Professional Documents
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Rem Review Lecture and Recit Notes
Rem Review Lecture and Recit Notes
Jurisdiction
jurisdiction)
Jurisdiction over the person or the defendant?
Know the rules on filing fees.
Definition the same, as conferred by law, except you have to add that
waiver.
Jurisdiction over the offense.
the accused.
Filing fees are not necessary.
Accion publiciana).
Value is determined by assessed value if it
Property is
Assessed value
wins.
2. Amount incapable of pecuniary estimation
performance
Is expropriation capable of pecuniary estimation?
estimation,
the
action
is
estate is 100K?
constitutionality.
There is no such thing as determination of
o
o
o
ordinary
proceedings
and
summary
are
No.
The rules on summary procedure
But it explicitly
claims?
95-9-94.
Small claims
o What is the amount?
claims?
No.
What should be included in the 100K?
Exclusive of damages
What if the principal action is for damages?
judgment
Appellate:
contract)
What if it arises from commission of an offense?
over PLUS
IBP];
actions
consuls, etc.;
constitutionality of treaties, laws, proclamations, etc.;
declaratory relief only when there is a question of
claims.
Do you need a lawyer to file the complaint? Do you need
to prepare a regular complaint.
provided.
How will you address the problem where the claim is for
sum of money not exceeding 100K, and it is outside MM?
against
ambassadors,
public
ministers,
constitutionality
Appellate:
jurisdiction
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?
Sun Insurance
Rule #4:
docket fees.
What is the rule on deficient or insufficient payment of
filing fees?
judgment.
But if you did not allege it, the court cannot
grant an award because you did not pay
Thornton:
o Husband filed for habeas corpus in RTC Makati to recover child
o
from wife
What are the two kinds of habeas corpus?
o
o
Court
RTC Makati dismissed the case because the child was
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
allegedly in Basilan.
What is the effectivity of writs of habeas corpus?
the exceptions?
o 1. HLURB decisions, as provided in charter, appealable to the
SC everywhere.
Filed with the CA, but was denied because the RTC (Family
en banc, then SC
3. NLRC decisions, although by a QJA, are reviewable by the
Corpus cases.
HELD: Can file with CA.
It has jurisdiction.
SC has
jurisdiction?
After the lapse of the year period for ejectment, has the
claim prescribed?
this correct?
Oca:
again, etc.
Marcoss group that docket fees must be based on the
judgment in DC of Hawaii.
How do you impugn a judgment?
Lack of notice
Lack of jurisdiction
Collusion
Fraud
What is the rule on Arbitral awards?
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.
discussing hierarchy.
But when you talk about appeals, no need to consider
redress of a wrong
Two types?
Ordinary
Special
cause of action
Requisites of cause of action?
o 1. Right of one party
o 2. Obligation of the other to respect
o 3. Breach MOST 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?
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 of
action?
o No. Just one, because claims for damages are incidents of the
Criminal
Ex. Special Civil Action like declaratory relief does not need
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
o
(real).
N.B. as well that venue is not jurisdictional in civil cases, unlike
court.
What happens to the balance?
Parties
Abandonment
No.
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
o
be sued.
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 agent one 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
o
known).
They CANNOT institute an action as a non-juridical entity.
They have to institute it individually.
private suits.
Does it apply to a taxpayer suit?
prerogative. Is he a RPII?
suits.
Who is a necessary party?
o A) They are not indispensable, B) but ought to be joined if one
be dismissed.
What if the court did not notice non-joinder, and thus did
not order to implead the indispensable party, and renders
a decision?
Ex. X and Y
Yes.
o Can there be judgment?
(solidary).
Can you sue Y later on, having recovered from X?
not complete.
Can you then proceed against the other one, though not
impleaded at first?
Yes.
What if there is a solidary obligation, not joint?
compulsorily 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?
implead is non-prejudicial.
1. Death
to public officers.
o 3. Transfer of interest
What are the requisites of substitution by death?
o
o
1. A party dies
2. The pending action is not extinguished by reason of death
(IMPT)
Why does the law need to say this?
Same facts.
to the party
Give examples.
knowledge thereof.
2. Give names and addresses of the legal representatives
N.B.
The law provides for legal heirs,
because there is procedure to be done
before
appointment
of
administrator
or
substitute for E. There are other heirs who are affected by this
party.
Ex. Receipt of a widow of support. When
is gone.
What is the duty of the counsel after death?
o 1. Give notice of death of the party within 30 days.
No substitution of E either.
Yes.
Can the court order that C be impleaded?
joined.
How then can there be substitution?
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
o
o
o
o
C is just
administrator anyway.
But its wrong to say there is substitution, because the
case.
Indigents Algura v. Local Government 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.
property.
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:
involves land.
Where do you file it?
C) judgment on merits
defendant, so that the plaintiffs will not file the case before faro
decide cases. Knowing what court is one thing, but knowing where to
established that it covers all areas. But the actual sale will only
put drainages, etc. The owner of the land died, and the heirs are
property is located.
But the mere filing and payment of fees (for multiple properties
in various areas0 can be paid in one office, as long as it can be
For
Marcos lives in
principal plaintiff.
Where do you file an action for extra-judicial foreclosure?
o Extrajudicial foreclosure of mortgage is NOT a judicial action.
file it is different.
There was an agreement to development of a piece of land in
procedure.
estimation (rescission)
Aileen Marcos case:
o In cases where there are several plaintiffs and defendants, the
codal provides the word principal before plaintiff and
Venue
petition.
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.
o
o
o
matter.
What if I file it in Makati?
Yes.
venue.
If there are words of exclusivity (ex. can only be filed in Cebu,
waiving all other venues), then you can only file it there.
(PBCom v. Lim is an example of a case with restrictive words)
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.
venue?
or pending appeal).
Special rule: Place of residence of any expected
testimony?
Summary procedure
o
o
B) Issue summons
What is the responsive pleading?
Answer.
judgment.
A motion to declare the defendant in default is a
prohibited pleading.
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?
time.
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?
NOT
submission
for
resolution,
but
clarificatory documents
What are the prohibited pleadings?
o 1. MTD
o
o
If is not dilatory.
is dilatory.
10. Motion for extension of time
11. Petition for certiorari, mandamus, prohibition against
preliminary conference.
Pascual v. Jovellanos
o The defendant filed a Motion to Strike Out instead of an
Small claims
ejectment case?
judgment.
What is the stopgap?
conference?
Case is dismissed
What happens when the defendant does not appear?
Yes.
And then? [review/cross-check these rules]
o The parties can decide for amicable settlement or judicial
o
o
o
o
Yes. (Aldura)
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.
Is there a preliminary conference?
None mentioned.
Do the parties have to appear?
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?
action arises
2. You can reproduce the contents of the document in the
pleading en toto
instrument
2) When there is an order for inspection and it is
refused
34)
This occurs when the answer does not
tender an issue or admits the material
allegations
2) Negative defense
of action.
What are the kinds of specific denial?
1) general denial
2) specific denial
3) disavowal of knowledge
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?
(lack
of
To contribute or indemnify
o Classic case: car crash a hit b hit
c.
denial)
C sued B.
indemnification.
Subrogation
B sued A for
[Didnt answer]
What happens after answer, etc?
o Pre-trial
true.
Must it be under oath?
o Yes.
Is it mandatory?
o No. Only when the law requires you to verify.
Is it jurisdictional?
o No. Failure to attach is not fatal.
o But why do the SC and CA dismiss cases for failure to
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
o
[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.
attach verification?
o
o
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
o
it)
Dismiss the case with prejudice
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.
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
BPI v. CA
o There was a CNFS filed in the first place.
Solar
rule.
Musa
o
the decision
Date of filing of the MR
Date of receipt of denial of the MR
plea.
Before plea, can you amend?
o Yes, whether as to matter of form or substance
After plea, can you still amend?
evidence
There are two kinds of amendments to conform to evidence. What
are these?
o First kind no objection on the part of the other party. For this
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
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
amendment.
HOWEVER, if there are additional defendants, new summons
Default
that exist during the filing of the original pleading, but were not
placed in the pleading. There was just an omission.
forever
In special proceedings a claim against the estate must
be made in the period provided for in the notice.
2. Res judicata
3. Litis pendentia
4. Prescription
What is the fifth exception provided by jurisprudence?
pleading)
For supplements, the events, transactions, or occurrence only
arose after the filing of the original pleading.
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
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
1. Fraud
2. Accident
3. Mistake
4. Excusable negligence
o 2) It has to be under oath
o 3) State that you have a meritorious defense, without
o
o
o
o
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
o
Extrinsic fraud.
Is the fraud needed here the same fraud needed for motion
of Civil Procedure.
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?
for new trial, petition for relief from judgment, and motion
Yes.
Will E be allowed to present evidence?
No. He is in default.
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
are
deficient
so
there
is
suppletory
is declared in default
Judgment by default after the defendant is given notice of the
court processes, the court renders a decision without hearing
o
o
was alleged.
Bill of particular
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:
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
Service
service by mail.
o [This is different from substituted service of summons]
How do you prove service by ordinary mail?
o Affidavit
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 preferred
o What is the effect of filing by registered mail?
Summons
Can
personal
Yap rule.
What are the requirements for substituted service? Under what
mean by this?
o For the sheriff, 15-30 days according to jurisprudence. After
work
service
Payongayong:
o Priority of service is ALWAYS personal. If you cannot do it
explanation.
United Pulp:
o Hypothetical There is a principal who is out of the
substituted
circumstances?
o Only if personal service is IMPOSSIBLE.
o Proof of this: defendant cannot be served summons after all
court involvement.
When do you need court approval?
o When you intend to cancel the notice.
o Grounds:
and
service
simultaneously?
o No. Personal service first, and this is the priority. You cannot
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
the 30th day, the court will require the sheriff to submit the
o
return.
Why is this important?
[Sec. 15 does not talk about this situation. Sec. 15 talks about
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.
Just publish.
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
Against who?
Philippines.
In what subject matter?
3. Property is attached
of this.
3. Other modes deemed applicable by the
court
Section 16: Temporarily absent
None provided
jurisdiction.
Maximo v. Montalban:
o In this case, his residence is known and he is just temporarily
is
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?
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
o
answer.
Does a motion to dismiss take the nature of an answer?
To parties.
How
do
you
determine
subject
(Three day
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?
matter
jurisdiction?
notice rule)
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
o
o
Motion to dismiss
o
amending BP 129
2. Lack of J over the defendant
Or voluntary appearance
3. Improper venue
1. Final judgment
3. Judgment on merits
o
o
Is this waivable?
o YES.
Because it is
jurisdictional.
Ex. Earnest efforts to compromise
Ex. Exhaustion of administrative remedies
not
But
1. Prescription
3. Res judicata
defense.
Why is such court attitude?
answer?
Particulars portion.]
There was MTD filed on basis of lack of J over the defendant. The
answer.
Can this case be re-filed?
Yes.
This
and
permissive
30-60 days.
But in the same order, the court will say that if within
separate action.
Pre-trial
When is pre-trial conducted?
o Rule 18 Sec 1 does not say, it just says that the ex parte
done promptly
BUT the 2004 guidelines say it must be within 5 days after the
pre-trial.
Before actual pre-trial, a few days before, what happens?
o Preliminary conference before the clerk of court. It will be
o
o
o
compulsory counterclaim?
Yes.
[Missed something]
Judge talks to counsel and parties
Judge talks to only parties
[stepped out]
What do you need to submit at pre-trial?
o Pre-trial brief.
confront witnesses.
RULE 118.
TAKE NOTE OF THIS.
THIS IS THE
What happens?
It will be re-scheduled.
What if the accused is absent?
and accused.
independent evaluator.
Unless the parties consent to continue with the JDR judge, it is
mandatory that there will be a new raffle and the new judge
who will hear, try, and decide the case is the trial judge
This step happens when the Clerk of Court receives the
Intervention
o
o
separate action
When can you intervene?
o You can intervene any time before rendition of judgment in the
o
trial court
There is nothing in the rules talking about intervention in the
Subpoena
Types of subpoena?
o Ad testificandum: appear and testify
o Duces tecum: appear and bring with him the documents or
things
right. You can altogether dispense with it, or waive it. It is not
Here, the
appear
3. Failure to tender the costs of production
4. Kilometrage/witness fees Not in the duces
This is distinguished by
No.
agreement/stipulation
In foreign country, 1. Embassy, legation, consular
officer/agent 2. One authorized by commission or
the rules
Can the clerk of court issue a subpoena in the absence of a judicial
body.)
o
depositions?
Then?
Yes.
After the signature, what next?
and complete
If the procedure is not followed, what will happen? What is the
consequence?
o A party can file a motion to suppress deposition because the
o
attend
to
due
age,
sickness,
imprisonment, etc.
D) Cannot compel attendance of witness through
rule.
If you take a deposition, are you compelled to present it in court?
o No.
If you use a part of a deposition, can the rest be presented?
o Yes.
Always distinguish between take and use.
Who are disqualified to be deposition officers? [Memorize; this has
to
Unable
C)
subpoena
E) Exceptional circumstances
Can a subpoena be issued by reason of deposition taking to make
defect
When is the period to object?
judgment by default
However, in the old case of Arellano, the court
matters)
o Yes.
Can the other party oppose the taking of a deposition?
o Yes.
o Under what grounds?
words
It is irrelevant
Interrogatories to parties
person as a witness?
o You still have to present him in court, in general. Depositions
o
officer)
o Rule 25
Are the uses of the depositions the same?
o Between Rule 23 and 25, the same
Sec. 12
It is different if you call on the witness the accused
himself (in a criminal case)
document?
to be genuine or true
But in the meantime, advanced by the party requesting
evidence?
o No, youre not required. It is a mode of discovery a way of
discovering evidence. If you like what you see, you still have to
go through the process of presenting it in court.
27
Physical and mental examination
So limited in its use that even the 2004 guidelines do not include it
When can you apply for this?
o Mental or physical condition is in controversy
This is the only mode of discovery where the court can motu propio
o Yes.
Can you use modes of discovery in special proceedings?
o Yes.
o Special proceedings do not provide for an answer. But the
general principle of suppletory application (Rule 72, Sec. 2).
Is there criminal deposition?
o There is a Rule 119. Use it instead of Rule 23. Rule 119 talks
o
testimony.
But there is distinction between conditional examination of
witnesses for the prosecution and condition examination for
accused.
case
Consequences of non-compliance
He can be arrested
superior court.
But the law does not say its deposition. But its akin to such,
Trial
Both civil and criminal procedures will not provide for conduct in
examination of a witness. Where is it found? Evidence.
What is the order of presentation of evidence?
o 1. Plaintiff, to support complaint
o 2. Defendant, present defense
o 3. Third party, and so on
case?]
Can there be judgment without trial?
o When parties agree on facts
o [spaced out]
What are the grounds for cancellation of hearing?
o 1. His presence is indispensable and illness is excusable
clearly objectionable.
Cf Trial by commissioner
Who is a commissioner?
o Person authorized by the court to
o Ex. auditor, referee, examiner
Any matter can be referred to the commissioner, when?
o If the parties consent. ANY MATTER.
But if the parties do not agree, what can be referred to the
commissioner?
o 1. Requires examination of long account
o 2. Taking of account necessary for courts information for court
evidence
2. Ex parte
during PT]
to render judgment/execute it
o 3. Question of fact arising from motion
Can a commissioner issue a subpoena?
o Yes.
o Can he issue a subpoena duces tecum?
in two different judicial regions even when it was not even an issue in
the MR?
o You cannot appeal a denial or file for certiorari until final
case.
In criminal cases, can you file demurrer without leave of
court?
File certiorari
But in criminal demurrer, can you file for certiorari after denial of
o
the case!
Demurrer to evidence
case.
If your demurrer is denied, what do you do? (civil)
o You can submit evidence, and continue until judgment.
o Can you file for an MR of the denial?
Consolidation
Despite the acquittal, the court can still hear the case
the pleadings?
o After the defendant files an answer.
o Can it be during pre-trial?
not exist.
So if the accused was not able to present evidence in
partys pleading
What do the material allegations mean in the second ground?
o It means the cause of action
o See the next section on Summary Judgment as to what the
difference is with that concept
Who files a motion for judgment on the pleadings?
o The plaintiff, always
Can there be partial judgment on the pleadings on this ground?
o No. Its ALWAYS a full judgment on the pleadings.
o N.B. This is different from summary judgment, where there can
be partial or complete summary judgments.
Can the defendant file a motion for judgment on the pleadings?
o Based on a counterclaim.
pre-trial?
so.
Can you file a motion for judgment on the pleadings after
If youre the plaintiff, when can you file a motion for judgment on
18). But its still, ultimately with the parties consent. So in the
end, the judge still cannot grant it on his own.
Summary judgment
Y sues X.
Is this
the pleadings?
o Summary judgment; although there appears to be an issue (X
sham or fictitious.
Cannot lead to judgment on the pleadings, because there was
Is it required that the judge who heard the case is the same who
1. Authority to expropriate
2. Just compensation
Ex. Summary judgment (one case has several judgments
summary as to the one with no genuine issue, and trial over
Is an MR a prerequisite to appeal?
o No.
In a case involving summary procedure, is MR allowed?
o No, it is a prohibited pleading
How many days to file?
o 15 days
o Can it be extended?
Cannot be extended
But
o
o
Extrinsic fraud.
What is mistake?
2. Excessive damages
(ordinary appeal)
How many times can you file an MR?
o Just once
How many times for a MNT?
o Can be multiple, as long as on grounds not existing when the
first MNT was filed
What is the effect of granting an MNT?
o There will be a trial de novo.
o The evidence so far presented may be used in the new trial
without retaking
Can there be MNT in the appellate court?
o Yes, but with different rules and only to the Court of Appeals
o
1. It must be material
The sixty days can only move around the six months.
CA and not petition for relief to the court that issued the judgment?
(Alaban v. CA)
o Petition for relief.
o 1. Although section one states that only a party may file a
resort to petition for relief from judgment. Take note, that there
deemed as parties.
2. The learned of the judgment 2 months (60 days) from
learning of the judgment. So the proper remedy is petition for
It
If you found out the day before six months expire, you
there is no ground
You file an MR.
Why?
instance?
matter of right.
What is the exception?
1. Perishable goods
(Intramuros)
Is a full blown trial required for a motion for execution?
o No.
Can execution pending appeal be applied for to the TC after the
appeal has been perfected?
o For as long as the TC has jurisdiction over the case.
o See Rule 41. [This includes execution pending appeal,
jurisdiction?
jurisdiction.
o But there is no clear answer.
In an ejectment case, which court issues the order of demolition?
o The court of original jurisdiction, i.e. the MTC
o What is the exception?
action to execute.
When can you file a motion for execution?
o Within 5 years from entry of judgment
After lapse of period of ten years, can you still revive it?
o No.
o Is it always ten years?
YES.
This is the flat prescriptive period for
judgments.
Death after judgment:
o If the judgment oblige dies, then the executor/administrator
o
o
Go to
Garnishment
o Custodian of the funds/deposit/royalty has to make a report.
o How many days to report?
judgment.
What if the judgment is for money, not property?
In cash.
Payment must be made to whom?
To his representative
To the sheriff
o Can payment be effected not by cash (Ex. check or PN)?
Go to
Levy on real or personal property
o What will be disposed first?
No.
Specific acts
o If the court requires the obligor to do something, but he
o
Give an example.
The court
orders that
there must
be
X refuses.
whoever/whatever office
Can an order for demolition be given along with the writ of
execution?
No.
hearing.
When can there be contempt?
refusal to comply.
What are the properties exempt from judgment?
o Family home, homestead, and the land
public sale
Who will be entitled to fruits/profits of the property
What if after participating in the sale, you are unable
even by publication
What if it is a perishable good or personal
property?
chance to cultivate
Libraries of professionals not beyond 300K
Furniture for the family not beyond 100K
Beasts of burden (up to 3)
Tombstones
No.
o [Among others]
When can you apply for a motion for execution?
o Section 14. This also tells you the life of the writ.
o What is the life of the writ?
Sec. 15-34:
o Important parts:
Requirements of sale
Certificates of sale
Redemption
Redemption period
sale
In all cases, notice at least 3 days before the
sale
What time must the sale be?
delivery?
property is located
Is a certificate of sale mandatory for personal properties
property.
Who has possession during redemption period?
Obligor.
Who is entitled to fruits and profits?
Obligor.
No, it is not.
[See this]
Can you redeem personal property sold on public sale?
real properties.
Who can redeem?
by
credit,
encumbrance
(redemptioners)
What is the distinction?
be invalid.
Beyond the redemption period, can it still be
redeemed?
It is
anymore
redemption
as
year, non-extendable
Once the judgment obligor redeems, no
further redemption is allowed.
What about the redemptioners?
o Theirs
rights
were
not
never
property.
If the judgment obligor does not redeem,
But I already
do?
separate action
2. You can have the judgment revived in the name of
judgment obligee.
of the writ
2. Written acknowledgement of the judgment obligee or
counsel
3. When there is an endorsement on the face of the records of
he can garnish.]
In execution, you need to remember the word satisfaction. Sections 44
and 45 have this end in mind. The books of the case will not be closed,
even if you won, if judgment has not yet been fully satisfied.
What are your remedies?
o 1. Call the judgment obligor and have him examined in court,
o
through subpoena
2. Call on the stand the debtor of the judgment obligor to be
the case
Even if the other party does not consent, but the court believes that it
has been satisfied, the court may enter that it has been satisfied.
What are the effects of domestic judgment? (MEMORIZE)
o 1. As against a specific thing, condition/status/relationship of a
person conclusive upon it
o
o
o
receipt
4. Amortization payments
5. Court appoints a receiver
party conclusive?
therein
What are the effects of foreign judgment?
o 1. Conclusive as a specific thing
o 2. Presumptive evidence of rights between parties
the record
Where do you file a notice of or record on appeal if you are in the
MTC going up to the RTC?
o MTC. Always on the court that issued the judgment.
What is a record on appeal?
o Its a sequential compilation of the pleadings, orders, etc. of the
o
judge.
Unlike a notice of appeal, which is just a statement when you
received the decision, that you paid appeal docket fees within
Appeals
The procedure is
totally
lose
o
o
Prosecutor?
by the CA?
Yes.
Can the decision of the HLURB be reviewed by the CA?
Yes.
o CTA by the CA?
agency
What are the periods?
o Same for Rule 42 and 43 15 days
o Can you ask for an extension?
genuine
Is the enumeration in Rule 43 of QJAs exclusive?
o No.
o Can the decision of the Office of the President be reviewed
What are some of the causes that will dismiss your case?
Certiorari.
o Except: In a criminal case where the punishment is Life
Imprisonment, Death, or RP you go to the SC through
Ordinary Appeal
Petition for Review on certiorari what is the period?
o 15 days.
o Can there be extension?
But I
realized I needed more time. Can I ask for the last 15?
Rules 44-56 CA
arguments
for
certiorari,
annulment
of
judgment,
evidence.
MTC decision?
decision?
period
50.
Rule 50 enumerates grounds for dismissal of appeals.
Browse through this.
jurisdiction?
party.
BUT in the Court of Appeals, motions in the CA need
Dismissed.
decision
CA from the time appeal is perfected and as long as
the CA has jurisdiction
No.
For appealed cases to the Supreme court, what is the mode?
o Rule 45 the only way to go up to the Supreme Court
o PLUS: Rule 48 (preliminary conference), Rule 51 (judgment),
o
Remember Sec. 1 and 3. Memorize the cases that will be originally filed
in the SC.
What are the cases that can be originally filed in the SC?
o Certiorari, prohibition, mandamus, quo warranto, disciplinary
against
members
of
the
Bar/bench,
If
IBP.
Found in the Constitution: Constitutionality of law, treaty,
upon motion.
To answer the question: there are three stages for attachment
against
defendant.
Remember you could file an attachment will the initiatory
pleading and apply for it ex parte. You can also apply for it
Rule 52 (MR)
Is there oral argument?
No.
Rule 57 attachment
actiosn
defraud.
2. Embezzlement/abuse of trust by one with a fiduciary
relationship
What is improper?
What is irregular?
Wrong process.
o
o
o
o
fraudulent
5. Action against a person who removes/conceals property
time
How do you discharge an attachment?
o 1. Most common: post a counter-bond
pendent lite.
Where can you apply for it?
First: If not for the fraud, the other party would not
have entered into the transaction
Second: In the manner of the performance, it was
attachment.
Section 20 applies to all provisional remedies except support
2. Amount thereof
Can actual damages cover unrealized profits?
Yes.
But the amount must be supported by
independent evidence of mean income of the
business undertaken.
How do you prove moral/exemplary damages?
that the filing of the motion can be deemed the same as a third
unregistered sale.
No.
Rural Bank of Sta. Barbara: A motion to release property from
attachment was treated as a third party claim (can also be found in Rule
hearing.
Security case: Two ways to secure discharge of attachment. 1) Party
security. 2) Said party can show that the attachment has been
57, Sec. 14). Works as the same manner as a third party claim, except
for one difference: [READ THIS CASE TO CLARIFY]
o Usually, in execution The applicant posted a bond when he
fraud must be related to the execution of the agreement and must have
been the reason that induced the party to give consent.
o If the writ of attachment is issued for a ground that is also the
discharge.
Contents of affidavit for attachment?
o 1. Cause of action
o 2. Statement that the grounds apply
o 3. There is no sufficient security
What if the court renders a judgment and there is a previous
attachment, duly registered, what will the subject of execution?
o If there is money duly garnished or obtained through sale of
perishable goods, the money will be applied.
Rule 58 - Injunction
preliminary injunction:
Principal action seeks a judgment for a final injunction which
It was amended
injunction?
o Yes. There could be a principal action for injunction. There is
is stationed in Marawi)
o No. A writ can only be issued in the judicial region.
What is the purpose of the bond?
o To protect the person against whom the writ of injunction has
o
and substantial
3. There is an urgent and permanent necessity for the writ to
been issued
The posting of a bond in connection with PI does not operate to
the bond only gives additional protection in favor of the
defendant
So Rule 57, Sec 20 also applies here. Read above, on the
PI.
Borromeo: Where the parties stipulated in their credit agreement, PN,
raffle
contract, etc., that the mortgagee has the right to foreclose in case of
default, this defeats any future claim for the issuance of a PI.
SC Circular (2007): On issuance of PI on extrajudicial and judicial
foreclosure cases.
o 1. Today it is not enough to say that you have paid the amount.
interest is paid.
What is a Status quo order?
o It is not a preliminary injunction.
foreclosure of mortgage.
Can the court require you to post a bond for a TRO?
o Yes.
What are the two kinds of TRO?
o 72 hour TRO can only be issued by executive judge of a
multi-sala court, or presiding judge of single sala court
period.
preliminary injunction.
If you file a petition for certiorari against the PI, does it suspend
the main case?
o No, it does not. This is an amendment introduced in 2007.
o Can you extend the period by which you can file a petition
Minimum requirements of
hearing??
o No. NEVER. There must always be notice and hearing.
o The hearing is always summary in nature whether TRO or
No more.
Is a counterbond enough?
No
No
Rule 59
The only provisional remedy that can be applied for post-judgment and
even if it is already final and executory.
Grounds:
o 1. Property is in danger of being lost
o 2. Property is in danger of being wasted/dissipated
o 2. Stipulation in a mortgage contract and the security in the
mortgage is not enough to cover the value of the application
o 3. Other reasons the court finds convenient
Requires a bond
How do you dissolve the bond?
o 1. Show no cause
o 2. Post a counterbond
release
unlawful.
Property can be said to be in custodia legis, not only when it is
ANSWER.
For the other provisional remedies, you can apply anytime
taken.
Rule 60 Replevin
In attachment,
Pinggol: A replevin bond was deemed invalid because the officer who
another court?
o No. It is in custodia legis.
Can goods under custody of an agency of the government (here,
support?
You
needs money.
o N.B. For all these other provisional remedies, just follow Rule
57 Rule 23. The general rule is you can only recover damages
from a bond while the action is pending.
ask
for
court.
Can you dissolve support pendente lite?
o When there is no reason to give support pendente lite.
This is the only provisional remedy that does not require a bond. The
four others require a bond. The person applying for support obviously
You
Rule 62 Interpleader
damages.
reimbursement.
What if there is refusal to comply with court order to give support?
o The court can order execution.
o There are only two instances where there can be writ of
recover
action. In Rule 39, a third party claimant can only vindicate his
executory.
What is the rule on intervention (Rule 19)?
dont
construction
3. There must have been no breach of the documents in
question
o 4. Actual justiciable controversy
o 5. Ripe for judicial determination
o 6. Adequate relief is not available
Bottomline: purpose is for interpretation and determine validity. Its not
about constitutionality.
o Also, there must be no breach
What if there is breach?
o There will be conversion to an ordinary civil action. This is the
only such action that can be converted.
Do you need to pay filing fees when it is converted?
o Yes, you need.
Which court has original jurisdiction?
o RTC.
o What if there is an allegation of unconstitutionality?
breach.
Second paragraph of Sec. 1: -- covers other similar remedies
Removal of cloud
Quieting of title
Reformation of instrument
1. This is actually a petition for certiorari. If you file under Rule 64, it will
First rule of Rule 65: you do not talk about Rule 65. Second rule of Rule
65: you do not talk about Rule 65. You have to fight on your first night.
Real first rule of Rule 65: this is not an appeal
Elements of certiorari?
o 1. GADALEJ
o 2. No plain, available, speedy ordinary remedy
What is prohibition? Should there be GADALEJ?
o Yes. The same is required GADALEJ. No plain, available,
speedy ordinary remedy.
o It is the same as certiorari.
Certiorari whose decision can you question?
o Judicial or QJA
Prohibition whose decision can you question?
o Judicial, QJA, or ministerial
What is the difference between prohibition and mandamus?
o Limited to ministerial functions.
o Here, you are requiring him to perform.
Can the OMB be compelled by mandamus to file an information?
o No. It is not ministerial.
If you entered into a contract with X to build a house for you, and X
reason to belief
3. Upon the relation of another person, telling the Sol-Gen to
5)
What should he show?
1. His claim
received the advance of the contract price, and X did not build the
performance.
Can an OMB judgment be reviewed?
o Generally, under Rule 43.
o However, if the decision of the OMB in a criminal case is
to forfeit office
3. Association not duly incorporated
Rule 67 Expropriation
If
it
involves
government
facility
which
is
subject
of
[double check]
Gingoyon: The government must pay at least the proffered
value, not the assessed value. (RA 8974 the deposit for
2. [xxx]
3. Just compensation