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Civ Pro notes from my professor

Civ Pro notes from my professor

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Published by Mel Concepcion
very brief just memory aid.
very brief just memory aid.

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Categories:Types, Business/Law
Published by: Mel Concepcion on Jan 08, 2013
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Rules of Court

Applicable in all courts (MTC, RTC, CA, SC) Not applicable in land registration, election laws, naturalization Civil Action Ordinary Civil Action Rule 1-40 Special Civil Action Rule 62-71 *Collection suit cannot be consolidated because it is governed by the different rules Subject-matter – the thing, the wrongful act, the contract that had given rise to the case; directly under controversy Cause of action – Remedy – *breach of contract Subject Matter – Contract Cause of Action – Breach Remedy – Specific performance

Criminal Action Special Proceeding Adoption Probate of a will Escheat

Venue (Rule 4) Real Action Personal Action

Binding Effect: In Rem – the binding effect of the decision of the court is against the whole world (land registration) In Personam – the binding effect is between the parties only

Quasi In Rem – action brought against specific party but involved real property (foreclosure of property in case of default of payment) Action in Personam (to bind a person) Action in Rem (to bind a property) Action Quasi in rem (to bind the person for the purpose of binding his property) Cause of Action (Rule 2) Cannot be split but can be joined The act or omission by which a party violates a right of another Elements: 1. The existence of the legal right of the plaintiff 2. A correlative legal duty of the defendant to respect one’s right 3. An act or omission of the defendant in violation of the plaintiff’s right Parties Plaintiff Defendant Joinder by pro forma party (husband and wife) Exceptions: Wife is suing to recover her paraphernal property Exercise of profession Judicially separated Separation of property in pre-nup Administration of property is transferred to either spouses Husband sues the wife Art 25 – 35 of human relations Separated in fact for more than 1 year Real Party in interest Is he right the person to demand me? Is he the right person that I will demand? Motion to dismiss can be raised as a defense to know the real party in interest Compulsory Party – must be impleaded, must always be joined Necessary Party- need not always need to be joined unless ordered by the court

Permissive – may or may not be impleaded Series of transactions-separate dealings but with the same kind of the subject matter of the suit Venue Personal circumstances of parties (address) Check the document, real or personal action Look for venue stipulation, is it restrictive? Real action or personal action will be important if there is no venue stipulation Real Action affects the title or possession of real property Ejectment cases, if there is venue stipulation, follow the venue stipulation Venue stipulation is for the convenience of the parties, though it’s a valid stipulation, if it will prejudice one of the parties, it can be questioned. Bill of Lading is different from Lease of Agreement

Uniform Rules Ordinary Procedure Summary Procedure – applicable to MTC only Small Claims Procedure

Kinds of Pleadings Pleadings are the written statements of the respective claims and defenses of parties submitted to the court for appropriate judgment Complaint -> Answer (Bill of Particulars if cannot be understand) -> Reply Complaint with claim -> Answer with counterclaim (compulsory or permissive) (if compulsory counterclaim there is no need for reply because it is necessarily arises on the same transaction) Complaint with counterclaim Third Party Complaint -> Third Party Answer Complaint – complete if it can be intelligently understand and answered Complaint is the pleading stating the cause or causes of action of the plaintiff and the reliefs sought Regular Proceedings - Answer is 15 days to file Summary Procedure – Answer is 10 days to file Summary Proceedings - Answer is a prohibited pleadings Answer is the pleading that where the defendant states the his defenses to the complaint

Requires a Certificate on Non-Forum Shopping Permissive counterclaim is a new suit altogether and must be answered. Does not arise on the same transaction. fraud. Do not need third party in order for the court to adjudicate 3. need not pay docket fee. Plaintiff cannot be declare in default if answer is not file within the reglementary period Permissive counter-claim 1. Arises from the same transaction or series of transactions 2. Plaintiff can be held in default because it is an initiatory pleading 3. subrogation. not deem barred if not set up 2. other reliefs (third-party plaintiff v. certificate of non-forum shopping (it is an independent suit) Answer with compulsory counterclaim need not be separately filed. need not need to execute a certificate of non-forum shopping Reply with Motion To Dismiss to the Counterclaim Plaintiff can raise both compulsory and permissive counterclaim at the same time in his answer Defendant’s answer shall be Reply to Answer with Answer to the Permissive Counterclaim Cross-claim – a suit against co-defendant Counterclaim with cross-claim Permissive Cross-claim (if outside the jurisdiction of the court) the dismissal of the complaint carries with it the dismissal of the cross-claim which is purely defensive. third-party defendant) . etc) party complaint – new complaint with prior leave of the court intended for contribution. etc) Reply is not optional when the defense of usury is raised or if the defense in based on actionable document (forged signature) Counterclaim is either compulsory or permissive There is no need to file a reply against a compulsory counterclaim Compulsory counterclaim must be file on the same suit because it arises from the same transaction (dependent to the main action) Compulsory counter claim 1. payment. (if filed with affirmative defense.Defenses are either negative or affirmative Negative defenses specifically denies the material facts alleges in the complaint stating the reason of such denial (lack of information as to veracity of the allegation) Affirmative defenses is alleging a new matter. pay docket fees. because it is a new suit altogether) Answer with a compulsory counter claim and compulsory cross claim Compulsory Cross-claim Third (fourth. the dismissal of the complaint does not carry with it the dismissal of the permissive cross-claim. hypothetically admits the allegations in the complaint but raises defenses that will prevent recovery (release.

Santos) Ultimate Facts Initiatory Pleadings Alternative Causes of Actions . it’s the body Write the complete name of all the parties in the original pleading.Parts of a Pleading Caption Name of the court Title of the Action Docket number if assigned The caption in not controlling. Surla) Corporation can only act through its officers (board resolution) There is no forum shopping in Court of Appeals because there is only one Court of Appeals (Sameer v. et al is allowed on subsequent pleading Body Designation of the pleading Allegations Reliefs prayed for Date of the pleading Paragraph should be numbered Signature Verification All pleadings in summary proceedings must be verified Certification against Non Forum-Shopping General Rule All initiatory pleading shall have a certificate of non forum-shopping All parties must sign the certificate of certificate of non forum-shopping (exceptions: Docena v. Lapesura) Lawyers are not allowed to sign the certificate of non forum-shopping Elements Identity of Parties Identity of cause of action Similarity of interest Defendant can sign a Certificate of Non Forum-Shopping in a permissive counter claim (UST v.

Not all documents attached in the pleading is an actionable document.Alternative Defenses Capacity to sue Minor child has no capacity to sue. Merrill Lynch (estoppel)) Foreign Corporation licensed to do business in the Philippines can sue and be sued Fraud and Mistake Must be alleged with particularity Conditions of the Mind (ill will. not only a specific denial It can be contest under oath specifically denying it and setting forth what the facts should be If it is not denied under oath. the technical admission is deemed waived. malicious intent) Alleged generally Alleged with Particularity Fraud Mistake Capacity Alleged Generally Conditions precedent Conditions of the mind Judgments of a foreign court Actionable Document It is a written document which is the basis of claim or defense The document or the substance of such document shall be set forth in pleading and the original or photocopy of such document is annexed in the pleading The denial must be under oath. it is deemed admitted (technical admission) or its genuineness is deemed admitted If the counsel was not able to object the technical admission. ill refute. unless represented by a guardian Domestic Corporation has a capacity to sue Foreign Corporation not doing business in the Philippines cannot sue (exceptions: Antam (isolated transaction). it may only be evidentiary document Technical Admission does not apply if the party is not a party to the document or if there is an order of inspection of the original document and the inspection was refused Genuineness is the authenticity of the document Due execution .

If the judgment has already been rendered when the defendant discovered the default. redundant. file a motion under oath to set aside the order of default on the ground that was failure to answer or appear on the date set for pre-trial was due to fraud.Defenses like Forgery. mistake or excusable negligence. 1(a) of Rule 37. at any time after discovery thereof and before judgment. immaterial. Res judicata 4. but before the same has become final and executory. impertinent. and the document is illegal because it is not inconsistent with due execution Specific Denial Denial is found in the Answer Defendant admits…but specifically denies…the truth of the matter being… Two Modes of Specific Denial: 1. lack of authority. By specifically denying the allegations 2. . The defendant in default may. Lack of jurisdiction over the subject matter 2. Lites pendentia 3. he may file a petition for new trial under Sec. 2. failure to deliver the instrument cannot be set up if there is a technical admission because it is not consistent with due execution of the document (voluntariness of execution) Defense of illegal consideration can be raise. accident. By denying on the ground of lack of knowledge or information to form a belief as to the truth of material averment Failure to deny is deemed admission Negative pregnant – denial with admission of the substantial fact Reply is important (mandatory) in actionable document and usury Actionable document and usury must be denied under oath or it is deem admitted Striking out of Pleading Sham or false. or scandalous matter Motion to Expunge Failure to Plead No Default after defendant filed his answer within the prescribed period Exceptions of defenses not deemed waive: 1. and that he has a meritorious defense. Prescription Default Failure of the defendant to answer within the reglementary period provided by the rules Defendant is The remedies available to a defendant declared in default are: 1.

Order of Default Motion to Declare the Party in Default (not allowed in Summary Procedure) Grounds for Motion to Lift the Order of Default Fraud Accident Mistake Excusable Negligence Affidavit Merit (that you have a meritorious defense) but not needed in improper service of summon Judgment by Default Declaration of default Failure to file an answer Opposing party may be declare in default for Failure to file an answer to a permissive counter-claim or permissive crossclaim Failure to attend in pre-trial. He may also appeal from the judgment rendered against him as contrary to the evidence or the law. Rule 38. party cannot be held in default but the other part may now present evidence ex-parte Relief from Order of Default Before Judgment Motion to Set Aside Order of Default FAME+Affidavit of Merit After judgment but before it becomes final and executor Motion to Set Aside Order of Default FAME+Affidavit of Merit . (2) the defendant failed to file his answer within the time allowed therefor. even if no petition to set aside the order of default has been presented by him. If the defendant discovered the default after the judgment has become final and executory. Remedy if the order of default is improvidently issued: Petition for Certiorari under Rule 65 (Indian v. 2. CHED) Requirements of a default order: (1) the court must have validly acquired jurisdiction over the person of the defendant either by service of summons or voluntary appearance. he may file a petition for relief under Sec. and 4.3. and (3) there must be a motion to declare the defendant in default with notice to the latter.

CA) When to File 10 Summary Procedure 15 Ordinary Procedure .After judgment Petition for relief from judgment FAME+Affidavit of Merit Improper order of default Certiorari under Rule 65 Partial Default Several parties but common cause of action. IAC) Amendments may substantially alter the cause of action of the pleading (Valenzuela v. it is deemed file on the date the original complaint was filed. moral) Default is not allowed Annulment of Marriage Legal Separation Amended Complaint Compromise agreement is final and executory and not subject to amended complaint (Leobrera v. but if there is new cause of action presented. Presiding Judge) Supplemental / Amended If no different cause of action is presented in the amended complaint. CA) Court can grant a higher amount even without an amended pleading (Northern Cement v. CA) Filing fee should be based on the amended complaint because the original complaint is deemed vacated (Magaspi v. CA) Supplemental Amendment is not allowed because the spouses know it from the very start (Lambino v. Ramolete) After stipulations of the facts. Extent of Relief to be Awarded Only to the extent of the prayed but it can be less than that and it cannot be more than that or in different kind Cannot be awarded unliquidated damages (exemplary. CA) Stipulations in the original complaint can still be use by confronting the witness in the trial and highlighting the inconsistencies between the original complaint and the amended complaint (Torres v. it is deemed file on the date the amended complaint is filed (Versoza v. the judgment based on the stipulation is not anymore subject to amended pleading (MWSS v.

oversight. failure to answer the amended complaint will not cause default but the new matters raise on the amended complaint will be deemed admitted File an answer to a permissive counter claim. you can file motion to dismiss on the ground of the court has no jurisdiction over the person Motion for extension to file the answer not allowed in summary procedure Receipt of the order granting the amended complaint should be the start of counting of 10 days to answer the amended complaint. failure to answer will cause default Third party complaint not allowed in rules of summary procedure Omitted Counter-Claim or Cross-Claim . Liwag) Filing and Service Filing The act of submitting pleadings before the court Service . or Motion to Declare in Default (Agcanas v. Magtolis) Bill of Particulars must be resolved first before Motion to Dismiss. Bill of Particular is the remedy (Santos v.Permissible reasons: Excusable neglect. Mercado) If fraud is not declared with particularity.30 If served to a public official authorized to receive summons for a foreign corporation (SEC) (not applicable to foreigners) 60 If by publication Extra-territorial service Service of Summons Service and not when the summon was receive Date of service is the start of counting of reglementary period Filing can be personal or by registered mail (there can be a chance that it was filed on the last day of reglementary period via registered mail. justice requires Bill of Particulars Motion for Bill of Particulars is filed before a responding to a pleading. don’t file a motion to declare the other party in default the following day) If the summon was erroneously served. inadvertence. it can be against a complaint or a counter-claim No default if there is pending motion for Bill of Particulars 5 days to answer the Bill of Particulars Answer may be “Answer to Bill of Particulars” or “Amended Complaint” (15 Days to file as a matter of right) Bill of Particulars cannot be used as discovery procedure (Salita v.

only one copy is required to be serve to either of the lawyers Modes of Filing Personal Filing – deemed filed upon the receipt of the clerk of court Filing by Registered Mail – deemed filed upon the receipt of post office (If filed via private courier.The mode of informing the other party If the party is duly represented by a lawyer. each of the lawyers shall be served a copy of pleading If there is only one party but there are multiple lawyers. service shall be made to that lawyer If there are multiple clients and multiple lawyers. upon the actual receipt of the clerk of court) Modes of Service Personal Service Service by Registered Mail or Ordinary Mail Substituted Service – by delivering a copy to clerk of court after failure of both personal service and service by mail Completeness of Service Personal Service – complete upon actual delivery Service via Registered Mail – complete upon actual receipt or after the lapse of 5 days from the first notice from the postmaster whichever comes first Service by Ordinary Mail – complete upon the lapse of 10 days after mailing Priorities in modes of Service and Filing Personal Registered Mail Proof of Filing Proof of Service Lis Pendes Summons Issued by the Clerk of Court Purposes: To Acquire Jurisdiction over Defendant To Notify the Defendant Service of Summons Personal Service By handling a copy to the defendant By tendering the copy if the defendant refused to accept the summons .

corporate secretary. insanse. Direction that the defendant answer within the time fixed 3. government official designated by law to receive summons for a foreign corporation (SEC). in-house counsel Foreign Judicial Private Entity Resident Agent. treasurer.Substituted Service By leaving copies at the defendant’s residence with a person of suitable age and discretion and resident therein By leaving copies at the defendant’s office or regular place of business with some competent person in charge thereof Service by Publication Entity without a juridical entity Can be sued but cannot sue Prisoners Officer of the jail/institution deemed deputized to act as a special sheriff Minor and Incompetent To the minor. Name of the Court and names of the parties 2. or either of his parents (in case of minor only) Domestic Judicial Private Entity President. officers or agents in the Philippines Public Corporation Solicitor General if against the Republic of the Philippines Local Chief Executive if against public corporations Other officers as the law or court may direct Unknown Identity or unknown whereabouts By publication in a newspaper of general circulation and in such places and for such time as the court may order Extraterritorial Service (defendant does not reside and cannot be found in the Philippines) Personal Service outside the Philippines with leave of court By publication in a newspaper of general circulation In any other manner the court may deem sufficient Contents 1. general manager. Warning for default judgment . Managing Partner. and incompetent and his legal guardian or guardian ad litem.

or miscarriage of another . Venue is improperly laid 4. Pleading states no cause of action Cause of Action Plaintiff’s right Defendant’s duty to respect that right Breach of Defendant’s duty Hypothetical admission only (that the allegations are true) 8. each defendant shall be served with a summons Served by Sheriff Deputy Sheriff Officers of the court authorized to serve summons Suitable person Return Sheriff can be presented in the witness stand to prove that he tried to serve the summons personally Motion to Dismiss Grounds 1.In case of multiple defendants. Litis Pendentia between the same parties and the same cause Same Parties or interest Same Rights and reliefs prayed for Res Judicata will take effect on the other case 6. abandoned. Statute of Fraud If not reduce to writing (except if there is partial fulfillment) Agreement no to be performed within a year from its execution Special promise to answer for the debt. Cause of action is barred by prior judgment or statute of limitations Prescription 7. waived. Claim or demand has been paid. default. Court has no jurisdiction over the person of the defendant 2. or otherwise extinguished 9. Court has no jurisdiction over the subject matter of the claim 3. Plaintiff has no legal capacity to sue 5.

unless otherwise indicated Defendant can file a Notice to Dismiss if he becomes a third party plaintiff With prejudice if the plaintiff cause the dismissal of that same action in a court of competent jurisdiction Court has nothing more to do but to issue a confirmatory order of dismissal Motion to Dismiss Plaintiff files a Motion to Dismiss Must have Notice of Hearing Litigated Motion Dismissal Due to Plaintiff’s Fault Always with prejudice No justifiable cause for failure to: Appear on presentation of evidence in chief Prosecute for unreasonable length of time Unreasonable length of time Depends upon the circumstances of each particular cases Sound discretion of Court Comply with rules and or order of the court Pre-Trial After the last pleading was filed Mandatory It is the duty of the plaintiff’s counsel to moved for pre-trial. Condition precedent not complied Dismissal that will bar refilling Barred by prior judgment (res judicata) Paid. or otherwise extinguished Statute of Frauds Dismissal of Actions Notice of Dismissal Plaintiff files a Notice to Dismiss without prejudice.Agreement made in consideration of marriage Sale of Real Property or interest therein 10. abandoned. waived. clerk of court will moved for pre-trial in default of the plaintiff’s counsel Both parties must file their pre-trial brief three days before the pre-trial conference .

Sec. 2 You cannot change your theory first time on appeal Last pleading is usually the reply. intervention-third person wants to join the original parties. if it failed it will be refer back to the court Pre-trial order is mandatory. or Is so situated to as to be adversely affected by the distribution or other disposition of property in the custody of the court Intervention is at any time before the trial court renders a decision 15 days to file an answer to intervention after receiving the order granting the motion to intervene Calendar of Cases Clerk of Court take charge of calendaring cases Raffle is the mode of assigning cases Subpoena Subpoena ad testificandum Subpoena duces tecum Viatory right – the right to decline the subpoena if leaving 100 kilometers from the court that issued the subpoena. or An interest against both.If the case is mediatable it will be refer to mediation board. or In the success of either of the parties. third-party complaint-original parties want a third person to join the proceeding Intervention is not a matter of right Requisite to grant motion to intervene Whether or not the intervention will unduly delay or prejudice the adjudication of rights of the original parties Whether or not the intervenor’s rights may be fully protected in a separate proceeding Who may intervene Legal interest in the matter of litigation. or if no reply it’s the answer Plaintiff can only be put in default only at the motion of the defendant The SPA must be properly worded Failure to file a pre-trial brief will have the Intervention A third party is allowed by the court to appear in a proceeding where that third party is not an original party Intervention is different from a third-party complaint. the reckoning period of 10 days to file memorandum in a summary procedure The SPA should contain the enumeration in Rule 18. remedy is to take a deposition in the court where the person leave Viatory right is applicable only in civil cases .

Depositions on oral examination 2. 43. Depositions de benne esse (Rule 23 – pending action) . 42. 45 Modes of Discovery 1. Interrogatories to parties (Rule 25) (with leave of court if answer was not yet filed) 4. Admission by adverse party (Rule 26) (with leave of court if answer was not yet filed) 5. Depositions before action or pending appeal (Rule 24) (with leave of court if answer was not yet filed) 3. Production or inspection of documents or things (Rule 27) (always with leave of court) 6. the last day will be the next working day Fresh Period Rule applies to Rule 40. Depositions upon written interrogatories 3.Who may issue The court before the witness is required to attend The court before the deposition is to be taken Officer or body authorized by law to issue subpoena in connection of an investigation Any justice of SC or CA in any case or investigation within the Philippines Grounds to quash Subpoena ad testificandum Witness is not bound because of viatory right Kilometrage and witness fee not paid Subpoena duces tecum It is unreasonable and oppressive Relevancy does not appear Fails to advance the reasonable cost of production Computation of Time Exclude the first day. Depositions Pending Action (Rule 23) (with leave of court if answer was not yet filed) 2. include the last day If the last day falls on a Sunday or holiday. Physical and mental examination of persons (Rule 28) (always with leave of court) Legal consequences for the refusal of a party to comply (Rule 29) Classifications: 1.

he cannot at later date contradict his deposition. 5. It is an effective means of detecting and exposing fake. prevents delays. and his deposition is preserved in case he becomes unavailable. thereby encouraging settlements out of court. 2. and 7. saves the time of the court and helps clear the dockets. It makes available in a simple. 6. It educates the parties in advance of trial and on real values of their claims and defenses. convenient and often inexpensive way facts which are otherwise could not have been proved later. It expedites the disposal of litigations. he is generally not coached. 3. Depositions in perpetuam rei memoriam (Rule 24 – taken to perpetuate evidence for purpose of an anticipated action or further proceedings in a case on appeal) (applicable only to civil cases) Purpose: Knowledge of the evidence of the adverse party may facilitate an amicable settlement or expedite the trial of a case Benefits: 1. It is of great assistance in ascertaining the truth and preventing perjury because the witness is examined while his memory is still fresh. simplifies the issues.4. and thereby expedites the trial. fraudulent and sham claims and defenses. It facilitates both the preparation and the trial of cases Depositions Pending Action By leave of court after the jurisdiction has been obtained but before the answer is filed and the issues are joined Without leave of court after the answer was filed Deponent may be examined regarding any matter not privileged and is relevant to the subject of the pending action May be used against any person present or represented at the taking of the deposition Sanctions Actions may be dismiss Contempt of court Default of disobedient party Payment of reasonable expenses Arrest of disobedient party Refusal to allow the disobedient party of support to its defenses Striking out of the pleadings of the disobedient party Trial Order of Trial Plaintiff presents testimonial evidence Defendant cross-examine the plaintiff’s witness . 4. It safeguards against surprise at the trial.

Plaintiff formally offers documentary evidence Defendant objects or comments on the documentary evidence Evidence in nullity cases can only be presented to the judge Consolidation Common question of fact and/or law To avoid multiplicity of suit Expedite the trial One judgment Before trial commences Severance To avoid prejudice Trial by Commissioner Based on the agreement of the parties By referral Commissioner includes auditor Instances Long account Taking of account is necessary Question of facts other than those set in the pleadings and trial Can be held after judgment or during the execution of judgment Commissioner becomes an officer of the court Powers of Commissioner Regulate hearing Can issue subpoena Can swear witness Can rule on the admissibility of evidence. unless disallowed The court may adopt the report of petitioner in toto or just a part of it or not even a part of it FINALS Rule 36 .

if it is not raised in the issue. otherwise it is just a draft Dispositive portion is the subject of execution Body of decision contains the facts and the law and opinion of the judge (obiter dictum) Motion to Approve Compromise Agreement Compromise Judgment Motion to Set Aside the Compromise Agreement Motion to Set Aside the Compromise Judgment Appeal (if denied) *Or Have it Annulled on grounds of lack of jurisdiction. extrinsic fraud Interlocutory orders need not need to comply on the requirements of stating the facts and law where it was based Judgment must go with the pleadings filed. due process. solidary liability-not applicable) Separate Judgments (in case of legal separation. the court cannot tackle it in the decision unless it was openly discussed during the trial Motion for Clarificatory Judgment (when the judgment is sketchy. but cannot be set aside because the judgment is not void and it is already final) The date of finality between parties starts to run after such party received the judgment Several Judgments is proper only when the liabilities of every parties can be clearly distinguished from each and every party (joint liability-applicable. stating clearly and distinctly the facts and the law on which it is based. and filed with the clerk of court It is deemed a decision after it was submitted to the clerk of court. partial judgment can be rendered on custody and support based on compromise agreement. signed by him. but the legal separation shall be litigated) Only SC can issue minute resolution and consider it a decision on merits Rule 37 Motion for New Trial/Reconsideration Must be file within the reglementary period (15/30 days in multiple appeals because there is a need of record of appeal) File in the court of origin Motion for New Trial Based on FAME+Affidavit of Meritorious Defense Newly discovered evidence after trial that will alter the course of trial Motion for Reconsideration Facts and laws that do not justify the decision must be stated Evidence is not sufficient Not based on facts and law .A judgment or final order determining the merits of the case shall be in writing and personally and directly prepared by the judge.

No need of affidavit of meritorious defense Extrinsic Fraud Pro forma pleadings is allowed in motion for reconsideration Pro forma pleadings (i. order. and other proceedings Filed in the court of origin Petition for Relief from Denial of Appeal Extra-ordinary writ Cannot be interrupted or extended FAME Time of filing Within 60 days from knowledge of judgment and not more than 6 months after the entry of judgment FAME Meritorious Defense It is not an initiatory pleading but a remedy It is a petition not a motion It must be verified but does not need to be accompanied with Certificate of Non-Forum Shopping Two Stages To determine whether the judgment will be set aside If yes. hearing on the merits of the case If no.e. petition is dismissed Petition of Relief from Judgment is not allowed in CA and SC RULE 39  Execution is the remedy provided by law for the enforcement of judgment . no notice of hearing) does not toll the running of prescriptive period Contents of Motion Affidavits of merits (a) Affidavits of witnesses (b) Motion for new trial if granted will result to new trial Motion for reconsideration if granted will result to new judgment Partial Reconsideration / New Trial – rest is final and executor Rule 38 Refer to judgments.

accounting. Specific Act (Sec 10). the writ of execution must specifically state the amount to be executed Levy pertains to real properties Garnishment pertains to bank deposits Judgment maybe for money (Sec 9). exclude the time when the judgment was stayed because of the agreement of the party or dilatory tactics of the losing party (Republic Case) If the judgment obligor died after the entry of judgment but before levy of his real or personal property and the case involves real action writ of execution will still be issued If the judgment obligor died after the entry of judgment but before levy of his real or personal property and the case involves money claim (personal action) writ of execution will not be issued  File it as a claim to the estate If the judgment obligor died after levy. proceeding will continue against the legal representatives of the obligor  Execution of judgment will be claim to the estate of the obligor In cases of tort.                                         Writ of Execution is a judicial process issued to sheriff authorizing the sheriff to execute the judgment Writ of Execution may be a matter of right or motion of the winning party Final judgment – end of litigation. support. Orders and other Proceedings is the remedy in case of extrinsic fraud A writ of execution may be issued on an interlocutory order in case of support pendente lite if the other party does not comply with the interlocutory order Stay of Discretionary Execution is not allowed if the writ of execution is a matter of right Stay of Discretionary Execution is allowed if the writ of execution is a matter of discretion by filling a supersedeas bond There is no need of supersedeas bond on final and executory judgment Judgments on injunctions. no third person involved In garnishment the sheriff serves the notice of garnishment to the garnishee who is a third person An attachment is a provisional remedy. cannot be stayed pending appeal Execution by motion is within 5 years from the entry of final judgment Execution by independent action is after the lapse of 5 years but within 10 years The decision of Court of Appeals is not immediately executory (JBL Case) In computing the time. the court has nothing more to do  (writ of execution is discretionary) Final and Executory Judgment – after the lapsed of the reglementary period to appeal  (writ of execution is a matter of right) A writ of execution can be issued if the judgment is final and executory  Exceptions to the general rule that it can be issue as a matter of right  Unjust  Equitable grounds  Preliminary injunctions prayed before was issued  Judgment was novated  Judgment is dormant (not executed within 5 years) It is always the trial court that will issue the writ (court of origin) It is the dispositive portion that is controlling and executable Motion to Quash the Writ of Execution if it is inconsistent with the judgment (i. the action survives even after the death of the parties In Sec 8. must be raised as defense in order to be availed Must be connected from occupation Return of the writ is the report of the sheriff to the court Life of writ is for 5 years The importance of notice is to give judgment obligor to have the chance to redeem his property . and other immediately executory orders cannot be stayed Section 3 is discretionary Section 4 is mandatory.e. receivership. Special Judgment (Sec 11) Sec 11 refers to performance of special acts like support Contempt is remedy available in Sec 11 Disobedient judgment debtor can be held liable for contempt in special judgment (Sec 11) Purchaser shall have all the right after the levy only In levy the sheriff sets apart the property of the judgment debtor. the essence of which is to ensure that a property of the would be judgment debtor will satisfy the judgment of the court (not available in all cases) Property exempt from execution. there is no exemplary damages in the decision but the writ has exemplary damages) Petition for Relief of Judgments. writ of execution will be issued If the obligor died before judgment in a money claim.

the redemptioner cannot exercise his right to redeem The right of redemption is alienable right but cannot be subject of levy by the judgment obligee in the same case The payment must be in whole amount Offer to redeem is not equal to redemption Offer must be accompanied with the tender of payment Proof must be presented if it is the redemptioner who is redeeming Proof is not needed if it’s the judgment debtor who exercises the right to redeem The right to exercise the option what property to be levied must be exercised before the levy (Solar v. and auction is called off if the judgment debtor pays off before the auction sale Judgment obligor cannot participate on auction sale Judge. and other court officials cannot bid on the auction If the sale is irregular (i.                                         If the notice is not faithfully followed.e. unless if there is a third party claim. in the meantime certificate of sale will be the evidence of sale Certificate of sale must be annotated to the title of the real property for the prescriptive period of one year to run No redemption in sale of personal property The real property sold can be redeem by the judgment debtor (includes his successors and assigns) or the redemptioner who has a subsequent lien (creditor with lien) Redemptioner has 1 year to redeem if he is redeeming for the first time and 60 days if he is redeeming it from another redemptioner Judgment obligor can sell his right to redeem his real property Right to redeem cannot be subject to levy if it will defeat the purpose of redemption But an unexercised right of redemption can be subject to levy (junior encumbrancer) because the judgment obligor can still redeem it within a year One of the solidary debtors cannot be considered as redemptioner because there is no subsequent right To be a redemptioner. post a bond (judgment oblige). or if a surety pays Remedies in aid of execution  Examination of judgment obligor when judgment unsatisfied (Sec 36) . and independent action if a stranger to the case (Mariano v. CA) Public auction must be preceded with a notice which must be faithfully followed. lawyers. the lien must be other than and subsequent to judgment where the property is sold The one year period is equal to 360 days only (Civil Code) Once the judgment obligor exercise his right to redeem. judgment obligee should pay in cash Adjournment of sale – to any date or time as agreed upon. it can be set aside The remedy to exclude property of a third person from being levied upon is to execute an affidavit (terceria). or there is a reversal of judgment (annulment of judgment under Rule 47 within 4 years) The purchaser may sue the judgment creditor or may on motion and after notice may the original notice revived this time in his name (substitution of party) If there are several defendants. reimbursement can be claimed if the property sold exceeds the proportion of one of them. it can be set aside Judgment obligee can bid but need not pay the amount of his bid if it does not exceed the amount of debt. a house erected in a lot not owned by the owner of the house) Deed of Sale will be executed only after the lapse of one year for a judgment debtor to redeem his property. notice was not followed).e. or from day to day Certificate of sale is not required if the property is capable of manual delivery Certificate of sale is required in case of personal property not capable of manual deliver (i. go after the bond within 120 days. or evicted from the property because of the irregularity in the conduct of sale (defect on notice or publication). or one of them pays more than his share. Inland) Judgment obligor retains the possession of the property within one year after the execution sale Judgment obligee by way of injunction may petition to the court to restrain the judgment obligor to commit wastage in the property Judgment obligor is entitled to the rentals and fruits of the property if the property is in the possession of a tenant within the period of redemption The last redemptioner is entitled to the possession after the lapse of sixty days from the last redemption if he redeemed it from another redemptioner Writ of possession cease to be ministerial if a third party is in possession of the property who has an adverse claim to the property and the court must conduct a hearing to determine the nature of the adverse claim Writ of Conveyance transfers the right of judgment obligor to the purchaser Deed of Conveyance is executed by the officer who made the sale (sheriff) or his successor in office The purchaser may recover the purchase price from the judgment debtor if the purchaser cannot take possession of the property after the deed of sale was executed. or for the judgment oblige to post a bond to indemnify the sheriff Remedies in Sec 16 is to make an affidavit terceria.

Sec 43  File a case asking the court to allow you to sue the obligor of the judgment obligor (this will make the judgment obligee to become a real party in interest)  If the debt is not denied. cause of action  Conclusiveness of judgment (Rule 39. Ranada)  File a petition for enforcement of foreign judgment  Enjoys presumption of validity and regularity  Defendant has the burden of proof that there was no compliance of the foreign law  The nationality becomes essential only in the date of the decree of divorce and not on the date of filing of the petition to divorce (Bayot v. CA)  The divorce decree is recognized but the legal consequences of the divorce may be litigated again if there is a showing that the other party was not given a chance to represent his side (Roehr v. Sec 49 (b))  Same parties. Sec 49 (c))  The evidence presented in the first case can be used in the second case (Oropeza v. the contract which is directly the subject of the action). Rodriguez)  The judgment itself is the best evidence of judgment  The judgment must be published  The foreign judgment is a presumptive evidence of a right  Foreign judgment. identity of causes of action (based on the same delicts even if the remedies are different)  Barred by former judgment (Rule 39. the court may order garnishment applying Rule 39. in order to take effect in the Philippines. the court shall apply Rule 39. subject matter (the thing. Allied Bank)  Substantial identity of party but different causes of action the res judicata applicable is “conclusiveness of judgment”  What was established in the first case is conclusive in the second case  Minute resolution can be source of res judicata (Philippine Health Providers v. subject matter. Sec 36  Enforcement of attendance and conduct of examination (Sec 38)  By way of subpoena  Only in the court within the province where the defendant resides (remedy: take deposition)  If only the writ was returned unsatisfied makes this remedy available (Sec 37)  Appointment of receiver (Sec 41)  Obligor may pay execution against obligee  Sale of ascertainable interest of judgment obligor in real estate  If the interest can be ascertain without controversy Effect of judgment or final orders rendered by Philippine courts  Judgment in Rem  Specific thing  Conclusive upon the title to the thing  Probate of a will or letters of administration of estate  Prima facie evidence of the death  Judgment in Personam  Doctrine of Res Judicata  Final judgment or order (final and executory)  Court has jurisdiction over the subject matter and the parties  Judgment is on the merits  When there is nothing else to be done  Identity of the parties (same parties or same interests).   File a motion for the examination of judgment obligor to elicit from him where are his properties Examination of obligor of judgment obligor (Sec 37)  The debtor of the judgment obligor is summoned before the court to elicit from him what properties the judgment obligor is under its possession  If the debt is denied. CIR) Effect of Foreign Judgment  Suit incapable of pecuniary estimation (Mijares v. the plaintiff must file a case to enforce that foreign judgment  APPEALS Rule 40  An Ordinary Appeal is an appeal from a judgment of lower court on questions of facts or law or mixed questions of law and facts .

non payment is ground for dismissal of appeal Sec 8 o RTC affirms – RTC will try it on merits Rule 41  Different modes of appeal o Ordinary appeal (Rule 41)  RTC – CA (questions of facts or law or mixed questions of law and fact) (RTC exercising original jurisdiction) (Notice of Appeal) (Serve copy to the adverse party) (15/30 days) o Petition for Review (Rule 42)  RTC – CA (questions of facts or law or mixed questions of law and facts) (RTC exercising appellate jurisdiction) (Verified Petition with CA) (Serve copy to the adverse party and RTC) (15 days) o Appeal by review (Rule 45)  RTC – SC (questions of law only) (Verified Petition with SC) (Serve copy to the adverse party and lower court) (15 Days) What cannot be appealed o WE PAID Fresh 15 day Rule Appeal from Rule 65 should be by Ordinary appeal because Rule 65 is a special independent civil action MR / MNT must contain a notice of hearing and proof of service     Rule 42        Perfection of appeals o As to the Party – upon filing of notice of appeal o As to the Court – after the appeals is perfected as to the party appealing and after the period to appeal expired and can exercise residual power so long as the records were not transmitted to the appellate court Prior to the transmittal of records. Luriz (26 January 2007)] o Notice of appeal o Serve a copy to adverse party o Payment of docket fee No need to file a second notice of appeal . the following must be complied [RP v. Appellee Can be both appellant if both parties appeal File a Notice of Appeal with the court that rendered judgment or final order Notice of Appeal must contain: o Parties o Order Must served notice to the adverse party Appeals on Special Proceedings o Notice of Appeal (within 15 days) o Record of Appeal (within 30 days)  Full names of parties  Judgment and final order appealed from  Chronological order. all records are elevated.           MTC – RTC (original jurisdiction) Appellant v. Sps. related to the appealed judgment  Timeliness of the appeal  Issue of fact raised and evidence  Index if more than 20 pages  Copies to adverse parties Ordinary appeal is a matter of right. but he cannot in order to revive jurisdiction of the court file an MR or MNT Appeal by notice of appeal – court loses jurisdiction over the case Appeal by record on appeal – court loses jurisdiction over the subject matter which was being appealed To perfect an appeal. motions. copies of pleadings. no records are elevated Payment of docket fee is with the clerk of court that render the appealed judgment. Petition for review is a matter of privilege. courts can exercise residual powers Appeal can be withdrawn.

Appellee (if both parties appealed. 181235. 164150. 2008) o Commonality of interest means an appeal of one is appeal of all if there is vicarious liability Rule 45  15 days. February 11. Abon. remedy TRO and writ of preliminary injunction Appeal is taken by filing a verified petition to CA.    Rule 43  In cases of penalty of death or reclusion perpetua. ordinary notice of appeal to CA. Remington Industrial (GR No. Transipek (GR No. both are appellants) Appellant’s Brief – 45 days within which to file from the notice of the clerk of court of the completion of transmittal of records Appellee’s brief – 45 days from the receipt of the copy of appellant’s brief Appellant’s reply brief – 20 days from the receipt of appellee’s brief Failure to file appellant’s brief is a ground for dismissal Failure to file appellee’s brief is not a ground for dismissal Parties cannot change their theory on appeal. 2009) o Law of the Case has been defined as the opinion delivered on a former appeal Maricalum Mining v. exception is if there will be no further presentment of evidence (Lianga Lumber v. CA (GR No. discretionary . April 14. pay the docket fees. automatic review to SC (People v. it will not stay the award. 2008) o Power to dismiss the appeal on the ground of failure to file appellant’s brief is discretionary and not mandatory so long as it is not whimsically exercised Banco De Oro v. payment of docket fees. and proof of service to the adverse party and the lower court/agency that render the judgment (do not implead the court or tribunal) Contents o Name of Parties o Facts and issues o Duplicate original and certified true copies of the assailed resolutions o Copies of relevant documents o Verification and Certification of Non-Forum Shopping Action by the CA o No summons will be served o CA may require respondent to file a comment Effect of appeal o Award is not stay unless ordered by CA Copies of the pleadings need not be certified true copies   Appellant v. Lianga Timber) Parties that did not appeal will not be inured to the judgment on appeal unless there is a community of benefit that will necessary inure to them Gov’t of Kingdom of Belgium v. GR 169245) Requirement as to Form o Full name of parties o Timeliness of appeal o Issues involved o Arguments o Certified true copies of the judgment or order being appealed o Relevant pleadings o Verification and Certification of Non-Forum Shopping Reply and Rejoinder is not a matter of right (wait for court order if required to file) RTC records need not be elevated to CA (discretionary on the CA) because the RTC may still issue a writ of execution pending appeal       Rule 44          Instances when CA can entertain pure questions of law only o Rule 42 (ruling of the RTC exercising appellate jurisdiction) o Rule 43 (ruling by quasi judicial agency) Even appealed. 158322. July 22.

and Mandamus Service of order not of summon is the mode of acquiring jurisdiction Respondent cannot be held in default for failure to file answer        Rule 48     Rule 49      Rule 50 Applies to annulment of judgment. RTC orders shall be annulled in CA Preliminary Conference in the Court of Appeals In original actions or in cases of appeals (motion for new trial on the ground of newly discovered evidence) It is the CA who will call the conference Mandatory Oral Arguments before the Court of Appeals The CA or by petition of the party Only one counsel will argue.42.     Rule 46    Rule 47   Purely legal Petition for extension of time is allowed Exceptions where questions of facts can be reviewed o Conclusions is grounded on speculations. hearing on the motion is discretionary Objection to the motion may be filed within 5 days from service . final orders. resolutions Grounds o Extrinsic fraud (4 years from discovery) o Lack of jurisdiction (laches – inexcusable delay to exercise once right . dismissal in 65 can be re-filed if still within reglementary period Rule 65 cannot be a substitute for lost of appeal (41. surmises and conjectures o Manifestly absurd or impossible o Grave abuse of discretion of the facts o Misapprehension of facts o Conflicting findings of facts between RTC and CA o RTC exercising appellate jurisdiction under Rule 42 and 43. appeal is to CA even on purely questions of law Differences of Rule 45 and 65 o Dismissal in 45 is final and executory.or estoppel) o Denial/Absence of due process (Springfield case) Contents o Verified petition Action by Court o Dismissed if there is no substantial merit o Motion to dismiss may be filed o Writ of preliminary injunction may be issued o Reception of evidence may not be referred to RTC judge Petition for annulment of judgment must say why not able to avail of the other remedies and should not be attributable to the petitioner Rule 47 may still be availed even the judgment was fully implemented If annulled for lack of jurisdiction – re-file to proper court If annulled for lack of jurisdiction over the person – file to the same court after acquiring jurisdiction to the person and provided that the court has jurisdiction over the subject matter Annulment of MTC orders must be file to RTC as an ordinary civil action.45) Applies to Certiorari. Prohibition. unless authorized to have more than one counsel No notice of hearing on the motion is required (CA and SC).

post bond. case dismissed Appeal may be withdraw as a matter of right before the appellee’s filing of the appellee’s brief Filing means the filing in court and not the service to the appellant CA can received evidence SC will not receive evidence but it can re-evaluate the evidence falling on the exceptions (misapprehension of fact) Promulgation of judgment is the delivery of the signed copy to the clerk of court Unpromulgated judgment is not a judgment in contemplation with the law Execution of judgment if immediately executory there is no need to wait for 15 days to file motion for execution Motion for Execution pending appeal may be filed before the RTC if the records are still in the RTC. can be dissolved by counterbond  Preliminary Injunction  post bond. habeas corpus o Petitions affecting ambassadors and other ministers o Petitions for discipline of judges and attorneys Appealed Cases o Petition for Review on Certiorari o Grounds for dismissal  Failure to file within the reglementary period  Etc Cases to be decided en banc o Supreme Court Circular No. 2-89 Motion for New Trial may be filed anytime after appeal from the lower court has been perfected and before the CA loses jurisdiction over the case The only ground is newly discovered evidence Newly discovered evidence means an evidence which could not have been discovered prior to the trial in the trial court and which can change the outcome of the case Shall be accompanied by affidavit CA may received evidence in motion for new trial Corroborative and cumulative evidence is not a newly discovered evidence Motion for Reconsideration in CA Within 15 days from the receipt of order No second motion for reconsideration is allowed   PROVISIONAL REMEDIES    Temporary remedies only Ancillary actions. otherwise to the CA if the records had been transmitted to the CA. can be dissolved by counterbond  Receivership o May be availed even after final judgment. mandamus. post bond. post bond no counterbond  Replevin o Must be availed before the defendant filed an answer. it is within the discretion of the court to grant dismissal Wrong mode of appeal.           Dismissal of Appeal Grounds are not automatically dismiss the appeal. the CA will just issue an order to RTC to execute the decision Rule 52    Rule 53       Rule 56  Original Cases cognizable by SC o Petitions for certiorari. quo warranto. need a principal action except in support pendente lite Kinds of Provisional Remedies  Preliminary Attachment o May be availed at any stage but before entry of final judgment. can be dissolved by counterbond .

agency or a person to refrain from particular act or acts (Prohibitive Injunction) Preliminary Mandatory Injunction is an order requiring the performance of a particular act or acts o Requisites:  Invasion of right  Urgency . Support Pendente Lite o May be sought anytime even first time on appeal. can be serve together with the service of summons and copy of complaint to the defendant)  Exceptions: Rule 57. even a defendant can apply for a writ of preliminary attachment in connection with his permissive or compulsory counter claim If the judgment is final and executory. no bond Rule 57  Purposes: o is to seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment o to enable the court to acquire jurisdiction over the action by actual or constructive seizure of the property in those instances where personal services of summons on the creditor cannot be affected (action quasi in rem) Insolvency is not a ground for the issuance of the writ of preliminary attachment Must be for the recovery of a specified sum of money Can be avail by any party. § 20) o Exceptions  Principal case was dismissed and damages were suffered by reason of the attachment  Damages suffered by third party Calderon v. affidavit and bond required. the counter-bond will be automatically attached without any need to file separate pleading Damages must be prove in order to go against the applicant’s bond Cannot be subject of an independent action (Rule 57. notice and hearing discretionary to the court Stages o Order granting the writ of attachment (can be avail even before the court acquire jurisdiction over the defendant) o Issuance of writ of attachment (can be avail even before the court acquire jurisdiction over the defendant) o Implementation of writ of attachment (the court must have jurisdiction over the defendant. ¶ 2 Applicant’s bond o Amount to be determined by the court o The bond will pay all the costs which may be adjudged to the adverse party and all damages by reason of wrong attachment o Motion for reduction of partial discharge if the attachment is excessively high Manner of attaching o Same manner in execution Discharge of Writ of Attachment o Counterbond was posted or a cash deposit was made o Attachment was improper or irregularly issued o The attachment is excessive o The property is exempted from execution o Lost is case Counter-bond o Counter-bond responds for the payment of the judgment covered by the attaching creditor regardless of the wordings of the bond o Applicant’s bond responds for damages resulting from the attachment An order for execution pending appeal can be enforced against the counter-bond Merits on the complaint are not triable in a motion to discharge an attachment Rule 39. § 16 is identical Writ of execution is unsatisfied. § 5. do not ask for a writ of preliminary attachment rather for a writ of execution of judgment Can be issued ex parte. IAC 155 SCRA 531                  Rule 58   Preliminary Injunction is an order requiring a party or court.

actual. etc RTC cannot issue a WPI against other RTC.) TRO is a restraining order which may be issued upon filing of injunction until the hearing for a WPI can be had TRO (20 days) summary in nature Grant or denial of TRO does not mean automatic grant of WPI Status Quo Order – to maintain the last. TRO is deemed vacated and not extendible CA no ex-party application Executive Judge will issue the order ex-party TRO valid for 72 hours. and the issue is jurisdiction and it is always the main action (Original Special Action for Prohibition) Injunction is in the jurisdiction of RTC Writ of Preliminary Injunction may be granted where the action is pending SC cannot entertain an original action for Writ of Preliminary Injunction but can be entertained in its appellate jurisdiction Limitation of granting WPI is within the territorial jurisdiction of the court where the action lies WPI cannot be issued in labor cases (exclusive jurisdiction of NLRC) No WPI against SSS.                                     May be granted at any stage of the action before judgment or final order Validity o Trial Court – 20 days o Court of Appeals – 60 days o Supreme Court – until further order If granted ex-parte by the presiding judge on exceptional cases the validity is 72 hours only The purpose is to preserve status quo It is a proceeding in personam (binding between the parties only) You can file a complaint for injunction asking for TRO or Preliminary Injunction The grounds must be stated in the application for preliminary injunction Preliminary Injunction is an interlocutory order (not appealable. GSIS. etc. peaceable and uncontested state of things that preceded the controversy o No need for bond o May be granted motu propio on equity o Only available in the Supreme Court The exception to the rule that PI cannot be issue without notice is if there is Great and irreparable injury (not susceptible of mathematical computation) If not resolved within 20 days. final order after trial Cannot be granted ex-parte Order granting permanent injunction is subject to appeal Injunction (Rule 58) is different from Prohibition (Rule 65) which is directed upon the court or tribunals. remedy if there is grave abuse of discretion – Rule 65) Final Injunction is to permanently restrained a party. unless exempted o TRO and/or WPI raffle must be in the presence of adverse party  Exceptions same in WPA (cannot be served personally. exception if it will not affect third person estranger to the suit (accion terceria) Inferior courts can issue WPI in forcible entry or unlawful detainer under BP 129 No injunction in PD 605 No injunction in government projects (RA 8975) WPI is applicable in continuing acts Grounds (memorize) o Entitlement to the relief o Will result to injustice o Some acts are in violation of the rights of the applicant that will tender the judgment ineffectual Requirements o Verified application o Bond. not the presiding judge where the case lies Service instead of Notice (service is from the receipt of summons) Applicant’s bond amount depends upon the sound discretion of the court conditioned to address all damages that may be sustained by the adverse party by reason of the issuance of TRO/WPI Remedies o Certiorari against preliminary injunction o Appeal against permanent injunction When refuse o No ground or insufficient bond .

but not applicable if the property is in custodia legis Requirements o Ownership and entitlement of property o That the property is wrongfully detained . and act with diligence of a good father of the family Applicant shall post a bond conditioned to be pay to the adverse party Appointment of a receiver is an interlocutory order and cannot be compelled by mandamus or certiorari except when there is a grave abuse of discretion Applicant must have interest on the property Property is in imminent danger Receiver not stayed by appeal (like in injunction. the main purpose is recovery Both party may avail this remedy Defendant must be in actual possession Rule 60 is different from Rule 57. loyalty is to the court not to the party May be a principal or ancillary action Receiver is appointed by the court for the purpose of preserving the property. but there must be proper accounting Receiver must file a bond to answer if he commits malfeasance Judgment of receivership not stayed by appeal There is difference between Rule 39 (any property can have a receiver) and Rule 59. accounting. Rule 57) Issuance is different from dissolution       Receivership is the remedy. receiver is the person appointed by the court which need not necessary be the party applying for receivership Remedy if the property is in danger of being wasted or dissipated or materially injured The purpose of the receiver is to take care of the property Can be availed after judgment to aid if the judgment is returned unsatisfied or the judgment obligor refuses to apply his property Can be availed pending appeal to be decided by the court of origin exercising its residual power Receiver becomes a court officer. support) No lien created Bond answer to damages that may be sustained by the other party Counter-bond is conditioned upon the payment of damages that may be suffered by the applicant Denial or Lifting o Without sufficient cause o Adverse party post a bond o Bond by applicant is insufficient o Counter-bond is insufficient Powers of Receiver o Shall have the power to defend and sue in his name (disinterested person who can bring action) in the administration and preservation of the property but do not include act of conveyance o Divide money and other property o May invest money if allowed by the court Sanctions o Contempt o Damages o Liable for the property When terminated o If no longer justified. 1 (c) where the property is only incidental or in the possession of a third person Extends to personal properties only. attachment. must be sworn in. Rule 59                  o Counter-bond (to go against the bond Sec 20. Sec. Sec 1 (subject of the case only can have a receiver) Rule 60         Replevin is available when the purpose is to recover possession of personal property unjustly detained Must be file before the filing of answer of the defendant Recovery of damages is only incidental.

depositions or other authentic documents Both parties can ask for support Will not be granted (i. SC Govern by the general rules on venue unless otherwise provided  . 1607 of the Civil Code Subject matter o Contract  Deed  Will  Contract  Other written agreement o Law Interpleader – if there is a conflicting claims between different parties over the same subject Interpleader is an original special civil action different from intervention which is only an ancillary action Court shall issue an order requiring the parties to interplead Initiated by complaint Initiated by petition File in MTC. etc) Third party who paid the support can ask for reimbursement Remedy is certiorari (Rule 65) it is not appealable because it is an interlocutory order Support can be asked in criminal cases SPECIAL CIVIL ACTIONS     Rule 62    Rule 63       Any person may file a petition for declaratory relief No need for a cause of action There must be no breach or violation of the statue being complained of Purpose is for declaration of right File before the RTC. you did it! o Must state the needs of defendant and the ability of the giver 5 days to file a comment accompanied by affidavits. impotence.e. case of adultery. not SC Other similar remedies o Action for reformation of instrument o Action to quiet the title of the real property or remove the clouds therefrom o Action to consolidate ownership under Art. CA. fine)   Rule 61     o Double of the value of the property o Intended to indemnify the defendant Defendant is entitled to the return of the property o If seasonably filed a redelivery bond o Plaintiff’s bond is insufficient Claim by third party may be made in a separate action       Support Pendente Lite is availed at the commencement of the action and before judgment Must be file before the RTC Verified application Grounds o When. where.o  Bond That the property has not been distrained or taken for a lawful purpose (tax. RTC.

resolutions of COMELEC and COA only Interlocutory order not included Mode of review may be brought to SC under Rule 65 Time to file is within 30 days from notice of judgment or final order or resolution sought to be reviewed Filing of Motion for New Trial or Motion for Reconsideration (if allowed by rules of the commissions concerned) shall interrupt the running of 30 days Neypes case (fresh 15-day period) does not apply If motion was denied. but in no case it shall be not less than 5 days (same as the motion for bill of particulars) Material Data Rule (timeliness of filing) Form of Petition and Fees o Name of parties o Implead the commission involved o Facts.       Issue Statute EO Regulation Ordinance             Rule 64           o Validity and Construction Relief o To declare the rights and duties of the petitioner Requisite o Subject matter must be the one mentioned o Terms of document and validity is doubtful o No breach o Actual judicial controversy (ripe for judicial consideration) o Adequate reliefs not available DR not available in unilateral actions like declaration of citizenship and court decisions Ripening of seeds – there must be a threatened litigation in the immediate issue which litigation is imminent unless prevented by the DR Parties o All persons who have or claim Non-joinder of parties is not a jurisdictional defect Notice to SOLGEN is required First paragraph – discretionary to court to declare rights Second paragraph – mandatory to court to declare rights The judgment in DR does not essentially entail any executional process as the only relief to be properly granted therein is declaration of right Third party complaint cannot be entertained in DR since no material relief is sought Intervention allowed Counterclaim allowed Petition for DR can be converted to Ordinary Civil Action   COMELEC and COA only Applies only review of decisions. argument o Material dates o Prayer Documents to be appended o Certified true copy of the assailed decision o Copies of relevant documents o Certification of Non Forum Shopping o Proof of Service to the COA/COMELEC and adverse party o Pay the filing fee Subsequent Action o SC issue Order to Comment which must be filed within 10 days from the receipt of the order . the remaining period of the 30 day period shall be the remaining time for filing. issues. final order.

if appeal is available. resolution o 60 days from the denial of motion for new trial or reconsideration Where filed o RTC – lower courts. lies against judicial and ministerial acts o Accompanied by TRO/WPI o Administrative remedies must be exhausted in order to be availed against officers in the executive department o There must be no other plain. CA. officer exercising judicial or quasi-judicial power and not ministerial duties (remedymandamus) o There must be a grave abuse of discretion amounting to lack or excess of jurisdiction over the subject matter o There must be no appeal or any plain. officers. Rule 65 does not lie (exception is if the appeal in not adequate or speedy remedy. urgent necessity. officer to perform an act which it unlawfully neglect o Exhaust administrative remedies Damages may be awarded in Rule 65 When filed o 60 days from notice of judgment. board. arbitrary or despotic manner in the exercise of his judgment o It is an extra-ordinary remedy. board . SC concurrent jurisdiction o Must be accompanied by Certificate of Non Forum Shopping o Filing of petition under Rule 65 does not stop the running of prescriptive period to file an answer (file an answer ad cautelam) o Intended to correct an act performed by the respondent and extends only to discretionary acts o Judicial function – power to determine the legal rights of the parties and undertakes to determine these questions and adjudicate upon the rights of the parties o Without jurisdiction – no legal right to determine the case o In excess of jurisdiction – there is grave abuse of discretion where respondent acts in a capricious. relief from judgment of arrest in criminal cases o Questions of facts and law cannot be raised. useless. order. board.     Rule 65  o Aggrieved party will file a comment o Public respondent will only file a comment if ordered by the SC Effect of filing o Will not stay the judgment or abate the proceedings (remedy is to seek for TRO/WPI) Findings of fact of COA/COMELEC is final and non-reviewable provided that it is backed by a substantial evidence Neypes Ruling not applicable Petition must be verified and implead the commission concern Interlocutory orders and division orders are not reviewable      Certiorari o Original Special Civil Action (this is not a mode of appeal) o Against any tribunal. adequate remedy available o MTD denied – remedy is Prohibition not Mandamus because the court exercises judicial function not ministerial function Mandamus o Commanding a tribunal. speedy. whimsical. speedy and adequate remedy o Petition must be verified o MR is required before a petition under Rule 65 is allowed o Purpose is to annul the judgment o There must be a certified true copies of the orders denying the MTD and MR o Append other relevant documents o Get a TRO to stop the proceedings in the lower court because it will not stop the proceedings in the lower court o RTC. corporations. only issue is whether there is grave abuse of discretion or lack or excess of jurisdiction Prohibition o To command the court a quo to desist from further proceedings in an action or matter specified therein o Preventive remedy. or it is for special consideration [novel issues]) o Not remedy for loss of appeal or error in judgment o Pro forma rule not applied in MR or interlocutory orders  Exceptions are patent nullity. deprived of due process. corporation.

no need of hearing suffices for immediate entry to the property Defenses and Objections .o o   No prior service of a copy thereof to the adverse party CA – quasi-judicial agencies  Must have proof of service SC – novel issues  Must have proof of service     Parties o Public respondent – nominal party o Private respondent – indispensable party o A party not party to the case may file a comment Respondent is required to submit memoranda o In the RTC hearing on memorandum o In CA and SC no hearing on memorandum Will not interrupt proceedings Petition for TRO/WPI Rule 65 can be availed in criminal cases but only to the civil aspects of the case (order granting demurrer to evidence can be questioned via Rule 65) Rule 66          Quo Warranto proceedings can be instituted in the RTC. SC Can be instituted by the SolGen. mandatory only in case the plaintiff wants to take possession of the property o Ministerial duty to the court to issue writ of possession after the deposit (remedy if denied by court is MR then Mandamus) o Depository bank is PNB. CA. Rule 66. SC Period: court may reduce period of filing Judgment o If guilty  the usurper is ousted  damages can be recovered  winner can demand accounting (contempt) o If not guilty Limitations o Commenced within 1 year after the cause of such ouster o Damages may be brought only for 1 year after the entry of judgment Administrative remedies will not toll the running of 1 year period to file quo warranto Time is of the essence    Rule 67       Expropriation Deed of Absolute sale if no opposition from the private owner Expropriation Proceedings if there is opposition Venue of action is where the property lies or one of the properties lies Preliminary Deposit o Plaintiff can enter in the property o The assed value of the property for purposes of taxation o Will form part of payment of just compensation o Can stands as indemnity for damages o Discretionary on the part of plaintiff. 10% of the compensation o Mere notice. Individual Party Remedy to try disputes with respect to the public office Individual may file a quo warranto case on his own under Section 5. Relator. Rule 66) Parties: usurper Venue: RTC (where the respondent resides if filed by the individual) (RTC of Manila if filed by SolGEn) CA. no need for SolGen or leave of court but must aver his entitlement to the position Individual may ask the SolGen to file a case for quo warranto with the permission of the court (Sec 3-4.

whichever comes first o Final order sustaining the right to expropriate can be appealed o Order on Just Compensation can also be appealed o 30 Days to appeal Ascertainment of Just Compensation o Appointment of not more than 3 commissioners  Commissioner must take oath  Can received evidence  Can administer oath o Formula  Fair Market Value + Consequential Damages = JC  Consequential Benefits > Consequential Damages = Fair Market Value is JC o Payment of legal interest from the time of taking of the property to the time of actual payment No need for MR (discretionary) GR 56378 NPC v. amendment can be done within 10 days o Non filing of answer in the issue of just compensation will not result to declaration of default Order of Expropriation o Lawful right to take the property sought to be expropriated o Upon payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint. CA Issue on conflicting claims may be decided by the court handling the expropriation proceedings (RP v. deemed waiver to foreclosure proceeding Parties to be joined o Mortgagor o Occupant of the mortgaged property o Transferee or grantee o Junior encumbrancers (necessary party)  If not joined unforeclosed rights remain to him Equity of redemption not less than 90 days but not more than 120 days Susceptible of multiple appeals. restoration of property o Determine the damages suffered by defendant Recording of judgment and must be registered to the RD to bind third persons Notes o Barangay cannot expropriate o File in RTC o Implead all owners o Consignation if there are multiple claims o No need of expropriation if the owner has agreed to the sale o Rule 68  Complaint shall set forth o Date of execution of the mortgage o Name and residence of the mortgagor and mortgagee o Description of the property o Amount unpaid o Names and residences of persons claiming interest in the property Filed in RTC where the land is situated May bring personal action for the amount due instead of foreclosure of suit.         No Objection  Entitled to all notices o Objection  File answer  No third party complaints  Objections not raised is deemed waived but in the higher interest of justice. CFI of Pampanga) It must be used for the public use describe in the property Entry not delayed by appeal o If reversed on appeal. must be filed with record on appeal      .

remedy is to file a case for deficiency judgment            Involve multiple appeals. or if several properties in several places. but did not sign the promissory note or assume any liability to the debt. then in case of deficiency judgment. which sell must be in a public sale . no need to go to the court o Compulsory under Rule 69 Venue o RTC where the property is located. hence 30 days + record of appeal Allegations o Nature and extent of title o Adequate description of the real estate of which petition is demanded o Defendants Personal property can be partition First order is order of partition o If all parties agreed to partition. in the RTC of any of the places where the properties Right to partition do not prescribe (no one can be compelled to be a co-owner perpetually) o Exception acquisitive prescription Procedure after judgment o Parties agree  Submit deed of conveyance (agreement of partition) o Parties disagree  Appoint no more than 3 competent and disinterested commissioner who will propose the partition The nature of action is in REM. the third person in not liable for the deficiency No deficiency judgment in extra-judicial foreclosures. no need for a commissioner o Reduce the agreement in writing of the partition and submit to the court for approval o Record the agreement of the parties and the order of the court to Register of Deeds where the real property is located Kinds of partition o Voluntary. only accommodated the debtor. to bind the interest of other persons The nature of the order of partition o It is definitive o It is appealable judgment Court to appoint 3 competent and disinterest commissioners Commissioners required in expropriation and partition Commissioner may sell the property if it is the best for all the parties.        Rule 69   No right of redemption except if with banking institution Issuance of Writ of Possession is ministerial unless there are other adverse claims or the property is in possession of a third person If there are other claims. trial on ownership Motion of Confirmation of Sale o Must have hearing on motion Consequences of Confirmation o Cut-off of equity of redemption o Registration of Final Deed of Sale to the RD o Cancellation of title in the name of the mortgagor and issuance of new title to the mortgagee or redemptioner Deficiency Judgment o Allege  the judgment  that No right of redemption/equity of redemption exercised  Sale  Amount realized in the sale o When rendered  Upon motion  If the foreclosure sale did not satisfy the judgment o If motion is denied  MR  Mandamus If only third person mortgaged the property.

Metropolitan Trial Court o Rule on Summary Procedure o Instituted within one year from dispossession or from discovery of dispossession in case of stealth o No need of prior demand to vacate o Allege: (1) prior physical possession of the property by the plaintiff. strategy or stealth Unlawful Detainer o Possession is lawful in the beginning and becomes illegal after the expiration of contract of lease o Issue: who between the contending parties has better possession of the contested property o Venue: Municipal Trial Court. or it may be dismissed for lack of jurisdiction Issue of possession o Possession de facto only and not de jure o No res judicata on the issue of ownership o The mere raise of issue of ownership will not divest the jurisdiction of the court Rule 70. intimidation. vendee. intimidation. threat. 2 applies only to unlawful detainer o To pay or comply and to vacate 5 days to vacate in case of buildings 15 days in case of land Filing of action will be within one year from the demand to vacate Counting of days is by Article 13 of the Civil Code (1 year = 365 days. vendor. independently of the title o Venue: RTC o Ordinary Civil Procedure o After the expiration of one year but within the period prescribed in the statute of limitation Accion Reinvidicatoria o Issue: possession and ownership o Venue: RTC o Ordinary Civil Procedure o Allege: (1) identity of the property. strategy or stealth (Forcible Entry) o A lessor. (2) there is a withholding of possession or refusal to vacate the property by a defendant after the expiration of the contract of lease Accion Publiciana o Issue: who has the better and legal right to possess. 12 months = 360 days) Demand is not required if o Expiration of lease o Enforcement of terms of contract o Defendant is intruder not lessee o Month to month lease (better to send demand to vacate to avoid tacit renewal after 15 days from the expiration of lease) When deemed accion publiciana or accion reinvidicatoria o No allegation on how they were able to enter the land .   Rule 70  Commissioner must submit a report Taxes is divided among co-owners Registration to the RD is essential to bind third parties               Forcible Entry o Possession is unlawful from the beginning o Issue: who between the contending parties has better possession of the contested property o Venue: Municipal Trial Court. Metropolitan Trial Court o Rule on Summary Procedure o Within one year after the last demand o Need of prior demand to vacate o Allege: (1) prior physical possession of the property by the plaintiff is not a condition sine qua non. (2) plaintiff’s title to it Who may institute proceedings? o A person deprived of the possession of any land or building by force. Sec. or other person It may be instituted against all kinds of land except agricultural land (agrarian court) Manner of dispossession must be alleged. (2) deprivation of said possession by another by means of force. threat.

8 of Rule 70 and not by Sec. o record of preliminary conference order within 5 days after the termination of preliminary conference o filing of affidavits and position papers within 10 days from the receipt of order. o preliminary conference not later than 30 days after the last answer was filed. or at the rate determined by MTC  To ensure the payment of rental  Amount determined by the inferior court  Payed on the date of payment according to the contract or in the absence therof on the 10th day of every month o RTC to CA or SC – immediately executor. cause of dismissal of the complaint Dates: o Filing of complaint. damages (arrears. o Judgment will be rendered within 30 days from the issuance of record of preliminary conference order No need of hearing for the receipt of testimonial evidence and adjudication is based on the pleadings Matter of ownership if passed upon by court is only provisional and cannot be barred by res judicata Writ of Preliminary Mandatory Injunction may be filed within 5 days from the filing of complaint o If the appeal of defendant is frivolous or dilatory o If the appeal of plaintiff is meritorious Judgment o Plaintiff’s allegation is true.          o Defendant refuses to vacate the land on the ground that he is the lessee of plaintiff’s predecessor-in-interest How demand is made o Personally on the defendant o Written notice o Posting of notice o Serve by registered mail Regardless of amount to be recovered. awards of damages is incidental only (can award amounts more than the limit of its jurisdiction) Execution o Immediate execution if rendered against defendant o To stay execution. restitution of property. 2 of Rule 39 Rule 71  Direct Contempt (Contumacious Acts) o Summary in nature. the MTC has exclusive original jurisdiction In case of failure of the defendant to file Answer. No motion to declare defendant in default but motion to render judgment base on pleadings submitted is the remedy Failure of plaintiff to appear in preliminary conference. no need for hearing o Committed in the presence of or so near a court as to obstruct or interrupt the proceedings before the same o Includes disrespect toward the court o Offensive personalities to other o Refusal to be sworn in . o 10 days to file answer from the service of summons. reasonable compensation) no moral and/or exemplary damages o Defendant’s allegation is true. rents. RTC  File a superseadeas bond to be approved by the MTC  By cash or surety in the MTC to answer the rents  Make monthly deposit to the RTC acting as appellate court of monthly rental. cannot be stayed even with the paying of rents and superseadeas bond o Failure to pay monthly deposit pending appeal will result to the transfer of property to the plaintiff but will not prejudice the appeal o Execution pending appeal is governed by Sec. payment of costs o Will not bind title or ownership o Will not bar future actions between the same parties on ownership o Appealable to RTC o Primary relief is recovery of possession. defendant must  Perfect an appeal  Within 15 days.

      o Refusal to answer as a witness o Refusal to subscribe to an affidavit or deposition when lawfully required to do so Penalty for direct contempt o P2.000. proof beyond reasonable doubt is needed Remedy for Direct Contempt o May not appeal o Either Certiorari or Prohibition is the remedy o File a bond condition to pay damages if adjudge liable for contempt o Remedy of Habeas Corpus in extreme cases where the order is void A person cannot be punished for disobeying a writ because the writ is directed to the sheriff Indirect contempt against SC shall be file before RTC.00 or imprisonment of 1 day Indirect Contempt o Is not committed in the presence of the court and can be punished only after hearing o Procedural requisite  Charge in writing  hearing In the nature of criminal action.00 or imprisonment of not exceeding 10 days or both o P200. or the SC can take cognizance if it only involve question of law .

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