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CIVIL PROCEDURE | Professor Lumba | 2015 2016

Some tables and charts Sir Lumba drew/wrote on the board during class. This doesnt contain everything we have
covered during the sem but it has the important (?) parts. Lets go guys!


JURISDICTION How acquired How challenged

Subject Matter Conferred by law Motion to dismiss unless estopped
Person Summons or voluntary Motion to dismiss within the time for
appearance but before filing of answer (15 days)
Under Rule 47, judgment has been
rendered and he was not afforded a
day in court
Under Rule 16, Court served summons
but he cannot be under the jurisdiction
of the court in any case
Under Rule 39 (48), judgment over
person has been rendered but this
judgment can be repelled by want of
jurisdiction, want of notice to the party
Issues By the pleading Appeal within 15 days after judgment
Residual After judgment Special civil actions under Rule 65
[original action; within 60 days from
denial of the MR]
Over the case Filing and payment of Motion to dismiss anytime
docket fees

Real Actions

Kind Civil Action SC CA RTC MTC

Accion reivindicatoria X X
Ordinary Accion publiciana X X
Civil Action Action for
Forcible entry/Unlawful
Special Civil Quieting of title (Rule 63) X ?
Action Foreclosure X X
Partition X
Expropriation X
Land registration X

Personal Actions


Collection X X
Damages X X
CIVIL PROCEDURE | Professor Lumba | 2015 2016

Specific performance/
rescission/ annulment
Replevin X X
Ambassadors X X
Injunction X X


Certiorari X X X
Prohibition X X X
Mandamus X X X
Quo-Warranto X X X
Habeas corpus X X X

Boston Equity Resources v CA: Dies before Filing Dismiss the case | Dies after filing before summons
Dismiss the case | Dies after summons Proceed with the case
Proper procedure when party dies and case subsists:
(1) Counsel should notify the court
(2) Heirs or administrator of estate will substitute
- If one of the heirs is not included, it is alright because it is only binding on the estate anyway.

Principal Remedy Test this was an exercise to determine the venue for filing the action. If it was incapable of
pecuniary estimation, file with the RTC. If capable, MTC or RTC based on value.


Russel v Vestil Petition for Nullity and Partition (Partition is Incapable of pecuniary
only incidental) estimation Principal
remedy is the annulment
HGC v RII Nullification of the Deed of Assignment Capable Principal
Builders and Conveyance (DAC) transferring the remedy is the
Asset Pool in favor of petitioner Home conveyance
Guaranty Corporation (HGC); prayed for
the transfer of possession of and/or control
of the properties in the Asset Pool
Heirs of To enforce his right to repurchase Incapable -Principal
Bautista v Specific performance remedy is the specific
Lindo performance
Sebe v Sevilla Annulment of documents, reconveyance Capable Principal
and recovery of possession with damages remedy is conveyance
and possession

Appellate Jurisdiction

MTC Rule 40
MTC in its 45 for pure
delegated questions of law
CIVIL PROCEDURE | Professor Lumba | 2015 2016

RTC Rule 41 (appeal Rule 45
from judgment of
RTC in its original
jurisdiction) or 42
(appeal from
judgment of RTC
in its appellate
CA Rule 45
Quasi- Rule 43


Personal Action

Defendant NOT
found/ non-
Defendant does
UNLESS it affects
Defendant Defendant not reside nor can
WHO * personal status or
resides found be found in the
any property of
located in the
Plaintiff Resides X X X
Plaintiff Found

Read as:

- If plaintiff is a resident and defendant is a resident, plaintiff may file in either place.
- If plaintiff is a resident and defendant may be found in some place, plaintiff may file in either place.
- If plaintiff is non-resident but may be found some place and defendant is a resident, plaintiff may NOT
file in either place.
- If plaintiff is non-resident but may be found some place and defendant may also be found some place,
plaintiff may NOT file in either place.
- If plaintiff is a resident and defendant non-resident and cannot be found, no place to file
- If plaintiff is a resident and defendant non-resident and cannot be found and action affects personal
status, property of defendant in the Philippines, file where plaintiff resides

Permissive v Exclusive Venue Stipulations:

All disputes shall be filed before the RTC QC. PERMISSIVE

All disputes shall be field before the RTC QC ONLY. EXCLUSIVE

CIVIL PROCEDURE | Professor Lumba | 2015 2016



1. A right in favor of the plaintiff by whatever means and under whatever law it arises or is created;
2. An obligation on the part of the named defendant to respect or not to violate such right; and
3. Act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for
recovery of damages or other appropriate relief.

Difference between action and cause of action:

An action is the suit filed in court for the enforcement or protection of a right, or the prevention or redress of a
wrong. A cause of action is the basis of the action filed because every "...action must be based on a cause of action"

Difference between failure to state a cause of action and lack of cause of action

Even if in reality the plaintiff has a cause of action against the defendant, the complaint may be dismissed if the
complaint or the pleading asserting the claim "states no cause of action" (Sec. 1[g], Rule 16). This means that the
cause of action must unmistakably be stated or alleged in the complaint or that all the elements of the cause of
action required by substantive law must clearly appear from the mere reading of the complaint. It only means
that the plaintiff's allegations are insufficient for the court to know that the rights of the plaintiff were v iolated
by the defendant.

The test of the sufficiency of the facts alleged in the complaint as constituting a cause of action is
whether or not admitting the facts alleged, the court could render a valid verdict in accordance with
the prayer of the complaint.

Lack of cause of action, on the other hand, refers to the failure to prove or to establish by evidence one's cause of
action. It is determined by referring to the evidence adduced. It is raised in a demurrer to evidence under Rule 33
after the plaintiff has rested his case.


Example: Venue: RTC; M means misjoinder, so sever this cause of action.


Causes of
Action Unrelated Related Unrelated
Partition M, 2(5b) M, 2(5b) M, 2(5b) M, 2(5b)
M, 2(5a)
M, (25a)

Requisites of a proper joinder:

1. Permissive joinder of parties

2. Rule on special civil actions
3. Rule on rider
4. Rule on totality
CIVIL PROCEDURE | Professor Lumba | 2015 2016



Real party in interest


Not party Transfer of interest, quasi-party

Executors,public action
representative Party

Not party Criminal action (fiscal), lawyer


with SPA to file the case

Not Party Nominal party

Necessary and Indispensable Parties



Joint indivisible obligations

Due process; avoid No finality if not
(e.g. specific performance of TRUE
multiplicity of suits impleaded
specific property, partition)

Avoid multiplicity;

for complete relief/ Solidary creditors obligations

HYBRID for joint
complete, final (for complete determination)
determination; Can attain finality Joint divisible where there is
prevent undue a common fund (for
SPURIOUS- for solidary
hardship on the complete relief)

Solidary debtors (for

Avoid multiplicity of
Can attain finality complete determination) SPURIOUS
Joint divisible obligations
CIVIL PROCEDURE | Professor Lumba | 2015 2016

Class Suit


a) The subject matter of the controversy must be of common or general interest to many persons;
What is required by the Rules is a common or general interest in the subject matter of the litigation. The `subject matter' of
the action is meant the physical, the things real or personal, the money, lands, chattels, and the like, in relation to the suit
which is prosecuted and not the delict or wrong committed by the defendant. When the interests of the parties in the subject
matter are conflicting, a class suit will not prosper.
a. Common refers to joint indivisible obligations (true class suits)
b. General refers to joint divisible obligations (hybrid class suits)
b) The persons are so numerous that it is impracticable to join all as parties; - numerosity
c) The parties actually before the court are sufficiently numerous and representative as to fully protect
the interests of all concerned; and representativeness
d) The representatives sue or defend for the benefit of all (Sec. 12, Rule 3, Rules of Court)


(See separate PDF for sample )

a) Caption name of the court, title of the action and the docket number (if assigned)
b) Body
1) Paragraphs
2) Heading
3) Relief
4) Date
c) Signature and address
d) Verification attesting that the party has read the pleading and that the facts stated therein are true and
correct based on ones personal knowledge or authentic records
e) Certification against forum shopping sworn statement

Two Kinds of Subject Matter Jurisdiction

- Independent [what you claim must be within the jurisdiction of the court, otherwise, it will be
dismissed] original complaint, compulsory counterclaim, permissive counterclaim
- Ancillary third-party complaint, cross-claim

Forum Shopping

Non-deliberate, non willful

No forum Willful and deliberate forum
and there is forum
shopping shopping
Dismissal without prejudice or
without Dismissal for litis pendentia
NO certification dismissal with prejudice if res
prejudice upon or res judicata
Summary dismissal with
False contempt
prejudice and
certification/ without Indirect contempt + dismissal
administrative sanctions;
non prejudice to motu proprio
direct contempt + Criminal
compliance admin/criminal
CIVIL PROCEDURE | Professor Lumba | 2015 2016

Dismissal Rule 16 (1e) litis Party says I AM FORUM

pendentia (without SHOPPING
prejudice; can be dismissed
x by the Court motu proprio) Summary dismissal with
or (1f) res judicata (with prejudice and
prejudice; can be dismissed administrative sanctions;
the Court motu proprio) direct contempt

Kinds of intervention and their examples:

- Interest in the matter joinder of parties

- Interest in the success of either guarantor
- Interest against both three cars all going the same direction, hit each other. 2 filed a case against 3 and 1
filed a case against both cars 2 and 3
- Adversely affected by distribution of property with the court third party claim


MODES Service of judgment, order,

Service of pleading by party Service of summons
etc. by the Court
Hand/tender it to party; then to
Personal clerk/officer in charge; then co- YES, same as in personal
Handing it to party
service resident of sufficient age and service of pleading by party
Ordinary Mail YES NO NO
YES, to the officer-in-
charge OR to the co-
Substitution YES clerk of court NO
resident of sufficient age
and discretion
YES if summons was served
Publication NO YES
through publication also
YES, Rule 14 (16) and
Others NO NO

Important for mode of service;

Action Important for venue and binding effect of judgment

Reivindicatoria Real action In personam

Publiciana Real action In personam
Reconveyance Real action Quasi in rem
Quieting of title Real action Quasi in rem
Forcible entry Real action In personam
Expropriation Real/Personal Partly in rem or in personam
Land Registration Real In rem
Replevin Personal In personam
Foreclosure of chattel mortgage Personal Quasi in rem
CIVIL PROCEDURE | Professor Lumba | 2015 2016

Foreclosure of real estate mortgage Real action Quasi in rem

Probate of a will Personal In rem
Partition Personal/Real Quasi in rem
Article 36, Family Code Personal action


FIRST time Notice MTD Notice MTD

SECOND time Notice Notice MTD Notice
Effect With prejudice With prejudice ? ?



With leave X X X
Without leave Dismissed Present Waived
With leave Dismissed Present X
Without leave Dismissed Waived X


Judgment on the Pleadings Summary Judgment

No issue No genuine issue except as to damages
May be filed by either claimant or
Must be filed only by the claimant
Based on the pleadings, affidavits,
Based on the pleadings alone depositions, and admissions (No full-blown

Only a three-day notice is required prior

to the date of hearing in a motion for
A ten-day notice is required in a motion
judgment on the pleadings based on the
for summary judgment
regular rules on motions but file it ten
days before hearing

Must be filed after answer is filed Filed at any time


Three proceedings

1. Mediation (chairman) more passive

2. Conciliation (pangkat) pangkat is active
3. Arbitration (chairman or pangkat) acts like a judge
CIVIL PROCEDURE | Professor Lumba | 2015 2016

Three results

1. Certificate to File Action

2. Arbitration award
3. Amicable settlement

Two repudiation

How to repudiate file a sworn statement

1. Of the amicable settlement

2. Of the agreement to arbitrate

One petition

1. To nullify the arbitral award

Three modes of execution

1. Lupon within 6 months

2. MTC thereafter

Jurisdiction of the Lupon

General Rule: Actually reside in the same city or municipality



1. Government
2. Public officer
3. Extra-territorial property


The only public action which is within the jurisdiction of lupon are criminal actions for offenses punishable by
imprisonment NOT exceeding one (1) year or a fine NOT exceeding Five thousand pesos (P5,000.00)

EXCEPT: Dont actually reside in the same within same city or municipality

EXCEPTION TO THE EXCEPTION: They live in barangays which adjoin each other and they agree to submit
their differences to the appropriate lupon.


Rule 25 Rule 26
When After summons After answer
CIVIL PROCEDURE | Professor Lumba | 2015 2016

Purpose To get facts that you want Genuineness of a document

to confirm facts that you
know or suspect

Failure to Avail Cannot call the party to the Cannot present evidence
witness stand regarding the matter

Failure to answer Rule 29, section 5: Strike Deemed admitted

out, dismiss, enter a
judgment by default
against said party

How filed:

Rule 23 [by motion]

Rule 24 [by petition]
Rule 25 [by motion or interrogation] Are you employed?
Rule 26 [by request] Do you admit that you are employed?
Rule 27 [by motion]
Rule 28 [by motion]


Uses of deposition

1. Contradict
2. Substitution for oral testimony
a. Me as the witness YES; dead, sick, inform, kiolmetrage rule, unavailable (c)
b. My witness YES; under the same circumstances (c)
c. You as the witness YES; 4(b) no need to be covered by circumstances of (c)
d. Your witness he becomes my witness and should be covered by the circumstances (c)

Advantages of deposition (Rule 23):

1. Ascertaining evidentiary facts (has a wider scope) [24]

2. Getting admissions [25]
3. Perpetuate testimony [26]
4. Probe the witness, his testimony, evidence of other party
5. Lock in testimony to impeach/contradict the witness

Stages of Deposition

1. Initiatory by motion or notice (must contain necessary information plus mode of deposition)

2. Pre-deposition proceedings protective order (filed by the adverse party) | subpoena

3. Deposition-taking deposing officers: Philippines any judge, notary public or person referred to in
Section 14, outside Philippines (on notice) secretary of embassy or legation, consul general, consul,
vice-consul, or consular agent, such person or officer as may be appointed by commission or under letters
of rogatory, persons referred to in Section 14 | Motion to terminate or limit examination | Officer shall
CIVIL PROCEDURE | Professor Lumba | 2015 2016

put the deponent under oath | Record | Objections (most objections are waived if not raised EXCEPT as
to admissibility of evidence, relevance of testimony competence of witness)

Difference between motion to limit and protective order: MTL where the action is pending or the RTC of the place
where deposition is being taken; PO the court in which the action is pending

4. Post-deposition taking Transcribe | Submitted to the parties and witnesses for examination | Make
changes | Certify | Sign (or state in record why it was not signed) | Seal the deposition | Mark or indorse |
File it with the court where the action is pending

In case of objection to any of this, party may file motion to suppress

5. Use of deposition


Motion for execution as a matter of right BOTH court of origin and appellate court may ENTERTAIN the

Discretionary execution:

- Motion filed pending appeal is to be filed with RTC while the RTC has records of the case
- Motion filed pending appeal is to be filed with CA when appeal period has expired and appeal has been perfected
- When motion is filed with RTC BEFORE appeal period has expired RTC can GRANT
- When motion is filed with RTC but appeal has been perfected RTC can GRANT
- Who can issue the writ of execution? Whether the motion is filed with RTC or CA, it is the RTC who
will issue the writ

What if judgment of RTC was reversed by the CA and this new decision has become final and executory


What if there was appeal AFTER CAs reversal This cannot be executed but once final and executory,
judgment must be remanded and writ of execution will be filed with the RTC

Executory but NOT final

2. Rule 43
3. Rule 42 RSP

Immediately executory and final

1. Rules on Small Claims

2. Compromise judgment
3. NLRC decisions

Periods for execution:

1. By motion 5 years from the date of its entry (when it becomes final and executory)
2. By action 10 years from the date of its entry (this rule is from the statute of limitations)
CIVIL PROCEDURE | Professor Lumba | 2015 2016

Execution after death

Four scenarios in execution after death:

a. Death of a creditor Money judgment, special judgment, judgment for specific acts
b. Death of debtor after levy money judgment
c. Death of debtor before levy money judgment
d. Death of debtor judgment for specific acts (delivery and restitution; sale)

Three types of judgment

- Money judgment: (1) immediate payment, (2A) levy or (2B) garnishment

- Special judgment
- Judgment for specific acts: conveyance, sale, delivery or restitution, removal of improvements on property
subject of execution, delivery of personal property

Three instances of terceria: * All three are almost the same but the difference lies in the vindication. In levy,
vindication is in a separate action because the action has finished already.


1 2 3 4
Debtor 2nd redemption(2) ONLY
CREDITOR (1) Foreclosed; Foreclosed Foreclose HAS TO
purchased FORECLOSE
M2 (1) 1st redemption Purchased HAS TO

M3 (1) 2nd redemption 1st redemption (1) Foreclose


Purchaser Purchased Purchased

Remedies of purchaser under Rule 39, section 34

- Set aside/possession reversed: motion in same or separate action against the creditor | supposedly revival
of judgment BUT Sir said just dont return the property
- Exempt from execution: Motion against Creditor | Revival of judgment
- Successful third-party claim: Motion against Creditor | Revival of Judgment
- Auction annulled: Motion against Creditor | Revival of Judgment

MNT Granted Remedy of opposition MR then 65
Denied Remedy of petitioner Appeal from judgment and include denial of MNT as error

MR Granted Remedy of opposition File an MR then 65 if ever | File an appeal

Denied Remedy of petitioner Appeal from judgment
CIVIL PROCEDURE | Professor Lumba | 2015 2016

Petition for Relief from Judgment (Rule 38): May be filed only in trial courts because this is a continuation of
the case (Section 1)

Petition for Annulment of Judgment:

Where to file: CA for RTC decisions | RTC for MTC decisions

When: Before it is barred by laches and estoppel (lack of jurisdiction) | within 4 years from its discovery
(extrinsic fraud)
Main difference between Annulment of Judgment filed in the CA and AJ filed in RTC: In CA, rules on ordinary
civil action applies | In RTC, it is treated as an ordinary civil action

How many ways to go to SC:
(1) In a civil case, Rule 45.
(2) In a criminal case, notice of appeal.

Remedies of the other party

Rule 38 Granted if MR granted, appeal | if MNT granted, certiorari | if appeal granted, ?

Denied - Certiorari

Interlocutory order Granted


Allowing Appeal - ?
Denying Appeal - certiorari

Granting motion to set aside certiorari

Denying motion to set aside - certiorari

Granting execution certiorari (whether discretionary or a matter of right)

Denying execution - certiorari

Dismissing without prejudice - certiorari

Dismissing with prejudice - appeal

*Dismissal for lack of subject matter jurisdiction is without prejudice. Remedy: certiorari (normally) UNLESS


Rule 41 you can raise pure questions of law (MTC to RTC)

Rule 42 in the exercise of RTC of appellate jurisdiction, you can raise pure questions of law (RTC to CA)
Rule 43 you can raise questions of fact, of law or mixed questions of fact and law
(See notes above again )

Eight stages (IN ORDER)
1. Application
2. Order
a. Affidavit states a cause of action
b. Case falls under section 1
c. No sufficient security
CIVIL PROCEDURE | Professor Lumba | 2015 2016

d. Amount to which applicant is entitled is as much as the amount stated in the order above all
legal counterclaims
Amount prayed for legal counterclaims = amount stated in the order
3. Bond
4. Writ
5. Service
- Complaint
- Writ
- Application
- Affidavit
- Bond
- Order
- Summons
o Summons cannot be served personally or by substituted service despite diligent efforts
o Defendant is resident and temporarily absent or defendant is not a resident
o Action is in rem or quasi in rem
6. Levy on Attachment
7. Discharge
- Counterbond or deposit
- Improper/irregular issuance
- Improper/irregular enforcement
- Excessive attachment
- Insufficiency of bond
8. Damages


Application for the issuance ex-parte of a 72-hr. and 20-day TRO and writ of preliminary injunction

Multiple sala
- Clerk of court forwards it to executive judge
- Issue 72-hr TRO (effective for 72 hrs from issuance) by executive judge
- Pay the bond (unless exempted
- Service of notice of raffle, TRO, complaint, summons, affidavit and bond
- Raffle
- Summary hearing by the presiding judge
- Issuance of 20-day TRO (if GRANTED)
- Bond
- Service of TRO
- Full hearing
- Issuance of order
- Bond
- Issuance of writ

Single sala
- Remove part of raffle

Exceptional circumstance
- Issuance of 20-day period by PJ
CIVIL PROCEDURE | Professor Lumba | 2015 2016

- Same process but remove entire part from raffle until service of TRO. Next step after service of notice is
FULL hearing.

Five requisites for PI:

1. Clear right
2. Material breach
3. Irreparable damage
4. Urgency
5. No ordinary, adequate remedy


1. Application main action must be for recovery of possession

2. Bond 2x value of property
3. Order
4. Corresponding writ
5. Seizure of the property by sheriff together with the copy of order and writ, application, affidavit and the
6. Adverse party can have it lifted within 5 days by objecting + filing counter-bond (double the value)
7. Delivery

1. Verified application
2. Order to appoint receiver possibly effective only upon payment of bond
3. Bond
4. Receiver enters upon his duties oath and bond
*filing of counter-bond does not make denial of application or discharge of receivership ministerial

Real Estate Mortgage
- Judicial
o Bank (mortgagee)
Legal person 1 year from sale writ of possession right after sale
Natural person 1 year from the sale writ of possession right after sale
o Non-bank (mortgagee) Equity of redemption writ of possession right after sale
- Extrajudicial
o Bank (Mortgagee)
Legal person registration of certificate of sale writ of possession right after sale
Natural person 1 year from sale writ of possession right after sale
o Non-bank (mortgagee) 1 year from registration of certificate of sale

1. Application
2. Judgment amount due to the plaintiff, order for defendant to pay
3. Motion for foreclosure sale
4. Auction sale
5. Certificate of sale
6. Motion for confirmation of foreclosure sale
7. Order confirming sale
8. Possession
9. Registration of 5 and 7
10. New title
CIVIL PROCEDURE | Professor Lumba | 2015 2016

8. Possession
9. Registration of 5 and 7
10. Redemption period expires
11. Registration of final deed of sale
8. Deficiency judgment
9. Execution


Civil private action; you have the key to your own freedom; fine as punishment is satisfactory
- Direct refusal to be sworn | refusal to be subscribed
- Indirect failure to obey a subpoena duly served | disobedience to a writ or order of the court (generally)

Criminal public action; you dont have the key to your own freedom; fine as punishment is NOT satisfactory
- Direct disrespect | offensive personalities
- Indirect misbehavior by an officer | abuse of processes | offense against administration of justice or
dignity of court |assuming to be an attorney | rescue or attempted rescue

- After being cited in direct contempt certiorari or prohibition
- Indirect contempt appeal
*If appeal has already been perfected, petition to cite in contempt should be filed in the appellate court. Even if
the lower court still has residual jurisdiction, it should still be filed in the appellate court.


1. Complaint
2. Deposit in money! Unless Court agrees that it be in certificate of deposit this is only a provisional
3. Possession
4. Answer (if there are objections) OR notice/manifestation (if no objection)
5. Order of expropriation
Record on appeal because this is only partial (the process continues)
6. Appointment of commissioner
7. Hearing
8. Report
9. Judgment
10. Payment of just compensation
11. Possession
12. Transfer of title

RTC has jurisdiction (Bardillon v Brgy Masili)