Post on 02-Jun-2018
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Remedial Law Review Lecture and Recitation Notes
Glenn Tuazon, 4-A
Atty. Tranquil Salvador
SY 2010-11
Table of contents
1. CIVIL PROCEDURE
2. CRIMINAL PROCEDURE
3. EVIDENCE
4. SPECIAL PROCEEDINGS
PART I: CIVIL PROCEDURE
Jurisdiction
Stuff to take note of in jurisdiction:
What is the definition of jurisdiction?
Jurisdiction over the case or the subject matter? (Subject matter
jurisdiction)
Jurisdiction over the person or the defendant?
Know the rules on filing fees.
N.B. vis--vis for criminal cases:
Definitionthe same, as conferred by law, except you have to add thatvenue is jurisdictional. Territory is intertwined with jurisdiction, unlike in
civil cases, where parties can agree on venue or it can be subject to
waiver.
Jurisdiction over the offense. This is essentially the same as
jurisdiction over subject matter.
Jurisdiction over the person. This is jurisdiction over the person of
the accused.
Filing fees are not necessary.
What is the definition of jurisdiction?
o The power of the court to hear, try, or decide the case
o As conferred by law
How will the court know that it has jurisdiction?o From the allegations of the complaint.
Where do you take jurisdiction over the case?
o Conferred by law as well.
o Study BP 129, amended by RA 7691.
Do not assume that RA 7691 tells all. There are other
laws too.
What is the jurisdiction of the RTC?
o 1. Right/title/interest over real property, where value is: Value
is > 20K (OMM), > 50K (MM)
Claim for ejectment due to unpaid rentals of over
400K. Which has jurisdiction?
MTC. Ejectment is always under MTC,
regardless of the claim over unpaid rentals.
Recovery of possession, not ejectment. Fair
market value of property is 1.5M. The assessed
value of the property is 80,000. Property is
located in MM. Which has jurisdiction?
RTC, based on assessed value (not FMV)
which is over 50K. Recovery of possession
does not necessarily mean ejectment (ex.
Accion publiciana).
Value is determined by assessed value if it
involves right, title, or interest Ouanocase?
There was discussion whether FMV or
assessed value dictates. Assessed value
wins.
o 2. Amount incapable of pecuniary estimation
Examples: rescission, reformation of contract, specific
performance
Is expropriation capable of pecuniary estimation?
Expropriation is always filed with the RTC.
Though the subject matter is capable of
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pecuniary estimation, the action is
exclusively instituted in the RTC.
What about declaratory relief?
RTC always has jurisdiction, and the SC
does not except when there is an issue of
constitutionality. There is no such thing as determination of
value; just a determination of validity.
What about support?
Even if its amount can be determined, the
law confers it to the Family Courts.
Foreclosure of mortgage?
Two views: one says that its always with the
RTC, because it only covers the security of
the property. The original action is always
for recovery of money.
The other view is that it must be governed by
the value of the security.
o 3. Family cases/marriage
Includes support, annulment, nullity, etc.
o 4. Juvenile/agrarian case
o 5. Other claims, where claim exceeds 300K (OMM) or 400K
(MM)
The original text gives lower values. When was it
adjusted?
Original costs took effect March 25, 1994
1999adjusted OMM from 100K to 200K
2004adjusted both MM and OMM to 400K
and 300K respectively Always take note of the word exceeding so the exact
amount is for the lower court.
o 6. Probate of will, determination of inheritancesame amounts
Considering that the MTC has jurisdiction over
probate cases, at times, what if the value of the
estate is 100K? Can the probate of a will be
subject to summary procedure?
No. The rules on summary procedure
explicitly exclude probate proceedings.
Note that the MTC has a number of procedures.
There are ordinary proceedings and summary
proceedings, and now, small claims.
So the not exceeding 100K (OMM) and not
exceeding 200K (MM) only applies for
summary proceedings. But it explicitlyexcluded probate proceedings.
What is the jurisdiction of the MTC over small
claims?
Not exceeding 100K.
o 7. Admiralty casessame amounts
In determining the 300K/400K, can you include damages, interest,
attorneys fees, litigation costs, etc?
o NO. Only limit the amount to the demand or the claim.
o But remember that there can be a principal action for
damages, in which the amount of damages claimed
determines the amount. This is not covered by RA 7691, this
is covered by 95-9-94.
Small claims
o What is the amount?
Not exceeding 100K.
o Is there a distinction between OMM and MM in small
claims?
No.
o What should be included in the 100K?
The claim itself.
Exclusive of damages
What if the principal action is for damages?
Does not apply. Actions for damages arenot covered by small claims actions,
because these have to be ascertained.
These are not akin to sum-of-money cases.
o Does it cover quasi-delicts?
Yes. (Covers: fault/negligence, quasi-contract, or
contract)
o What if it arises from commission of an offense?
Yesfor the civil aspect of such (fault/negligence).
Just remember that when you file a criminal case, the
civil aspect is likewise filed (unless reserved, waived,
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or filed ahead). So it cannot be the subject of small
claims.
o Do you need a lawyer to file the complaint? Do you need
to prepare a regular complaint.
No need for a lawyer. There is also a standard form
provided.o How will you address the problem where the claim is for
sum of money not exceeding 100K, and it is outside MM?
There is an overlap here between summary procedure and
small claims procedure. Which is preferred?
This is still open for discussion, and is not yet clear.
Sir suggests that the option is upon the complainant,
since there is concurrent jurisdiction of both small
claims court or court of summary procedure.
N.B. Sec. 21 of BP 129, as amended, provides that the RTC has
concurrent original jurisdiction for:
o 1. Certiorari, prohibition, mandamus, quo warranto, habeas
corpus, injunction, enforceable within respective regionso
2. Actions affecting ambassadors, other public ministers, and
consuls
What is the MTC jurisdiction?
o Just the opposite of everything in RTC
o Then just add ejectment/unlawful detainer
What is the jurisdiction of the CA?
o It has both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, annulment of
judgment
N.B. Its original jurisdiction is exclusive as regardsannulment of judgment of RTC
o Appellate: ordinary appeal (notice of appeal), petition for
review, over quasi-judicial bodies
What is the jurisdiction of the SC?
o Also both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, disciplinary actions
over PLUS
Actions against members of the Bar [concurrent with
IBP];
actions against ambassadors, public ministers,
consuls, etc.;
constitutionality of treaties, laws, proclamations, etc.;
declaratory relief only when there is a question of
constitutionality
o
Appellate: decision of CA, decision of CTA en banc, decision of
SB, decision of RTC on pure questions of law;
REMEMBER this motherhood statement: the only
way to go up to the SC is for petition for review on
certiorari (RULE 45). This applies to civil and criminal
cases, except if the penalty in a criminal case is
death, RP, of life imprisonment.
Jurisdiction over the person of the defendant:
o 1. Voluntary appearance
By submitting to the jurisdiction of the court; ex.
Appearing in court or filing an answer or filing motion
for extension of time without disputing the courtsjurisdiction
o 2. Proper service of summons
Rule 14
Filing fees:
o Rule #1: payment of filing fees is jurisdictional in civil cases
o Rule #2: how does the court determine filing fees?
You include interest, damages, attorneys fees etc.
pay everything that you allege for court fees
But for jurisdictional purposes, just the principal claim
o Rule #3:
Sun Insurance
Filing fees must be paid within prescriptive period or
reglementary period (for appeals or compulsory
counterclaims), or else it is deemed prescribed
o Rule #4:
Alday v. FGU Insuranc e
Permissive counterclaims require docket fees
The claim does not arise from the principal
action, but involves the same parties. This
could easily have been filed separately.
Compulsory counterclaims do not require docket fees
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BUT read KoreanTechnologiescase of 2009this
is how you answer the question whether compulsory
counterclaims require filing fees
From nowhere, this case required that even
compulsory counterclaims have docket fees
paid. Korean Technologies cited Rule 141. But in practice, based on an SC Resolution,
the collection of filing fees on compulsory
counterclaims is suspended. This has not
been lifted yet.
Alday: Payment of filing fees for compulsory
counterclaims is not required. But you have
to take note of Korean Technolo giesnow
o Lien on the judgment?
If there are damages granted to the complainant, but
there has been lack of payment of filing fees. The
payment of docket fees is a lien on the damages.
What if the claim has already ripened upon the
filing of the complaint, but by omission, but you
were not able to allege it. Can this be a basis for a
lien on the judgment?
Proton Pilipinas v. Banque Nacional
There was a claim that has ripened but was
not included, and there were interests that
would ripen once the action is pending.
SC said that a claim ripened during the
pendency of the case, it can be a lien on the
judgment.
But if you did not allege it, the court cannotgrant an award because you did not pay
docket fees.
o What is the rule on deficient or insufficient payment of
filing fees?
Rivera v. Del Rosario
You have to pay full filing fees. The deficiency must
not be based on the fault of complainant. But if the
fault lay on the wrong assessment of the clerk of
court, there is a chance to pay the deficiency.
Jurisdiction is not automatically lost. Clerk of court
makes a deficiency assessment.
There must be no intention to defraud.
Thornton:
o Husband filed for habeas corpus in RTC Makati to recover
child from wifeo What are the two kinds of habeas corpus?
N.B.: there are two kinds of habeas corpus custody
of minors and regular habeas corpus in the Rules of
Court
o RTC Makati dismissed the case because the child was
allegedly in Basilan.
o What is the effectivity of writs of habeas corpus?
N.B.: Effectivity of writ issued by regular court only
enforceable in the territorial jurisdiction. But CA and
SCeverywhere.
o Filed with the CA, but was denied because the RTC (Family
Courts) have original jurisdiction over custody of minor HabeasCorpus cases.
o HELD: Can file with CA. It has jurisdiction. SC has
jurisdiction, too. The CA and SC have concurrent jurisdiction
over habeas corpus cases.
o But always remember that when you talk about concurrent
jurisdiction, you still have to follow hierarchy of courts.
Herrera v. Bollas
o Ejectment case (1 year period). Filed within the proper period,
but the complaint was amended to add additional defendants
beyond the 1 year period. Does the court still have
jurisdiction?
o After the lapse of the year period for ejectment, has the
claim prescribed?
No. N.B.One year period is not prescriptive period.
You just file action pubiciana with the appropriate
court (RTC or MTC, depending on the assessed
value), not the MTC by default (for ejectment).
o HELD: MTC still had jurisdiction for ejectment (based on
original complaint.)
Oca:
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o Repetition of Tijam v. S ibonghanoyestoppel by laches. After
active participation in a case, you cannot question the courts
jurisdiction anymore.
o Went up to the SC through Rule 43 (appeal to CA from a QJA)
Usually decisions of QJA go up to the CA under Rule 43. What are
the exceptions?o 1. HLURB decisions, as provided in charter, appealable to the
Office of the President
o 2. CTA decisions, under amended rules, appealable to the
CTA en banc, then SC
o 3. NLRC decisions, although by a QJA, are reviewable by the
CA although not under Rule 43, but Rule 65 (GADALEJ).
o 4. OMB decisions go to the CA, under Rule 43, for
administrative cases. But if there is GADALAEJ, go to the SC,
under Rule 65.
Mijares:
o Which court has jurisdiction over enforcement of foreign
judgments?
RTC, because enforcement of foreign judgments are
incapable of pecuniary estimation.
ALWAYS, regardless of amount of judgment, since it
is not based on the amount of the claim.
In this type of action, you dont need to prove the facts
again, etc.
o Marcoss group that docket fees must be based on the
value/amount of the claim, which is up to the Billions. Is
this correct?
This rule applies to money claims against an estate,
but without judgment yet. Here, there already was a
judgment in DC of Hawaii.
o How do you impugn a judgment?
Lack of notice
Lack of jurisdiction
Collusion
Fraud
o What is the rule on Arbitral awards?
These must be should be enforced or recognized
An arbitral award is not a foreign judgment (Under
ADR Rules)
Zamboanga Barter Goods:
o N.B. Rule 65 is not an appeal. It is a special civil action.
o Being one, RTC, CA, and SC have concurrent jurisdiction.
When you discuss concurrent jurisdiction, you cannot avoid
discussing hierarchy.
o
But when you talk about appeals, no need to considerhierarchy. The law already makes a decision for you.
Actions
What are the kinds of actions?
o Civil
Protection or enforcement of a right, or prevention or
redress of a wrong
Two types?
Ordinary
Special
o
Criminal Once the information is in court, only then does it
become a criminal action, that has already been
prosecuted by the State through the prosecutor.
o Special proceedings
Establishes a right, status, or condition
Are civil actions always based on a cause of action?
o No.
Distinguish ordinary civil action from special civil action?
o There is Cause of Action in ordinary civil action.
o Ex. Special Civil Action like declaratory relief does not need
cause of action
Requisites of cause of action?
o 1. Right of one party
o 2. Obligation of the other to respect
o 3. BreachMOST IMPT!
Is splitting cause of action a ground for MTD?
o No it is Res Judicata and Litis Pendentia
Can there be joinder of cause of action?
o Yes.
o BUT it is not mandatory.
Does there have to be just one breach or numerous violations?
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o Numerous.
o For every cause of action, there is one breach.
o For as many breaches as there are, there are as many causes
of action.
If there is a claim for sum of money, and several claims for
damages (moral, exemplary, etc.) are there multiple causes ofaction?
o No. Just one, because claims for damages are incidents of the
one breach (failure to pay).
There are three promissory notes, with amounts of 50K, 100K, and
200K, and there is just one loan. There was failure to pay. How
many causes of action do you have?
o Three PNs, three causes of action.
Can there be joinder of alternative causes of action?
o Yes. Example is shipping of goods. First cause of action is
based on breach of shipping contract. In case it is void, the
alternative is to sue based on quasi-delict.
If you join cause of action should it arise from the same series of
transactions, or can it be totally unrelated?
o Scenario 1: X versus Y (just two parties). Can join as many
causes of action, even if totally unrelated.
o Scenario 2: X versus ABCD (multiple defendants). Can only
join the causes of action if it complies with the rule on
PERMISSIVE JOINDER (series of actions arising from the
same facts or lawRule 3 Section 6)
Can you join ordinary civil actions with special civil actions?
o No.
Can you join two special civil actions?
o
No. Because they have their own special rules. Can you join recovery of sum of money and ejectment?
o No. Ejectment is summary proceeding, so it has its own rules.
What is the totality rule?
o When all of the claims are claims for sums of money, even if
one claim falls under the jurisdiction of the MTC but the rest
may fall under the RTC, what controls is the sum of all claims.
o But you cannot do this when not all are for sums of money.
There is a sum of money claim and recovery of property in Cavite.
Can you join the action in Cavite?
o Note: sum of money is determined by amount (personal).
Recovery of property is determined by location of the property
(real).
o N.B.as well that venue is not jurisdictional in civil cases, unlike
criminal cases. Note as well that venue is waivable.
o
Answer: Theoretically, you can join. But the other party isexpected to file a motion to dismiss on the ground of improper
venue. FOLLOW THE GENERAL RULE: The higher court
absorbs the claim(RTC > MTC).
What is the rule on jurisdiction over counterclaims?
o In the RTC, there is no limit to the counterclaim. In the MTC,
the counterclaim is limited to the jurisdiction of the inferior
court.
o What happens to the balance?
Its lost. So its better to file a separate action in this
scenario.
Is misjoinder of cause of action a ground for its dismissal?
o
No, it will NOT cause dismissal of the principal action. It is severed and these proceed with separately.
Although there can only be separate proceeding when
there is separate filing.
o The court is not duty-bound to proceed with it, especially when
it appears that it has no jurisdiction.
What is a special civil action?
o Covered by special rules.
Parties
Who can be parties to an action?
o
Natural persons
o Juridical persons
o Those authorized by law
What is the general rule?
o All those with capacity can be a party.
o For natural persons, that is the age of majority.
Can a six year old boy be a party?
o Yes, but with assistance of parent, guardian, or guardian-ad-
litem.
o A minor can sue, a minor can be sued if assisted.
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What is the rule on married parties?
o Sue and sued jointly.
o What are the exceptions?
Judicial separation of property
Abandonment
Exclusive property of spouses Involving practice of profession
What if the natural person is incapacitated?
o Can sue and be sued, but must be assisted.
o What if the person becomes incapacitated (supervening
incapacity), will the case be dismissed?
No. Sec. 18 provides that the court will provide
assistance.
When can we say that a juridical person has capacity?
o Duly incorporated and registered with the SEC.
[Mild segue into summons] If the defendant is a natural person, how
do you serve summons?
o
Priority is personal service. It must be served to the persons,
wherever he may be found. (Ex. The James Yap rule they
tried serving it to him in Araneta)
o If he cannot be found, substituted service to a a) person of
sufficient age and discretion and b) residing therein. Either
residence or office.
What is sufficient age and discretion? Recent
ruling says age of majority.
Should not be a transient. Must reside therein.
Can a foreign corporation sue and be sued?
o
If its an isolated transaction, a foreign corporation can sue and
be sued.o If its doing business but not licensed, it CANNOT sue, but can
be sued.
o If its doing business and is licensed, it can sue and be sued.
Service of summons to a domestic corporation?
o Rule 14, Sec 11
How do you serve summons to a foreign corporation?
o Resident agentone named to receive summons
o Representatives and officers found in the Philippines (if it has a
branch, for instance)
What is a non-juridical entity? What is the rule? (Ex. Toro Boys)
o No separate juridical existence.
o They can be parties, as defendants, and named as such
(under the name under which they are generally and
commonly known).
o They CANNOT institute an action as a non-juridical entity.
They have to institute it individually. How do you serve summons to a non-juridical entity?
o To anyone or person in charge of the office.
Who are those authorized by law? Give examples.
o Political parties
o Labor unions
o Archdiocese
o Estate
How do you serve summons?
o Depending on the entitythey have different rules.
Can you serve summons to a natural person in prison?
o Yes. Serve it to the warden.
For public corporations?
o Provinceexecutive head (governor)
o Citycity mayor
o Municipalitymunicipality mayor
Who is a real party in interest?
o A party who stands to be benefitted or prejudiced by the
judgment.
Does the concept extend even to defendants and third party
plaintiffs/defendants? What about an intervener?
o The law does not limit it to plaintiffs only it uses party as a
generic term, so it can encompass any party impleaded, if he
will benefit or be injured. Does this concept of real party in interest apply to all cases?
o No. The concept of real party in interest will only apply to
private suits.
o Does it apply to a taxpayer suit?
No. Locus standi applies here.
o Does it apply to criminal cases?
[Not answered, but I think not]
o What is the difference from legal standing/locus standi?
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This is from public suit filed by a private party. There
is a broader policy concern here, even if there can be
benefit or injury as well.
o A Congressman does not believe in the act of the
President, so he questions it as part of his legislative
prerogative. Is he a RPII? No. Locus standi applies as well.
Thus, differentiate RPII from locus standi:
o Locus standi pertains to acts of government. By reason of this
act, you suffered injury.
o You do NOT use legal standing in private suits. Only in public
suits.
Who is a necessary party?
o A) They are not indispensable, B) butought to be joined if one
needs complete determination of the case.
Who is an indispensable party?
o If not impleaded, there can be no final determination.
o
N.B. The codal does not use the word complete. So they arecompulsorily joined.
What if there is a suit against joint debtors?
o The other parties not sued are necessary parties.
o Can you sue one of them only?
Yes. The court can issue a valid judgment, although
not complete.
o Can you then proceed against the other one, though not
impleaded at first?
Yes.
What if there is a solidary obligation, not joint? Ex. X and Y
solidarily owe Z PHP 100,000. Z sues.o [Neither necessary nor indispensable (?)]
o Can you sue X only?
Yes.
o Can there be judgment?
Yes, because the obligation is joint and several
(solidary).
o Can you sue Y later on, having recovered from X?
No, because you recovered already.
o Can you sue at the same time?
Yes. The case can proceed against either, or both.
There is an action for recovery of title AND possession. X holds
title; Y has possession of the property. The action is just for
recovery of title. Can you sue X?
o Yes, because X is the proper party.
Same facts. Can you sue Y for recovery of title, without suing X?
o
No. Y is a mere possessor. The court cannot render judgmentwithout impleading X. X is an indispensable party in this case.
What is the failure of failure to implead?
o If it is a necessary party, the general rule is that failure to
implead is non-prejudicial. There is no waiver of right to
implead. There is no waiver UNLESS there is an order to
implead from the court.
o If it is an indispensable party, the court should order that the
indispensable party be impleaded (Domingo). If despite this
order to implead, the plaintiff did not comply, the case should
be dismissed.
o What if the court did not notice non-joinder, and thus did
not order to implead the indispensable party, and rendersa decision?
The judgment is null and void.
When is there substitution of parties in a civil case? There are
three.
o 1. Death
Who should die?
Any party. The law does not distinguish.
This is the most common.
o 2. Change of holder of public position (death, resignation,
removal, cease to hold position)
This is a very limited application, since it just appliesto public officers.
o 3. Transfer of interest
What are the requisites of substitution by death?
o 1. A party dies
o 2. The pending action is not extinguished by reason of death
(IMPT)
o Why does the law need to say this?
Because there are actions that are extinguished by
death. Examples are actions that are purely personal
to the party
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Give examples.
Ex. Contract for Michael Jackson to sing in a
party.
Ex. Receipt of a widow of support. When
she dies, the support from widowers estate
is gone. What is the duty of the counsel after death?
o 1. Give notice of death of the party within 30 days.
When is the 30 day period counted?
From the FACT of death, and not from the
knowledge thereof.
o 2. Give names and addresses of the legal representatives
Who should be legal representatives?
Legal heirs, administrator, or executor
N.B. The law provides for legal heirs,
because there is procedure to be done
before appointment of administrator or
executor (ex. probate of the will for the
latter).
o 3. Court orders substitution and for the substitute to appear
There is action of A and B against C, D, and E. What if E dies?
o The counsel of E names a substitute. The court will then act
accordingly.
Same facts. However, there was no successful substitution (i.e.
the duties were not complied with). What happens?
o There can be a valid judgment, but only against C and D.
o There can be no valid judgment against E.
Same facts. No substitution of E either. But C and D are
incidentally, heirs of E. Can there be a valid judgment as to C andD? Is there a need for substitution?
o There is still a need for substitution, even if C and D are
already parties. That C and D are incidentally Es heirs as well
does notchange the result.
o This is the Br ioso case. There is valid judgment only against
C and D. It is wrong to say that C and D automatically
substitute for E. There are other heirs who are affected by this
improper automatic substitution.
o [Non-recitation question what is the effect if E is
necessary? If E is indispensable?]
Relate the provisions above. If necessary, you can
subsequently file a suit against Es heirs to complete
the judgment. If indispensable, the judgment is null
and void, even against C and D. What are the requisites for substitution of public officer?
o 1. Removal/death of public officer and appointment of
successor within 30 days unless otherwise provided
o 2. Successor adopts, continues, or threatens to continue the
action sued against
o 3. There is substantial need to continue the action
Substitution is no automatic. What are needed to be done to
substitute the new public officer?
o 1. Give notice to the new public officer
o 2. Opportunity to be heard for the new officer
Mere fact that he is inclined to continue the action of
the predecessor is not enough Give an example of transfer of interest.
o A sues B for judgment for sum of money based on contract. B
assigns the contract to C and C accepts.
o Can the case continue against B despite the transfer of
interest?
Yes.
o Can the court order that C be impleaded?
Yes. But there is no substitution here. C is just
joined.
o How then can there be substitution?
The court has to order a substitution, not mere
impleading. BOTTOM LINE: there has to be a court
order.
In case of death of a defendant in a sum of money case, will there
be substitution? (VERY IMPORTANT)
o Section 20. It will NOT go to the heirs, but it will continue
against the estate. (Remember Succession!)
o This is the special rule against sum of money cases.
o Ratio for this?
Because you ultimately deal with the executor or
administrator anyway.
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But its wrong to say there is substitution, because the
law does not mandate it.
o This position is further supported by Rules 86 and 87.
o What are the requisites for this rule to apply?
1. The DEFENDANT must die
2. It must be a sum of money case based on contract
o What if the plaintiff dies?
The general rule will apply, even if its a sum of
money case.
Indigents Algura v. Local Governm ent of Naga: Resolves the
apparent conflict between Rule 3, Sec. 21 and Rule 141, Sec. 19.
o If the indigent fits within the parameters set by Rule 141, Sec.
19, then the court must declare him to be an indigent.
What is the Rule 141 requirement?
Gross income + family income does not
exceed twice of monthly minimum wage
And owns real property whose FMV is less
or equal to PHP 300Ko If he doesnt, he falls underRule 3, Sec. 21 and must apply for
indigent status. (Indigency test) Here, the court exercises
discretion as to whether you are an indigent or not.
o So can a person owning real property with FMV of PHP
300,001 be declared an indigent?
Yes, but under the indigency test.
If you are declared an indigent, you do not pay filing fees. But
what happens when there is a judgment?
o There is a lien, as regards filing fees.
What is the rule on stenographic notes?
o
It is free. There is no lien on the judgment. What happens when the court finds out you are not an indigent?
o The court can require you to pay.
o What if you refuse to pay?
The court can order execution.
o What if you fail to pay or ignore the execution?
The court can dismiss the case, for failure to comply
with an order of the court.
Planters v. Fertiphil:
o Planters did not pay appellate docket fees. But this was in
1992, prior to the 1997 Rules on Civil Procedure, which began
the requirement of appellate docket fees. The 1997 Rules
must not apply retroactively.
Atlantic Erectors:
o Collection for sum of money over construction project over
property. The plaintiff attempted to make an annotation of lis
pendens on the title of the property. HELD: You cannot dothis. This is an action in personam, not in rem, as regards the
property.
o A notice of lis pendens will only lie if it is a right, title, or interest
over real property. Outside of this, you cannot avail of a notice
of lis pendens.
Diaz:
o Rule 43, up to the CA. Attached duplicate of decision, but not
pleadings. This is enough for CA to give due course to the
petition.
PDIC:
o The main case is for declaratory relief (SCA). The question is
whether there can be execution of such (yes). There can alsobe a counterclaim, even if declaratory relief is an SCA and the
counterclaim is an ordinary action.
Tolentino v . Natanauan:
o There is no res judicata between recovery of possession and
nullity of deed of sale.
o Requisites of res judicata?
A) Former judgment final
B) Court had jurisdiction
C) judgment on merits
D) Identity of parties, subject matter, causes of action
Venue
Do not make the mistake of confusing venue and jurisdiction in civil
procedure. Jurisdiction is the power given by law to hear, try, and
decide cases. Knowing what court is one thing, but knowing where to
file it is different.
There was an agreement to development of a piece of land in
Tanay, Rizal to become a memorial park. The duty of the owner
(living in Quezon City) of the piece of land is to provide property.
The duty of the developer (located in Pasig) is to dig up the land,
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put drainages, etc. The owner of the land died, and the heirs are
now substituting for their father. They want to rescind the
agreement to develop. Where do they file?
o There are two steps in venue problems. First, determine: is it
a real action or a personal action?
Its a personal action. It involves rights andobligations of parties, although the subject matter
involves land.
o Where do you file it?
At the option of the plaintiffs. Either in their principal
residence (Quezon City) or the defendants (Pasig)
o Which court has jurisdiction?
RTC, because it is an action incapable of pecuniary
estimation (rescission)
Aileen Marcos case:
o In cases where there are several plaintiffs and defendants, the
codal provides the word principal before plaintiff and
defendant, so that the plaintiffs will not file the case before far-flung or inconvenient areas.
o In this case, Aileen Marcos is filing a case to enforce a trust,
and some nominees live in Batac, Ilocos. Marcos lives in
Makati. She filed in Batac.
o HELD: Should have filed in Makati, because she is the
principal plaintiff.
Where do you file an action for extra-judicial foreclosure?
o Extrajudicial foreclosure of mortgage is NOT a judicial action.
Its not covered by the Rules of Court, but Act 2135. For
purposes of EJ foreclosure, it should be filed where the
property is located.
o
But the mere filing and payment of fees (for multiple properties
in various areas) can be paid in one office, as long as it can be
established that it covers all areas. But the actual sale will only
be done in the place where the properties are located.
What about judicial foreclosure?
o Rule 68 does not provide for venue for this SCA. But it is filed
where the property is located.
o But if it is for collection of a sum of money, file it as a personal
action.
Where do you file an action for nullity of marriage?
o RTC where the plaintiff resides, where the defendant resides,
or where their conjugal home is located (special rule in Family
Courts issuance)
What should be your first consideration? What is the general rule?
o Rule 4 (rules of venue) applies in general, UNLESS a specific
law provides otherwise. On specific venues, as provided by law
o Give an example.
Actions for Quo warranto if the Solicitor general
commences it, in can be in the SC, CA, or RTC of
Manila
o What if you want to file an action for perpetuation of
testimony?
This is covered by Rule 24 (deposition before action
or pending appeal).
Special rule: Place of residence of any expected
adverse party or defendant
o
What about adoption? Where the prospective adoptive parents reside
o What about probate?
Where the deceased last resided at his time of death
o Writ of habeas corpus on residence of minors?
General rule: RTC where the minor is supposed to be
found
Thornton:But if unknown or cannot be found, in the
CA or SC
Can the parties stipulate on venue?
o Yes, they can.
o In an ejectment case, the property is located in Cebu.
Plaintiff resides in Makati, defendant in QC. Where do you
file it?
In the MTC of Cebu. Residence in general does not
matter.
o What if I file it in Makati?
Yes.
But what will you expect?
Motion to dismiss on the ground of wrong
venue, coming from the defendant.
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But what if there was no motion to dismiss, and in
the answer, there was no allegation of improper
venue?
There is waiver on the rules of venue.
RememberRule 9, Section 1. This is the general rule on waivers and
objections on grounds not raised in an answer or MTD. Failure to raisethese grounds in MTD or answer is a waiver. Exceptions:
o 1. Lack of jurisdiction over the subject matter
o 2. Litis pendentia
o 3. Res judicata
o 4. Statute of limitations
What is the distinction that you have to make as to stipulations?
o If there are no words of exclusivity, then it is only an additional
venue.
o If there are words of exclusivity (ex. can only be filed in Cebu,
waiving all other venues), then you can only file it there.
o (PBCom v. Limis an example of a case with restrictive words)
In this case, the stipulation on venue in the principalagreement (PN) applies to the accessory contract,
which is the surety agreement which cannot exist
without the prior agreement.
What if there was no Motion to Dismiss and no answer filed?
Apparently, the defendant did not notice the improper venue, or he
decided to waive it. Can the judge later motu propiodismiss the
case after noticing that the venue is wrong?
o No, he cannot motu propio dismiss the case on the ground of
improper venue. (Gumabon)
Distinguish between wrong venue and lack of jurisdiction (ex. wrongly
filing an ejectment case in the MTC.) Here, while the rules on summary
procedure include MTD as a prohibited pleading, an exception is lack of
jurisdiction (contra. wrong venue).
What is the local version of forum non conveniens?
o Prohibited forum shopping (Read Bank of Amer ica)
Summary procedure
1. Filing of the complaint
o In summary procedure, after filing the complaint, what can
the court do?
A) Dismiss the case outright
B) Issue summons
o What is the responsive pleading?
Answer.
Can you file a MTD?
In general, no. It is a prohibited pleading. When do you file the answer?
10 days, not the usual 15.
o Can the plaintiff file a reply?
No. Its also a prohibited pleading.
o What if there is no answer?
The plaintiff can file a motion for the court to render
judgment.
A motion to declare the defendant in default is a
prohibited pleading. Just ask the court to render
judgment.
o After the filing of the last pleading, move on to next stage.
2. Preliminary conference.o Take note, in SP, it is NOT pre-trial but preliminary conference.
o When does the court set this?
Period of 30 days.
o What happens here?
The parties can compromise, identify issues, etc.
o Can the court render a judgment based on what was
presented in the preliminary conference?
Yes, the court can, if it is convinced at this point in
time.
o Assuming there is no judgment in steps 1 and 2, move to the
next step
3. Submission of judicial affidavits or position papers
o Is there a hearing in summary proceeding or trial?
No hearing, no trial.
o Within how many days do you submit affidavits?
Within 10 days
o Can the court render judgment?
General rule: 30 days from the filing of the last
pleading
NOT submission for resolution, but
submission of the last pleading
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Exception: 15 days, if the court asks for further
clarificatory documents
What are the prohibited pleadings?
o 1. MTD
Except lack of jurisdiction over subject matter
Or failure to refer to lupon
o 2. Reply
o 3. Bill of particulars
o 4. MR or MNT
o 5. Petition for relief from judgment
o 6. Motion to declare in default
o 7. Third party complaint
o 8. Memoranda
o 9. Dilatory motions for postponement
Does this cover motion for cancellation of
hearing?
If is not dilatory. But be careful with this,
because the judge has to determine first if itis dilatory.
o 10. Motion for extension of time
o 11. Petition for certiorari, mandamus, prohibition against
interlocutory orders of the court
o 12. Interventions
Jalique v. Dandan:
o This is a case where the respondents filed a joint counter
affidavit in an ejectment case, rather than a response. The
MTC decided in favor of plaintiff. RTC affirmed. CA moved to
have the case remanded to MTC for re-hearing.
o HELD: Valid action by CA. The court interpreted the rules on
summary proceeding liberally here, because there was
presence of a responsive pleading anyway and there was
challenge of the material allegations of fact in the complaint.
So the MTC should have considered it.
Bonifacio v. B el losi l lo
o The judge was sanctioned here, because there was no
answer, and instead of promulgating judgment, he still called
for a preliminary conference.
Pascual v. Jovellanos
o The defendant filed a Motion to Strike Out instead of an
answer, which was, in reality, a motion to dismiss. The judge
should not have granted this.
Boy v. CA:
o May the MTC pass upon questions of ownership in an
ejectment case? YES, only provisionally and for the purpose of
resolving forcible entry/unlawful detainer cases. This
is a power granted by BP 129.
Macasaet v. Macasaet:
o In the preliminary conference, representatives appeared on
behalf of the original parties (as attorneys-in-fact). This special
authorization is a valid cause for someone else to appear in
the plaintiffs or defendants behalf.
o What happens when the plaintiff is absent in preliminary
conference?
Case is dismissed
o
What happens when the defendant does not appear? As if he didnt file an answer. The court can render
judgment.
o What is the stopgap?
Have an explanation OR send a representative
o Where does this rule come from?
Provision on authorization does not appear in the
rules on summary procedure. But the SC applied to
Rule 70 suppletorily, the rules of Rule 18 on pretrial
and appearance by representative.
Small claims
What should a plaintiff file?
o 1. Statement of claim
o 2. Together with certificate of non forum shopping
o 3. Authentic copies of document from which the action stems
from (actionable documents)
Who signs the statement of claim?
o The claimant. No need for the lawyer.
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o [Atty. Salvador: maybe this special rule is for bar flunkers to
practice, because the claimant still needs to file certain
documents he may not know how to execute]
What happens after?
o Court files notice for defendant to submit response
o
Defendant has 10 days to file a responseo What are the formal requirements?
There is already a form provided for the plaintiff and
defendant to fill in.
They just need to attach documents.
o Can there be a counterclaim in a small claim action?
Yes. As long as within jurisdiction of the court, and
arising from the same transaction, and does not
require joinder of third parties.
And then? [review/cross-check these rules]
o The parties can decide for amicable settlement or judicial
dispute resolution (JDR)
o
Can a claimant apply as an indigent litigant? Yes. (Aldura)
o Will there be presentation of evidence?
Yes, but it is not a strict and formal trial. You can only
present the evidence attached to the claims.
o Is there a preliminary conference?
None mentioned.
o Do the parties have to appear?
Yes, or at least their representatives. Failure for the
plaintiff to appear leads to dismissal without prejudice
of the claim. Failure for the defendant to appear has
the same effect as not filing a response.
What happens after JDR?
o In a multi-sala court, the executive judge refers to the pairing
judge for hearing and decision within 5 working days from
referral
o In a single sala court: Pairing judge hears and decides the
case in the court of origin within 5 working days from referral
by JDR judge
Are there prohibited pleadings?
o Same as summary procedure
o Except in MTD, only lack of jurisdiction over the SM is the
exception. Failure to refer to the lupon is not an exception.
Can it be appealed?
o No. By express provision, it is final and executory.
o What then, is the remedy?
Rule 65 (petition for certiorari) because there is noplain, adequate, speedy remedy
Pleadings
What must be in the complaint?
o Claims a cause of action
o Must contain allegations brief and concise statement of
ultimate facts, devoid of evidentiary matters
You can also allege as to fraud, mistake, malice,
illegality, condition of the mind, etc.
As to matters of fraud, how must it be alleged?
o
With particularity As for mistake, how must it be alleged?
o With particularity
If its a conditionof the mind (malice, intent, knowledge, etc.)?
o Generally
You can also base your claim on an actionable document. How to
do you allege it?
o 1. You can attach or append the document
To show the court that this is where your cause of
action arises
o 2. You can reproduce the contents of the document in the
pleading en toto
(But in practice, just always append anyway)
How do you deny an allegation under an actionable document?
o Specifically denied, under oath
o What is the exception to the oath requirement?
1) When the adverse party is not a party to the
instrument
2) When there is an order for inspection and it is
refused
What is the effect of failure to specifically deny under oath an
actionable document?
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o It is an admission ONLY as to the genuineness and due
execution of the actionable document
But what about the rights and obligations of the parties arising
from that document?
o It is up to the court to determine it.
What is the period to file an answer?
o 15 days after service of summons
o Could it be 30 days after receipt of summons?
For foreign corporation and service is done to
government official designated by law
What are the defenses available in answer?
o 1) Affirmative defense
If you only hypothetically admit, without raising
any defense, what happens?
In this case, there is no more issue. This will
lead to a judgment on the pleadings (Rule
34) This occurs when the answer does not
tender an issue or admits the material
allegations
o 2) Negative defense
Specific denial of facts alleged essential to the cause
of action.
What are the kinds of specific denial?
1) general denial
2) specific denial
3) disavowal of knowledge (lack of
knowledge and belief to form a specificdenial)
Is the counterclaim or cross-claim in a separate pleading?
o No.
What is a compulsory counterclaim?
o Arises out of the transaction constituting subject matter of the
action
What is a permissive counterclaim?
o Arising from an event unrelated.
What is the period to answer a counterclaim?
o 10 days
o (In practice, you only answer a permissive counterclaim. In
practice, a compulsory counterclaim is not answered.)
What is a cross claim?
o
Made against a person/party on the same side. Can there be a counterclaim defendant cross claim?
o Yes. The counterclaim defendant is the original plaintiff. He
can file a cross claim against a co-party.
Is there a period to answer a cross claim?
o 10 days
Do you need leave of court to file a counter or cross claim?
o No, whether it be a permissive/compulsory counterclaim or a
cross claim, no.
For a third party complaint, do you need leave of court?
o Yes. You cannot just file a third party complaint.
o Who is usually the third party plaintiff?
The defendant in the main case, who feels that he
should file a complaint against someone that court
has yet to acquire jurisdiction from.
This is the reason why there is need for leave of
court. You need to have the third party impleaded.
Why would you want a third party complaint?
To contribute or indemnify
o Classic case: car crash a hit b hit
c. C sued B. B sued A for
indemnification.
Subrogation
Any other similar groundo What is the period to answer a third party complaint?
15 days, because it is treated as an entirely new
complaint
Is the reply a mandatory pleading?
o No.
What is the period to file a reply?
o 10 days.
What do you do in a reply?
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o To controvert the new matters raised in the answer
What is the effect of failure to file a reply?
o All new matters stated in the answer are deemed controverted
o What is the reason for this?
[Didnt answer]
What happens after answer, etc?o
Pre-trial
Three important things:
o Signature, verification, and CNFS
What is the effect of a lawyer affixing his signature in a pleading?
o Indicates that he has read the pleading, and to the best of his
knowledge, the information is correct
o And that the filing of the same is not for the purposes of delay
There are some pleadings that are left unsigned. What happens?
o It has no legal effect at all.
o Is there a way to cure it?
If counsel can show it is due to mere inadvertenceand not for delay
o Will the court just give effect to the pleading or will it still
require actual signing?
[Didnt answer]
If a lawyer changes his address, what is his duty?
o Inform the court. Failure to do so may lead to disciplinary
action.
What are the contents of the verification?
o That the affiant has read the pleading and the allegations are
true. (Based on personal knowledge, not information and
belief or knowledge, information and belief) Must it be under oath?
o Yes.
Is it mandatory?
o No. Only when the law requires you to verify.
o Give examples:
Rule 45 (Petition for review on certiorari)
Rule 65 (Petition for certiorari)
Rules 57-61 (Provisional remedies)
Is it jurisdictional?
o No. Failure to attach is not fatal.
o But why do the SC and CA dismiss cases for failure to
attach verification?
Although it can be cured, the court may dismiss a
pleading for failure to comply with procedural
requirements. Who signs the verification?
o The party filing the pleading.
Can the lawyer sign it?
o General rule, no. Unless there is some compelling reason.
o For example, the partys father is to be buried on the day of
filing of the petitionthe court allowed it.
o Also, the distance of the petition from the counsel (ex. the
petitioner is in the USA and the counsel is in Manila, and there
are only 15 days to file.)
Can a minor sign?
o Must be assisted.
Can a married person sign by himself or herself?o One spouse is enough, but only if there is common interest.
(N.B.but see note below)
For co-owners or those in the same residence?
o Signature of one is enough if there is common interest. (N.B.
but see note below)
TAKE NOTE: The key when it comes to multiple parties, all of them
have to sign. However, if there is a common interest among the parties,
a signature of a number of them may be enough.
o BUT in practice, do not take chances.
CNFS:
When is a CNFS required?o For a complaint for other initiatory pleading
o So a compulsory counterclaim does not require a CNFS
What about a juridical entity? Who can sign?
o [Anyone, as long as authorized by a board resolution]
What are the contents of the form?
o Plaintiff/principal party shall certify under oath that he has not
filed a similar complaint involving the same issues in another
court, tribunal, QJ agency
o If there is any other pending claim, provide status
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o If he learns about similar action, report fact within 5 days to the
court
Why does the law require that it is the party that signs?
o Because it is only the party, and not even the lawyer, that
knows whether there is another action.
For those with no separate juridical existence, who signs?o
All the parties, since there is no juridical personality.
What is the effect of absence of CNFS? (Note: non-compliance is
different from absence)
o It will be dismissed. It can be re-filed because it is without
prejudice.
Can it be amended to cure?
o No, the defect cannot be cured by an amendment. Just re-file.
What is the effect of non-compliance? (Note: this occurs when there
is a CNFS, but you did not respect your commitment under the CNFS)
o Indirect contempt (Failure to comply with order or process of
court)
o
Administrative and criminal cases (since you lied under oath)o Dismissal of the case
What if there is willful and deliberate forum shopping?
o (Meaning, its not only false, but you also deliberately disregard
it)
o Dismiss the case with prejudice
What kind of dismissal?
Summary dismissalcannot contest
o Placed in direct contempt without opportunity
BPI v. CA
o There was a CNFS filed in the first place. What was not
attached was the board resolution showing the authority of theVice President to sign the CNFS on behalf of the company.
This authorization was submitted on the MR.
o NOTE: There was a valid CNFS. There was liberal
interpretation of this provision for these reasons.
Donato
o Here, the lawyer signed the verification, not the party. This
was validly excused by the court since the party was in the US,
and could not sign the pleading in time given the 15 day
period. There was physical impossibility.
o BUT as a general rule, the lawyer cannot sign.
Young v . Seng
o There was no forum shopping, because the first case was
dismissed due to lack of cause of action. When a case is
dismissed because of that, it is without prejudice, and that
party can file the same case again.o Failure to disclose this fact is not a violation of the CNFS.
OSM Shippin g
o Requires a duplicate original or CTC for the decision being
appealed (here, NLRC decision) and not the prior one (Labor
Arbiter in this case)
Tan v. Kaakbay
o No need for a CNFS for a compulsory counterclaim
New Sampaguita
o There was no forum shopping here, because the first case
questioned whether there can be a writ of execution when the
parties agreed to compromise in the first place, when the court
dismissed the initial case. The second case was whether thecourt approved the compromise agreement in the first place.
These are different.
Solar
o Is the rule on personal service mandatory?
Yes. The rule is priority is by personal service. If you
cannot do it by personal service, you can do it by
registered mail, but you have to make an explanation.
o In this case, it was made by registered mail and there was no
explanation. For this reason, the decision of the court to allow
it was based on its reasonable discretion. BUT this is not the
rule.
Musa
o What are the material dates here?
Period only commences to run from date of receipt of
the decision
Date of filing of the MR
Date of receipt of denial of the MR
Amendments and supplements
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There is amendment for civil cases and there is amendment for criminal
cases.
For civil cases, amendment may either be:
o 1) As a matter of right
o 2) With leave of court
When is it a matter right?o Before an answer or within 10 days of service of reply
o What do you need to file?
NOTICE to amend
When do you need leave of court?
o After an answer has been made
o What do you need to file?
Motion to amend
For criminal cases, the reference point is not an answer. Instead, it is
plea.
Before plea, can you amend?
o Yes, whether as to matter of form or substance
After plea, can you still amend?
o Yes, but only as to matters of form, for as long as it will not
prejudice the rights of the accused
Dont forget that last bit!
o What is the test when it will prejudice the rights of the
accused, even if its a matter of form?
If the original defense of the accused will not change.
What is amendment to conform to evidence?
o This is section 5 of Rule 10
o Allegations are found in the body of the complaint/answer.
What is alleged must be proven.
o
If the evidence you presented went beyond the allegations, youmay file a motion to amend the pleading to conform to
evidence
There are two kinds of amendments to conform to evidence. What
are these?
o First kindno objection on the part of the other party. For this
reason, it will be allowed even after judgment.
o Second kindif the other party objects, the amendment is left
to the sound discretion of the court.
Can you amend a complaint when it originally has no cause of
action?
o If in the first place there is no cause of action, no amendment
will cure such an absence.
o Can the court order an amendment even if there is no
application to amend? 1. Yes, if it is a mere formal (typo) amendment
2. For bill of particulars, the court can either order
compliance OR an amendment
3. Motion to dismiss the court can either grant,
deny, or order an amendment
There was an amendment of an original complaint, which was the
basis for the issuance of summons. If the original complaint is
amended and that is granted by the court, is there a need for
issuance of new summons?
o No, if you already lawfully obtained jurisdiction over the
defendant through summons or voluntary appearance.
o
It is a question of jurisdiction over the person, not a question ofamendment.
o HOWEVER, if there are additional defendants, new summons
must be served to them.
What is a supplemental pleading?
o A pleading filed in addition to a prior one that has been filed,
pursuant to new transactions, occurrences, or events that have
arisen.
o Can there be a supplemental complaint?
Yes
o Can there be a supplemental answer?
Yes
o
Can there be a supplemental reply?
Yes
o Can there be a supplemental petition?
Yes
So what is the general rule?
o You can file a supplemental pleading as long as there are new
transactions, occurrences, or events that occur after the filing
of the first pleading.
o What is the exception?
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Usually you cannot do this to the Supreme Court,
because you cannot file something to it unless it
asked for it. You would be asked to explain why you
are submitting such.
What is the difference between amendments and supplements?
o
Amendments pertain to events, transactions, or occurrencesthat exist during the filing of the original pleading, but were not
placed in the pleading. There was just an omission.
May be filed without leave of court (before responsive
pleading)
o For supplements, the events, transactions, or occurrence only
arose after the filing of the original pleading.
Always with leave of court
Default
N.B. 1: What is the rule on objections?
o
General rule: all objections on grounds not raised in an answeror motion to dismiss are deemed waived.
o What are the exceptions?
1. Lack of jurisdiction over SM
2. Res judicata
3. Litis pendentia
4. Prescription
o What is the fifth exception provided by jurisprudence?
5. Lack or absence of cause of action
This is different from Rule 16 (that the
pleading states no cause of action)
N.B. 2: What is the rule on failure to allege a counterclaim?
o
Any compulsory counterclaim or cross claim not set-up: barredforever
o In special proceedings a claim against the estate must
be made in the period provided for in the notice.
Otherwise it will be forever barred. What is the exception?
If there was a suit started by the estate against you,
the claim can be raised as a counterclaim.
N.B. 3: How many kinds of default do we have?
o 1. In actions in rem, there is a general order of default.
There are no defendants, so notice is made to the
public that all oppositors have to come forward and
object. Otherwise, forever barred.
o 2. Failure to attend during pre-trial
Called as in default in the 1964 Rules of Court
If the defendant fails to attend, the plaintiff can
present evidence ex parte
When do you know when a party is in default?
o 1. Did not file responsive pleading
o 2. There is proof of such failure
You have to show the return
How can you set aside an order of default?
o 1) File a motion on any of these grounds:
1. Fraud
2. Accident
3. Mistake
4. Excusable negligence
o
2) It has to be under oatho 3) State that you have a meritorious defense, without
necessarily giving an answer
o What kind of fraud is needed?
Extrinsic fraud.
o Is the fraud needed here the same fraud needed for motion
for new trial, petition for relief from judgment, and motion
for annulment of judgment?
YES. For all of these, you need extrinsic fraud.
How do you set aside an order of as in default [or allowance for
plaintiff to present evidence ex parte for the plaintiff]?
o Saguid:Remedy is to file an MR or relief from order of default
also on the ground of FAME
o Do you have to add that you have a meritorious defense?
No need. Youre already in pre-trial.
Can there be partial default?
o Yes.
o In a case where you file a case against A, B, C, D, and E. E
did not file an answer, while A to D did. Will A to D be
allowed to present evidence?
Yes.
o Will E be allowed to present evidence?
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No. He is in default.
o Can A to Ds evidence be used against E or in favor of E?
Yes. In fact, E can still win the case along with the
others.
Can the court render a judgment after an order of default, without
presentation of evidence ex parte?o Yes. This is a new provision introduced only in the 1997 Rules
of Civil Procedure.
o This has not been asked in the Bar examination yet. So be
careful.
Where can there be no order of default?
o 1. Nullification/annulment/legal separation
o Can there be default in Summary Procedure?
No. When there is failure to file answer, there can be
judgment rendered by court.
o 2. Certiorari, Prohibition, etc. Some SCAs require a
comment, so there can be no declaration of default
Are there SCAs where there can be declaration ofdefault?
Yes, like interpleader where the special rules
are deficient so there is suppletory
application of the ROC
Cerezo v. Tuazon:
o Order of default failure to submit an answer, so the
defendant is declared in default
o Judgment by defaultafter the defendant is given notice of the
court processes, the court renders a decision without hearing
defendants defense, which he lost
o Remedy for an order of default?
Motion to set aside or lift an order of default based on
FAME (under oath, and you have to show you have a
good defense)
SSS v. Chavez: This must be accompanied by a
verification (under oath), affidavit of merit (that you
have a good defense), and notice of hearing. If this is
missing, the motion is lost.
o Remedy for a judgment by default?
MR or MNT (FAME) within period for filing an
appeal
After the reglementary period (i.e. when there is entry
of judgment) Petition for relief from judgment
6 months from entry of judgment AND within
60 days from knowledge
If there is GADALEJ, Rule 65 certiorari
Remington Steel:o
When there are multiple defendants, even if one has already
answered, you may amend the complaint as a matter of right
as to the other since there is no defense yet that would be
affected or altered by the amendment.
Philippine Export and Foreign Loans:
o When it is a dismissal without prejudice, appeal is not a
remedy. Your remedy is to re-file a case or file for a petition for
certiorari.
o Amendment to conform to evidence What if it was not
allowed, but the evidence was proven, can there be a valid
judgment based on that evidence?
Yes. It is valid, even if it is not consistent with whatwas alleged.
Bill of particulars
Can there be Bill of Particulars in criminal cases?
o Yes. Rule 116, Sec. 9.
Only four things to remember in BOP:
o 1. What is the definition of BOP?
o 2. What is the period to file a BOP?
o 3. What is the action taken by the court in BOP?
o 4. What is the consequence of failure to comply with order to
file a BOP? When you file for a BOP, what do you want to achieve?
o A more definite statement of facts that appear in the complaint
that are not averred with sufficient particularity
o You are to identify the defects and the details desired.
Can you file a motion for BOP after an answer has been filed?
o No more, because issues have already been joined.
What is the effect of filing a motion for BOP on the period?
o The period is interrupted upon filing, but you always have at
least five days to file the answer after.
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Deadline to file an answer is in 15 days. You received the
complaint December 1. You filed a motion on December 5. How
many days do you have?
o TWELVE, not eleven. You dont count the day causing the
interruption.[VERY IMPT]
o
This is the same way you count a motion to dismiss. [Same facts] If you filed a motion for bill of particulars on
December 14, the motion is interrupted. How many days do you
have?
o You still have Five days.
What action can the court take on a BOP if you fail to comply?
o 1. Motion to strike out
o 2. The case can be dismissed (Virata v. SB)Rule 17, Sec 3:
non-compliance with court order
What if the person fails to file an answer in the time left?
o Will be declared in default
Service and summons
Filing
What are the modes of filing?
o 1. Personal
o 2. Registered mail
Can there be filing by ordinary mail?
o None. Because here there is no way the court can find out
when you filed it.
o But there can be service by ordinary mail.
What are the requirements for personal and registered mail?
o
PERSONAL: Stamped, dated, and signed by the clerk of court.o REGISTERED MAIL: Pay for registry receipt and you have to
accomplish a return card
What is the proof that you personally filed?
o Primary: if the pleading is found in the records of the court.
o If it does not appear, you can present the received copy
What is your proof of registered mail fi ling?
o Registry receipt
o Affidavit of the person mailing
o Return card
Service
What are the modes of service?
o 1. Personal
o 2. Registered mail
o 3. Ordinary mail
What does rule 14 cover?
o 1. Covers party serving to another party,
o 2. party serving to court,
o 3. and the court itself serving notices (section 9)
If the person to whom you are serving is not available, then how do
you file substituted service?
o Delivery to the clerk of court with proof of failure of both
personal service and service by mail.
o There should be proof of both failure of personal service and
service by mail.
o [This is different from substituted service of summons]
How do you prove service by ordinary mail?o
Affidavit
What is completeness of personal service?
o Actual delivery
What is completeness of registered mail?
o Actual receipt or 5 days after notice of postmaster
o whichever comes first
What about ordinary mail?
o 10 days after mailing
What are the proofs of personal service?
o Written acknowledgement
o Affidavit of the person serving
o
Official return of server
This refers to service by the court
What are the proofs of registered mail?
o Registry receipt
o Return card
What are the proofs of ordinary mail?
o Affidavit of person serving
What if I used registered mail, but I got back the return card
ALONG WITH the document itself (showing it is unclaimed). What
do you do to prove delivery?
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o You have to file the return card plus the unclaimed document,
plus before you file, secure a certification from the post office.
Take note that a return card is required by law to be filed, but in
practice, we do not.
What is the priority of service?
o
Personal service is always preferredo What is the effect of filing by registered mail?
Put an explanation why you did not serve it through
personal service
o What if you dont comply?
As if the pleading was not filed.
Service of pleadings should be made to whom?
o To the counsel, if the party is represented by counsel.
What if service was made to a security guard on the ground floor
of a condominium building and your office is on the 3oth floor?
o You cannot. You have to serve it to counsel.
What is Lis Pendens?
o
In an action involving right, title, or interest over a property, youannotate it on the title of the property.
I file a case in the bureau of lands to declare null and void a title.
Can this be subject to a notice of Lis Pendens?
o No. This is a quasi-judicial action. Notice of lis pendens only
applies to judicial cases, not quasi-judicial. (Heir of Lopez)
Atlantic Erectors: You can only apply for Lis Pendens if the property is
the subject of the action.
o Can you put a notice of lis pendens in a partition case?
Yes.
Do you need court approval to effect a notice of Lis Pendens?
o Not at all. Just send a memorandum to the ROD, even without
court involvement.
When do you need court approval?
o When you intend to cancel the notice.
o Grounds:
1) purpose is to molest other party
2) no need for the notice to protect the rights of the
parties who caused it
Payongayong:
o Priority of service is ALWAYS personal. If you cannot do it
personally, you give an explanation
o Same as filing priority is personal. Otherwise, you give an
explanation.
United Pulp:
o Hypothetical There is a principal who is out of the
Philippines, and he designates X as his attorney-in-fact.
Can X sign the certification against non-forum shopping?
In general, he cannot. But in this special case, he
can, because the principal is out of the country.
o What is the test?
Mere representation is not enough. There must be a
specific authorization and clear authority given in the
SPA that he can sign the CNFS.
Summons
Can personal service and substituted service worksimultaneously?
o No. Personal service first, and this is the priority. You cannot
have these simultaneously.
Where?
o WHEREVER HE IS FOUND. Always remember the James
Yap rule.
What are the requirements for substituted service? Under what
circumstances?
o Only if personal service is IMPOSSIBLE.
o Proof of this: defendant cannot be served summons after all
efforts have been exhausted.
Is there a set of standards given by law on howmany times you have to try to serve?
A case says that it must be at least three
times on two different days.
o There has to be an explanation.
o Where will the explanation appear?
In the sheriffs return
Summons must be served within reasonable time. What do you
mean by this?
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o For the sheriff, 15-30 days according to jurisprudence. After
the 30th
day, the court will require the sheriff to submit the
return.
o Why is this important?
If you file a complaint and you dont see to it that the
summons is served, your complaint can be dismissed
for failure to prosecute.
What is alias summons?
o If the original summons has been lost or the original summons
was returned to court, unserved.
o Then you can apply for alias summons.
When do you talk about suitable age or discretion, to what kind of
substituted service does this apply?
o To service at the residence.
When you talk about suitable age or discretion for substituted
service, what do you mean?
o There is nothing in the law that says there must be age of
majority but from Manotoc to Pascual, there is consistentjurisprudence that it must be age of majority.
Who must it be? Could it be a house helper?
o She or he must reside therein. This must concur with suitable
age or discretion. So these are two elements.
o A visitor or a transient cannot receive summons. But a house
helper can.
For offices, to whom must it be served?
o To a a) competent person b) in charge.
o Can a middle manager the same rank as Mr. X receive
summons for Mr. X?
He must be in charge of receiving summons in the
office.
o What does in charge mean?
In charge of the office. President or manager.
For corporations, what is the special rule?
o President, General Manager, Managing Partner, Corporate
Secretary, Corporate Treasurer, In-house Counsel
o Memorize this. It is a closed list.
But for personal cases of an individual, will the office receive it for
you?
Can substituted service be served on non-residents?
o No. None as a general rule. You cannot do substituted
service to a non-resident.
o [Sec. 15 does not talk about this situation. Sec. 15 talks about
non-resident and cannot be found.]
o Is there an exception?
Yes, but its very narrow. But there must a a) resident
spouse b) who was previously appointed as attorney-
in-fact.
In Secs. 14, 15, and 16: how can summons be done?
o By publication.
Distinguish.
o Section 14: Defendant is unknown or his whereabouts are
unknown.
How do you do this?
Just publish.
Do you even have to try personal service?
No need for personal service (since you
dont know him or where he is). In what kind of case?
Whatever kind of action, whether in rem or in
personamyou can do it by publication, as
clarified by the SC.
Not just in rem or quasi in rem anymore.
How does publication in 14 differ from 15 and 16?
In 14, ONLY publication is needed. It does
not require service by registered mail in the
last known address.
o Section 15: Extra-territorial service
Against who?
Against a defendant that does not reside in
the Philippines and is not found in the
Philippines.
In what subject matter?
1. Involving personal status of the defendant
2. Property of non-resident defendant
3. Property is attached
4. Where defendant has actual or contingent
interest over property
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What are the modes of service?
1. Personal service outside the Philippines
2. Publication AND service by registered
mail in his last known address
o N.B. Both must concur. Take note
of this. 3. Other modes deemed applicable by the
court
o Section 16: Temporarily absent
Can he be a resident of the Philippines?
Yes. But hes just temporarily absent.
What is the length of time needed here?
None provided
How do you do serve summons?
Any of those in Sec. 15.
Add: Substituted service, if there is
impossibility andthere are earnest efforts to
serve. What is the purpose of summons?
o So the court can peg a date when it acquired jurisdiction over
the person.
What is the proof of service of summons?
o Sheriffs return.
Note the rules on:
o Provinces
o Prisons
What is the rule on voluntary appearance?
o It is not equivalent to summons, but if there is voluntary
appearance, summons can be dispensed with. What is the rule on Motions to Dismiss?
o If you file a Motion to Dismiss, even if you join other grounds
other than lack of jurisdiction, you are not deemed to have
submitted to the jurisdiction of the court.
o Old rule: you have to separate the MTD based on lack of
jurisdiction.
Maximo v. Montalban:
o In this case, his residence is known and he is just temporarily
absent. So substituted service is not proper.
Samarino v. Ralu:
o Here, the sheriff did not prove that facts and circumstances
that would allow substituted service (repeated failure to
personally serve, etc.)it must be shown in the sheriffs return
Ancheta:
o
There are only a few remedies when the judgment is alreadyfinal and executory. Here, the petitioner filed a petition to
annul the judgment based on lack of jurisdiction over the
person (because lack of jurisdiction is used, it can cover both
lack of jurisdiction over both SM and the person).
Gomez v. CA:
o Does it mean that if you are talking about an in rem action you
can venture on trying to serve it personally?
You can still do personal service, in case you find him
somewhere in the Philippines by chance.
o Section 14 before limits itself to in rem or quasi in rem. It now
extends likewise to actions in personam.
Motions
What is a motion?
o It seeks relief, but not a pleading.
o It does not raise a claim, nor does it raise defenses in an
answer.
o Does a motion to dismiss take the nature of an answer?
No, because it will not lead to a joinder of issues
What does EVERY motion need to have?
o A notice of hearing.
o Directed to whom?
To parties. But also give notice to the clerk of court (even if the
provision does not say it), because he schedules the
hearings.
o Absence of a notice of hearing has what effect?
The motion becomes a mere scrap of paper.
When must notice be given?
o The motion must be filed in court andserved to the other party
at least three days before the date of hearing. (Three day
notice rule)
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What is the ten day rule?
o The hearing itself must be scheduled no later than 10 days
from the filing of the motion
Ex. you file it December 6. The last date you can set
the hearing for is December 16.
o Understand this along with the three day rule.
What is the Omnibus Motion rule?
o Include all grounds available; or else, it is deemed waived.
o What are these exceptions?
1. Lack of subject matter jurisdiction
2. Res judicata
3. Litis pendentia
4. Statute of limitations
What is motion day?
o Friday afternoon.
o If it is a holiday, set it on the next working day
o Is this mandatory?
Yes. But some judges apply the rule liberally. But since 2008, this rule has been applied strictly.
Motion to dismiss
What are the kinds of dismissal in Civil Procedure?
o 1. There is a motion to dismiss in Rule 16, prompted by
defendant.MOST COMMON
o 2. But there is also a motion to dismiss in Rule 17, filed by the
very same plaintiff who filed.
Rule 17 also covers failure to prosecute, which is
another form of motion to dismiss.
o
3. Demurrer to evidence What are the grounds in Rule 16?
o 1. Lack of J over the SM
How do you determine subject matter
jurisdiction?
It is the law that confers the right to hear, try,
and decide a case
The most common source is RA 7691
amending BP 129
o 2. Lack of J over the defendant
Look again into proper service of summons
Or voluntary appearance
o 3. Improper venue
Fall back to Rule 4, or special rule under law
o 4. No legal capacity to sue
Minorage of majority
Corporationmust be duly registered with SEC
Attorney in factlook into scope of authority
o 5. Pleading Asserting the Claim States no COA (PACS-COA)
Does not go into the falsity or truthfulness of the claim
The pleading does not appearto state a COA
o 6. Res judicata
What are the elements?
1. Final judgment
2. J over SM and person
3. Judgment on merits
4. Identity of parties, SM, cause of action
o
7. Litis pendentia Same as RJ, but without
o 8. Prescription
o 9. Failure to comply with condition precedent
Ex. Failure to refer to Katarungang pambarangay
Is this waivable?
o YES. Because it is not
jurisdictional.
Ex. Earnest efforts to compromise
Ex. Exhaustion of administrative remedies
Does this fall under this ground?
o Some commentators say yes. But
some say failure to exhaust must
fall under PACS-COA
o 7. PWEA (Payment, waiver, extinguishment, or abandonment)
o 8. Unenforceable under Statute of Frauds
Of all these grounds, if the court dismisses, can it be re-filed?
o ALL
o Except[F,H,I]
1. Prescription
2. Unenforceable under Statute of Frauds
3. Res judicata
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4. Extinguish of claim or demand (PWEA)
When can you file a MTD?
o Within the reglementary period. Fifteen days.
How do you count a period?
o Just remember the rule on interruption. [Read up Bill of
Particulars portion.]
There was MTD filed on basis of lack of J over the defendant. The
court, instead of dismissing the action, dismissing the MTD, or
ordering amendment of the complaint, filed alias summons. Is this
grave abuse of discretion?
o There was none. Instead of dismissing the case and waiting
for re-filing, the court issued alias summons which will produce
the same effect.
Preliminary hearing of the affirmative defenses. What is this?
o You can file an answer, and the court has discretion to hold
preliminary hearing of your affirmative defenses and use it to
dismiss the complaint. Thus, an answer canbe treated as a
MTD. This is a new feature of the 1997 Rules of Court. This
has never been asked in the Bar.
o What is the reason for this new rule?
Note: a MTD is not a prohibited pleading, but when it
issues summons, the court persuades parties not to
file an MTD, but to file an answer with an affirmative
defense.
o Why is such court attitude?
Because issues will be joined, and pre-trial sets in
where parties can compromise.
o What is the difference between filing a MTD and an
answer?
There is no preliminary hearing of defenses in a MTD.
If the court mistakenly denies your MTD, what is your remedy?
o Petition for certiorari on Rule 65 based on GADALEJ.
o Does this petition for ce