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Remedial Law topics asked in the Bar (1997-2012)

KATARUNGANG PAMBARANGAY LAW Katatarungang Pambarangay vs. Pre-trial Conference: No lawyer allowed in the former Objective: To effect an amicable settlement at the barangay level without judicial recourse helping courts from docket congestion Lupon is only authorized to execute settlement/agreement within 6 months from date of settlement. Beyond that, the Lupon may refuse to execute. The party should move to execute in the MTC -

Ombudsman in disciplinary cases

administrative

and

HLURB o HLURB has jurisdiction over cases involving specific performance filed by a subdivision homeowner against a subdivision developer

ORDINARY CIVIL ACTIONS JURISDICTION - Jurisdiction vs. Venue - CTA Division vs. CTA en banc - RTC Jurisdiction o Incapable of Pecuniary Estimation: - Action for Injunction Unless filed in an action for ejectment, filed with MTC - Annulment of Extrajudicial Foreclosure - Action for Partition depends upon the hereditary rights which is incapable of p.e. - MTC Jurisdiction o Action to compel another to execute a deed of conveyance having an assessed value of P19k this is a real action because it affects title to or possession of real property o Action for specific performance, or in the alternative, for damages in the amount of P180k although the former is incapable of pecuniary estimation, since the alternative demands for damages which capable of pecuniary estimation, it is with MTC o Action for Replevin of a motorcycle valued at P150k o Action for Interpleader to determine who is entitled to receive P190k o Petition for Probate involving an estate valued at P200k o P vs AB in one complaint. A as to P300k PN and B as to P300k purchased goods. = A&B cannot be joined as defendants. Does not arise out of the same transaction. There must be separate complaints o In case of LOJ, MTCs order to forward the case to RTC is not proper. It should merely dismiss the complaint Habeas Corpus - The CA has concurrent jurisdiction with the family courts and the SC In petitions for HC where the custody of minors is at issue

Judicial Autonomy - A court is required to take consideration only legal issues and evidence admitted in the case. The political stability and economic welfare of the nation are extraneous to the case - Partition is a SCA which cannot be joined with other causes of action, like collection of loan Venue - Improper venue may be pleaded as an affirmative defense in an Answer - agree to sue and be sue in Manila = does not make Manila exclusive venue Cause of Action - Action to annul marriage on the ground of lack of license is not barred by a prior dismissed action to annul marriage on the ground of psychological incapacity. They are different causes of action Forum Shopping - Act of filing multiple suits, simultaneously or successively, for the purpose of obtaining favourable judgment - Failure to comply with FS is not curable by amendment but shall be a cause for dismissal of the case without prejudice - CNFS cannot be signed by the counsel because it must be executed by the plaintiff himself because it requires PERSONAL KNOWLEDGE by the party executing the certification UNLESS counsel gives a good reason why he was not able to secure his clients signatures and shows that his clients will be deprived of substantial justice or he was authorized through an SPA Splitting cause of Action P should incorporate in his complaint for interpleader his claim for storage fees and advances. The amounts of which are determinable at the time of the filing of the complaint. They are part of the cause of action which cannot be split Summons - Effect of absence of summons will render the judgment null and void because no jurisdiction over the defendant - If defendant voluntarily appeared in court, his appearance is equivalent to service of summons - If there is additional defendant to be impleaded, summons must be served upon him - A defendant who has been substituted for the deceased need not be served with summons because it is the court which orders him to make the legal representation - Summons on a corporation through its cashier and director are not valid. They

Ombudsman o SC has the exclusive appellate jurisdiction over decisions of Ombudsman in criminal cases CA has the exclusive appellate jurisdiction over decisions of

Remedial Law topics asked in the Bar (1997-2012)

have been removed. Cashier is now substituted by Treasurer There must be GENUINE ATTEMPT to make personal service of summons before there can be substituted service

Class Suit filed regarding a controversy of common or general interest in behalf of many persons so numerous that it is impracticable to join all as parties, a number of which the court finds sufficiently representative who may sue or defend for the benefit of all

Interlocutory Order order issued between the commencement and the end of the suit which is not yet final because theres something more to be done Amendment of Complaint - A pleader may amend his pleading as a matter of right before the other party has served his responsive pleading. A motion to dismiss is not a responsive pleading o After Answer: w/ leave of court. May still change entirely the nature of the cause of action - A pleading may still be amended even during trial to conform to the evidence presented provided not objected (ex. plaintiff presented during trial, without objection from defendant, written demand to vacate, a matter not alleged in the pleadings) Counterclaim - Must be answered within 10 days from service EXCEPT if the counterclaim raises issues which are deemed automatically joined by the allegations of the Complaint (ex. P filed a complaint for damages for encroachment of his lot. D filed a CC for damages alleging that P is the one who encroached on his lot. No need to answer) - Motion for extension to file Answer to Counterclaim may be filed ex parte and need not be set for hearing. Hence, the movant cannot be declared in default if no hearing was set - When a lawyer files a case for a client, he should not be sued in a counterclaim in the very same case he has filed as counsel. It should be filed in a separate and distinct civil action Compulsory Counterclaim - Attorneys fee and litigation expenses is a compulsory counterclaim because it necessarily arose of and is connected with the complaint Reply - Generally optional. If it is not filed, the new matters alleged in the Answer are deemed controverted. However, since the contract of lease attached to the answer is the basis of the defense, by not filing a reply denying under oath the genuineness and due execution of said contract, the plaintiff is deemed to have admitted the genuineness and due execution thereof Derivative Suit vs. Class Suit - Derivative suit - suit in equity filed by minority shareholder on behalf of a corporation to redress wrong committed against it, for which the directors refuse to sue, the real party in interest being the corporation itself

Effect of death of the Defendant in recovery of money/property - Actions for recovery of money arising from contract, express or implied, and the defendant dies before entry of judgment, it shall be allowed to continue until entry of judgment. A favourable judgment on the plaintiff may be enforced against the estate of the deceased defendant - Actions to recover real property, in any event, survives the death of the defendant. A favourable judgment on the plaintiff may be enforced against the executor or administrator or successor in interest Default - After defendant is declared in default, the court shall render judgment granting the relief prayed for by the claimant in his pleading, unless, in its discretion, requires claimant to submit evidence which may be delegated to the clerk of court - Default of defendant in pre-trial, the plaintiff shall be allowed to present evidence ex parte - Requirements to file a Motion to set aside order of default: must state therein: 1. That failure to answer is due to FAME and has meritorious defense; and 2. The motion should be under oath - Motion to set aside order in default may be filed anytime before judgment. Ex. upon discovery even if before receipt of the Order of default - Even if the Motion to set aside order in default is unverified, but the Answer attached therein is verified, there is substantial compliance - Remedies of person declared in default: 1. Before judgment becomes f&e: a. Motion to set aside order of default b. MR c. MNT d. Appeal under R.41 2. After judgment becomes f&e: a. Petition for Relief b. Annulment of Judgment c. Certiorari 65 Modes of Discovery 1. Deposition take testimony of any person, at the instance of any party. a. Jurisdiction has been acquired (either over the defendant or property) b. With leave of court, or without leave after Answer has been served c. Deposition upon oral examination or written interrogatories o Witness may refuse to comply with the subpoena duces tecum if he resides more than 100km from the place he is to testify. The remedy of the counsel is to take his deposition through oral examination or written interrogatories

Remedial Law topics asked in the Bar (1997-2012)

or file a motion for production or inspection of documents

2. Interrogatories to parties file and serve upon any adverse party written interrogatories regarding material and relevant facts to be answered by the party served. 3. Admission by adverse party - file and serve upon any adverse party written request for admission of the latter of the genuineness of any material and relevant document or of the truth of any material and relevant matter of fact. o Filed anytime after issues have been joined 4. Production or Inspection of documents or things a. There must be motion showing good cause b. Court shall order any party: 1. to produce and permit the inspection any copying or photographing of any designated documents 2. to permit entry upon designated land or property for inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereto o if plaintiff refused to comply with the order for production and inspection of the document, the defendant may file a motion to dismiss Motion to Dismiss o Res Judicata cannot be used as a defense in an Action for Support Demurrer to Evidence - If the motion of dismissal is granted by the trial court but reversed on appeal, the movant for dismissal is deemed to have waived the right to present evidence - In civil case, the defendant has the right to file DTE with or without leave of court. If denied, he has the right to present evidence. If granted, but on appeal of the plaintiff it as reversed, the defendant loses his right to present evidence - In criminal case, Pre-trial: PLAINTIFF has the duty to promptly move ex parte that the case be set for pre-trial. The reason is that it is the plaintiff who knows when the last pleading has been filed and it is the plaintiff who has the duty to prosecute. Modes of Certiorari 1. Rule 45 (Petition for Review from RTC, CA, SB, etc to SC): a. mode of APPEAL b. filed on the ground of errors of law of the lower court c. filed 15 days from notice of judgment or final order or resolution OR from denial of MNT or MR 2. Rule 65 (Petition for Review on Certiorari from RTC/CA to SC): A. ORIGINAL ACTION b. filed on the grounds of lack or excess of jurisdiction or grave abuse discretion

tantamount to lack or excess of jurisdiction c. filed within 60 days from notice of judgment, order or resolution 3. Rule 65 (Petition for Review on Certiorari from NLRC to CA) a. mode of APPEAL b. filed on the grounds of errors of law 4. Rule 65 (Petition for Review on Certiorari from COA and COMELEC to SC) a. mode of APPEAL b. filed on the grounds of errors of law c. filed 30 days from judgment, decision or final order or resolution 5. Rule 43 (Petition for Review from Civil Service Commission to SC) a. mode of APPEAL b. filed on the grounds of errors of law c. filed 30 days from judgment, decision or final order or resolution Judgment - After 5 years, and the judgment has not yet been enforced, the right action to file is Action to Revive Judgment because it can no longer be enforced by motion 5year period has expired - Foreign judgment must be enforced within 10 years from the right of action accrues - Partial summary judgments (ex. Order stating that plaintiff is entitled to judgment in his favor and trial shall be set to ascertain) are interlocutory, hence no appeal can be taken therefrom Judgment on the pleadings Requisites: 1. Upon a MOTION 2. Filed by the plaintiff, when: a. Answer fails to tender an issue; or b. Answer admits material allegations of the adverse partys pleading (must be proved thru evidence) - The court may issue judgment on the pleadings only if defendant denies under oath in his Answer the genuiness and execution of the copy of the deed of sale Summary Judgment Annulment of Judgment o Grounds: Extrinsic Fraud Jurisdiction

and

Lack

of

Action to Revive Judgment o Personal action incapable of pecuniary estimation Petition for Relief Grounds: FAMEN - filed within 60 days from learning of the judgment or final order and not more than 6 months after such judgment or final order was entered. - A dismissal of a Petition for Relief also dissolves the writ of preliminary injunction staying the enforcement of the judgment Action for Annulment Grounds: (1) Extrinsic Fraud (2) LOJ - filed within 4 years from discovery of extrinsic fraud

Remedial Law topics asked in the Bar (1997-2012)

if LOJ, before barred by laches or estoppel -

Execution o Execution Pending Appeal - Awards for moral and exemplary damages cannot be the subject of execution pending appeal. Their execution is dependent on the outcome of the main case APPEAL

PROVISIONAL REMEDIES PRELIMINARY ATTACHMENT - Judgment against the surety cannot exceed the amount of its counter-bond - If real property of a person not party to the case has been attached, his remedy is to file THIRD-PARTY CLAIM. The party claimant should make an affidavit of his title to the property attached - Damages may be claimed by party prejudiced by a wrongful attachment even if the judgment is adverse to him - May be issued ex parte or upon motion with notice and hearing - If served ahead of summons, will not affect jurisdiction of the court. It only makes the writ unenforceable. What needs to be done is to reserve the writ PRELIMINARY INJUNCTION Requisite: Verified complaint showing; 1. The existence of a right in esse; 2. Violation or threat of violation of such right 3. Damages or injuries sustained or that will be sustained by reason of such violation; 4. Notice to all parties of raffle and of hearing; 5. Hearing on the application; 6. Filing of an appropriate bond and service thereof - Cannot be issued ex parte. The must hearing and prior notice to the party sought to be enjoined - A suit for injunction cannot aptly be filed with the Supreme Court to stop the President of the Philippines from entering into a peace agreement with the National Democratic Front, which is a purely political question. - Injunction as an ancillary remedy refers to the preliminary injunction which requires the existence of a pending principal case; while - Injunction as a main action refers to the principal case itself that prays for the remedy of permanently restraining the adverse party from doing or not doing the act complained of. - RTC may issue injunction w/o a bond if it is a final injunction TEMPORARY RESTRAINING ORDER - Only EXECUTIVE JUDGE may issue a TRO effective only for 72 hours from issuance. The Judge to whom the case is assigned will then conduct a summary hearing to determine whether the temporary restraining order shall be extended, but in

no case beyond 20 days, including the original 72hour period. TRO vs Status Quo Order 1. TRO is issued to restrain the opposite party and to maintain the status quo until a hearing for determining the propriety of granting a preliminary injunction. A status quo order (SQO) is more in the nature of a cease and desist order, since it does not direct the doing or undoing of acts, as in the case of prohibitory or mandatory injunctive relief. 2. A TRO is only good for 20 days if issued by the RTC; 60 days if issued by the CA; until further notice if issued by the SC. The SQO is without any prescriptive period and may be issued without a bond. 3. A TRO is provisional. SQO lasts until revoked. 4. A TRO is not extendible, but the SQO may be subject to agreement of the parties.

RECEIVERSHIP - If during the pendency of a foreclosure of mortgage, the mortgagee found out that the mortgagor quietly and gradually disposing the mortgaged machineries and equipments to another person, the mortgagee may file a verified application for appointment of one or more receivers in order to preserve whatever remaining properties are left SUPPORT PENDENTE LITE - In criminal actions where the civil liability included support for the offspring as a consequence of the crime and the civil aspect thereof has not been waived or reserved for a separate civil action, the accused may be ordered to provide support pendent elite to the child born to the offended party. SPECIAL CIVIL ACTIONS

FORECLOSURE - In judicial foreclosure by banks, mortgagor may redeem the property within 1 year from registration of sale. - The purchaser in the auction sale has the right to obtain writ of possession after finality of the order confirming the sale. The motion for writ of possession cannot be filed ex parte. There must a notice of hearing QUO WARRANTO - When the SolGen commences this action, it may be brought in the RTC Manila, CA or SC MANDAMUS - Applies only where petitioners right is founded clearly in law, not when it is doubtful - Cannot enforce contractual obligations. Directed only to ministerial acts, directing or commanding a person to do legal acts CONTEMPT o Indirect Contempt: - Failure of counsel to inform the court of the death of his client and still proceeded with the hearing

Remedial Law topics asked in the Bar (1997-2012)

CRIMINAL PROCEDURE Rights of the Accused Right of the accused to be presumed innocent is not violated when he is subjected to compulsory HIV testing. Whenever it is the physical condition of party is in controversy, the court has the right to order the accused to submit to physical examination

EVIDENCE Admissibility of Evidence in Summary Procedure - Although summary procedures requires merely the submission of position papers, the evidence submitted with the position paper must be admissible in evidence. Photocopies of official receipts and affidavits are not admissible without proof of loss of the originals Dangerous Drugs Law Accused not liable if he went to a shabu session that he honestly thought is a mahjong session. (2007)