denial of MR As a rule, MR is required

Three (3) instances where 65 is used: 1. Section 1 Rule 41 (RIACE-CP)

CERTIORARI, PROHIBITION ,AND MANDAMUS

a. Order denying a petition for relief or any other similar 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 by confession, consent or compromise on the ground of vitiation of consent e. Order of execution

Certiorari When a TRIBUNAL, BOARD, or OFFICER exercising judicial or quasi judicial functions has acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction AND there is no appeal nor any plain, adequate and speedy remedy in the ordinary course of law. To annul or modify the proceedings of said TRIBUNAL, BOARD, or OFFICER.

Prohibition When the proceedings of any TRIBUNAL, CORPORATION, BOARD, OFFICER or PERSON exercising judicial, quasi judicial, or ministerial functions are without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction AND there is no appeal nor any plain, adequate and speedy remedy in the ordinary course of law. To command the respondent to desist from further proceeding in the action or matter specified therein.

f. Order against separate claims (third party complaint, cross claims, counter-claims, ) where the main case is still pending, unless appeal is allowed by the court g. Order dismissing an action without prejudice 2. Grave abuse of discretion amounting to lack or excess of jurisdiction 3. No appeal, or any plain, adequate and speedy remedy

order Question: What is the Material Dates Rule? Answer: The date of notice of judgment or resolution is required to be alleged in the petition, also the date of filing of MR, and the date of the order denying MR or MNT. Raises questions of law Filed within 15 days from notice Does not require a prior MR Stays the judgment appealed from Parties are the same Remedy for Adverse Judgment Appeal (because certiorari is original jurisdiction), except when by the supreme court, then the only remaining remedy is MR under 52. Raises questions of jurisdiction Filed within 60 days from notice Generally requires a prior MR Generally does not stay the judgment or order Those impleaded are the ones who issued the order subject of the petition Filed with either SC, CA, SB and RTC

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

Filed with the SC

Note: Include NLRC in 65. Certiorari is the remedy

Note: 65 and 45 are MUTUALLY EXCLUSIVE

Section 4 Rule 65 NO extension of time to file petition Question: What is Quo Warranto? Answer: An action brought in the name of the republic of the Philippines, for the usurpation of a public office, position, franchise. Note: This action is brought against any of the following:

Question: What is the distinction between 65 and 45? Answer:

Rule 45
It is a mode of appeal Seeks to review final judgment or orders

Rule 65
It is a special civil action (separate) May be directed to a final judgment or an interlocutory

1. Person who usurps, intrudes, into or unlawfully holds or exercises a public office, position or franchise. 2. A public officer who does or suffers an act which, by provisions of law, constitutes a ground for the forfeiture of his office

3. An association which acts as a corporation within the Philippines without it being legally incorporated or without authority so to act.

If exercised by the LGU, there must be an ordinance to that effect, and not merely a resolution. In case of adverse decision APPEAL by RECORD on 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 property is concerned

Question: Who commences the action and when is it commenced? Answer: The solicitor general or the public prosecutor (upon directions of the president of the Philippines) or when a complaint is filed by a person or upon permission of the court) must be commenced within 1 year from cause of such ouster.

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

Question: Where is the venue of the action? Answer: It can be brought only with the Supreme Court, RTC or CA exercising jurisdiction over the territorial area. But if it is the Solicitor General, it shall be brought before the RTC of Manila, CA or SC. Question: Distinguish Expropriation(67) from Escheat(91) proceedings?

Question: What is Expropriation? Answer: It is the right of eminent domain exercised by the state or the local government units. (constitutional basis is Sec 9 Art III)

Expropriation (67)
Special Civil Action Acquiring private property from private entities, for public use RTC

Escheat (91)
Special Proceedings For the purpose of reverting in favor of the state, properties of a deceased when there are no heirs MTC or RTC Commenced by Solicitor General No compensation

Notes: Filed with the RTC because it is incapable of pecuniary estimation. It is a REAL action therefore the VENUE is where the property is located.

Commenced by the Solicitor General or Public Corporations With just compensation

Foreclosure Proceedings

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

Notes: Jurisdiction depends on the value (20-50) Venue depends on LOCATION (real action) It is an action Quasi in Rem, hence summons can be 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 of ownership) In relation to Rule 59 Receivership Question: What is the distinction of the Right of Redemption from the Equity of Redemption? Answer: Partition

Notes: It is a real action or personal action depending on the 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

Right of Redemption
1 year from the registration of the property

Equity of Redemption
90 to 120 days or even before the confirmation of the sale

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 of any land or building by force, intimidation, stealth, threats or strategy. (FISTS)

Unlawful detainer A lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold the possession , by virtue of contract, express or implied. (expiration of contract, breach of contract or tolerance)

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

The Execution pending appeal can be subject to an action on 65. As it is merely interlocutory.

Notes: It is a real action (Venue Location) It is an action in Personam (Summons Personal or Substituted) 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 to vacate (jurisdictional requirement and CONDITION PRECEDENT) one year from last demand It is a summary proceeding (can be dismissed Motu Propio if lack of condition precedent)

A possessor deprived of his possession through forcible entry or unlawful detainer may, within 5 days from filing of complaint, present a verified motion for the issuance of a writ of preliminary mandatory (or prohibitory) injunction to restore him in possession. Section 15 Rule 70.

Question: Can the issue of ownership be resolved? Answer: Section 16 Rule 70, General Rule: No. Except to resolve only to determine the issue of possession. It is not conclusive. (up to extent of disposition only)

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

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 rent due (after transmission of records, the defending party

If there are structures: must secure first a Writ of Demolition.

Contempt (Rule 71)

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

before the same, including disrespect towards the court, offensive personalities towards others, refusal to be sworn is as a witness, or to subscribe an affidavit or deposition when lawfully required to do so. (Motu Propio or motion) Remedy: Prohibition or Certiorari

Forum shopping Subpoena Modes of Discoveries

Remedy: Appeal plus bond 15 days

Civil Contempt is the failure to do something ordered to be done by a court or a judge, for the benefit of the opposing party therein. (remedial or compensatory in nature in favor of the other party) no penalty Indirect Contempt any of the following acts: (upon written complaint) 1. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions 2. Disobedience or resistance to a lawful writ, order or judgment. Including re-entry to a property after being ejected or dispossessed. 3. Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt 4. Any improper conduct tending directly or indirectly to impede, 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 or property in the custody of an officer by virtue of an order or process of a court held by him Additional:

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

REMEDY BEFORE FILING (Adverse Claim Real Properties)

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

Exempted from docket fees, other lawful fees and transfer of stenographic notes.

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

Remedy Flow:

NOTICE OF LIS PENDENS

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

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

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

What it includes: Failure to pay docket fees: remedy of other party MTD (J) 1. Name of the parties 2. Object of the action RELAX ORDER PAYMENT DISMISSAL (w/o prejudice) 3. Description of the property

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

Grounds for cancellation: 1. Notice is only for the purpose of molesting the adverse party

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

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

Remedy Flow:

IN PERSONAM ACTION: Personal Refusal Tender Substituted Residence with person of suitable age/office with person in charge Publication General rule: NO, except Section 14 Rule 14 any action identity or whereabouts are unknown. With leave of court.

Tender giving of the copy

Remedy for No Summons: MTD (a) Lack of jurisdiction over the defending party. Grant, amend or deny. If grant, without prejudice re-file. Denied answer proceed with trial appeal adverse judgment, but if with grave abuse, 65. (just refer to remedy flows in case of MTD)

SUMMONS
Kinds of Summons: 1. Original writ issues by the clerk of court in the name of the Republic of the Philippines, informing the party that a case has been filed against him, and requiring him to file a responsive pleading within the reglementary period.

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 Rem on only) With leave of court By personal service or by publication

Copy of the summons and order of the court shall be sent by registered mail to his last known address OR IN ANY OTHER MANNER THE COURT MAY DEEM SUFFICIENT. (so, we can serve it through fax) Defendant must answer (specify reasonable time) but not less than within 60 days after notice

6. In house counsel

Relate to Rule 10 (amendment): Substantial No appearance with summons Substantial With appearance no summons required

Question: Can the court acquire jurisdiction without summons? Answer: Yes. Voluntary appearance.

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

If served to a Corporation: 1. President 2. Managing partner 3. General manager 4. Corporate secretary 5. Treasurer What are the remedies available AFTER service of summons? 1. Motion to Dismiss (16)

REMEDIES AFTER SERVICE OF SUMMONS

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)

prejudice Denied Answer Note: No 33 in Summary.

the merits) Denied Present Evidence

Notes: Motu Propio Dismissal:

Motion to Dismiss (Rule 16)

1. Res Judicata 2. Prescription

Question: When is MTD NOT allowed? Answer: 1. Not allowed in Special Proceedings (except jurisdiction and barangay) 2. Small Claims cases (in all grounds)

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 abandoned extinguished 5. Unenforceable due to statute of frauds

Question: What are the distinctions between 33 and 16? Answer:

Motion to Dismiss
10 grounds (Section 1 Rule 16) Within the time before filing answer Granting is with or without

Demurrer to Evidence
Ground: Insufficiency of evidence After Plaintiff has rested Granting is with prejudice (on

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

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

Even if there is a MTD, you can still amend as a matter of right because a MTD is not a responsive pleading Even if there is an order granting the MTD you can still amend as long as it is not yet final and executory

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 Question: What is a Bill of Particulars Answer: Filed before the responsive pleading, when there is ambiguity in the allegations of the pleading to be responded to. Applicable to all pleadings except in Summary Proceedings. Question: What is the effect of an amendment to a pleading? Answer: It supersedes the previous pleading

Note: MTD is an omnibus motion it needs to include all objections then available or else, deemed waived (Section 8 Rule 15) Except: (they are not waived) 1. Res Judicata 2. Prescription 3. Jurisdiction over the Subject Matter 4. Litis Pendencia

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

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

In case of denial answer within time remaining, but not less than 5 days in any event.

Note: in relation to rule 10 (amendments)

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

Based on terms as may be just (reasonable grounds) Prohibited under Summary Proceedings

4. As a matter of discretion after the service of the pleading. (Denial is merely interlocutory remedy is certiorari 65) 5. Amendment to confer jurisdiction generally not allowed, except before responsive pleading (Bar Exam 2005) 6. Amendment to conform to evidence when issues not raised in the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings upon motion of any party even after judgment , but failure 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 join parties and cause of action

Summary Judgment (Rule 35) Except as to the amount of damages, there is NO GENUINE ISSUE as to any material fact and that the moving party is entitled to a judgment as a matter of 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 the time specified for the hearing. Adverse party may serve opposing affidavits, depositions or admissions at least 3 days before the hearing

Effect of amendment: supersedes the original, but the allegations in the original pleadings are deemed an extrajudicial admission. Amendments (Rule 10) Effect on default (Rule 9): It needs to be lifted first as the default is ancillary to the original pleading. Kinds: 1. Substantial new allegations, cause of actions or parties. 2. Formal clerical or typographical errors 3. As a matter of right before the service of a responsive pleading (Ministerial duty of the court remedy in case of denial is mandamus 65) In relation to Provisional Remedies: Amendment will lift the provisional remedies as the provisional remedies are ancillary to the original pleading.

Modes of Discoveries (Rules 23-29) Fishing for information whether within the knowledge of adverse parties

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.

4. Per on authorized to administer oaths (upon agreement) Use of Depositions (Section 4 Rule 23) + May be used against a party who was present or represented at the taking of the deposition or who had due notice thereof: 1. For the purpose of contradicting or impeaching the testimony of a deponent as witness 2. Deposition of a party who is an officer, director or managing 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, may be used by any party if the court finds that: a. Witness is dead b. Witness resides more than 100km away, or out of the country, unless his absence is procured by the party offering the deposition c. Unable to attend due to age, sickness, infirmity or imprisonment. d. Unable to procure the attendance of the witness through subpoena. 4. If only a part of the deposition is offered, the adverse party may require him to introduce all of it

Question: Who takes Depositions? Answer: Within the Philippines: 1. Judge 2. Notary Public 3. Person authorized to administer oaths (upon agreement) 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

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

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

2. Cross Interrogatories 3. Re-direct Interrogatories 4. Re-cross Interrogatories

Motion to Terminate or Limit Examination upon motion or petition and upon showing that the examination is being conducted in bad faith or in such a manner as unreasonable to annoy, embarrass, or oppress the deponent. (Section 18 Rule 23)

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

Effects of Errors and Irregularities: (Section 29 Rule 23) 1. As to notice waived unless written objection is promptly served 2. As to disqualification waived unless objected before taking of deposition or soon after the disqualification is known 3. As to competency or relevancy of evidence NOT waived, unless the ground is one which might have been obviated if presented at that time

Deposition before action or pending appeal made to perpetuate the testimony of the deponent made through a verified 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 and sworn to by the person making it File and serve answer within 15 days after service thereof, unless extended by the court Objection presented to the court within 10 days from service thereof answers shall be differed until objections are resolved No party without leave of court can serve more than one interrogatory at a time to the same party If not answered/not verified deemed admitted no issue judgment on the pleadings (Rule 34)

4. As to oral examination and other particulars waived unless reasonable objection 5. As to form of the written interrogatories waived unless objection is served within the time to file succeeding cross or other interrogatories / within 3 days after service of last interrogatory 6. As to manner of preparation waived unless a motion to suppress the deposition is reasonably made

In written interrogatories: 1. Direct Interrogatories

Admission by adverse parties After issues have been joined File and serve upon any party a written request for the admission by the latter Regarding the genuineness of any material and relevant document or admission of the truth of any material or relevant matter of fact set forth in the request. Implied admission if not answered within time specified, no case less than 15 days. admission is only for the purpose of the pending action Withdrawal of admission is allowed (express or implied admission) upon such terms as may be just Failure to file and serve party will not be permitted to present evidence on such facts -

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 the designated land or other property

Mental and Physical examination of persons Production or inspection of documents or things Upon motion showing good cause To produce, permit inspection, copying or photographing of any: a. Designated document b. Papers c. Books d. Accounts e. Letters f. Photographs g. Objects 1. Notice of dismissal Before answer By plaintiff Without prejudice re-file if dismissed again, 2 dismissal rule (with prejudice) appeal When the mental or physical condition of the party is in controversy. (annulment/guardianship/etc)

Dismissal of Actions under Rule 17

2. Motion of dismissal

After answer By plaintiff Without prejudice /also without prejudice as to the counterclaims. if dismissed again, 2 dismissal rule (with prejudice) appeal

3. Written motion of the other party to declare defendant in default 4. Sec 4, 5 and 6 of Rule 15 (set for a hearing-not later than 10 days from filing of motion, notice of hearingensure receipt by other party at least 3 days before date of hearing, proof of service)

3. Dismissal due to fault of the plaintiff a. Fails to appear on date of presentation of his evidence IN CHIEF b. Fails to prosecute his action for an unreasonable length of time c. Fails to comply with these rules or any orders of the court Upon motion or Motu Propio Generally WITH prejudice unless declared otherwise by the court (if without prejudice refile, if with prejudice, MR then appeal)

Question: Can there be an oral motion to declare defending party in default? Answer: None. It must always be a written motion.

Question: What are the cases where an order of default may be had? Answer: Complaint Permissive counterclaim Permissive counter-counterclaim Cross-claim Third party complaint (4th) Complaint in intervention Written interrogatories

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 reglementary period

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

Effect on the party declared in default: 1. Loses standing in the trial

2. Entitled to subsequent notices 3. Entitled to copy of order/decision 4. Entitled to service of substantially amended pleadings

Speaking of FAME, Question: What are the instances where there is FAME? Answer: 9 (Default) 38 (Relief from Judgment) 37 (MNT) 47 (Annulment of Judgment)

Question: Is there an order of default in cases in the MTC? Answer: Yes, for ordinary actions. But not in Summary proceedings.

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) Another remedy apart from Motion to lift order of default is: Motion to admit answer (plus the answer) before the judgment by default if you want to question the order of default

Remedy Flow:

Question: What is a judgment by default? Answer: It is a judgment rendered by a court based on an order by default and by the ex parte presentation of evidence of the plaintiff. Remedies: 1. MR (37) 2. MNT (37)

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

3. Lift order of Default 4. Set aside judgment by default

Remedy Flow (from MTC): If denied MR 37 in relation to 4/65, denied, RTC 65 because appeal is not the adequate and speedy remedy, filed with an application for TRO/Injunction to stay judgment, denied, 41 to the CA, denied, MR 52, denied, Supreme Court 45, denied, MR 52.

Question: What is an Answer? Answer: An answer is a responsive pleading stating the defenses 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 the Pleadings.

Affirmative Defenses: Can be an affirmative defense grounds under Rule 16, plus bankruptcy, payment, etc.

Question: Are there responsive pleadings that also need to be verified? Answer: Yes. These include: 1. Answer to an Actionable Document (Section 8 Rule 8) 2. Answer based on Usury

ANSWER

3. Answers in Summary Proceedings 4. Answer to Written Interrogatories 5. Answer with Permissive/Cross-Claim Counterclaims

Note: if not a party to the actionable document, not needed to be under oath. Period to file responsive pleadings? 10 Summary, (also reply) 15 Ordinary 30 Corporation/Juridical Entities 60 Publication

counterclaim Answer fails to tender an issue or the answer admits the material allegations on the complaint 3 days notice required On the merits Available in any action except (nullity of marriage, annulment of marriage, legal separation) No genuine issue (only the issue on amount of damages)

10 day notice required May be interlocutory or on the merits Available only for recovery of debt, sum of money, or declaratory relief

JUDGMENT ON THE PLEADINGS

Difference of Judgment on the Pleadings from Summary Judgment:

REPLY
Question: What is Reply? Answer: it is a responsive 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. Note: Failure to file, all the new matters are deemed controverted. Note: Need not be under oath, except (actionable document ) Another note: take note of Rejoinder.

JUDGMENT ON THE PLEADINGS

Based solely on the pleadings Generally available only to the plaintiff unless the defendant has a

SUMMARY JUDGMENT
Based on pleadings, deposition, admissions, and affidavits Available to both plaintiff and defendant

18

118
After arraignment No brief Failure to appear of prosecutor or counsel, sanctions and penalties Pre-trial order signed by accused and counsel

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

After last pleading With brief Plaintiff failure to appear Dismissal (if without prejudice , re-file) (if with prejudice, appeal) Pre-Trial order need not be signed

SCENARIO
There is an order allowing ex parte reception of evidence There is an order allowing ex parte reception of evidence and evidence was already presented There is already a judgment - not yet final and executor Final and Executory

REMEDY/IES
Motion for Reconsideration

Motion to set aside presentation of evidence ex parte MR, MNT. Appeal

TRIAL
Must be co-related with Rule 132. Note: Rule 30 not applicable to SUMMARY proceedings.

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

Trial Judicial proceedings for the investigation or determination of issues which start from the plaintiffs evidence in chief and ends with his closing arguments

Question: What is evidence in chief? Question: What is the effect if plaintiff failed to appear? Answer: Dismissal with Prejudice.(if without, re-file) (if with, appeal) Answer: Primary evidence of the plaintiff in support of his cause/s of action.

Please take note of order of proceedings under Rule 132

In trial, present the pieces of evidence: Document Object Testimonial

DEMURRER TO EVIDENCE
Demurrer to Evidence it is a remedy in the nature of a motion to dismiss by way of demurrer to evidence, made after the plaintiff has rested his case, where the defendant moves to dismiss the case on the ground that upon the facts and the law, the plaintiff has shown no right to relief.

Note: Must be formally offered, otherwise, no value

Note: Not applicable to Summary Proceedings

INTERVENTION
Question: What are the requirements for Intervention under Rule 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 or other disposition of the property in custody of the court. Note: An intervention may either be a Complaint in Intervention, or an Answer in Intervention.

3. Judgment upon Compromise judgment rendered on the basis of a compromise agreements entered into between the parties. 4. Judgment upon a confession judgment rendered by the court when a party expressly agrees to the other partys claim, and acknowledged its validity. 5. Special Judgment other than payment or delivery of property

Question: When is the Entry of Judgment? Answer: at the time it became final and executory.

JUDGMENT
Question: What is a Judgment? Answer: it is the final ruling by a court of competent jurisdiction, determining the respective rights of the parties.

Doctrine of Law of the Case whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts on which such decision was predicated.

Kinds of Judgments: 1. Sin Perjuicio brief judgment containing only the dispositive portion without prejudice to the making of a more extensive discussion. 2. Nunc Pro Tunc A judgment intended to be entered into the records, acts that have already been done, but which do not yet appear on the record

Doctrine of Conclusiveness of Judgment a judgment that has already attained finality can no longer be disturbed. (also referred to as preclusion of issues or collateral estoppel Exceptions: 1. Nunc Pro Tunc 2. Correction of Clerical Errors

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 matter and 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 before finality of judgment. Based on equity.

MNT

MR

MRO

For the purpose of setting aside the judgment Filed within the period of perfecting an appeal Judgment is vacated and there will be a Trial de Novo Grounds: FAME which ordinary prudence could not have guarded against other party was impaired of his rights, and, newly discovered evidence

For the purpose of setting aside the judgment Filed within period of perfecting an appeal Judgment is vacated and reconsidered Grounds: damages awarded are excessive, evidence is insufficient, decision is contrary to law

For the purpose of additional evidence Filed before finality of judgment

Presentation of evidence

Grounds: Additional Evidence

Note: Not applicable to Summary proceedings.

APPEALS

40
MTC RTC

41
RTC CA (origina l) 15/30 days (record or notice) Facts /Law

42

43

45
RTC/CA/CTA/ SB to SC

65
To RTC/CA / SB/SC 60 days

RTC QJB CA CA (appellat e) 15 days 15 days

15/30 days (recor d or notice ) Facts /Law

15 days

Facts /Law

Facts /Law

Facts/Law

Jurisdicti on

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

REMEDIES AFTER FINALITY

Remedies: 1. Relief (38)

2. Annulment (47) 3. Certiorari (65) 4. Collateral Attack

38
Filed with the court that rendered judgment Grounds: a judgment is entered through FAME, or, FAME has prevented party from taking an appeal Within 60 days after petitioner learns of judgment AND not more than 6 months after judgment is entered Remedy is 65

47
Filed with the higher court

65
Filed with the higher court

EXECUTION
As a matter of right within 5 years from expiration of period to appeal by motion ministerial applied with the court of origin Exceptions: 1. When already executed by voluntary compliance by parties 2. When judgment has been novated (i.e. by compromise) 3. When there is an injunction 4. When judgment is conditional 5. If it is inequitable/unjust due to transpired facts or occurrences 6. After 5 years 7. Property is exempt from execution 8. For the higher interest of justice

Grounds: Lack of Jurisdiction and extrinsic fraud/collateral fraud

Grounds: Error of Jurisdiction

Within 4 years Within 60 days from discovery of from receipt of fraud. Before being notice barred by laches or estoppel (for jurisdiction)

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 is already final and executory. Cannot be used against interlocutory orders in small claims.

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

Question: What is the Remedy of Terceria? Answer: A claim made by a third person not a party to the action, whose property has been subject of execution. File an affidavit with the Sherriff stating his claims.

Question: What is the last remedy? Answer: Motion for examination of defending party (Section 37, Rule 39) When the return of a writ of execution against the property of judgment obligor shows that the judgment remains unsatisfied.

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

As a General Rule: Execution is STAYED by appeal. Except: 1. Expressly provided by law which are immediately executory (IRAS) a. Injunction b. Receivership c. Accounting d. Support 2. Discretionary execution