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Remedial Law Review Notes Under Atty Ferdinand Tan Consolidated Notes in Civil P PR
Remedial Law Review Notes Under Atty Ferdinand Tan Consolidated Notes in Civil P PR
Remedial Law Review Notes Under Atty Ferdinand Tan Consolidated Notes in Civil P PR
Makes vested rights Has no vested rights A remedy by The State A party sues
possible which a party prosecutes a another for
seeks to person for an the
Prospective in Governs rights and
establish a act or enforcement
application transactions which took
status, a right, omission or protection
place (retroactive)
or a particular punishable by of a right, or
fact (Rule 1 law (Rule 1 the
Cannot be enacted by SC SC is expressly
S3c) S3b) prevention or
empowered to
redress of a
promulgate procedural
wrong
rules
A proceeding
wherein a
person is A civil action
prosecuted by may be
the State for ordinary or
acts or special. (R1
omissions S3a)
committed in
violation of
4 Main Divisions of Remedial Law: penal laws,
and to impose
1. Civil Procedure (Rules 1-71) the
2. Special Proceedings (Rules 72-109) corresponding
3. Criminal Procedure (R110-R127) penalty
4. Rules on Evidence (Rules 128-134) provided for
by penal laws
1
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Initiated by Initiated by Initiated by Private property shall not be taken for public use
petition complaint complaint, or, without payment of just compensation
(but filed in in some
court by special civil
Information) actions, by A6 S30
petition
No law shall be passed increasing the appellate
Except Based on an Based on a jurisdiction of the SC as provided in this Constitution
Habeas act or cause of without its advice and concurrence.
Corpus, NOT omission action
based on a punishable by
cause of law
A8 S5 P1
action
The Supreme Court shall have the following powers:
2
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
the suspension of the privilege of the writ or the 2. Pleading, practice, procedure in all courts
extension thereof, and must promulgate its decision 3. Admission to practice of law
thereon within 30 days from its filing. 4. Integrated Bar
5. Legal assistance to the underprivileged
3. all cases in which the jurisdiction of any No decision shall be rendered by any court without
lower court is in issue expressing therein clearly and distinctly the facts and
the law on which it is based.
4. all criminal cases in which the penalty
imposed is reclusion perpetua or higher No petition for review or motion for reconsideration
of a decision of the court shall be refused due course
5. all cases in which only an error or question or denied without stating the legal basis therefor.
of law is involved
3
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
by the rules of the Commission or by the One which restricts the court’s jurisdiction
Commission itself. Unless otherwise provided by only to particular cases and subject to such
this Constitution or by law, any decision, order, or limitations as may be provided by the
ruling of each Commission may be brought to the SC governing law.
on certiorari by the aggrieved party within 30 days
from receipt of a copy thereof. It is confined to particular causes, or which
can be exercised only under the limitations
and circumstances prescribed by the statute
May be waived Jurisdiction over subject E.g. CA, SC, Sandiganbayan, RTC- in HC
matter and over nature cases, Writ of Amparo, Writ of Habeas Data
of action are conferred
by law and cannot be Original Jurisdiction
waived Power of the court to take judicial
cognizance of a case instituted for judicial
Procedural Substantive
action for the first time under conditions
May be changed by Cannot be subject of the provided by law and appellate jurisdiction,
written agreement of agreement of the parties or the authority of a court higher in rank to
the parties re-examine the final order or judgment of a
lower court which tried the case or elevated
Not a ground for motu A ground for motu for judicial review. It is jurisdiction
proprio dismissal, except proprio dismissal conferred upon or inherent in the first
in Summary Procedure instance
4
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
5
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Motion for Motion for 2. All cases involving the legality of any tax,
reconsideration is not reconsideration or for impost, assessment or toll, or any penalty
required new trial is required; if a imposed in relation thereto
motion for
reconsideration or new 3. All cases in which the jurisdiction of any
trial is filed, the period lower court is in issue
shall not only be
interrupted but another 4. All criminal cases in which the penalty
60 days shall be given to imposed is reclusion perpetua or higher
petitioner (SC Admin (WITHIN THE SCOPE OF CRIMINAL
Matter 02-03) PROCEDURE- RULE 45)
Court is in exercise of its Court exercises original 5. All cases in which only an error or question
appellate jurisdiction jurisdiction of law is imposed
and power of review
1 and 2- PURE QUESTIONS OF LAW
Petition shall be filed Petition shall be filed
with the Supreme Court with the RTC, CA,
Sandiganbayan, Comelec
Administrative Supervision of the Supreme Court:
A8 S5 P2 COURT OF APPEALS
The SC may review, revise, reverse, modify, or affirm Original jurisdiction / Original Concurrent
on appeal or certiorari, as the law or the Rules of Jurisdiction
Court may provide, final judgments and orders of
Original jurisdiction to issue writs of:
lower courts in:
- Mandamus
1. All cases in which the constitutionality or
- Prohibition
validity of any treaty, internation or
- Certiorari
executive agreement, law, presidential
- Habeas corpus
decree, proclamation, order, instruction,
- Quo warranto
ordinance, or regulation is in question
- Auxiliary writs and processes,
6
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
7
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
8
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
1. All cases of FE and UD, irrespective of the By filing of original complaint in court plus
amount of damages or unpaid rentals payment of requisite docket fees
sought to be recovered. Where AF are
awarded, the same shall not exceed 20k
9
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Suit to enforce Act or omission Remedial right - Actions affecting title to or possession of
one’s right or by which a to file a suit real property (A415 NCC in consideration)
for the party violates a based on cause - Venue: R4 S1
prevention or right of another of action
redress of a Personal Action
wrong
- Involves privity of contract/personal
property (A416-417 of NCC in
consideration)
Original Distinctions:
- Venue: R4 S2
Action Cause of Action Right of Action
Mixed Action
Suit filed in Act or omission Remdial right
court for by which a or right to relief - Action affecting title to or possession of real
enforcememt party violate a granted by law property + Privity of Contract
or protection of right of another to a party to - Venue: R4 S1
a right, or the (R2 S2) institute an
prevention or action against a
redress of a person who has
2ND GROUP: for purposes of determining
wrong (R1 S3) committed
jurisdiction/service of summons
delict or wrong
against him Action In Rem
Reason for the Remedy or - Action which binds the whole world
action means afforded Note: all Special Proceedings are in rem
or the actions
consequent - Summons/notification by PUBLICATION
relief
10
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
11
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Original complaint
Permissive counterclaim
Real Action In rem action Cross claim
Third party complaint
Ownership or possession Action directed against
4th party complaint
of real property is the thing itself
Complaint in intervention
involved
Petition
Filed in court where Not necessarily; depends In special civil actions
property or portion on whether the action is In special proceedings
thereof is situated real, personal, mixed Counter counter claim
Counter cross claim
A proceeding founded A proceeding to
on privity of real estate determine state or Counter Counter Claim Counter Cross Claim
condition of a thing
Any claim which Any claim which a
Judgment may bind Judgment is binding defending party in a defending party in a
whole world, or upon the whole world counterclaim may have cross claim may have
particular persons, against the original against the original cross
depending on whether in counterclaimant claimant
rem, in personam, quasi
COMPULSORY- Arises Can be an initiatory
in rem
out of or is necessarily pleading, if permissive
connected with the
transaction or
PLEADING (R6 S1) occurrence that is the
subject matter of the
Sworn written statements of the respective
opposing party’s claim
claims and defenses of the parties
submitted to the court for appropriate
judgment
PERMISSIVE- does not
arise of or is necessarily
connected with the
Complaint (R6 S3) transaction or
The complaint is the pleading alleging the occurrence that is the
subject matter of the
plaintiff’s cause or causes of action.
opposing party’s claim
INITIATORY PLEADING
Answer to original complaint
A pleading that initiates an action Answer to permissive counterclaim
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
13
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
S408, LGC
15. CARL disputes
1. where one party is the government or any
subdivision or instrumentality thereof 16. Disputes involving traditions of an
indigenous cultural community
2. where one party is a public officer or
employee, and the dispute relates to
performance of his official functions
Does the Exclusive Original Jurisdiction of the RTC
on actions involving those incapable of pecuniary
3. offenses punishable by imprisonment
estimation include provisional remedies as falling
exceeding 1 year or a fine exceeding 5k
within the category?
pesos
No, because provisional remedies are merely
4. offenses where there is no private offended ancillary to the main action. The category of actions
party incapable of pecuniary estimation refers only to
main actions.
5. where the dispute involves real properties
located in different cities or municipalities
unless the parties thereto agree to submit
Purpose of Barangay Proceedings:
their differences to amicable settlement by
an appropriate lupon Reduce the number of litigations and prevent the
deterioration of the quality of justice which has been
6. disputes involving parties who actually brought about by indiscriminate filing of cases in the
reside in barangays of different cities or courts. (Zamora vs Heirs of Izquierdo)
municipalities, except where such barangay
units adjoin each other and the parties
thereto agree to submit their differences to
amicable settlement by an appropriate Venue of Barangay Conciliation Proceedings:
lupon
S409, LGC
7. such other classes of disputes which the Disputes between persons actually residing
President may determine in the interest of in the same barangay shall be brought for
justice amicable settlement before the lupon of
said barangay
8. where one of the parties is a juridical entity
Those involving actual residents of
9. where accused is under police custody or different barangays within the same city or
detention munipality shall be brought in the barangay
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Those arising at the workplace where the Remedies of the parties in case of failure of
contending parties are employed or at the amicable settlement before the lupon:
institution where such parties are enrolled
for study, shall be brought in the barangay 1. File the case before the proper court
where such workplace or institution is 2. Repudiate the agreement (S418, LGC)
located 3. File a petition before the MTC to nullify the
agreement (when it is entered thru force,
intimidation, undue influence, threats)
Rules on appearance before Barangay Proceedings:
S415, LGC
Remedy in case of failure to comply with Barangay
In all katarungang pambarangay proceedings, the Conciliation:
parties must appear in person without the assistance
of counsel or representative, except for minors and As defendant, file a motion to dismiss under R16 S1j
incompetents who may be assisted by their next of on the ground that a condition precedent has not
kin who are not lawyers. been complied with.
Effect of Amicable Settlement and Arbitration Motion to dismiss was granted, remedy of plaintiff?
Award:
Re file the case with the certification of having
S416, LGC undergone Barangay conciliation proceedings, as the
dismissal is without prejudice.
The amicable settlement and arbitration award shall
have the force and effect of a final judgment of a
court upon the expiration of 10 days from the date
Motion to dismiss was denied, remedy of
thereof,
defendant?
Unless:
R16 S4 states that if the motion is denied, movant
1. repudiation of the settlement has been shall file his answer within the balance of the period
made or granted by Rule 11 to which he was entitled at the
time of serving his motion, but not less than 5 days
2. a petition to nullify the award has been filed in any event, computed from his receipt of the
before the proper city or municipal court. notice of the denial. Proceed with the trial, and
when the decision is adverse, file an appeal raising
However, this provision shall not apply to court
as error the ground for denial of the motion to
cases settled by the lupon under last paragraph of
dismiss. When the denial is tainted with grave abuse
S408 of this Code, in which case the compromise
of discretion amounting to lack or excess of
settlement agreed upon by the parties before the
jurisdiction, file petition for certiorari under Rule 65.
lupon shall be submitted to the court and upon
approval thereof, have the force and effect of a
judgment of said court.
** In between Barangay conciliation and filing of
complaint, if real property is involved, plaintiff can
file adverse claim over the property, or can file
Rules on execution of judgment in Barangay
notice of lis pendens
Proceedings:
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Notice of Lis Pendens 3. Civil cases not higher than 100k- Subject to
the Rule on Small Claims
- “buyer beware”
- Notice to buyer of existence of an adverse
claim
o It is not a pleading GENERAL RULE on Summary Procedure: No Motion
o There is need to register it with the to Dismiss is allowed (Prohibited Pleading)
register of deeds
EXCEPT:
NOTE: If the case undergone Barangay conciliation HOWEVER, with respect to SMALL CLAIMS CASES,
proceedings first, there must be a specific allegation
in the complaint that there is compliance with ABSOLUTE RULE: motion to dismiss is not allowed
Barangay Conciliation proceedings
Reason: defeats the purpose of Small Claims
Pag wala, patay (?)- M2D S1j OR amend the Proceedings
complaint (?)
Venue
Jurisdiction
- Can be subject to stipulation of the parties
IF, court has no jurisdiction, M2D R16 S1b
State: Rules on venue
(importance of knowing BP129 as amended by
RA7691 Rules on Jurisdiction) R4 S1
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
If any of the defendants does not reside and is not The motion was granted (court issues not a
found in the Philippines, and the action affects the judgment but an ORDER). Counsel for plaintiff.
personal status of the plaintiff or any property of Remedy?
said defendant located in the Philippines, the action
may be commenced and tried in the court of the I will refile the case in the court of the proper venue,
place where the plaintiff resides, or where the because the order of dismissal is without prejudice
property or any portion thereof is situated or found (R16).
R4 S4
Motion to dismiss was denied. Remedy for
1. The parties have validly agreed in writing defendant?
2. The agreement in writing was made before
the filing of the action Rule 16 S4
3. Exclusive venue is stipulated
File an answer within the balance of the period
Atty Tan’s comment: prescribed by Rule 11 to which he was entitled at the
time of serving his motion but not less than 5 days in
Rule 4 of the Rules of Court did not provide for MAY, any event, computed from his receiving of notice of
but SHALL denial. Then, go to trial. When the decision is
adverse, file an appeal raising as error the denial of
Suppose, Real property is subject of dispute (real the motion to dismiss. If the denial of the motion is
action). A lives in Pasay, B lives in Manila, the real tainted with grave abuse of discretion amounting to
property is located in Davao. Following Rule 4 S1, lack or excess of jurisdiction, file petition for
the suit should be filed in Davao, being the place certiorari under Rule 65.
where the property or portion thereof is situated.
However, the parties can exclusively agree that the
venue can be filed in Baguio, provided that the
requisites of R4 S4 as to exclusivity of venue are Motion to dismiss on the ground of improper venue
complied with IS A PROHIBITED PLEADING under the Rules on
Summary Procedure, and more so in Small Claims
So, it means that Rule 4 S1 can be the subject of
agreement, and that the suit can be filed somewhere Remedy: raise the ground as an affirmative
else other than what S1 provides? (Parang ok lang defense
sana kung concern e personal action under R4 S2-
can be subject of agreement, pero venue of REAL
ACTION CAN BE SUBJECT OF AGREEMENT?! Labo Parties
ata...)
(R3 S1)
Seems there is a loophole in Rule 4
Only natural or juridical persons, or entities
authorized by law may be parties in a civil action.
The term plaintiff may refer to the claiming party,
If the venue is permissive,
the counterclaimant, cross claimant, or the 3rd 4th etc
Then the venue is in addition to the rules on party plaintiff. The term defendant may refer to the
venue original defending party, the defendant in the
counterclaim, the cross defendant, or the 3rd 4th etc
party defendant.
I will file motion to dismiss under R16 S1c on the - Counter counterclaimant
ground that the venue is improperly laid - Counter cross claimant
Defendant includes:
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Defendant
Who is a proper party?
A person claiming an interest in the
A proper Party is the same as a necessary party, a
controversy or the subject thereof adverse
party who is not indispensable but who is ought to
to the plaintiff
be joined as a party if complete relief is to be
accorded as to those already parties, or for a
complete determination or settlement of the claim
3rd party plaintiff subject of the action (R3 S8)
A defending party who may with leave of Party those presence is necessary to adjudicate the
court file against a third person not party to whole controversy, but those whose interests are so
the action called the 3rd 4th etc party far separable that final decree can be made in their
defendant a claim for contribution, absence without affecting them (Quisumbing vs CA
indemnity, subrogation, or any other relief GR 93335 9/13/1990)
in respect of his opponent’s claim (R6 S11)
Representative party
Cross Claimant
R3 S3
A party to an original action who has a claim
against a co party arising out of the Party acting in a fiduciary capacity. The beneficiary
transaction or occurrence that is the subject shall be included in the title of the case and shall be
matter either of the original action or of a deemed to be the real party in interest. It may be:
counterclaim therein (R6 S8)
- Trustee of an express trust
- Guardian
- Executor
Real Party In Interest - Administrator
- A party authorized by law or these rules
A real party in interest is the party who o (agent acting in his own name and
stands to be benefited or injured by the for the benefit of an undisclosed
judgment in the suit, or the party entitled to principal may sue or be sued
the avails of the suit. Unless otherwise without joining the principal
provided by law or these rules, every action except when the contract involves
must be prosecuted or defended in the things belonging to the principal)
name of the real party in interest(R3 S2)
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
EXAMPLE: Spouses- husband and wife shall sue or be any question of law or fact common to all such
sued jointly, except as provided by law (R3 S4) plaintiffs or to all such defendants may arise in the
action; but the court may make such orders as may
be just to prevent any plaintiff or defendant from
being embarrassed or put to expense in connection
Quasi Party
with any proceedings in which he may have no
Parties in whose behalf a class or representative suit interest.
is brought
Denied:
I will file an answer within the balance of the period Cause of Action
prescribed by Rule 11 to which i am entitled at the
time of serving my motion, but not less than 5 days Act or omission by which a party violates a
in any event, computed from my receipt of notice of right of another (R2 S2)
denial. Then, proceed with the trial. In case of
adverse decision I will appeal the judgment and
assign as error the denial of the motion to dismiss.
What are the elements of a cause of action?
However, if the denial is tainted with GAD
1. Plaintiff exercises a legal right
amounting to lack or excess of jurisdiction, then I will
2. Correlative obligation the part of defendant
file petition for certiorari under Rule 65.
to respect plaintiff’s legal right
3. Defendant violates plaintiff’s legal right in a
manner contrary to law, morals, good
JOINDER OF PARTIES customs, public order, public policy
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
A party may in one pleading assert, in the alternative File a motion to dismiss for failure to state the cause
or otherwise, as many causes of action as he may of action
have against an opposing party, subject to the
following conditions: Splitting a Single Cause of Action:
A. That the party joining the causes of action It is the act of dividing or indivisible cause of
shall comply with the rules on joinder of action into several causes of actions and
parties bringing several actions thereon
1. Interpleader (R62)
2. Declaratory Relief (R63)
3. Review of Judgments and Final orders or R2 S4
resolutions of COMELEC, CoA (R64)
If 2 or more suits are instituted on the basis of the
4. Certiorari, Prohibition, Mandamus (R65)
same cause of action, the filing of one or a judgment
5. Quo Warranto (R66)
upon the merits in any one is available as a ground
6. Expropriation (R67)
for dismissal of the others.
7. Foreclosure of Real Estate Mortgage (R68)
8. Partition (R69)
9. Forcible Entry and Unlawful Detainer (R70)
10. Contempt (R71) Supposing, the plaintiff split a single cause of
action, remedy?
INCLUDES: SPECIAL PROCEEDINGS
(SEGTARHHCVJCDC +) As defendant, I will file a motion to dismiss on the
ground of litis pendencia or res judicata (R16 S1 e or
Sum of money + Foreclosure of Mortgage = CANNOT f)
BE JOINED! (latter is a special civil action)
GRANTED, remedy: APPEAL (dismissal is with
Hence, sue in alternative / either or prejudice)
File a motion to amend the complaint (as a matter or PLEADING / PARTS OF A PLEADING
right before a responsive pleading is filed, or with
Rule 7 S1
leave of court after a responsive pleading is filed if
the amendment is substantial—Here, di ko alam The caption sets forth:
kung substantial to...) – R10 S2 and 3
a. Name of the court
If you are counsel for defendant, and the causes of b. Title of the action
action are not joined, remedy?
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
The title of the action indicates the names of the Every pleading must be signed by the party or
parties. They shall be named in the original counsel representing him stating in either case his
complaint or petition. But in subsequent pleadings, address which should not be a post office box. The
it shall be sufficient if the name of the first party on signature of counsel constitutes a certification by
each side be stated with an appropriate indication him that
when there are other parties. Their respective
participation in the case shall be indicated. 1. he has read the pleading,
2. that to the best of his knowledge,
information or belief there is good ground
to support it, and
R7 S2 3. that it is not interposed for delay
The body of the pleading shall set forth its: An unsigned pleading produces no legal effect
1. Designation However, the court may, in its discretion, allow such
2. Allegation of the claims or defenses deficiency to be remedied if it appear that the same
3. Relief prayed for was due to mere inadvertence and not intended for
4. Date of the pleading delay.
Headings R7 S4
When 2 or more causes of action are joined, the Except when otherwise specifically required by law
statement of the first shall be prefaced by the words or rule, pleadings need not be under oath, verified,
first cause of action, of the second by second cause or accompanied by affidavit.
of action and so on for the others.
A pleading is verified by an affidavit that
When one or more paragraphs in the answer are
addressed to one of several causes of action in the 1. the affiant has read the pleading
complaint, they shall be prefaced by the words 2. that the allegations therein are true and
answer to the first cause of action or answer to the correct of his personal knowledge or based
second cause of action and so on; and when one or on authentic records
more paragraphs are addressed to several causes of
action, they shall be prefaced by words to that A pleading required to be verified which contains a
effect. verification based
Date
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Petition for annulment of judgment or final Petition for guardianship of minors (AM __-
orders and resolutions (R47 S4) __-__-SC)
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Declaration of Absence and Presumptive Application for writ of replevin (R60 S2)
Death (R107 in relation to Civil and Family Claim against estate of a decedent (R86 9)
Code )
Motion for new trial on the ground of newly
Petition for declaration of Nullity and discovered evidence in criminal cases (R121
Annulment of Marriage ( ) S4)
Pleadings not required be verified in the manner As a general rule, answers need not be verified, save
and form prescribed by S4 of this Rule but the same for following instances:
must be under oath:
Answer to allegations of usury in a
Denial of genuineness and due execution of complaint to recover usurious interests (R8
actionable document (R8 S8) S11)
Denial of allegations of usury (R8 S11) When the answer is based on an actionable
document (R8 S8)
Motion to set aside default order (R9 S3b)
Answer under the Revised Rules on
Answer to written interrogatories (R25 S2) Summary Procedure
Answer to request for admission (R26 S2) Answer in Small Claims Cases
The following pleadings or motion with affidavit or If the pleading is not verified, as counsel for
affidavits of merit: plaintiff, remedy?
Motion to postpone for absence of File for judgment on the pleadings under Rule 34 S1,
evidence (R30 S3) on the ground of admission of material allegations of
the adverse party’s pleadings. Ground is based on
Motion to postpone for illness of a party or the fact that an answer is filed, but there is no
counsel (R30 S4) genuine issue because the allegations are deemed
Motion for summary judgment or admitted.
opposition thereto (R35 S1,2,3,5)
R34 S1
Motion for new trial on the ground of fraud, Grounds for judgment on the pleadings:
accident, mistake, or excusable negligence
or opposition thereto (r37 S2) Answer fails to tender an issue
Answer admits the material allegations of
Petition for relief from judgment or order the adverse party’s pleading
(R38 S3)
Proof required of a redemptioner (R39 S30) A party need not sign the verification.
Motion for preliminary attachment (R57 S3) The following may sign verification:
Party
Party’s representative
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Yes, if armed with proper authority from the party 3 ways of committing forum shopping:
(Through SPA?)
Filing multiple cases based on the same
cause of action and with the same prayer
the previous not having been resolved (litis
R7 S5- certification against forum shopping
pendencia)
Plaintiff or principal party shall certify under oath in
the complaint or other initiatory pleading assisting a Filing multiple cases based on the same
claim for relief, or in a sworn certification annexed cause of action and with the same prayer,
thereto and simultaneously filed therewith, the previous having been resolved with
finality (res judicata)
1. that he has not theretofore commenced
any action or filed any claim involving the Filing multiple cases based on same causes
same issues in any court, tribunal or quasi of action but with different prayers
judicial agency, and, to the best of his (splitting cause of action on the ground of
knowledge, no such other claim or action is litis pendencia or res judicata)
pending therein
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
2. If there is such other pending claim or As counsel for defendant, file motion to dismiss
action, a complete statement of the present under Rule 16 S1j on the ground that a condition
status thereof precedent has not been complied with.
3. If he should thereafter learn that the same
or similar action or claim has been filed or is
pending, he shall report that fact within 5
Motion to dismiss was granted, remedy?
days therefrom to the court wherein his
aforeseaid complaint or initiatory pleading As plaintiff, refile the case, on the ground that the
has been filed dismissal is without prejudice.
States the effects of: (R7 S5) If the plaintiff committed wilful and deliberate
forum shopping, and the complaint was dismissed,
Failure to attach certification against
remedy?
forum shopping
As plaintiff, i will file notice of appeal under Rule 41,
Failure to comply with the foregoing requirements
because the dismissal is without prejudice, hence, in
shall not be curable by mere amendment of the
the nature of a final order.
complaint or pleading but shall be cause for
dismissal of the case without prejudice, unless
otherwise provided, upon motion and after hearing.
Define, enumerate, each pleadings:
Remedy is file motion to dismiss R16 S1j,
and if granted, plaintiff’s remedy is to refile Complaint (R6 S3)
the case with the required certification, The complaint is the pleading alleging the
unless if declared by the court as dismissal plaintiff’s cause or causes of action.
with prejudice, hence, remedy is appeal
Counterclaim (R6 S6)
Any claim which a defending party may
have against an opposing party
Submission of a falser certification or non
compliance of any of the undertakings
Compulsory Counterclaim (R6 S7)
therein
A counterclaim which being cognizable by
Submission of a false certification or non compliance the regular courts of justice arises out of or
of any of the undertakings therein shall constitute is connected with the transaction or
indirect contempt of court without prejudice to occurrence constituting the subject matter
corresponding administrative and criminal actions of the opposing party’s claim and does not
require for its adjudication the presence of
third parties of whom the court cannot
acquire jurisdiction
Willful and deliberate forum shopping
Permissive Counterclaim (R6 S7)
If the acts of party or counsel clearly constitute wilful
A counterclaim which being cognizable by
and deliberate forum shopping, the same shall be
the regular courts of justice does not arise
ground for summary dismissal with prejudice, direct
out of or is connected with the transaction
contempt, and cause for administrative sanctions.
or occurrence constituting the subject
Serves as FINAL ORDER, hence, appeal is the matter of the opposing party’s claim and
proper remedy if motion to dismiss under may require for its adjudication the
R16 S1j is granted presence of third parties of whom the court
cannot acquire jurisdiction
25
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
C (or)
Answer in intervention (R19 S3)
Filed by intervenor if he unites with the C wants to be impleaded in the action
defending party in resisting a claim against
the latter
A vs B and C
(Original Complaint)
Third party is impleaded Third party has legal
Cross Claim
26
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Provisional orders
27
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Grounds for preliminary attachment (NOTE: 3. Allegation of the ground necessitating the
TINATANONG SA BAR!) need for preliminary attachment
28
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
FE/UD- No
Purpose of the bond:
Amount 200k MM- yes
- To answer for damages incurred by the
100k- no adverse party in case writ of attachment is
improperly or irregularly enforced
Ordinary Civil Actions- yes
- Garnishment Injunction
- Levy on attachment
o Annotated on back of title, warning - Judicial writ, process, or proceeding
on subsequent buyer subject to whereby a party is ordered to do or refrain
outcome of the case from doing a particular act
Preliminary Injunction
Remedy in case of issuance of writ of attachment: - An order granted at any stage of an action
or proceeding prior to the judgment
R57 S12 and S13 requiring a party or a court, agency, or a
person to refrain a particular act or acts
S12- Motion to discharge attachment upon giving of
counterbond Preliminary Mandatory Injunction
S13- Motion to quash the writ of attachment on the - An order requiring the performance of a
ff grounds: particular act or acts
29
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
30
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
31
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
member thereof shall be effective until further TRO- order restraining acts of a party for a limited
orders. l period of time
- Effective only for a period of 20 DAYS from Ordinary Civil Actions- Pwede
service on the party or person sought to be
Forcibly Entry / UnlawFul Detainer- YES
enjoined.
o Court to order said party or person R70 S15
to show cause at a specified time
and place why injunction should Court may grant preliminary injunction, in
not be granted, w/n P injunction accordance with the provisions of R58 thereof, to
should be granted, and accordingly prevent defendant from committing further acts of
issue the corresponding order dispossession against plaintiff.
CA issues: effective for 60 DAYS from service on the - quash the writ based on:
party or person sought to be enjoined
1. upon showing of insufficiency
SC or member issues: effective until further orders 2. on other grounds upon affidavits of the
party or person enjoined
3. if it appears after hearing that although
AGAIN... applicant is entitled to the injunction or
restraining order, the issuance or
32
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
33
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
d. Whenever in other cases it appears Subject to the control of the court in which the
that the appointment of a receiver action or proceeding is pending, a receiver shall have
is the most convenient and feasible the power to
means of preserving,
1. Bring and defend, in such capacity, actions
administering, or disposing of the
in his own name
property in litigation
During pendency of appeal, the appellate court may 2. Take and keep possession of the property in
allow an application for the appointment of a controversy
receiver to be filed in and decided by the court of
origin and the receiver appointed to be subject to 3. To receive rents
the control of said court.
4. To collect debts due to himself, as receiver
or to the fund, property, estate, person,
corporation to which he is the receiver
REQUIREMENTS:
5. To compound for and compromise the
1. Verified motion in a complaint / Verified
same
complaint at commencement of action (R59
S1)
6. To make transfers
3. Oath and Bond by receiver to faithfully However, funds in the hands of a receiver may be
discharge of his duties in an action or invested only by order of the court upon the written
proceeding and obey court orders consent of all the parties to the action.
IF after judgment,
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Termination of receivership; compensation of c. That the property has not been distrained
receiver or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of
R59 S8 execution or preliminary attachment, or
otherwise placed under custodia legis, or if
Whenever the court, motu proprio or on motion of
so seized, that it is exempt from such
either party, shall determine that the necessity for
seizure or custody
receiver no longer exists, it shall, after due notice to
all interested parties and hearing,
d. The actual market value of the property
1. settle the accounts of the receiver,
2. Posting of bond by applicant in double the
2. direct the delivery of the funds and other value of the property stated in the affidavit
property in his possession to the person mentioned, for return of the property to
adjudged to be entitled to receive them, adverse party if such return be adjudged,
and for payment to adverse party of such
3. and order the discharge of the receiver sum as he may recover from the applicant
from further duty as such in the action
35
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
The comment shall be verified and shall be - issue an order of execution against him,
accompanied by affidavits, depositions, or other o without prejudice to his liability for
authentic documents in support thereof. contempt.
In criminal cases
S4- Order
1. where the civil liability includes support for
The court shall determine provisionally the offspring as a consequence of the crime
2. and civil aspect thereof has not been
1. the pertinent facts, and waived, reserved, or instituted prior to its
filing,
shall render such order as justice and equity may
require,
36
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
a. the accused may be ordered to (discussed in this stage because initiatory pleadings
provide support pendente lite to are filed, by complaint or by petition, as the case
the child born to the offended may be)
party allegedly because of the
crime. SCA initiated by SCA initiated by
complaint petition
The application therefore may be filed successively - Interpleader (62) - declaratory
by the - Foreclosure of relief (62)
mortgage (68) - review of
- offending party, - Forcible entry / adjudication of
UD (70) comelec, coa
- her parents,
- Partition (69) (64)
- grandparents, - Expropriation - c, m, p (65)
- or guardian (67) - qw (66)
- and the state in the corresponding criminal - contempt (71)
case during its pendency,
o in accordance with the procedure
established in this Rule. 1. Interpleader (62)
2. Declaratory Relief and other similar
remediesv (63)
3. Review of judgments, final orders,
S7- Restitution resolutions of CoA, COMELEC (64)
4. Certiorari, Prohibition, Mandamus (65)
When the judgment or final order of the court finds
5. Quo Warranto (66)
that the person who has been providing support
6. Expropriation (67)
pendente lite is not liable therefor,
7. Foreclosure of Real Estate Mortgage (68)
- it shall order the recipient thereof to return 8. Partition (69)
to the former the amounts already paid 9. Forcible Entry/Unlawful Detainer (70)
with legal interest from the dates of actual 10. Contempt (71)
payment,
Governed by Special Rules, Rules on ordinary civil
o without prejudice to the right of
actions apply in a suppletory manner (OR is it the
recipient to obtain reimbursement
other way? R1 states governed by rules on ordinary
in a separate action from the
civil actions, subject to specific rules prescribed in a
person legally obliged to give the
special civil action)
support.
Examples:
Should recipient fail to reimburse said amounts, the
VENUE
- person who provided the same may
likewise MOTION TO DISMISS
o seek reimbursement thereof in a
separate action from the person DEMURRER TO EVIDENCE
legally obliged to give such
support. PARTS OF A PLEADING
Failure of action for support pendente lite, REMEDY: INTERPLEADER (Rule 62)
37
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
RTC or MTC 20-50 real 300-400 personal higher If any claimant fails to plead within the time therein
lower fixed, the court may, on motion,
If the interests of justice so require, After the pleadings of the conflicting claimants have
been filed, and pre trial has been conducted in
- the court may direct in such order accordance with these Rules,
o that the subject matter be paid or
delivered to the court. - the court shall proceed to determine their
respective rights and adjudicate their
several claims.
S3- Summons
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
o deed,
o will,
o contract, or Requirements:
o other written instrument, or
S2- Parties
determining validity of:
All persons who have or claim any interest which
o statute, would be affected by the declaration shall be made
o executive order, parties, and
o regulation,
- no declaration shall, except as provided in
o ordinance, or
these Rules,
o any other governmental regulation
o prejudice the rights of persons not
OTHER SIMILAR REMEDIES CONTEMPLATED which parties to the action.
applies the provisions of this Rule:
S3- Notice on Sol Gen
- reformation of an instrument
In any action which involves validity of
NOTE: INSTRUMENT, not the elements of the
- statute,
instrument—if such, e subject of another proceeding
- EO, or
to, annulment of contract
- regulation, or
- quiet title to real property or remove clouds - any other governmental regulation,
therefrom o The Sol Gen shall be notified by the
party assailing the same and
- consolidate ownership shall be entitled to be
heard upon such question
In case of pacto de retro sale or foreclosure of
mortgage, not necessarily owner agad, hence, file for
consolidation of ownership under this Rule
S4- Local government ordinances
(EXCLUSIVE) hence, if not, then not subject here
In any action involving the validity of a local
NOTE: DECLARATORY RELIEF is the only civil action government ordinance,
(special vis a vis ordinary) that can be filed even
- the corresponding prosecutor or attorney
before breach or violation thereof
of the LGU involves shall be similarly
JURISDICTION/VENUE: notified and entitled to be heard.
Queting of title:
Reformation of contracts:
39
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
S1- Scope
S7- Comments of respondents
Final orders or judgments of COA and COMELEC
- 18 copies
- No other pleading may be filed unless
required or allowed by court
S2- Mode
Rule 65 Rule 64
Applies to orders of Applies to judgments,
S4- Docket, lawful fees judicial, quasi judicial final orders, resolutions
court or tribunals of CoA and COMELEC
Pay, + 500 for costs 60 days from denial of 30 days from notice of
motion for judgment or final order
reconsideration (AM 7-7- or resolution sought to
12-SC) be reviewed
S5- Form/Contents Motion for NOT
reconsideration is
1. Verified petition, 18 copies, with certified required
true copy of judgment Petition filed before RTC, Petition filed before SC
40
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
CA, SC c. assessment
d. toll
e. any penalty imposed in relation
Rule 43 Rule 64 thereto
Appeal/Petition for Petition for review of
review of decisions of judgments and final
Quasi Judicial Bodies orders or resolutions of 8. all cases in which the jurisdiction of any
COMELEC and CoA lower court is in issue
15 days from notice of 30 days from notice of
award, final judgment, judgment or final order 9. all criminal cases in which the penalty
resolution sought to be reviewed imposed is reclusion perpetua or higher
With the CA With the SC
10. all cases in which only an error or question
of law is involved
Constitutional Basis:
What is the MATERIAL DATES RULE?
A8 S1 P2
As far as Rule 65 is concerned, the following material
Judicial Power includes the duty of the courts of
dates must be stated in the verified petition or else,
justice to settle actual controversies involving rights
the petition would be denied:
which are legally demandable and enforceable, and
to determine whether or not there is grave abuse of 1. Notice of the order or judgment
discretion amounting to lack or excess of jurisdiction 2. Date of the filing of the motion for
on the part of any branch or instrumentality of the reconsideration
government. 3. Date of the denial of the motion for
reconsideration
A8 S5 P2
- Review
- Revise Certiorari
- Reverse
- Modify - Special civil action directed to an inferior
- Affirm court, tribunal, board or officer directing
o On appeal or certiorari, as the law judicial or quasi judicial functions, to annul
or the Rules of Court may provide, or modify proceedings of such court,
final judgments and orders of tribunal, board or officer in the event that
lower courts in: the same has acted with grave abuse of
discretion amounting to lack or excess of
6. All cases in which constitutionality or jurisdiction
validity of any o Seeks to correct errors of
a. treaty, jurisdiction
b. international or executive
agreement Prohibition
c. law
- Special civil action directed against any
d. presidential decree
tribunal, board, officer or person exercising
e. proclamation
judicial, quasi judicial, or ministerial
f. order
functions, to desist from further
g. instruction
proceedings in the event that the same
h. ordinance
acted with grave abuse of discretion
i. regulation
amounting to lack or excess of jurisdiction
i. is in question
Mandamus
7. all cases involving the legality of any
a. tax - Special civil action directed against any
b. impost tribunal, corporation, board, officer or
41
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
person, to do the act required to be done to same as those raised and passed upon by
protect the rights of petitioner and to pay the lower court
damages sustained by petitioner by reason
of the respondent’s wrongful act, in the 3. where there is an urgent necessity for the
event that the same unlawfully neglected in resolution of the question and any further
the performance of ministerial duty or delay would prejudice the interest of the
unlawfully excluded another from use and government or the petitioner or the subject
enjoyment of a right or office to which such of the action is perishable
other is entitled
4. where under the circumstances, a motion
QUALIFICATIONS in ALL 3: for reconsideration would be useless
42
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
General rule: The petition shall be filed not later than sixty (60)
days from notice of the judgment, order or
Certiorari is not a substitute for lost appeal resolution. In case a motion for reconsideration or
new trial is timely filed, whether such motion is
Except: required or not, the petition shall be filed not later
than sixty (60) days counted from the notice of the
- denial of due process
denial of the motion.
- superior courts would not take cognizance NO MORE EXTENSION OF TIME IS GIVEN TO FILE
of a case brought before it unless the case CERTIORARI!
has been decided by the lower courts in the
exercise of its jurisdiction
43
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
c. an association which acts as a corporation Eminent Domain- right and authority of the State to
within the Phils without being legally acquire private property for public use upon
incorporated or without lawful authority to observance of due process and payment of just
act compensation
*Sol Gen commences action (S2, S3) Expropriation- procedure to be observed in the
exercise of the right of eminent domain
Period: (S11)
Within 1 YEAR
Constitutional Basis:
- after cause of ouster or right of petitioner
to hold such office, or position arose A3 S9
Within 1 YEAR (action for damages) Private property shall not be taken for public use
without payment of just compensation
- after entry of judgment establishing
petitioner’s right to the office in question
Quo Warranto Election Quo Warranto Rule 66 Why? 3 orders issued under Rule 67:
Code
Election Code Rules of Court 1. order of compensation
COMELEC, RTC. MTC RTC, CA, SC 2. order of expropriation
Omnibus Election Code Basis: A8 Consti, R66
44
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
- QUASI IN REM
- Service of summons by publication
Remedy of person after expropriation, no payment
made: Jurisdiciton/Venue:
- recover property from expropriator within 5 MTC-RTC 20-50 OMM MM lower higher
years after non payment
Where real property or portion thereof is situated
(R4 S1)
45
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Kinds of Partition
1. Total- all the things are divided among the FORCIBLE ENTRY AND UNLAWFUL DETAINER (Rule
participants 70 in relation to Rules on Summary Procedure)
46
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Prove prior possession No need to prove prior cross claims shall be filed and served within 10 days
until deprived physical possession from service of the answer in which they are
1 y from date of actual 1 year from date of last pleaded.
entry on land demand
47
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
48
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
R70 S15
- A remedy
Court may grant preliminary injunction, in
accordance with the provisions of R58 thereof, to Acts covered:
prevent defendant from committing further acts of
dispossession against plaintiff. - Misbehaviour in presence of or so near the
court as to obstruct or interrupt
A possessor deprived of possession through Fe or UD proceedings before the same
may, within 5 days from filing of complaint, present
a motion in the action for FE UD for issuance of writ - Disrespect toward the court
of preliminary mandatory injunction to restore him
in his possession. The court shall decide the motion - Offensive personalities towards people in
within 30 days from filing thereof court
Contempt
Remedy: CERTIORARI or PROHIBITION (R71 S2)
- wilful disregard or disobedience to court,
acting in opposition to authority, justice,
dignity
2. INDIRECT CONTEMPT (S3)
Contempt of Court
- Main / Original action
- conduct which tends to bring authority and o Can be filed in RTC or MTC
administration of law into disrespect or to
interfere with or prejudice parties litigant or Actions covered:
their witnesses during litigation
a. Misbehaviour of an officer of a
court in the performance of his
official duties or in his official
2 classifications of contempt: transactions
49
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
process of any court of competent Upon filing of complaint, plaintiff may opt to file
jurisdiction, enters or attempts or notice of lis pendens with the register of deeds
induces another to enter into or
upon such real property, for the
purpose of executing acts of
Notice of Lis Pendens
ownership or possession, or in any
manner disturbs possession given “buyer beware”
to the person adjudged to be Notice to buyer of existence of an adverse
entitled thereof claim
It is not a pleading
Note highlighted: case in MTC where case is There is need to register it with the register
pending of deeds
- If after ejectment, re entered the property,
indirect contempt (relate to Rule 70)
Rule 13
c. Any abuse of or any unlawful
interference with the processes or Section 14
proceedings of the court not
constituting direct contempt as In an action affecting the title or the right of
under S1 possession of real property, the plaintiff and the
defendant, when affirmative relief is claimed in his
d. Improper conduct tending, directly answer, may record in the office of the registry of
or indirectly, to impede, obstruct, deeds of the province in which the property is
degrade administration of justice situated
50
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
b. that it is not necessary to protect the rights Pleading subsequent to the complaint
of the party who caused it to be recorded Appearance
Written Motion
2. notice of lis pendens is deemed cancelled Notice
only upon registration of a certificate of Order
the clerk of court in which the action was Judgment
pending stating: Demand
Offer of judgment
a) the manner of disposal thereof if there
Resolution
was a final judgment in favor of the
Similar papers
defendant or
51
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
with postage fully prepaid and with 2. The pleading/paper would not be
instructions to the postmaster to return the admissible in court
mail to the sender after 10 days if 3. Would not toll the running of the
undelivered reglementary period
4. In case of defendant, it will NOT RESULT in
If no registry service is available in the locality of defendant being declared in default
either in the sender or the addressee, service may be 5. Rather, the pleading produces no legal
done by ordinary mail. effect
IF defendant refuses both modes of service, resort When is service deemed completed?
to:
Personal Service (R13 S10)
Substituted Service
Personal service is complete upon actual delivery or
R13 S8 by handling a copy to defendant
If service of pleadings, motions, notices, resolutions, Service by mail (R13 S10)
orders, or other papers cannot be made under the 2
preceding section, the office and place of residence Service by ordinary mail is complete upon the
of the party or his counsel being unknown, service expiration of 10 days after mailing, unless the court
may be made by: otherwise provides.
Delivering the copy to the clerk of court, Service by registered mail is complete upon actual
with proof of failure of both personal receipt by the addressee or after 5 days from the
service and service by mail date he received the first notice of the postmaster,
whichever date is earlier.
The service is complete at the time of such delivery.
Substituted Service (R13 S8)
52
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
may contest the grant of such authority lost, destroyed, improperly served, or there
is defect in the manner or form of service
at any time before the judgment is rendered by the
trial court
Summons Subpoena
If the court should determine after hearing that the
party declared as an indigent is in fact a person with
a writ or a process issued (R21 S1)
sufficient income or property,
to a defending party by
the clerk of court, A process directed to a
the proper docket and other lawful fees shall be person requiring him to
delivered by a sheriff, his
deputy, or proper court attend and to testify at
assessed and collected by the clerk of court
office, or any suitable the hearing or trial of an
If payment is not made within the time fixed by the person authorized by the action, or at any
court, court issuing the investigation conducted
summons, with the by competent authority
execution shall issue or the payment thereof, or for the taking of his
purpose of obtaining
jurisdiction over the deposition. (Subpoena
without prejudice to such other sanctions as the
person of the defendant ad testificandum)
court may impose
and giving him notice
that an action has been
commenced against him A process directed to a
53
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
54
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
55
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
R14 S14 Reason: the court cannot proceed with the case
without jurisdiction over the person of the defending
In any action where the defendant is designated as party
an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be Exception to exception: SMALL CLAIMS
ascertained by diligent inquiry, service may, by leave
of court, be effected upon him by publication in a
newspaper of general circulation and in such places
To whom summons are made?
and for such time as the court may order.
R14 S8
56
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
NOTE: the LIST IS EXCLUSIVE!!!!! In any action where the defendant is designated as
an unknown owner, or the like, or whenever his
Service upon foreign private juridical entity
whereabouts are unknown and cannot be
R14 S12 ascertained by diligent inquiry, service may, by leave
of court, be effected upon him by publication in a
When the defendant is a foreign private juridical newspaper of general circulation and in such places
entity which has transacted business in the and for such time as the court may order.
Philippines, service may be made on its resident
agent designated in accordance with law for that Extraterritorial Service
purpose, or, if there be no such agent, on the
R14 S15
government official designated by law to that effect,
or on any of its officers or agents within the When the defendant does not reside and is not
Philippines. found in the Philippines, and the action affects the
personal status of plaintiff or relates to, or the
Sec 12 Rule 14 Amendment (A.M. 11-3-6-SC)
subject of which, is property within the Philippines,
If the foreign private juridical entity is not registered in which the defendant has or claims a lien or
in the Philippines or has no resident agent, service interest, actual or contingent, or in which the relief
may, with leave of court, be effected out of the demanded consists, wholly or in party, in excluding
Philippines through any of the following means: defendant from any interest therein, or the property
of the defendant has been attached within the
a) B y personal service coursed through the Philippines, service may, by leave of court, be
appropriate court in the foreign country with the effected out of the Philippines by personal service
assistance of the Department of Foreign Affairs; as under S6; or by publication in a newspaper of
general circulation in such places and for such time
b) By publication once in a newspaper of general as the court may order, in which case a copy of the
circulation in the country where the defendant may summons and order of the court shall be sent by
be found and by serving a copy of the summons and registered mail to the last known address of the
the court order by-registered mail at the last known defendant, or in any other manner the court may
address of the defendant; deem sufficient. Any order granting such leave
shall specify a reasonable time, which shall not be
c) B y facsimile or any recognized electronic less than 60 days after notice, within which the
means that could generate proof of service; or defendant must answer.
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Upon residents temporarily out of the original complaint was already taken from
Philippines the start
58
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
59
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
- Refile + docket fees OR lack or excess of jurisdiction on the part of the court,
- Amend complaint to confer jurisdiction (no file for certiorari under Rule 65.
need for docket fees)
DENIED:
e. That there is another action pending
File an answer within the balance of the period between parties for the same cause
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.
aka LITIS PENDENCIA
Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial Elements:
of the motion to dismiss. And when the denial is
tainted with grave abuse of discretion amounting to 1. Identity of parties or at least such parties
lack or excess of jurisdiction on the part of the court, representing the same interests in both
file for certiorari under Rule 65. actions
DENIED:
Which should be dismissed in case of litis
File an answer within the balance of the period
pendencia? The 1st, 2nd, 3rd, 4th action?
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any The later case(s) would be dismissed.
event, computed from receipt of notice of denial.
Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial
of the motion to dismiss. And when the denial is GRANTED:
tainted with grave abuse of discretion amounting to
Appeal
lack or excess of jurisdiction on the part of the court,
file for certiorari under Rule 65. DENIED:
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
3. Jurisdiction over the subject matter and h. That the claim or demand set forth in the
the parties by the court rendering it plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished
4. There must be identity of the parties, of
GRANTED:
subject matter, and of cause of action
between the first and second actions Appeal
DENIED:
DENIED:
g. That the pleading asserting the claim
File an answer within the balance of the period
states no cause of action
prescribed by Rule 11 to which entitled at the time
Aka FAILURE TO STATE CAUSE OF ACTION of serving motion, but not less than 5 days in any
event, computed from receipt of notice of denial.
GRANTED: Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial
Refile of the motion to dismiss. And when the denial is
Amend the pleading tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the court,
DENIED:
file for certiorari under Rule 65.
File an answer within the balance of the period
prescribed by Rule 11 to which entitled at the time
of serving motion, but not less than 5 days in any j. That a condition precedent for filing the
event, computed from receipt of notice of denial. claim has not been complied with
Then proceed with the trial, and when the decision is
adverse, file an appeal assigning as error the denial GRANTED:
of the motion to dismiss. And when the denial is
61
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
62
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
63
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
64
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
R12 S1 states that a bill of particulars is filed before If the order is not obeyed, or in case of insufficient
responding to a pleading, following the reglementary compliance therewith, the court may order the
periods provided for under R11. (If the pleading is a striking out of the pleading or the portions thereof
reply, the motion must be filed within 10 days from to which the order was directed, or make such order
service thereof) as it deems just.
1. A written motion by the defending party Granted: Clarify, file bill of particulars
before the court for a bill of particulars
Denied, answer within the plenary period
2. If the pleading is a reply, the motion must
be filed within 10 days from service
IS bill of particulars part of a pleading?
3. The motion shall point out the defects
complained of, the paragraphs wherein YES!
they are contained, and the details desired
R12 S6 provides that a bill of particulars becomes
part of the pleading for which it is intended.
4. The motion is to be filed before the filing of
responsive pleading
65
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Kinds of amendments:
A party may amend his pleading once as a matter of Amendment as a matter of right, so far as no
right at any time before a responsive pleading is responsive pleading is served
served or in the case of a reply, at any time within 10
days after it is served.
- Once the pleading is amended, the old Question: Amendment as a matter of right, there is
pleading is no more, EXCEPT, admissions second motion to amend (not once as a matter of
made in the old pleading right), is the second motion to amend a matter of
right or a matter of discretion?
When issues not raised in the pleadings are tried Relate Rule 10 to Provisional Remedies
with the express or implied consent of parties, they
If the original complaint or verified
shall be treated as if raised in the pleadings,
complaint has provisional remedies, and the
pleadings may be amended to conform to the
original is superseded by amendment, any
evidence, and failure to amend does not affect the
provisional remedy is affected by
result of the trial of these issues
amendment
- With already presentation of evidence, but
Amendment of complaint, which includes prayer for
as far as allegations are concerned, there is
writ of attachment, the provisional remedy shall be
discrepancy, so, amendment is allowed to
DISSOLVED.
conform to evidence
o NOTE: meron din to sa criminal
procedure
Relate Rule 10 to Rule 6
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
- When the answer does not allege cross When amended pleading A substantial pleading
claim, counterclaim, is filed, a new copy of does not require the
o Remedy: AMENDMENT of the the entire pleading must filing of a new copy of
pleading be filed the entire pleading
- Answer omitted counterclaim or cross
claim, Amendment as a matter A supplemental pleading
o Remedy is to AMEND the answer of right is to be may be answered within
answered before the 10 days from notice of
filing of the responsive the order admitting the
pleading, (within 15 days same, unless a different
Relate to Rule 2 after being served with a period is fixed by the
copy thereof)—(R11 S3) court. The answer to the
- In case of non joinder of causes of action,
complaint shall serve as
o AMEND the pleading
answer to the
supplemental complaint
Amendment by leave of
if no new or
court is to be answered
Relate to Rule 3 supplemental answer is
within 10 days from
filed (R11 S7)
- Related to joinder of parties, notice of the order
o AMEND the complaint admitting the same. An
answer earlier filed may
serve as the answer to
the amended complaint
Related to Rule 14 and Rule 57
if no new answer is filed
- In personam to quasi in rem, publication is (R11 S3)
allowed
Supersedes original Supplements original
- Substantial amendment
pleading pleading
o Service of summons required
- Amendment of complaint to join another With or without leave of With leave of court
party, court
o Need to serve summons
*Filing of supplemental complaint which increases
the amount of claim does not affect the jurisdiction
of the court
Amendment of the answer? 3PC? 4PC? Complaint
in intervention? Relate to Rule 16
PWEDE!- amendment of the pleadings naman ang The court may either deny the motion to
tinutukoy eh dismiss, grant the motion to dismiss, or
ORDER THE AMENDMENT OF THE
PLEADING
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Rule 11 S11
Summary judgment
Upon motion and on such terms as may be just, - judgment rendered by the court without
trial if it clearly appears that there exists no
the court may extend the time to plead provided in genuine issue or controversy as to any
these Rules material fact, except as to the amount of
damages
GRANTED:
Extend, BASED ON CAUSE
- remedy is APPEAL
o final judgment on the merits
Is bill of particulars allowed in Summary Procedure? Order issued by the Decision or judgment by
court where defendant the court after order of
NO (Prohibited pleading)
failed to file answer default and presentation
of evidence ex parte by
plaintiff
Motion to dismiss in Summary Procedure?
NO (prohibited pleading)
1. lack of jurisdiction over the person of the Rule 9 S3 provides that a defending party who fails
defending party to file an answer to an initiatory pleading within the
2. lack of jurisdiction over the person of the time allowed therefor may be declared in default.
defendant
3. failure to comply with the Barangay
Conciliation Proceedings
DEFENDING PARTY INCLUDES:
EXCEPTION TO EXCEPTION:
In a permissive counterclaim- original
Small Claims Cases- motion to dismiss absolutely plaintiff
hindi pwede In a 3PC- 3rd party defendant
In a cross claim- co defendant
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Requirements for declaration of default: (R9 S3) NOTE: umaakyat to hanggang SC- Ordinary and
Special Civil actions (from MTC), [not Spec Pro]
1. The court must have validly acquired
jurisdiction over the person of the
defendant either by service of summons or
voluntary appearance MTC
DENIED,
4. Written motion by claiming party to declare
defendant in default (NOT oral motion!) Motion for reconsideration
(state R15 requirements)
DENIED,
DENIED,
DENIED,
REMEDY:
CA M4R Rule 52
MOTION TO LIFT ORDER OF DEFAULT
DENIED,
Verified, FAME, Affidavit of Merit (note
what it is, and in what instances required SC R45 Petition for Review on Certiorari apply
[all FAME]) Neypes, Hierarchy of courts
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
As defendant, don’t file motion to admit answer GENERAL RULE: certiorari is not a substitute for lost
appeal;
- It is equal to motion for extension of time
to file pleadings EXCEPTION: when appeal is not a speedy, adequate
o PROHIBITED PLEADING remedy
- Go to office of the clerk of court, file your File a motion for reconsideration of the judgment or
answer, at pag ayaw tanggapin, file it by final resolution within 15 days from service thereof
registered mail before the CA, with proof of service on the adverse
o Pag nag argue ang kalaban, motion party.
to strike out answer, WEH!
Basis: R52 S1
R1 S6- Liberal application
of the rules, HENCE, you
can file answer
Denied. Remedy?
70
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Reply
Denied. Remedy?
71
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
In case of summons by publication, answer shall be A reply may be filed within 10 days from service of
filed within the time specified in the order granting the pleading responded to
leave to serve summons by publication which shall
not be less than 60 days after notice, within which
the defendant must answer. 8. Answer to amended complaint
R11 S4
10. Answer to supplemental complaint
A cross claim must be answered within 10 days from
service R11 S7
(?)
72
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
R11 S3 (?)—note the periods Docket fees are With docket fees
suspended
Answer in third party complaint- Can you raise Omitted counterclaim or cross claim
Counterclaim or cross claim?
REMEDY: amend the answer
YES!
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
would nevertheless prevent or bar recovery by him. - By specifically denying the averment and
The affirmative defenses include: whenever practicable, setting forth the
substance of the matters relied upon for
FIRSSPEFDA such denial
a. Fraud
With support dapat
b. Statute of limitations
c. Release Specifically deny par 2 __ for being untrue, the truth
d. Payment of the matter is that...
e. Illegality
f. Statute of frauds
g. Estoppel 2. Partial specific denial
h. Former recovery
i. Discharge in bankruptcy - Part admission and part denial
j. Any other matter by way of confession and
avoidance With support dapat
APPEAL (Because trial is on the merits) Specific not necessarily Specific Denial
EXCEPT:
Except:
74
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Scope of examinations:
75
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
If there is no original
6. Physical and Mental Examination of document, because such
Persons under Rule 28 is in the presence of
adverse party, the
- This mode of discovery is available in an requesting party can ask
action in which the mental or physical for production of the
condition of a party is in controversy, original by way of notice
usually arising in controversy in proceedings
for guardianship over an imbecile or insane Without prior knowledge With prior knowledge of
person, while the physical condition of the as to contents contents of the
party is generally involved in physical document, because the
injuries cases requesting party has the
secondary evidence
- Since the results of the examination are
intended to be made public, the same are
not covered by physician-patient privilege
Mental and Physical examination of Persons vs
Hospitalization of Insane Persons
76
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Plaintiff fails to appear on the date of the (S1), upon notice by plaintiff
presentation of his evidence in chief on the
complaint Unless otherwise stated in the notice, the
dismissal is without prejudice,
Plaintiff fails to prosecute his action for an
unreasonable length of time (*2 dismissal rule) ..except that a notice
operates as an adjudication upon the merits
Plaintiff fails to comply with these Rules or when filed by a plaintiff who has once
any order of the court dismissed in a competent court an action
based on or including the same claim
What is the 2 dismissal rule? What are its (S2), upon motion of plaintiff
elements?
The dismissal shall be without prejudice,
(R17 S1) -..the notice of dismissal by plaintiff unless otherwise specified in the order
operates as an adjudication upon the merits when
filed by a plaintiff who has once dismissed in a
competent court an action based on or including the (S3), due to fault of plaintiff
same claim
The dismissal shall have the effect of an
adjudication upon the merits unless
otherwise declared by the court
Elements of 2 dismissal rule: (R17 S1)
77
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
What are your remedies, as plaintiff, in such cases? Allegations not deemed admitted by filing of
judgment on the pleadings:
S1- dismissal upon notice by plaintiff
- irrelevant allegations
refile the case (unless the 2-dismissal rule - immaterial allegations
applies [?]) - allegations of damages in the complaint
S2- dismissal upon motion of plaintiff 3 day notice rule 10 day notice rule
78
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Second pleading on the party on the part of Hence, if plaintiff failed to file motion ex parte that
defendant being his answer to the plaintiff’s the case be set for pre trial, the clerk of court shall
replication issue notice of pre trial conference
Another form of responsive pleading
AFTER the LAST PLEADING ASSERTING A CLAIM has After arraignment, After the last pleading
been served and filed, or AFTER the EXPIRATION OF within 30 days from the asserting a claim has
THE TIME FOR FILING THE LAST PLEADING date the court acquires been served and filed
ASSERTING A CLAIM, a pre trial is to be conducted jurisdiction over the
upon motion ex parte by plaintiff that the case be accused
set for pre trial
Rule 118 Rule 18
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Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Such other
Plea bargaining Possibility of matters as may
Stipulation of amicable aid in the
facts settlement or prompt
submission to disposition of
Marking of alternative the action
identification of modes of
evidence of the dispute
parties resolution (simplified)
Advisability of
preliminary
conference of What are the purposes of pre-trial?
issues to
(Rule 18 S2)
commissioner
The court shall consider:
Propriety of
rendering a. The possibility of an amicable settlement or
judgment on of a submission to alternative modes of
the pleadings, dispute resolution
summary
judgment, b. The simplification of the issues
dismissing the
action should a c. The necessity or desirability of amendments
valid ground to the pleadings
80
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
R18 S5
f. The number and names of the witnesses,
and the substance of their respective The failure of plaintiff to appear at the pre trial
testimonies conference when so required shall be cause for the
dismissal of the action. The dismissal shall be with
Failure to file the pre trial brief shall have the same
prejudice, unless otherwise ordered by the court.
effect as failure to appear at the pre trial.
81
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
REMEDIES: The order is interlocutory, hence, R41 (1)- the order allowing ex parte
presentation of evidence is an interlocutory
File motion for reconsideration, based on order, no appeal may be taken from it,
R65 S4 and R41 S1 hence, aggrieved party may file the
- R65 (4)- ..whether such m4r is required or appropriate special civil action under Rule
not.. 65, which includes certiorari
- R41 (1)- the order allowing ex parte
presentation of evidence is an interlocutory
82
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Before judgment becomes final and Pre Trial conference- relates to judicial admissions
executory under Rule 129
- File motion for reconsideration (Rule 37) or Cause of action admitted by defendant,
- Order issued by the court stating what With respect to Rule 7 (parts of a pleading) stating
transpired during the pre trial conference the cause of action in the body of the pleading
o Can be amended accordingly
o By filing motion to amend or Ultimate facts to be proven during the trial of the
correct the pre trial order, within 5 case
days after receipt of the pre trial
ORDER:
order
o NO NEED for counsel to sign the Direct Examination
pre trial order
83
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Re Cross Examination
- Facts
- Evidence
- Defenses
Line of questioning:
After presentation of all witnesses,
Is it not a fact you are 1 of... YES
Offer of evidence
Executed sometime, etc... YES
Then,
84
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
- Constitutional Right to Due process If court denies demurrer, If court denies demurrer,
defendant will present
evidence
With LoC- accused may
Demurrer to evidence in Demurrer to evidence in
present evidence
Civil Procedure Criminal Procedure
85
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
(simplified version)
Offer
CONSTITUTIONAL BASIS:
Tender of excluded evidence
A8 S14—(basis for Rule 36)
DEFENDANT RESTS ITS CASE
No decision shall be rendered by any court without
Note: No more D2E- Rule 33- after PLAINTIFF rests expressing therein clearly and distinctly the facts and
its case... the law on which it is based.
86
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
No petition for review or motion for reconsideration plaintiff’s cause of action was just and
of a decision of the court shall be refused due course rightful
or denied without starting the legal basis therefor.
87
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
R39 S11
Judgment rendered by the court following
an order of default, granting the claiming Judgment requiring performance of an act
party the relief prayed for on the basis of other than execution of judgments for
his evidence presented ex parte by plaintiff money execution of judgments for a specific
act,
a certified copy of the judgment shall be
attached to the writ of execution and shall
JUDGMENT ON THE PLEADINGS (R34) be served by the officer upon the party
against whom the same is rendered, or
Judgment rendered by the court upon motion by
upon any other person required thereby, or
plaintiff where the answer of defendant
by law, to obey the same, and such party or
fails to tender an issue or person can be held liable for contempt for
otherwise admits the material allegations of disobedience of such special judgment
the adverse party’s pleading
R33
R36 S5
SPECIAL JUDGMENT
88
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
89
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
SC
3. Reopening of Trial (civil in relation to M4R
criminal procedure- R119 S24) Rule
52
Reopening of the proceedings to avoid miscarriage
of justice
Petition 4
90
review on
certiorari
under
Rule 45
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Notice or Notice or Petition Petition Petition for 11. when certain material facts and
Record on record on for Review for Review on
circumstances which have been overlooked
appeal appeal Review Certiorari
(Appeal?) by the trial court which, if taken into
account, would alter the result of the case
Of MTC Of RTC Of RTC Of quasi Of CA,
decisions Decisions decisions judicial Sandiganbayan in that they would entitle accused to
original appellate bodies , CTA, RTC acquittal
jurisdictio jurisdictio decisions
n n
Questions of Questions Questions Question Questions of REMEDIES AFTER JUDGMENT BECOMES FINAL AND
fact law or of fact law of fact s of fact law EXECUTORY:
both or both law, or law or
both both
1. Petition for relief from Judgment (Rule 38)
To RTC To CA To CA To CA To SC
S1- Petition for relief from judgment, orders, other
proceedings
91
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
2. Petition for Annulment of judgment (Rule - remedy afforded by law for the
47) enforcement of a judgment
- object is to obtain satisfaction of the
RTC exclusive original jurisdiction to CA judgment on which the writ is issued
MTC exclusive original jurisdiction to RTC BY MOTION- 5 years
R39 S8
S2- Grounds
The writ of execution is issued in the name of RP and
1. Extrinsic or collateral fraud shall state:
2. Lack of jurisdiction over subject matter and
over the person a. Name of court which granted the
motion
b. Case number
3. Certiorari under Rule 65
c. Dispositive portion of the
judgment or order subject of the
execution
EXECUTION OF JUDGMENT
Execution Except:
92
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
1. When judgment turns out to be incomplete whether there is good no supervening events
or conditional reason for execution
5. Judgment has become dormant - while it has jurisdiction over the case and
- is in possession of either the original record
or the record on appeal, as the case may be,
6. Execution is unjust or impossible
o at the time of the filing of such
motion, said court may, in its
discretion,
order execution of a
judgment or final order
When proper to Quash Writ of Execution:
even before the
expiration of the period to
1. Change in situation of parties renders
appeal
execution inequitable
2. Issued against the wrong party After the trial court has lost jurisdiction, the motion
for execution pending appeal may be filed in the
appellate court.
3. Issued without authority
Discretionary execution may only issue upon good
4. Improvidently issued reasons to be stated in a special order after due
hearing.
5. Defective in substance
7. Controversy was never submitted to the A several, separate, or partial judgment may be
court executed under the same terms and conditions as
execution of a judgment or final order pending
appeal.
Rule: Dispositive portion of decision is the part that
becomes subject of execution
Except:
Grounds:
1. When there is ambiguity in the dispositive
1. Insolvency of judgment debtor
portion
2. Wastage of asset by judgment debtor
93
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
3. There are good reasons stated in a special assignee, or his is the highest bidder in
order after due hearing successor in intereest the public auction
Filed due to lapse of 5 Filed because movant is
year period deprived of property
Supersedeas Bond purchased
1. Injunction Levy
2. Receivership
3. Accounting - Act by which officer sets apart or
4. Support appropriates part of whole property of
5. Other judgments declared to be judgment debtor for purposes of execution
immediately executory unless otherwise sale
ordered by trial court
Garnishment
S6- Execution by motion or independent action
- Act of appropriation by the court when
Modes of enforcement: property of debtor is in the hands of a third
person
1. By motion within 5 years from date of entry
94
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
7. Professional libraries and equipment of - A person claiming property levied upon may
judges, lawyers, physicians, pharmacists, execute affidavit of title or right of
dentists, engineers, surveyors, clergymen, possession over the property
teachers, other professionals, not exceeding o Such affidavit must state the
300k pesos in value grounds of such right or title
o The affidavit shall be served upon
8. One fishing boat and accessories not officer making a levy and a copy
exceeding total value of 100k pesos owned thereof must also be served upon
by a fisherman and by the lawful use of the judgment oblige
which he earns his livelihood
Note: Cumulative remedies
95
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
4. An affidavit executed by him or his agent 5. Court may appoint a receiver for the
showing the amount then actually due on property of the judgment debtor not
the lien exempt from execution or forbid a transfer
or disposition or interference with such
property
S32- Rents, Earnings, Income of property pending
redemption
6. If court finds that the judgment debtor has
Rights of judgment debtor: an ascertainable interest in real property
either as mortgagor, mortgagee or
1. Remain in possession of property otherwise, and his interest can be
ascertained without controversy, the court
2. Cannot be ejected may order the sale of such interest
3. Use the property in the same manner it was 7. If the person alleged to have the property
previously used of the judgment debtor or be indebted to
him, claims an adverse interest in the
4. Make necessary repairs to buildings property or denies the debt, the court may
thereon while he occupies the property authorize judgment creditor to institute an
action to recover the property, forbid is
5. Use it in the ordinary course of business transfer and may punish disobedience for
contempt
6. Collect rents, earnings, and income derived
from the property until expiration of the
period of redemption
Res judicata
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Notes by: Paul Lemuel E. Chavez
- Refers to the legal conclusions announced The effect of a foreign judgment or final order of a
on a first appeal, whether on the general tribunal of a foreign country, having jurisdiction to
law or the law as applied to the concrete render judgment or final order is as follows:
facts, not only prescribe the duty and limit
the power of the trial court to conduct a. In case of a judgment or final order upon a
obedience and conformity thereto, but they specific thing, the judgment or final order is
become and remain the law of the case in conclusive upon the title to the thing and
all other steps, whether in the lower court
or in the appellate court on a subsequent b. In case of a judgment or final order against
appeal a person, the judgment or final order is
presumptive evidence of a right as between
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Notes by: Paul Lemuel E. Chavez
the parties and their successors in interest from exhibiting fully his case by fraud or deception
by a subsequent title practiced on him by his opponent.
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Notes by: Paul Lemuel E. Chavez
(e) Reply and rejoinder; and In relation to mortgage, the right of redemption
exists in extra-judicial foreclosure; while equity of
(f) Third party complaint.
redemption exists only in judicial foreclosure. In
Most Important Witness Rule - limiting the number of witnesses, determining extrajudicial foreclosure, the mortgagor may
the facts to be proved by each witness and fixing the approximate number of
hours per witness; exercise his right of redemption within 1 year from
ONE-DAY EXAMINATION OF WITNESS RULE:
the registration of the sale in the Office of the
Registry of Deeds; while in judicial foreclosure, the
Par. 5(i) of Supreme Court A.M. No. 03-1-09-SC requires that a witness has to
be fully examined in one (1) day only. This rule shall be strictly adhered to mortgagor may exercise his equity of redemption
subject to the courts’ discretion during trial on whether or not to extend the direct
and/or cross-examination for justifiable reasons. On the last hearing day allotted
during the period of not less than 90 days nor more
for each party, he is required to make his formal offer of evidence after the than 120 days from entry of judgment of foreclosure
presentation of his last witness and the opposing party is required to immediately
interpose his objection thereto. Thereafter, the judge shall make the ruling on the or even after the foreclosure sale but before the
offer of evidence in open court. However, the judge has the discretion to allow
the offer of evidence in writing in conformity with Section 35, Rule 132. judicial confirmation of the sale. There is no right of
redemption in judicial foreclosure of mortgage,
The omnibus motion rule embodied in Rule 15, Section 8, of
the Rules of Court reads as follows: Sec. 8. Omnibus motion. — except only if the mortgagee is the Philippine
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Notes by: Paul Lemuel E. Chavez
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Notes by: Paul Lemuel E. Chavez
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