REMEDIAL LAW REVIEW

Judge Ma. Cristina Cornejo

PRELIMINARY CONSIDERATION
RA 7691- Expanded the jurisdiction of MTC April 1994- take note of the amendments Different doctrine or rules relating to jurisdiction Jurisdiction vs. Venue Venue: the place of institution of action file the complaint in the court of the place as provided in Rule 4. Civil case: venue can be agreed upon by the parties (it must be restrictive and exclusive) Criminal case: venue is not subject to stipulation of the parties because it is jurisdictional Instituted only in the place where the crime was committed or where any of essential elements of the crime took place (in case of continuing crime) Jurisdiction: a matter of substantive law, a matter of procedural Law How to determine jurisdiction - By the allegations in the complaint, meaning you read the allegations- it would reflect the facts, plaintiff’s cause of action. Cause of action -an act or omission committed by the defendant in violation of the rights of the of the plaintiff Act/omission- tort delict/ wrong doing
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-if plaintiff’s right has been violatedmay cause of action – there’s a basis for filing an action There’s already the right of action -right to seek redress for violation of a right Ex. Non-payment of a loan= cause of action violated the right of plaintiff to collect by way of a loan -if P instituted an action based on nonpayment, P exercised his right of action Jurisdiction is determined by the allegations in the complaint and not in the answer, the court has to look in the allegations of the complaint Exforcible entry or unlawful detainer=MTC Ex- breach of contract= RTC incapable of pecuniary estimation If damages are also increased included- it is only incidental *to determine what jurisdiction or court= go to the operative law Jurisdiction is conferred by law. Jurisdiction is determined by the law enforced at the time of the commencement of the action -at the time of filing of the complaint (initiatory pleading) Ex. Complaint is for sum of money for P50,000 at the time the law enforced is BP 129 BP 129= 20,00 MTC/ 50,000 RTCT RA 7691= 50, 000 MTC (as of april 1994)

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

What law is in effect at that time to determine What court has jurisdiction Rule of adherence to jurisdiction Ex. BP 129- there’s a pending action in the RTC ( apply RA 7691- expanded the jurisdiction of MTC -under the rule jurisdiction remains Unless requires Retroactive effect Sec 7 RA 7691 Retroactivity applicable only to civil cases RA 7691= up to 400,00=MTC Beyond 400,000= RTC RA 7691- claims for sum of money (don’t apply the totality rule) -principal claim only/ excluding the attorneys fees, court expenses, damages, interest Ex. Unlawful detention/ forcible entry Rule 70 Accion interdictal Accion publiciana Accion reinvindicatoria Physical possession only -if there is an addition to physical possession includes recovery of ownership= under BP 129= RTC (accion reinvindicatoria) RA 7691- if the assessed value does not exceed 20,000 province; 50,000 in MM- MTC -even in the action, there is accion reinvindicatoria (recovery of both physical title and ownership)
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Ex. Cadastral proceedings -cadastral land registration cases- RTC Under RA 7691- delegated jurisdiction to MTC (over land registration and cadastral cases) Condition to delegated jurisdiction to MTC 1. The lot is uncontested 2. The value of the land does not exceed 100,000 How is jurisdiction acquired over the plaintiff Defendant Subject matter Issues/ res Plaintiff upon filing of the complaint and payment of docket fees Defendant-upon service of summons and voluntary appearance Issuesduring the pre-trial conference or submission of the pleadings Res- actual or constructive seizure

CIVIL PROCEDURE
Rule 1 sec 5 Initiatory pleadings= complaint- civil information- criminal Commencement of an Action (sec 5) -Civil action is commenced by filing of the complaint but it is only by the payment of the required docket fees that the Court acquires jurisdiction over the case (Manchester case)

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

ex. Damages- would have to be quantified- basis of the filing fee. -indicate in the relief portion the amount of damages you’re asking for. Q: What if you have already paid the required docket fees but the judgement awards more than the amount you asked for. Is the court deprived of jurisdiction? A: No. -it will cause a first lien over the award ( Sun Insurance case modified the Manchester case) Once the judgement becomes final executor, it will be the first to be exhausted from the award Rules of Procedure must liberally construed, but not on compliance with the required reglementary period especially appeal (STRICTLY CONSTRUED) Exception(example) -motion for reconsideration- must be done only on the time required -no extension allowed Rule 2 Sections 1 and 2, 3 and 4 Section- because in a special civil/action and special proceedings, there is no cause of action -without cause action, in an ordinary
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Civil action- such would warrant its dismissal Cause of action Before 1997- it is a tort, damage, injury, etc Any right violated is covered Cause of Action -presence of such, may now have a basis to file an action May now excercise the right action - A matter of substantive lawremedial law Rights of action- right to seek redress or remedy the violation of a right Sec 3 with 4 Cause of action= one complaint (based on that cause) You cannot make the single cause of action as the basis of several complaints Example In a case involving a law with security Y can file a cause of action either for - Collection of sum of money based on non-payment - can file a special civil action of foreclosure of real estate mortgage *remedy in case of splitting of causes of action: motion to dismiss on the ground of Litis pendencia vs. Res judicata Litis pendencia- at that time, there is a 2nd case involving the same parties same subject matter and same cause of action.

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Res judicata- at the time the 2nd action is filed, the first action has been decided with finality Joinder of causes of action A. Complaint= contains several causes of action But subject to limitation (memorize the limitation) Rule 3 section 6- joinder of parties is permissive - A right of relief which arises from the same transaction or series of transaction AB and C executed 1 PN in favour of X A B and C are liable in different amounts but are contained in 1 PN You have to join A B and C in complaint because action arises from 1 PN B. Join together several causes of action -You can’t join partition with forcible entry or unlawful detainer C. Relate to RA 7691 -apply the totality rule only on the Principal claim Ex. Indebtedness on the amount of P150,000=MTC Even though there’s damages, cost, atty’s fees etc. All are principal claims for sum of money- payment be joined in single complaint and determine the jurisdiction
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Misjoinder of action or non- joinder of partiesmisjoindererroneous conclusion Remedy: simply exclude the cause of action erroneously joined. Rule 3 Sec 2 -if an action is brought not in the name of the real party-in-interest= vulnerable to a dismissal Ground: no cause of action-you have no basis he is not the real partyin-interest Indispensable party -must be impleaded at all cost or else there would be no judgment. Necessary party -must be impleaded to have a complete relief. Ex. PN executed jointly by A and B in favour of C *if C only executes an action against A, alone= you will only receives the share of A, that’s why it is needed to implead B in order to have a complete relief. *If you do not implead the necessary party, you have to state the reason why you did not implead the said necessary.

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

*If the court does not find your explanation satisfactory, the court will order you to implead the necessary party *If despite the courts order, you did not follow the order of the court, you waived your claim against that necessary. Class suit Subject matter- common or general interest to all common persons Instituted by a group The member of persons filing the action must sufficiently represent their claim Ex. 1M persons only 10 persons filed= most sufficient to speak for the 1M or other members Rule 3 sec 13 In the alternative either/ or Owner of certain goods, loads his cargo for delivery to a consignee in Cagayan de oro at the time he loads the goods in the ship, the goods were in good condition, upon reaching Cagayan, goods were discharge to a warehouse and were subsequently delivered to the consignee upon the delivery to the consignee, the goods have been damaged. Plaintiff- not aware in whose hands the goods were damaged

-in transit or in warehouse- filed a case against the defendants in the alternative -you let them show that they have no responsibility at all= so implead them all -sue everybody under the name they are known -those comprising the association will be the ones to answer Sec 16 relate to sec 20 Effect of death Sec 17 before the court can acquire jurisdiction over the substitute, he must serve only its order What are the actions that survive? MEMORIZE Actions to recover personal or real property Actions to recover damages for an injury to person or property real or personal Action or an interest thereon from the estate or to enforce a lien therefrom the estate *if the action survives, you cause the substitution

BEFORE If to recover money, debt, interest=extinguish Prosecute in the settlement of the estate NOW

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

If an action for money claim based on contracts express of implied- the action will continue - If there is still a need for substitution although under sec 20 it does not mention the substitute - -if not based on a contract express or implied money claim and the defendant dies before final judgement= action is extinguished, prosecute against the estate - If awarded on the claim (based on contract) the award will be against the estate and you will be made a preferred creditor. Indigent litigants= not pauper anymore Writ of preliminary attachment -Filed at the time of commencement of the action (based on contract) -upon the death of the defendant= not dissolved Not extinguished- action because the writ is simply a provisional remedy Rule 4: Venue -whereas, jurisdiction is conferred by law,venue can be agreed upon by the parties. The agreement on the venue must be valid, and if the agreement on the venue is present -if restrictive= valid= may not use Rule 4 If not restrictive= no agreement on venue at all
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Rule 4 apply if: There is no agreement on the venue or If there is an agreement, but such agreement is not restrictive Action in personam- but it has to be instituted in the court were the property is located. Resident defendant Sec 2= “at the election of the plaintiff apply only to resident-defendant. If non-resident defendant-you file where he may be found (in all other cases of sec 3) Venue is parties for the convenience of

**go through pre-trial conference Summary procedure- win or lose because of documents “Position paper” no hearing at all Preliminary Conference -no need for preliminary conference brief *no more declaration of non-suit *no more declaration of “as in default” Only in default due to failure to file an answer Rule 6 ComplaintInitiatory pleading (sets in the motion of the case)

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

-does not necessarily mean that although the complaint is filed and the action is commenced, the court already has jurisdiction (Manchester and Sun Insurance case) -must pay the docket fee first. Ultimate Facts -the facts will cause the arising of the cause of action Ex. What is the delict or wrong done? Answer is described in the complaint Answer- only one considered as a responsive pleading Counter-claim 1. Positive 2. Negative counter-claim (Permissive and compulsory) Cross-claim Negative defenses a specific denial How to make a specific denial 1. Specifically deny under oath a particular paragraph and set forth the truth of the matter 2. That the defendant has no knowledge sufficient to form a belief as to the matter of par. 1, 2 etc Affirmative -the defendant admits the allegations, but raises new matters that could prevent recovery of the claim *basically, the grounds for motion to dismiss may be used or raised as an affirmative defense Improper venue may now be impleaded in the answer
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*if you plead an affirmative defense in the answer, you may ask for a Preliminary hearing for your affirmative answer (it is as if you file a motion to dismiss) Compulsory Counterclaim (recoupment) -arises out of by reason of or necessarily connected with the adverse party’s claim. Permissive Counterclaim (set off) Does not necessarily arise of or is not necessarily connected with original claim -can stand independent adjudication -requires the payment of docket fees Ex. A vs. B For collection of sum of money B- counterclaim= A likewise obtained a loan from B -you have to pay filing fee na! ( parang separate complaint na!) Cross-claim-1 claim of his co-party Ex. A vs. B and C B files a cross claim against C Reply- optional only Section 11- 3rd 4th party complaint Sec 12- bringing in new parties Example Sec 11 A vs. B (case for collection of money) amount P500,000

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

B= Yes, I obtained that money, but gave half of it to C A= walang pakialam sa usapan ni B and C (basta B bayaran mo ako!!) So, B may file a third party-complaint against C (because B did not enjoy the whole amount of P500,000) For purpose of contributing the ½ of the amount It is filed against somebody who is not an original party (Si A na B lang ang original) Sec 12 A vs. B- not only against a party who is not an original party but also to somebody who is an original partybecause you’re also trying to prosecute. Ex. PN executed by C and A (original party)- not an original party) - There are two subject matters here Rule 7 Sec 4 and 5 Sec . 4Verification -verification must be under oath (affidavit) (Personal knowledge and belief) -Certifying the corrections of the knowledge “Truth of my personal belief and knowledge...”

Unless and until the rules requires for verification in the pleading shall not be verified Sec. 5 – certification against forumshopping Forum means: Court Tribunal Judicial agency Shop of forum that could be favorable to your action *every intiatory pleading must contain a certification against forumshopping So, a complaint must always contain a certification of non- forum shopping. Counterclaim- no CNFS Compulsory=certify NFS is not required Permissive=certify NFS is required (can be considered as an initiatory pleading= can be filed separately na kasi) Contents of certification of NFS -may apply the substantial compliance rule as long as you say that you did not file any action... okay na! *but the substantial compliance rule does NOT apply when from the pleading itself there is no need for the certification of NFS Cert NFS- the principal plaintiff shall certify (natural or juridical person)

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Juridical person/ entity- it may be through: a. By virtue of a Secretary’s certificate; or b. CNFS must be certified by a duly authorized representativeauthorized through a broad resolution. Q: What if at the time it is filed, the CFNS was signed but the BOARD resolution was not attached to the complaint (shipside Case 2000 A: For as long as the person who signed the certificate was already authorized at the time of the filing of the claim, board resolution may be filed after the CFNS has been submitted NOTE: But if only during the time the certif. was questioned because of absence of the board resolution was made = it may be a ground for dismissal Q: If the complaint was initially filed with the NBI and there was a pending proceeding, the same plaintiff filed in another court, a claim for damages with the same subject matter being investigated before the NBI. Is there a forum-shopping ? A: None. because NBI is not a court, tribunal nor a quasi-judicial agency.

Q: if there is a finding of forumshopping, which case shall be dismissed, the 1st case or the 2nd case? A: Both of the cases will be dismissed. It is because by the fact that you committed a forum shopping, thus, you are in bad faith. (Phil. Estate Golf case. 1998) Rule 8 Manner of making allegations -the party may appeal facts of which he is certain and those which he is not sure (just put everything you want to plead) The parties are given the chance to plead all the grounds but it is up to them prove what is the truth. Sec 3 Ex. Rule 16 last par- failure to comply with a particular condition. Such ,must be alleged in the complaint ( that it was complied- no more details: general averment only) Reconciliation among the family members must be averred. Grounds for failure to comply: -not prematurity but failure to comply with condition precedent. Ex: (Administrative law) -barangay conciliation -Exhaustion of administrative remedies -Following the remedies prescribed by certain law

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Sec. 6 If you invoked a judgement whether local or foreign, do you have to allege that this has been rendered in accordance with its laws? Ex. Foreign judgement rendered by a foreign court A: No need to allege in details and the jurisdiction of court. Why? Because there’s always a presumption that, a court which rendered the judgment acted with jurisdiction. *the burden of proving the lack of jurisdiction is on the person assailing and not you! Sec 7. And 8 Actionable document vs evidentiary document Actionable- your very cause of action is anchored or based on that document Evidentiary- mere corroborative fact; evidence of a particular fact. How to plead an actionable document (memorize see codal)How raise it in the pleading 1. You copy the document verbatim 2. Set forth the substance of the document How to contest the genuineness and due execution of the document (memorize)
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You assail it by specifically denying under oath the genuineness and due execution of the document. Rule 9 Sec. 1 Omnibus motion rule (OMR) Join every defenses or ground that you have (isama mo lahat, sabi ni mam!) **As long as you have objection or defences whether in a motion to dismiss or in the answer Motion to dismiss (MD) -Interrupts the running period of filing the answer -if MD is denied start the running period (remaining period) upon receipt of the notice denying the MD. Lack of jurisdiction over the subject matter= means: over the nature of the action In relation with criminal procedure -allege all grounds in the motion quash -do file a motion to quash within the time allowed. If you failed to file a motion to quash within the time allowed by law= you waive such right. These 4, even if not raised is not waived (criminal procedure) 1. No offense charged (the facts do not constitute a crime) 2. Lack of jurisdiction over the offense charged 3. Criminal liability is extinguished 4. Double jeopardy

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Back to civil procedure! -if the party is severed with summonssaid party must file an answer within the period allowed by the rules. *only in civil cases a party may be declared in default If summary procedure -reglementary period of 10 days from service of summons to file an answer Failure to file an answer cannot be declared in default. REASONS: *because the court render judgement motu propio or a motion of the plaintiff. *in summary proceeding, a motion to declared defendant in default is a prohibited pleading If regular rules and proceeding: -reglementary period of 15 days from service of summons -for purposes of default, the court cannot automatically declare the defendant in default. There must first be a motion to declare the defendant in default, a copy of which must be given or served to the defendant -it must be set for hearing in order to hear the side of defendant. If during the hearing and there was yet no order in default- the defendant should file an answer.
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It must be entitled “ a motion admit answer- and the court will have to deny it If and until that delay of the answer is intended or in court may still accept the answer. If declared in default, file a motion to set aside order of default *petition for relief from judgementrule 38 -only on 4 grounds (FAME) -may be resorted only if the judgement became final and executory *annulment for judgement- Rule 47 Based on 2 grounds: 1. Lack of jurisdiction 2. Extrinsic fraud If declared in default, P is allowed to present evidence ex parte. (does not mean that P will always win, he must still present evidence. Burden of proof is on the part of the plaintiff.) Rule 10 Amended vs. Supplemental Pleadings Amended pleadings -you made an alteration or modification in the pleadings -The amended supersedes the original. Supplemental -you add to the original pleadings -just added to the original

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Amended -only once as a matter or with prior leave of court Supplemental Only with prior leave of court *matter of right (on the part of the pleader) Q: Why a matter of right? A: because you can do it without prior leave of court (only once) -before a responsive pleading is filed (e.g. answer) *even if no responsive pleading has been filed, it cannot be amended on the 2nd 3rd etc. -Only once! -after the first, leave of court is required already! P files a complaint serves to defendant. D files a motion to dismissgrounds: complaint states no cause of action. P without prior leave of court, amended the complaint. Q: is it allowed A: Yes. Because a MD is not a responsive pleading (NOTE: because only an answer is a responsive pleading) Sec. 5 is one way on how the Court acquires jurisdiction over the issues which have not been raised in the pleading and in the pre-trial conference.

“let the pleadings be amended to conform with the evidences...” -failure to amend, does not affect trialanyway evidences will be offered and court will order its admissibility or not. Sec. 8 “Admissions in superseded pleadings may be received in evidence against the pleader.” Why? Because they are already judicial admissions in that particular case Negative pregnant- denial pregnant with admissions Definition: It is a denial in such form as to imply or express an admission of the substantial fact, which apparently is controverted. It is a form of denial, which really admits the important facts contained in the allegation to which it relates While it is a denial in form, its substance actually has the effect of an admission because of a too literal denial of the allegations sought to be denied. This arises when the pleader merely repeats the allegations in a negative form. Rule 11 Sec. 11 -if filing a motion to extend time= must be filed within the period to file an answer because if filed outside the said period, it will be denied.

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

-for as long as there is no order of default yet, you may still an answer, but with these words ... “to admit...” Rule 12 Bill of Particulars -when the allegations (in general terms) in the pleading is vague and ambiguous. Remedy: -move to be furnished with more definite statement -must be filed within the period to file an answer -once filed a motion for bill of particulars, it interrupts or stops the running period to which to file an answer. -if granted: balance of the period from the receipt of the bill of particulars (not less than 5 days) -if denied, file an answer Q: Allege the documents in the pleadings but the pleader (complainant) fails to attach the documents to the complaint. Defendant now files a motion for bill of particulars. Can the motion be granted? A: No! Because what you are asking is for the production of the documents (a mode of discovery) REASON: Because if you ask for a motion for BP, you ask for particularity of the allegations.

Filing of pleading vs. Service of pleadings Filing- you present it to the clerk of court Service- you give a copy of the pleadings to the adverse party. Personal filing- you bring it to the clerk of court Registered mail- must also be stamped when it was mailed NOTE: Date of mailing, it date of filing. Modes service: pleading must come from a party 1. Personal- personally delivering it 2. Mail- a. ordinary b. registered NOTE: if service of judgement, resolution final orders it shall be done either: 1. Personally 2. Registered mail ** ordinary mail not allowed Sec. 10 Completeness of service= disputable! Ordinary mail- after lapse of 10 days Registered mail- after lapse of 5 days from first notice! Priority in service: always personal! -written explanation- must be had if other modes is used (Usually at the bottom of the pleadings Sec 14.-IMPORTANT!

Rule 13
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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Cause of notice of lis pendinsexclusive Only to those affecting the title to or the right of possession of real properties! *may only be cancelled by order of the court! (2 ways under the Rules of Court, check the nature of the action) Rule 14 Generally it is by virtue of summons, that the court acquires jurisdiction over the defendant. Service of summons: 1. Personally 2. Substituted service 3. Publication *cannot be served by mail! Before the revision of the Rules of Court, in an action in personamservice may be made only or by substituted service (REASON: directed to the individual) If the action is personam but against a non-resident defendant and with property in the Philippines- look for the property and for its attachment; the action in converted to a quasi in rem= service now may be effected through publication. Still applicable, although there has been a revision. Sec 14- “in any action” (irrespective of the nature of the action) but only with respect to a resident defendant, or a
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non-resident with property in the Philippines. If made to apply to a non-resident and with no property in the Philippines, no connection, no court jurisdiction can be had. Sec. 7 Substituted Service -the sheriff must have extend all efforts to effectuate service personally -if not, he must have justify it in the return -there must be an explanation in the sheriff’s return of the failure Effect: -if not done service is fatally defectiveit can be set aside by Certiorari Sec. 11 must be followed –service upon domestic private juridical entity a. President b. Managing partner c. General partner d. Corporate secretary e. Treasurer f. In-house counsel Through the appropriate officer only (anyone of those mentioned) -if not served on the proper person= defective service (improper service) Remedy: the judge may issue an alias summons (Case: Linear case 1995) *there is still service but it is defective! It is still different if there is nonservice at all! It may be dismissed.

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Defective because against the rule.

it

was

served Non-litigous motion Ex. -Ex parte motion to file an answer for extension. Motion to extend time for filing a Motion reconsideration -non litigious -not allowed by the rules Motion day: Friday afternoon -if urgent can be set on any day. Omnibus motion rule section 8 Motion attacking a pleading, order, judgement or proceeding Memorize the 4 exceptions Rule 15 Sec 9 Motion for leave of court to file a pleading Attach the pleading already Already included in the order admitting. Dismissal of Actions Rule 16 Motion to dismiss (memorize the grounds) Rule 16 vs. Rule 33 Motion to Dismiss- under Rule 16 is filed during the period to file an answer, reckoned from service of summons. Rule 33- motion to dismiss at the instance of the defendant

Sec 15 Extraterritorial Service (Memorize!) a. Defendant does not reside and is not found in the Philippines b. The action affects the personal status of the plaintiff or relates to or the subject matter of which is located in the Philippines in which the defendant has or claims, a lien or interest. c. Or the property of the defendant has been attached in the Philippines. Service of Summons- either 1. Personally 2. by publication Sec 20 - Very important (has been amended) Q: How is voluntary appearance effected as to make it equivalent to service of summons? A: Upon filing of a pleading. 2 par. Before: if you invoke other grounds aside from lack of jurisdiction- deemed waived (considered as voluntary appearance) Now: not waived. (La Naval drug Corp. Case) Litigious- it raises substantial issues 3 days notice is required.
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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Rule 17 Motion to Dismiss at the instance of the plaintiff a. Notice or motion of plaintiff b. Due to fault of plaintiff Preliminary objections -grounds for Motion to Dismiss (as enumerated) Q: Why is it considered preliminary? A: Because it is filed before the filing of an answer Relate to evidence Rule 33demurrer of

-Comply first what has been required by the law before going to courts. -resort first to grievance machinery before going to courts. Ex. -Settlement among members of the same family members-Katarungang barangay, requirement of a Lupon Tagapamayapa. -Doctrine of Exhaustion of administrative Remedies. Motion to Dismiss- is a litigious motion if seasonably filed goes on the merits. The courts will either: Grant Deny Order amendment of complaint **Usually ordered on complaints which the grounds relied upon states no cause of action **Curable of amendment -period to file an answer is interrupted -if Motion to Dismiss is denied- file an answer within the remaining period, but not less than 5 days. Sec. 5 -Bar for dismissal There must first be dismissal, before refilling is barred. If the dismissal is based on the other grounds other than the 4, you can refile it (appealable) But if the ground, it is dismissal if any of the 4, it will bar the refilling. Refilling is barred by dismissal, based on the following

Only ground: Insufficiency of Evidence -File a demurrer of evidence after the plaintiff has rested its case. -Because you think that the plaintiff is not entitled to the relief prayed for Sec 1 (c) venue is improperly laid -The case was instituted were it should not be instituted -It was instituted against the stipulation of the parties Under the present rule: It may be impleaded as a : -Motion to dismiss; -as an Affirmative defense answer. Sec. 1 ( j ) Condition precedent
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in

an

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

-Res judicata -Prescription -Statute of frauds -Extinction Once dismissed based on the 4 grounds there is nothing left more left for the court to do. Remember: a defendant can file a: -Motion to dismiss -Answer If answer is seasonably filed and invokes any of the grounds in Rule 16, sec 1 as an affirmative defense, you may now, ask for a preliminary hearing for the said affirmative defense. If you were able to substantiate your affirmative defense during the preliminary hearing- the pcase will be dismissed- it is as if a motion to dismiss was made. If the motion to dismiss is seasonably filed in the ground of litis pendenciaand there was a hearing but was denied- defendant shall file an answer within the reglementary period. If the defendant answers and pleads again in the answer an affirmative defense of litis pendencia- allowed but no more preliminary hearing. Rule 17 Sec. 1 and 2- at the instance of the plaintiff
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Sec. 3- fault of the plaintiff 2 Dismissal rule Notice of dismissal is filed in the plaintiff- the court will issue an order confining it -dismissal is without prejudice Plaintiff refiles the action, but before, the defendant answers on files a motion for summary judgement, plaintiff files a notice of dismissal- the court issues an order confirming the same. -dismissal is now a dismissal with prejudice. Sec. 2 -when answer has now been filed, and after such, the plaintiff filed a motion for dismissal. -the answer contains a counter-claim -plaintiff then filed a motion to dismiss- such motion if granted is dismissed only with regard to the pleading (complaint) and not the counterclaim. Sec. 3 -dismissal is due to the plaintiff fault -An answer has already been filed Dismissal is limited only to the complaint and does not affect the counterclaim, even if the plaintiff was at fault. Case of BA Finance Corp -P filed to prosecute for a reasonable length of time, the action was then dismissed

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

-in the answer filed, there was a compulsory counterclaim filed or interposed by the defendant. SC held: it is a Compulsory Counterclaim- which arises from a necessarily contested to the action- it cannot stand to its own, ergo, if the principal action is dismissed, it carries with it the dismissal of the compulsory counterclaim. Lone Dissent: Justice Regalado (now incorporated in the Rules) -it will cause undue justice on the part of the defendant, who has been dragged to court by the plaintiff through the complaint file- defendant suffered damages. -the dismissal should only be with regard to the action and not the counterclaim. That is why the dismissal now is only with regard to the complaint. Sec. 3 -The dismissal amounts to dismissal on the merits -dismissal is with prejudice, unless otherwise declared by the court. Rule 18 Pre-trial is Mandatory Civil-1989 Criminal 1997 (pre trial conference)

Sec. 1 does not really holds true issue joined in the answer -By virtue of Administrative Circular of the Supreme Court. -after the last standing, it is either the: a. plaintiff will move for pre-trial or b. the court will not set pre trial ( the rules return it) Present Procedure: once the parties appear for the first time to pre-trial, you still have to send them to mediation. Mediation or ADR (Alternative Dispute Resolution) part of pre-trial Judge: set for trial – determine if mediatable. Mediation is mandatory. -if no settlement is reached in mediation- back to court and set again for hearing of the pre-trial. Pre-trial Conference Proper 1. Submit Pre-trial Brief at least 3 days before the Pre-Trial hearing -important document as far as as preliminary conference in Court case= regular rules -summary Procedureposition papers 2. Proceed to Pre-trial conference proper- if was not able to settle the case. Proceed to Pre- Trial Conference proper- if was not able to settle the case.

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

a. Stipulation of factsadmitted: becomes judicial admissions b. Definition of issues c. Pre-trial dates- agreed upon in civil case covered by regular rules. –not summary procedure- no hearing Sanctionsfailure to appear despite notice during the pretrial conference is the same with failure to file a pre-trial brief. 1. Plaintiff’s fault- dismiss (no more declaration of non-suit) 2. Defendant’s fault- cannot be declared as-in-default. Plaintiff will be allowed to present evidence ex parte. If fails to appear despite due notice during the schedule date of proceeding= -the appropriate sanction will be imposed to him (same as above) -because it is part of pre-trial conference -mediator makes a report- cannot impose the sanction- it is still the court who will impose the appropriate sanction. Rule 19 Intervention Sec. 1 Who may intervene (memorize the 4 instances) Interpleader –Special civil action
***Based on classroom lecture

Difference between Intervention and Interpleader Intervention- the person seeking to intervene has a legal interest Interpleader- the person who institute the action has no interest over the action -there are several claimants and the interpleader seeks to know who really has the right over the thing from among the several claimants. **Legal interest- must be actual legal interest Intervention -file anytime before rendition judgment by the trial court.

of

Sec. 3 if the intervention joins the Plaintiff- file complaint-in-intervention Defendant- file answer-in-intervention Rule 21 Subpoena -even in civil subpoena

cases,

there

is

a

Rule 22 Computation of time -exclude the first, include the last. Sec. 2 Motion to dismiss -The time you receive the orderexclude -Start on the next day

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Ex. You receive the order on the 19th October, start counting on the 20th of October. Rule 23 Deposition before action and pending appeal- perpetuation of testimony Preservation of testimony Deposition pending appeal or before action How? 1. Oral examination 2. Written interrogation In both instances, the deponent goes through the order of examination of witnese -use of: Ex.: witness is sick, Lives in a place in a very far place 100km from venue were no means of transportation even a carabao. Deposition: it is as you are in Court (you go through the direct, cross, indirect and re-cross) The adverse party has been notified but if the former does not appear, the deposition shall proceed, and any objection that may be raised, with regard to the deponent is WAIVED. Deposition Interrogatories upon Written

Sec. 25 Rule 23 -written questions -the direct, cross, re-direct and recross are also written -such will be given to the deponent to answer it in written too. Oral examination- it is as if he is in the witness stand Rule 25-a separate mode of discovery -serve the question to the deponent and answer within 15 days Rule 23 and 24= same procedure, differ only as to the time 23- during the pendency of the action 24- before the institution of action or pending appeal Rule 27 -used in order to have the books, documents or things produced Rule 28 Mental and Physical examination Sec. 1 -used only if the Mental and Physical state of the person is an ISSUE or controversy -cannot be used for any other cause Sec. 4 Arrest and contempt Trial Order of Trial Order

Q: is it the same as Rule 25? A: No
***Based on classroom lecture

. Order of Witness in Provided for in

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

presentation evidence

of evidence Direct, indirect cross,

-plaintiff appeals Criminal case: after the prosecution rested its case, you file a leave for demurrer of evidence - 5 days to comment, - 10 days grant of leave - 10 days deny opposition - If denied- present evidence - If immediately files a demurrer , but was denied, you lose a turn to file evidence ( done without leave of court) Rule 34 and 35 34- no hearing, only based on the pleadings, no issues, everything is admitted 35- judgment on it pleadings and summary judgment For as long as the defendant denies a material allegation- that will be taken against the claimant as an issue =answer fails to tender an issue Rule 35 If there is an issue, but not a genuine issue- rule 34 is not applicable, you move for summary judgment. Genuine issue- goes to the merits of the case Motion for summary judgment= 10 days notice rule

Q: who presents evidence first? A: In civil case 1. Plaintiff 2. Defendant 3. 3rd, 4th party complaint In criminal case 1. Plaintiff 2. Defendant 3. Rebuttle 4. Surrebuttle *only if it interposes a negative defense *If it interposes an affirmative defense ( ex. Self- defense= the order of presentation is reversed. Clerk of court must be a member of the Bar Rule 31 (see codal) Rule 33 Demurrer of Evidence Bar question: difference with Criminal Procedure -ground is insufficiency of evidence -demurrer- you object Civil Case: leave of Court= not made a requisite in filing a demurrer to evidence -if denied: present evidence (defendant) -if granted- case dismissed
***Based on classroom lecture

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Sec. 3- based on documents, affidavit with hearing Rule 36 Judgment, Final Orders Sec. 2- an amendment -date of finality= date of entry BeforeJudgment become final and executor ( appeal period has lapsed 15 days or no appeal has been made) Entry- recording in the books of judgment -deemed entry on the date of finality Judgment based on agreement -final and executor -approval of the agreement by the court compromise

Subject matter that was not included in the judgment but was taken up during the trial Separate judgment= 1 action but several claims -judgment in one claim -action left to continue with regard to the claim not adjudicated. Q: is separate judgment appealable? A: no. Wait for the rest of the claim to be adjudicated WHY? It would delay the proceedings when the court allows Rule 37 Rule in relation to rule 41 Q: When to file: within a period of 15 days from notice of judgment New trial- 2 Reconsideration- 3 FAME- fraud as a ground for a. New trial b. Relief from judgment c. Annulment of judgment Extrinsic fraud -perpetuated outside the court which barred the parties of a day in court -if done in trial-not extrinsic fraud Intrinsic fraud -you introduce falsified documents (ex.) you made in the court. Client cannot be faulted for any delay in the proceeding

compromise

As a rule, you cannot appeal judgment based on compromise

a

Regalado cited: before you appeal -move to set aside judgment and move to set aside compromise on which judgment is entered. Sec. 3 several parties – several defendants Sec. 4 several judgment – several claims Sec. 5 different claimsJundgment Nunc Pro Junc (then for now)
***Based on classroom lecture

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Newly discovered evidence is same with criminal procedure The evidence must have been discovered AFTER trial. It could not have been discovered during trial. If along the trial, such evidence is available during the trial, but was simply not availed of= Cannot ask and made such as ground as a newly discovered evidence NBI case: expert signature Q: Is that a newly discovered evidence? A: No. It was availed all along, during the trial but was not just availed of Motion for New Trial FAME- allege the facts that constitutes the FAME Sec. 3 -filing of a 2nd Motion for New Trial is allowed, provided that, it must be on a ground which was not available at the time the 1st motion for new trial was raised 2nd Motion for Reconsideration is not allowed in all courts below the Supreme Court. Extension of time to file Motion for Reconsideration = not allowed Sec. 6 Granting of Motion for New Trial- effect -original judgment is vacated
***Based on classroom lecture

Trial de novo- consist of reception of evidence of the movant only -anent any evidence relevant may be accepted but will not be tried all over again (previous admitted evidence) Sec. 9 Rule 37 relate to Rule 41 (memorize Rule 41 sec 1 important!)

very

Sec. 9 Rule 37 – essentially by express provision is not appealable. See related amendments: Administrative matterRemedy: Under Rule 41- appeal from judgment Rule 65- petition (special civil action) Rule 37 sec. 9- appeal from judgment or final order Q: How would you reconcile Rule 41 and Rule 37? A: Rule 37- you question or attack the judgment or order -you are not questioning the order denying the motion for reconsideration or motion for new trial. -you are after the propriety of the judgment. Rule 41- you are attacking the propriety of the order denying the motion for reconsideration/ motion for new trial. That is why you apply Rule 65, on the ground of grave abuse of discretion, amounting to lack or excess of jurisdiction.

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Rule 38 -denying due course from appeal -availed of only after judgment becomes final -considered as an EXTRAORDINARY REMEDY. The person against whom the order/judgment is rendered, stikll have a relief Only 4 grounds available- FAME Sec. 3 The 2 persons must concur Must be filed within the 2 periods ( 60 days- 6 months) BeforeMTC- RTC RTC- CA Now, relief from judgment -it is filed in the same court which rendered the same judgment from which you are seeking relief -same case number Sec. 6 (read) Sec.7 Relief from appeal denying due course -if you file an appeal beyond the reglementary period, allowed= cannot avail this remedy -if appeal is denied- court will give due course.

Difference between finality of judgment from purpose of execution and for purposes of appeal For purpose of EXECUTION: -upon the expiration of the 15 day period of filing an appeal reckoned from filing of the notice of appeal or if there’s no appeal from the lapse of the 15 day rule. For purpose of APEAL: -all the incidents on that case has been resolved ,everything has been resolved by the trial court, nothing is left for the court to do. It is submitted for or may be revived already. Rule 39 Execution of judgment Sec. 1 and 2 Section 1- as a matter of right Section 2- otherwise known Execution Pending Appeal

as

Sec. 1 As a matter of right -the prevailing party has the right to enforce judgment -once the judgment has become final and executor and no appeal has been taken, it is a matter of right on the part of the prevailing party. 1st par.- judgment has become final in the court of origin 2nd par.Before When the court renders judgment, the losing party will file a notice of appeal,

***Based on classroom lecture

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

then wait for the decision of the appellate court. If the appeal has been denied, the prevailing party shall file a motion with the appellate court to remand the case to the court of origin for execution. Now You don’t have to ask the appellate court to remand the case to the court of origin. Just get a certified true copy and attach it together with the motion for execution in the court of origin. It is the court that enforces its own decision, the appellate court only affirms it. If it goes all the way to the Supreme Court ( RTC-CA-SC) and SC affirms whatever judgment both the lower court have rendered- such decision attains it sfinality, ergo, making it final and executor. It is now becomes a matter of right for the prevailing party to ask for the execution of such judgmeent. Q: Is the notification to the losing party still needed, even though such motion for execution is a matter of right? A: yes. Even though it is a matter of right, notice to the losing party is still needed - A hearing must be set with notice ( REASON: there is the possibility of amicable settlement.)
***Based on classroom lecture

Sec. 2 Discretionary Execution or Execution pending Appeal General Rule: only final and executor judgment may be executed Exception: Sec. 2 Rule 39 - Because you are trying to execute a judgment during the pendency of the appeal - Because judgments that are not yet executing may still be reversed in the appeal In the situation, the court will only allow execution pending appeal if it finds GOOD REASONS for the granting of such, which good must be stated on the order granting the execution. -the indication is needed because it is a deviation from the normal mode. -you are executing a judgment which is not yet final and executor. The court must really determine and must indicate in the order -must be set for hearing with notice Ex.: Case for collection of sum of money. Court awards the plaintiff 1M, the defendant files a notice of appeal within 15 day period. Plaintiff 95 yrs old file a motion for execution. REASON: because of the old age, it would take years for the appellate court to decide on the matter.

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Delivery of chattel- perishable goods= good reason Judgment Civil case- mailed to the parties Criminal case- read in open court Example: Plaintiff -winning party -receives the copy on the 7/10 -has his own 15 day period -do the appropriate: he filed a motion for execution pending appeal (since the defendant did not appeal) -sets for hearing Defendant Losing party Received the copy of the decision on 7/1 -he has until 7/16 to file his notice of appeal -receives ahead and files notice of appeal -defendant rejects the motion of plaintiff Argument -he rejects the motion because upon his filing of the notice of appeal, it deprives the court of jurisdiction over the case. Court: deny the defendant’s argument. For the court to lose jurisdiction over the case, upon the lapse of the 15 day period on both sides . so in this case, defendant has to wait for plaintiff in
***Based on classroom lecture

order for the court to lose jurisdiction over the case Court grants the motion for execution on 7/27 upon finding of good reason (after the lapse of plaintiff’s 15 day Q: is the court correct? Can the court grant the motion although it is way behind the 15 day period? A: Yes. As long as the motion is filed within the 15 day period Turning point: if the plaintiff seasonably filed his motion for execution within the 15 day period, the court can still act on it- as long as the records are still with it (with the court of origin) Q: What if you file the motion but the records are not anymore with the court A: you file the motion in the appellate court to reiterate the motion Sec. 3 Rule 39 vs. Rule 70 Rule 39 Rule 70 Applies to Immediately judgment executory rendered in ordinary civil actions How to stay the how to stay the immediate immediate execution? execution? Simply file or post 1. Perfect an a supersedes appeal by bond filing notice of appeal 2. Post supersedea

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

s bond 3. Pay rental as adjudged in the judgment Sec. 4 (memorize) Sec. 5 Reversal of a discretionary execution Still subject for reversal because it is execution pending appeal The court may order for the restitution or reparation of damages. Sec. 6 (very important) Covers execution as a matter of right Reckoning point: final judgment -within 5 years from date of finality (deemed to be the date of entry) -may execute judgment by motion Q: What if within the said period you did not execute, now file a motion? The judgment becomes dormant. A: It does not end there, you may file a motion for revival of judgment- once revive you still have another 5 years which to execute the judgment by motion - If after 5 years from revival, you did not execute again= the judgment becomes dormant again - If after such period, you want to revive again- file a motion for revival again.
***Based on classroom lecture

Before 1997 revision, within 10 years were the only period from the date of finality- after that no more. *According to Justice Feria: 2nd and 3rd revival is ok, as long as: 1. Judgment debtor, or obligor is alive, and 2. The judgment is not yet barred by prescription Sec. 8 -writ of execution is addressed to the sheriff The writ of execution must or should not: a. Add to b. Subtract from c. Vary The terms of the judgment, otherwise such writ is unenforceable because it is null and void Ex.: in the judgment no attorney’s fees is granted but in the writ, there is= unenforceable. Lifetime of the writ of execution- 5 years from date of finality (reckoning point) Before: 60 days only from receipt of sheriff -but if the sheriff fails to fully executehe must make a report and indicate such event, he must make such report monthly (30 days) until the expiration of the lifetime of writ.

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Sec. 9 1st -payment 1st in cash 2nd -if none, in check 3rd – if none, levy of property Before 1997, the sheriff has the choice or discretion to choose what property to levy. Now- it is now the judgment obligor/ debtor who chooses what property to levy ( not the sheriff anymore) Sec. 10 par. D According to Justice Regalado, it is the only instance a judgment order may be issued. -the property was padlocked, the sheriff is armed, with the writ of execution, issued by virtue of Rule 39, the sheriff knows that there properties inside the premises which he can levy upon. The sheriff cannot forcibly break-open the padlock. The plaintiff must go to court ask for a special break open order to open the premises. If the writ is issued by virtue of Rule 70, the procedure is different -the primordial purpose under the rule is to oust the defendant from the premises. -if the premises is padlocked- the sheriff may use REASONABLE force as may be necessary to enforce the writ. -no need to go to court and ask for a break-open. Because the purpose of the writ is to evict the losing party.
***Based on classroom lecture

The writ the execution is the arm or key to such.

Case of Arcadio vs. Ilagan 1987 Writ of execution (Rule 70) is in the nature of “Habeas Facias Possessionem” Real property sold at public auction (execution sale) A right of redemption= period of 12 months reckoned from registration of the certificate of sale. Not from the issuance of the certificate Q: If the property is being leased by 3rd person other than judgment debtor (owner). Who is entitled to the rents collected, the owner or the creditor? A: It is still the debtor who is entitled to the rents- as long as title to the property is not yet transferred. If the judgment debtor (owner) is also the occupant of the property subject of execution, he may still retain possession of such property within the redemption period of 12 months until it lapse. Proceedings were the property is being claimed by a third person (3rd party claim) Sec. 16 Rule 39 vs Rule 57 and Rule 60 Q: while the sheriff is executing the writ of execution through a levy of the property of a judgment debtor, a third

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

person, not a party to the action claims that it is his property and not of the judgment debtor. The sheriff in reply asked for proof. How will that 3rd party claimant prove ownership over the said property being levied? A: Prove it in a separate action A preliminary attachment was ordered over the subject property but a 3rd party claims ownership over the said property. (the property then is placed under custodia legis, filed at the commencement of the action or before the judgment) If replevin= writ of seizure -the sheriff will seize the property to recover possession of a chattel (personalty) Rule 60 -the writ of replevin is filed before the defendant files his answer. Real property- to recover possession 3 ways: a. Accion interdictal – forcible entry and unlawful detainer (Rule 70) b. Accion publiciana- more than 1 year c. Accion reinvindicatoria- not only recovery of possession but also ownership Rule 57 and Rule 60- both are provisional remedy

In execution under Rule 39, final judgment it is already a final judgment so it is called judgment debtor In Rule 57 and 60- you talk about defendant because there is no judgment yet. In a 3rd party claim under Rule 57 and 60 he can prove his claim over the property either: 1. In the same action; 2. In a separate action Same action: via motion for intervention of rule 19- filed at any time before judgment. These are provisional remedies thats why there is no judgment rendered yet. In execution- only separate action because there is already a final judgment Sec 47 Effect of res judicata conclusiveness of judgment.

and

For res judicata- remember the concept of res judicata -same parties, same subject matter, same cause of action -the finality of judgment in the 1st case bars the filing of the 2nd action For conclusiveness of judgment- it involves the same parties same subject matter but different cause of action.

***Based on classroom lecture

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

-there are 2 action, the 1st action has been decided already, the 2nd action whatever the causes of action is similar to that of the 1st action is barred by the judgment in the 1st action. -the judgment on the 1st action is only conclusive to the cause of action that is same with the 1st action in the 2nd action. -but with respect to the other causes of action- allowed to prosecute (2nd action). Sec. 48 Foreign judgment are presumed valid -Q: Can our courts take judicial notice of the foreign judgment? A: No. It must be first proved here. Q: If cant take judicial notice can it be enforced here? A: Yes. File an action in the Philippines Title: Action for Judicial Enforcement of foreign Judgment You establish the existence of a foreign judgment by filing an action DIFFERENT MODES OF APPEAL MTC  RTC Via notice of appeal within 15 days from notice of judgment RTC  CA Original jurisdiction- notice of appeal Appellate- petition for review *both within 15 days
***Based on classroom lecture

Quasi- Judicial Body  CA Via a verified petition for Review Within 15 days Except NLRC: appeal to CA is via Petition for Certiorari Rule 65, special civil action -within 60 days from receipt of judgment Multiple Appeals and special proceedings  CA Via notice of appeal and record of appeal Within period of 30 days, on order to allow the appellant prepare his record of appeal Except: Habeas Corpus- which must be filed within 48 hrs from service of judgment RTC  Sandigan  SC Petition for review on certiorari Rule 45 Within 15 days RTC  SC Allowed direct appeals to SC but only with respect to pure questions of law. NOTE: for academic memorize rule 42 purpose,

In non- appealable cases, the remedy is the Special civil action under Rule 65, grave abuse of discretion, amounting to lack or excess of jurisdiction.

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Certiorari, Mandamus, Probation Under rule 65- common denominatorthere is no appeal nor any plain speedy and adequate remedy in the ordinary course of law. The “no appeal” contemplates that the order is really non-appealable. Note: there was an appeal only that there is failure to file seasonably a notice of appeal on Petition for Review and or such period expires, the judgment would become final and executor. Certiorari- is not and cannot be a substitute for lost appeal -error of jurisdiction –Rule 65 Rule 42 Petition for review (RTC  CA) Mode of appeal Because RTC is in exercise of its appellate jurisdiction over the decision of the MTC Appeal is deemed perfected from the perfection of appeal on both sides. Sec. 8b

*If it involves judgment.

FEUD-

pay

rental

If RTC affirms the decision of MTCappeal to the CA via petition for review under Rule 42 ( because RTC is in the exercise of its appellate jurisdiction, but such would not stay execution Q: Can the judgment of RTC be stayed pending appeal? A: No. Because such is covered by summary Procedure, without prejudice to any further appeal (immediately executor) In cases covered by Regular Rules of Procedure MTC  RTC Stay by posting a superseadas bond RTC CA Petition for Review Rule 42 May stay the execution in the RTC by filing a petition for Review unless CA orders otherwise. That is why there is a need to determine whether a case is governed by summary procedure or regular rules. As a rule, it is always in the Court of origin where a motion for execution is filed (summary procedure)

MTC  RTC -judgment appealed to RTC. You can stay the execution by perfecting an appeal, filing a notice of appeal and posting of supersedeas bond.

***Based on classroom lecture

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

But if the records are already transmitted to the RTC, may reiterate the motion to the RTC. Within the 15 days from notice of judgment, appellant’s duty to file a memorandum, discussing the errors on said judgment. However the appellee may answer. (may or may not) Failure o f appellant to file a memorandum- ground for dismissal Rule 45 Sec. 9 GR: PQL Exception: Death penalty- before automatic review in SC, now, review is made before the CA. (People vs. Mateo) Reclusion perpetua/ Life imprisonment- file notice of appeal to SC. Rule 47 Before only on decisions made on the basis of fraud- now, it is made a provisional remedy RTC  CA Appeal to decisions. MTC  RTC -you can not ask another branch of MTC to annul judgment of MTC
***Based on classroom lecture

Violation of the Interference.

Doctrine

of

Non-

Sec. 2 Extrinsic fraud If not availed seasonably – deemed waived Non- service of summons -if there has been non-service of summons on the defendant and yet the case proceeded, and judgment rendered in favour of the plaintiff and against the defendant- lack of jurisdiction. Lack of jurisdiction may be a ground for annulment of decision. Sec. 6 Must be filed in a separate and independent action Not filed in the same court The Rules on Civil Procedure shall govern Sec. 7 -if petition is granted, judgment is annulled Sec. 9 -must indicate atty’s fees If reversal of decision: court may order restitution or other relief Rule 50 Sec. 2 If pure questions of law, go directly to SC If you filed it in the CA it shall be dismissed.

CA

actions

to

annul

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

If from RTC in the exercise of appellate- use Petition for Review, otherwise- outright dismissal

-conduct the application without notice to a party because if the party is notified, they will already hide the property. Preliminary Injunction -cannot be issued ex-parte -must be with notice and hearing -filed either to prevent performance of or compel performance of an act -you need to notify the party

Rule 56 Sec. 7 In civil cases - If the opinion is equally divided of the necessary majority cannot be had, the Supreme Court must deliberate again. - If after the deliberation, they are still equally divided or no majority can be had- the original action in the SC will be dismissed and the appealed judgment will be affirmed. In criminal cases - If on the deliberation the required number cannot be hadit follows the reversal of judgment. It only means that there is doubt on the guilt of the defendant, thus the court cannot really decide.

the the

Replevin -can be a main action or as a provisional remedy -filed at anytime before the answer is filed or at the commencement of the action. Injunction -if as a provisional remedypreliminary injunction -if in the main- injunction -filed either at the commencement of the action or at any time before judgment **Provisional remedies itself cannot stand alone, it cannot be issued without a main case. Attachment -filed either at the commencement of the action or at any time before judgment Receivership May be filed either: - after the commencement of the action

PROVISIONAL REMEDIES
(Rule 57-61) Writ of Preliminary Attachment -may be issued ex parte -there is still a hearing for purposes of identifying if there is such ground to issue the writ (sec. 1 Rule 57grounds) -you have to give the factual basis of the case
***Based on classroom lecture

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

- after judgment - on appeal Q: Why? A: Because the purpose of receivership is to preserve the property involved in the litigation and to protect the interest of the parties. Support pendente lite -filed only in action for support where the right of support is NOT in issue -if support is in issue- it cannot be granted because what is very litigated is the right for support. Q: Can a court issue writ of preliminary attachment without the court having jurisdiction over the person of the defendant? A: Yes. Because it only involves the mere issuance But as far as implementation is concern, there must be a prior or contemporaneous service of summons. -the summons must be serves prior or together with the preliminary attachment application. -you cannot implement the writ without the court having jurisdiction over the person. Q: Can the MTC’s issue provisional remedies? A: Yes. Any of the provisional remedies except, support pendent lite. -for as long as the main case is within their jurisdiction.
***Based on classroom lecture

-support pendent lite is excepted because such action may only be filed with the RTC. Sec. 1 Rule 57 par d BEFORE the 1997 revision -fraud as a ground for issuance of preliminary attachment is fraud on contracting obligation and NOT in the performance. -you have to establish the facts constituting fraud -you must show that from the very beginning there is really no intention to pay (in case of loan) the obligation ( there is fraud in contracting the obligation Ex.: a check is issued in payment of the obligation, the check was later dishonoured or bounces= it is fraud in the performance. NOW Both fraud in contracting the obligation and in the performance is covered. Ex.: estafa- post dating in payment of obligation, the check bounced- can apply preliminary attachment. In estafa Art. 315 par 2d (RPC)preliminary attachment may be applied- there is fraud (element of the crime) In BP 22- preliminary attachment may be applied but not on the ground of

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

fraud because fraud is not an element of the crime. Sec. 1 par e Rule 57 Q: Can insolvency of the defendantdebtor be considered as a ground for the issuance of the preliminary attachment? A: No. Because you did not commit fraud or made fraud Sec. 1 par F Rule 57 *remember the instance where the service of summons be effected through publication -a foreign corporation duly licensed to transact business in the Phil is not a non-resident. Therefore, its property in the Philippines may not be attached on the ground that it is a non-resident. Attach the property if the resident defendant is unknown or his whereabouts are unknown, but with properties in the Philippines o sir temporarily out of the country. -if no property in the Philippines and a non-resident defendant- NO service of summons by publication. Sec. 14 Rule 14 “in any action- must be against resident defendant -but if against non-resident and no property no service of summons by publication REMEDY: pray for the defendant to come to the Philippines. Sec. 2 Rule 57
***Based on classroom lecture

Doctrine of Prior or Contemporeous Service of Summons Sec. 3 Rule 57 (Memorize the 4) 1. the sufficient cause of the action exists 2. those mentioned in the section as grounds 3. there is no other sufficient security 4. the amount due to the applicant, or the value of the property in possession the attachment will constitute as a LIEN on the property. -if judgment is rendered in your favour, can enforce the sale of the property The above-mentioned 4 must be stated in the affidavit for the writ of preliminary attachment -failure to mention id fatal to the application- vulnerable for dismissal. Applicants Bond -to answer for any damages that may be caused to the defendant if the court adjudged that the applicant is no entitled to such writ. REMEMBER: The attachment is VOID if it precedes the service of summons. The court does not have jurisdiction over such person-defendant. Sec. 7 rule 57

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Garnishment- stocks or shares or any interest in the stocks -a specie of attachment -a form of attachment on securities Q: Who is served with the writ? A: It is the person in possession of the stocks belonging to the defendant. -The possession will be made a forced Intervenor- because there will be a novation. -The possessor now becomes the debtor of the creditor-applicant but only with respect to the property in his possession beinig the subject of the attachement. Q: Is it necessary that before the court could acquire jurisdiction over the garnishee, summons must be served in him? A: No. Just served the writ and he will then become a forced Intervenor. Sec. 11 Sale of attached property Q: under what circumstances? 1. Perishable 2. That interests of all the parties to the action will be subserved by the sale. Applicant must post an attachment bond. Counter-attachment bond for persons whose property is attached. Sec. 12
***Based on classroom lecture

Simply file a motion to discharge or release *if the ground for your attachment is the very cause of action of the plaintiff in the complaint- you cannot simply file a motion to release- you must also post a counter-bond. Sec. 14 Third party claim Sec. 15 Satisfaction of judgment Sec. 19 Disposition Sec. 20 -if you apply for damages because the attachment is improper, irregular or excessiveQ: Where and How will you apply? A: Where: in the action How: by motion in the same action. Make your claim on the bond for damages by way of a counter-claim in your answer. But if theres no answer, by motion on the same action. If the principal action is dismissed or damages was sustained by a 3rd person not a party to the action. REMEDY: an action for claim against the bond must be filed in an independent action. If garnishment is rendered against the attachment creditor and the latter

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

proves that he applies in good faith, only that he was not able to prove his cause. REMEDY: the adverse party cannot recover from the attachment bond. Even if he did sustain damages. Preliminary attachment and Preliminary Injunction – may be filed at anytime before judgment *to refrain performance- prohibitory injunction *to compel performance- mandatory injunction Q: Who may grant? A: even inferior courts as long as the main action is within their jurisdiction. Grounds for issuance (see Rules of Court) -if the preliminary attachment the applicant has the opportunity and obligation to establish the facts involved. It is greater required in the preliminary injunction. -do not perfunctorily avail of the use of words- you must establish the facts to grant your petition. Q: Is there a neeed to post a bond in asking for a TRO? A: Yes. TRO has been elevated to the level of Preliminary Injunction REASON: to curve down the sale TRO. Same with the condition for application of the bond. TRO (temporary restraining order)
***Based on classroom lecture

-granted only if there is urgency. -to prevent the continuance or the stop of performance before the matter (ex. Preliminary injunction) could be heard on notice. *if you file an action with prayer for preliminary injunction and TRO: -file with a single court- no problem (no need to raffle) -if filed with a multi-sala court ( 1 court several branches) *The application would have to be raffled in order to determine what sla the TRO would be heard and decided. *The mere filing of the action must be given to the other party Summary hearing - For purpose of the TRO - Because of the urgency of obtaining TRO, the hearing must be terminated within 24 hours (must be immediately resolved) *If the court finds the application with merit, the court will issue TRO valid for 20 days from: a. service of notice of TRO- rules b. the date of issuance- jurisprudence *20 day period: non extendible. After the lapse of the period= automatically terminated. *if there is still a need for further TRORe-apply for a new TRO (do not use the old issued TRO because it was terminated already)

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

*if the matter is of EXTREME URGENCY- apply with the executive judge. It will be granted but only valid for 72 hours. -immediately upon the issuance of after the issuance of the TRO, the executive judge must raffle the case to the regular court, in order for the latter to know, whether to extend the TRO of 72 hours. -if the extension is granted, the 72 hour will be extended, but deduct the 72 hours from the 22 day period. *if the TRO of 72 hours has been issued and has expired, after which the case is to be raffled to the regular courts, but if the executive judge forgot to raffle such—the case will only be raffled after the said 72 hour period. Q: Can the regular court act for the extension of the TRO? A: No because it already expired. Sec. 5 Effectivity of TRO CA- within 60 days SC- indefinite- until further notice *if the TRO is granted, the application for preliminary injunction must be resolved within 20 days- it must be set for hearing and resolve it. Sec. 6 If the preliminary injunction is granted, the subject matter of the action for
***Based on classroom lecture

injunction is suspended because the court have to determine whether to have it final or not. Writ of preliminary injunction- to refrain from performance of an act Preliminary mandatory injunction- to compel the performance of an act Q: Can you avail of a TRO if you seek the performance of an act? A: No. Obviously by the word “restrain” Rule 59 Receivership May be applied for even after judgment -must look for the purpose of the receivership: a. For protection b. for preservation because the prupose will be the basis in the application. Appointment of receivership: there must be hearing and filing of a bond (not ex parte anymore) Q: If the action is for collection of sum of money, is receivership proper? A: No. Because the action must be to enforce a lien over the defendant’s property. Sec. 2 Q: If a party sustains damages by reason of the appointment of a receiver- can he claim against the bond?

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

A: Yes. In the same action before the court which appointed the receiver. Q; if by reason of malfeasance or misfeasance of the appointed receiver, can damages be claimed against the bond? A: Yes but on a separate action, because it is personal already, the receiver per se is the one who caused the damage. It will be claimed against the bond of the receiver. Rule 60 Replevin May relate to a. A main action b. As provisional remedy c. Or both If main action: example Action to recover possession of personal property. If real property is involved or to enforce real rights, the remedies are: a. Accion interdictal- recovery of physical possession (filed within 1 year) b. Accion publiciana- more than 1 year c. Accion reinvindicatoriato recover possession and ownership Replevin must be filed anytime before a defendant files an answer. Requirements: a. Affidavit b. Post a bond
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c. Must show evidence of unlawful detention of the personal property. How? Application of writ of replevin. Ex parte is allowed. Q: Is there a need for the court to set an ex parte hearing? A: Yes because there is still a need for the court to establish whether or not applicant is entitled to the writ. Burden of proof: on the applicant (as an affirmative defense) Sec. 2 Affidavit and bond -actual market value- very important. Basis of the bond Bond= double value of the property Sec. 5 Preliminary attachment: -for purposes of attachment- post a bond -for purposes of discharge= post a counter-bond Preliminary Injunction: -injunction In order to discharge the property in replevin, the petitioner must post a Replevin bond within a mandatory period of 5 days from the time property is taken. Sec. 9 -Replevin as a main action -Judgment= the court must first determine who has the right to the

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

possession of property. (follow enumerated contents) -Pay the value plus damages if the thing cannot be delivered anymore. Support pendent lite 1. Action for support 2. Where one of the reliefs sought is support for the applicant The right for support is no more an issue. Sec. 2 The adverse party must file a comment within 5 days -after the comment is filed or the lapse of the said period, the application shall be set for hearing for not more than 3 days. Sec. 5 If an order has been issued but the reason against whom the order is issued does not want to obey: 1. Contempt 2. Order execution against him through writ of execution. Event the order is just interlocutory, such order is enforced against the adverse party. -it is an exception because as a rule only final judgment may be enforce. But here the main action is still pending, yet these is an execution. Sec. 6 The crime being mentioned implies that there must be a body produced -civil action is impliedly instituted with the criminal action.
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In multiple rape- support is allowed, but the civil liability to acknowledge the child is not yet required by law. Sec. 7 Court shall order the return of the supportplus interest -you must file a separate action for reimbursement against the person who is supposed to give support. SPECIAL CIVIL ACTIONS Initiated by complaintresponsive pleading: answer Covers: partition, interpleader, expropriation, forcible entry, unlawful detainer, foreclosure of real estate mortgage Interpleader: -original action, complaint, several claimants, answer complaints within 15 days Filed by petition responsive pleading: comment Covers: dclaratory relief, certiorari, prohibition, mandamus, quo warranto Intervention: an ancillary remedy because 3rd person wants to get into the case

Unless there is a specific provision applicable solely to that special civil action (which means, unique to that action, the regular rules on civil action is applicable or shall govern. Declaratory relief or declaratory judgment. petition for

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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

Relief is for declaration of your rights. Interest in a particular deed, will or any written instrument The petitioner knows that he has rights, but does not know what are those rights Declaration of rights, duties or validity of the said documents. *must be filed before the happening of a breach or violation of the right - if there’s a violation- rights are already violated- there’s a cause of action- file in an ordinary civil action. Review of final judgment Only 2- Comelec and COA Filed to the supreme court Although the mode of review is also a special civil action Rule 64 only covers specific review of final judgment order or resolution.

There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law There is no appeal- the resolution or order is essentially NON-APPEALABLE -promptly relive somebody from the injurious effect of the judgment appealed Certiorari cannot be a substitute for appeal Review: errors of jurisdiction Sec. 4 where to file RTC- if relates to acts within territorial jurisdiction The act done is within the territorial area where the lower court is sitting which issued the appealed order Sec. 8- comment is filed, not an answer. To hear the case: no trial on merits: it is a special civil action: thus- it had its own procedure. Expropriation -formerly eminent domainFiled through a complaint If the owner has no objection to the expropriation- file manifestation- no objection If there is an objection by the ownerfile an answer

Rule 64 Covers only the decisions or final orders of COMELEC Period to file: within 30 days Sec. 8 comment

Rule 65 Covers anything

Period to file: with 6 days

Certiorari, prohibition, mandamus Filed through a petition Ground: Grave abuse of discretion
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REMEDIAL LAW REVIEW
Judge Ma. Cristina Cornejo

***Based on classroom lecture

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