APRIL 10 – WEBINAR to his judgment, the parties have

clearly presented their arguments

ABADIA (00:00-13:00) in the documents and papers that
they submitted.
THE AMENDMENTS TO THE 1997 RULES OF
PROCEDURE (important points in the SC’s video) 5. Trial
- If there is no settlement in the Court-
· Approved by the Court en banc on: October Annexed Mediation, trial will ensue and
8 & 15, 2019 evidence will be presented before the
· Took effect on: May 1, 2020 judge.
- This shall commence 30 days after Pre-
Procedure: trial.
1. Complaint is filed - Once trial begins, both parties are given
- Evidence such as judicial affidavit and 30 days to present their evidence.
other supporting documents should
already be attached in the Complaint 6. Decision
(previously, these are released only - After 90 days, the judge shall render his
during trial). decision (should be strictly followed
under the new rules)
2. Court releases Summons 5 days after filing
of Complaint Other Amendments:
- This directs the defendant to answer the · Filing of motions by the parties that are
Complaint within 30 days by filing an clearly intended to delay the process is
Answer. prohibited.
· Hearings are lessened since the motions
3. Answer is filed will be immediately decided upon by the
- Evidence such as judicial affidavit and judge based on the arguments presented
other supporting documents should in the documents.
already be attached (Previously, these · Presumptive service of pleadings and other
are released only during trial). papers, substituted service of Summons,
- Attaching evidence in the Complaint and and service and filing may now be done
Answer aids the courts in determining through accredited couriers, e-mail, and
early on whether or not there is basis in other electronic means (This results to
filing a case. efficiency in sending notices to the
parties regarding the processes,
4. Pre-trial directives, or the documents they
- In the old rules, there is Preliminary submitted)
Conference before the branch Clerk of
Court. This step is now omitted in the ALEGRE (13:01-27:00)
new rules
- Amendments in the new rules under Pre- HIGHLIGHTS TO THE AMENDMENTS TO THE
trial: RULES ON CIVIL PROCEDURE (Effective May 1,
o To limit and name the witnesses, 2020 - Admin No. )
including the dates when they will
be presented in court. 9 MAJOR AMENDMENTS (From Rule 6 to 35)
o To set date of Court-Annexed
Mediation and Judicial Dispute 1. Pleadings (Rule 6,7,8,10,11 & 13)
Resolution which shall take place 2. Amendments
after Pre-trial and prior to Trial. 3. Summons (Rule 14)
This is to give the parties 4. Motions
opportunity to amicably settle the 5. Pre-Trial (Rule 18)
case. 6. Trial (Rule 30)
o Even at the Pre-trial phase, the 7. Demurrer to Evidence (Rule 33)
judge may already decide on the 8. Judgment on Pleadings (Rule 34)
case without hearing if according 9. Summary Judgments (Rule 35)

1
Provisions on Rule 16 of the old rule (Motion to
Dismiss) was transposed in another rule.
TN: Rule 144 was likewise amended to clarify the
effectivity of the ROC and where to apply the new
rules.
What is the basis of the SC on amending the
provisions of ROC?
Article 8, Section 5(5): Rule- making power or the
power to promulgate rules.
Under the Constitution, the SC has the power to
promulgate rules concerning the protection and
enforcement of constitutional rights, pleadings,
practice and procedure on all courts, the admission
to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged.
The bottom-line is, Article 8 Sec 5(5), precisely is the
basis of the SC in promulgating the provisions on the
ROC.
But of course, the Rule-making power has
limitations.
LIMITATIONS ON THE RULE-MAKING POWER
(SUN)
1. Must provide a simplified and inexpensive
procedure for the speedy disposition of
cases;
2. Must be uniform for all courts of the same
grade;
3. Must not diminish, increase, or modify
substantive rights.
The 3rd limitation tells us that if there’s conflict
between Remedial Law and Substantive Law, the
latter must prevail. Why?
Precisely because the ROC must not diminish,
increase or modify substantive rights.
Vilma-Quintos v. Piladia-Nicolas
*Atty used Mara & Clara*
ALONZO (27:01-40:00)
Mara filed a petition for partition under Rule 69
Can partition be used as a counterclaim even
against Clara, her sister/co-owner. Unfortunately,
though it was dismissed already with prejudice?
the petition for partition was dismissed by the
Court based on Rule 17, Section 3 - Dismissal Due
to the Fault of the Plaintiff.
In Rule 17, Section 3, there are four grounds for
dismissal due to the fault of the plaintiff:
a. Failure to prosecute for an unreasonable
length of time;
b. Failure to appear on the date of
presentation of evidence in chief;
c. Failure to comply with ROC;
d. Failure to comply with the order of the court
Here, the petition for partition was dismissed
because of failure to prosecute for an
unreasonable length of time. And if the court
dismisses the case because of this ground, the
nature of dismissal is one WITH PREJUDICE.
Therefore, Res Judicata had already set in. In fact,
the Court can motu proprio dismiss the case.
Thereafter, Clara (respondent) filed a petition for
quieting of title. And so the respondent on the
petition for partition is now the petitioner in the
quieting of title case involving the same property.
The rules were reversed.
Mara filed an answer using the partition as a
counterclaim.
Can a partition be used as a counterclaim?
Yes. In a long list of cases, the SC said partition
can be used as a counterclaim.
It is clear that partition can be used as a
counterclaim. However, the petition for partition
here was dismissed initially WITH PREJUDICE.
Now, there is a conflict between Rule 17 Section 3
and the right of Mara, as co-owner, to ask for
partition anytime under Article 494 of the NCC.
Can partition be used as a counterclaim under the
circumstances, even though it was dismissed
already with prejudice?
YES.
Quintos v. Nicolas (G.R. 210252, June 16,
2014)
There is a conflict between Art. 494 of the New
2
 Civil Code and the right of the co-owner to ask for
partition anytime. Which must prevail?
Ruling: Partition can still be used as a
counterclaim even though it was dismissed with
prejudice initially because between Rule 17 Sec. 3
Dismissal due to the fault of the plaintiff with
prejudice, failure to _______ for an unreasonable
length of time and the right of a co-owner to ask
for partition anytime. The right of a co-owner
under Art. 494 of the NCC must prevail because
if there is a conflict between substantive law and
remedial law, substantive law prevails. This is
because the rule-making power of the Supreme
Court must diminish, increase, or modify
substantive rights.
Regarding law-making cases, I always discuss 3
cases. (may be asked in the midterms)
1. GSIS
2. NAPOCOR
3. Baguio MArket Vendors Cooperative
Based on jurisprudence:
The rule-making power is now exclusive to the
Supreme Court.
● Under the 1935 and 1973 Constitutions, the
power to promulgate rules was a shared
power between the Congress and the
Supreme Court.
● However, the 1987 Constitution is silent.
● The power to promulgate rules is now
exclusive to the Supreme Court. It is not
shared with neither the Congress nor the
Executive Branch of the government
anymore.
Under the substantive law (NAPOCOR Law, GSIS
Law, Cooperatives Law), NAPOCOR, GSIS, and
Cooperatives are exempted from payment of docket
fees, legal fees. However, before the Supreme
Court,they filed a petition claiming exemption from
payment of docket fees because of the provisions of
substantive law. Apparently, the lower court ruled
against their favor. Hence the petition to the SC.
Argument: Under substantive law, NAPOCOR,
GSIS and Cooperatives are exempt from paying
docket fees.
SC: You cannot claim exemptions simply
because of the provisions of substantive law
because the rule-making power is now exclusive
to the Supreme Court. You can only be exempted
from payment of docket fees when the SC says so.
Genuino v. De Lima (G.R. 197930, April 17,
2018)
In 2011, former president GMA was about to leave
the country, at the airport, then DOJ Sec. De Lima
issued a Hold Departure Order (HDO). The basis
was Department Order 41 of the DOJ giving the
Sec. of Justice the power and authority to issue an
HDO.
GMA’s camp questioned the propriety of the HDO
and argued that DOJ DO 41 is unconstitutional
because it encroaches on the rule-making power
of the Supreme Court.
Ruling: Under Circular 39-97-SC, only the RTC in
a pending criminal case can issue an HDO.
Expn: Special proceedings involving custody of a
minor child.
Sandiganbayan based on its internal rules.
DO 41 of the DOJ is unconstitutional because
it encroaches on the rule-making power of the
Supreme Court.
The right to travel may only be restricted under the
constitution by reasons of national security, public
safety, public health, in accordance with law. DO
41 of the DOJ is not a law. It is only a circular.
Therefore, it cannot restrict the travel of GMA.
In a nutshell: The rule-making power is the basis
of the Supreme Court in promulgating the Rules
of Court.
Why did the Supreme Court amend the Rules of
Civil Procedure?
- In the amendments, the Supreme Court
already incorporated technological
advances.(Filing, and service of pleadings
through electronic means)
- It also includes decongesting the court
dockets
- Includes developments in law and
jurisprudence and even international
conventions such as the Hague Convention
Where do we apply the New Rules of Civil
Procedure?
- Apply to all cases filed after May 1, 2020
Berdon - 40:01 - 53:00
Very tedious to apply complaints now in the new
rules.
The New Civil Procedure applies to all cases filed
AFTER the effectivity of May 1, 2020.
3
The cases that are pending, do we apply the new
Rules?
YES. Under Rule 144 of the Rules of Civil
Procedure shall apply to all cases after May 1,
2020 and all the cases that are pending.
But there are exemptions:
If in the POV of the court, the application of the rules
would not be feasible or would work injustice in
which case the procedure by which the cases are
filed shall govern.
What do you mean by this?
For example, you have filed a motion to dismiss, it is
pending and in the interim, the new rules took effect
on May 1, 2020.
Will the court dismiss the case because of the
effectivity of the new rules?
NO. It might work injustice in the part of the litigant.
Or for example, (pending) Appeal is shortened or
‘pinahaba’. So after the effectivity will the court deny
the appeal precisely because it is already beyond
the period, like 15 days nagging 5 days nalang. NO
THAT WILL WORK INJUSTICE in the part of the
litigant. That will not be FEASIBLE.
THE RULE is that: The procedure under which this
case is filed shall govern. Take note that the court
shall exercise discretion here. To the extent that in
the opinion of the court, the application will not be
feasible or work injustice.
THE BASIC CHANGES TO THE RULES:
AMENDMENTS
RULE 6-35
2 BASIC POPULAR CHANGES:
1) Gender exclusivity -which means (under
the old rules only the word his/he, no mention of
her/she) gender sensitive, the rules now refer to both
he/she.
2) Calendar days- it is uniform now under the
rules – ex. 30 calendar days (not working days)
Except you apply Rule 22 for interruptions ( if there
is Holiday for instance, the following day)
MAJOR AMENDMENTS
RULES on PLEADINGS
Major changes:
1.) Evidence- to include already the evidence
when you file a complaint. Under the old rules. You
need to state therein the ultimate facts you are not
required to allege the evidence, not required to
attach the evidence.
Why? You wait for the trial at the very least wait for
the pre-marking of the evidence and that’s the time
you will know the evidence of the opposing party. But
this procedure causes delay in the disposition of the
case.
(Some litigants took the advantage of this by filing
baseless and unfounded suits. Np evidence- bahala
na basta makafile ng complaint. Some litigants
abuse this by simply filing a complaint and use to file
complaints as leverage to secure a compromise
agreement with the defendant.)
In the old rules, use the different modes of discovery,
file a complaint then the different modes of discovery
to know what the other party has in terms of
evidence. Written interrogatories, depositions,
productions of documents and things, physical
examinations and request of admissions. BUT
NOW, amended already and required the litigants to
ATTACH IN THE COMPLAINT in their initiatory
pleadings, complaint or answer, not only the ultimate
facts but even EVIDENTIARY MATTERS.
RULE 8, SECTION 1
A pleading shall contain in a methodical and
logical form, a plain, concise and direct statement
of the ultimate facts INCLUDING THE EVIDENCE
on which the party pleadings relies for his or her
claim or defense, as the case may be.
If you talk about pleadings now, you need to
attach the evidence. Rule 8, Section 1 is
reinforced/correlated in Rule 7, Section 6 (a new
rule, not in the old rule) which is the CONTENTS of
pleadings.
Old title of Rule 7 – Parts of the Pleadings
New Title: PARTS AND CONTENTS OF THE
PLEADINGS
If you file a pleading, the pleading must state
the NAME OF the WITNESSES and SUMMARY of
their intended TESTIMONIES (of the witnesses) and
DOCUMENTARY AND OBJECT Evidence. …
In Rule 7, Section 6. You need to attach the
JUDICIAL AFFIDAVIT to the complaint and the
answer, which shall form an integral part of the
complaint or your answer.
4
 Names of witnesses, summary of their
intended testimonies, attached judicial affidavits.
RULE: Only witnesses whose judicial
affidavits attached to the pleading shall be presented
to the parties during the trial.
NO Judicial Affidavit (JA)- cannot testify in
court of law anymore
Castilla 53:01-1:06:00
If no judicial affidavit, you cannot testify in open
court anymore because under the new rules only
witnesses whose judicial affidavits are attached to
the pleading shall be presented by the parties during
the trial.
General rule:
Only witnesses whose judicial affidavits are attached
to the pleading shall be presented by the parties
during trial. No other witnesses or affidavit shall be
heard or admitted by the court.
Exception:
If a party presents meritorious reasons as basis for
the admission of additional witnesses.
Meritorious reasons - no definition here but the Court
will exercise prudence and sound judicial judgment.
Example, COVID 19 was considered a meritorious
reason which can be a basis for admission for
additional witnesses. But, do not abuse this.
To recap, we prepare the complaint which must
include: (Rule 7, Sec. 6)
● the names of the witnesses
● the summary of the intended testimonies of
the witnesses
● the judicial affidavit
● documentary and object evidence
Documentary and object evidence
This should now be attached to the complaint as a
requirement under Rule 8, Sec. 1 in relation to Rule
7, Sec. 6. Take note that all must be attached
whether documentary or object evidence. For
cellphone as evidence, you can attach the picture of
it, allege, and say that it will be presented during the
trial.
Consequence of non-compliance of the
requirement of attachment of documentary and
object evidence:
● no procedural sanction because the Rules
are silent
● However, this may fall under non-compliance
of the Rules of Court where Rule 17, Sec. 3
will now be applicable and where the
dismissal is with prejudice.
CGVillasis: The judge can take refuge in or can use
Rule 17, Sec. 3 and therefore, dismiss the case with
prejudice.
3rd major amendment: Signature of a counsel in
a pleading (Rule 7, Sec. 3)
The amendments expanded the coverage of the
certification on the signature of the counsel in a
pleading.
Note: This topic had already been asked in the 2007
and 2013 Bar.
Bar Q: What is the significance of a signature of a
counsel in a pleading?
Under the old rules, if a counsel signs a pleading, it
is a certification that he has read the pleading. That
to the best of his knowledge, information, and belief,
there is a good ground to support it, and it is not
interposed for delay.
Under the new rules, it is dangerous now because if
counsel signs a pleading and violates the
attestations, there are procedural consequences
where counsel can be held liable.
Take note that:
● there are monetary and non-monetary
sanctions.
● the law firm can be held solidarily liable with
the counsel.
● the counsel cannot pass on to the client the
monetary penalty.
Rule 7, Section 3. Signature and address. (a)
Every pleading [and other written submissions to
the court] must be signed by the party or counsel
representing him or her.
(b) The signature of counsel constitutes a
certificate by him or her that he or she has read
the pleading and document; that to the best of his
or her knowledge, information, and belief formed
after an inquiry reasonable under the
circumstances:
CGV: here, when the counsel signs the pleading, the
rule presumes that counsel conducted an inquiry
reasonable under the circumstances
5

(1) It is not being presented for any improper
purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation;
CGV: With this rule, the frivolous filing of complaints is
no longer allowed like when complaints are filed as a
leverage only to secure a compromise from the
opposing party or as a strategy of a lawyer.
(2) The claims, defenses, and other legal
contentions are warranted by existing law or
jurisprudence, or by a non-frivolous argument for
extending, modifying, or reversing existing
jurisprudence;
CGV: Where law and jurisprudence are clear but
counsel still files a complaint for the purpose of making
the Supreme Court promulgate a new ruling, or
enriching jurisprudence, this is not allowed.
(3) The factual contentions have evidentiary
support or, if specifically so identified, will likely
have evidentiary support after availment of the
modes of discovery under these [R]ules; and
CGV: After filing of the complaint and upon trial,
counsel has to bear in mind how to prove each
allegation in the complaint. Remember that under Rule
128, Sec. 1, evidence is the means, sanctioned by
these rules, of ascertaining in a judicial proceeding the
truth respecting a matter of fact. Thus, one allegation =
one evidence = proof. Therefore, an allegation without
evidence is not proved. Similarly, that which is not
alleged cannot be proved a.k.a. “Non allegata non
probata.”
Under these new rules, upon filing of the complaint,
evidence should already be attached. Thus, the
counsel signing a pleading is in effect telling the court
that the factual contentions of the complaint have
evidentiary support or if there are none yet, they can be
proven after availing of the various modes of discovery
under Rules 23-29 of the Rules on Civil Procedure.
(4) The denials of factual contentions are
warranted on the evidence or, if specifically so
identified, are reasonably based on belief or a lack
of information.
CGV: These 4 circumstances above, I am very sure,
will be asked in the bar within the three-year period.
So, memorize them.
Data - 1:06:01 - 1:20:00
Consequence of violation of the attestations
under Rule 7, Sec. 3
If the court determines, on motion or motu proprio
and after notice and hearing, that this rule has been
violated, it may impose an appropriate sanction or
refer such violation to the proper office for
disciplinary action (such as the IBP), on any
attorney, law firm, or party that violated the rule, or
is responsible for the violation.
The law firm is jointly and severally liable for a
violation committed by its partner, associate, or
employee.
So even if the practice of one lawyer in the law firm
is only data privacy or intellectual property only and
he/she does not handle court cases, still he/she is
jointly and severally liable because he/she is a
partner of the law firm.
What are the sanctions?
The sanction may include, but shall not be limited to:
1. non-monetary directive or sanction;
2. an order to pay a penalty in court; or
3. if imposed on motion and warranted for
effective deterrence, an order directing
payment to the movant of part or all of the
reasonable attorney's fees and other
expenses directly resulting from the violation,
including attorney's fees for the filing of the
motion for sanction.
Note even the motion to file motion for sanction
because attorney violated the law, the opposing
party will have to pay for this. These are the
sanctions, monetary and non-monetary.
Consequently, the lawyer or law firm cannot pass on
the monetary penalty to the client. Hence, this is very
dangerous.
Again the lawyer or law firm cannot pass on the
monetary penalty to the client, therefore, the lawyer
should be careful and not to simply sign a pleading
unlike before because now the lawyer might be held
liable. (Atty. Villasis advised that if you are not sure
have the client sign the pleading, in practice but not
good for educational purposes.)
Rule 7 Section 4. Verification (Please put a check
and 5 stars to this rule)
Before, a verification is merely a formal requirement
and merely affects the form of the pleading. Before,
GR: Verification is that not all pleadings are required
to be verified.
6
XPN: Verification is required there is a law or rule
which requires pleadings to be verified.
Now, there are three changes in verification and
these are the following:
1. Authorization to be attached. The new rule
requires us to attach the Special Power of
Attorney (SPA) or Board Resolution in the
pleading as verification. Please take note this
rule applies only if the affiant or signatory is
not the party because if the one who signs
the pleading is not the plaintiff, another
person signs it for and in his behalf, there
should be authorization and this
authorization should now be attached to the
complaint. Example, if it is a complaint, there
should be an SPA or secretary certificate
attached to the verification showing the
authority of the signatory.
2. Expanded attestation. Before the
attestation in the verification only states “the
allegations in the pleading are true and
correct based on his or her personal
knowledge, or based on authentic
documents” now there is letter b which states
that “the pleading is not filed to harass, cause
unnecessary delay, or needlessly increase
the cost of litigation”. Letter b was copied
from Section 3(b)(1) Rule 7. Consequently, if
the verification in the complaint only states
one attestation or is still based on the old rule
then it is a defective verification.
Similarly Section 3(b)(3) Rule 7 was also
copied in the letter c attestation of the
verification which states that “the factual
allegations therein have evidentiary support
or, if specifically so identified, will likewise
have evidentiary support after a reasonable
opportunity for discovery”.Please remember
this expanded attestation in the
verification as this will come out in the
midterms exam!
3. The signature of the affiant in the
verification. The last amendment in this
section provides that “the signature of the
affiant shall further serve as a certification of
the truthfulness of the allegations in the
pleading”. Please remember that if you sign
a verification, you may be held liable for
perjury because you are certifying the
truthfulness of the allegations contained in
the pleading. So if the opposing party lied in
the complaint, the other party might file a
case against you for perjury because the
complaint is under oath. Because again, you
certified the truthfulness of the allegations
contained in the pleading.
Rule 7 Section 5. Certification against forum
Shopping
Remember the certification against forum shopping
is a requirement of an initiatory pleading.
Does a complaint require certification against
forum shopping?
Yes, there is a need for certification against forum
shopping for a complaint because this is an initiatory
pleading.
How about Answer?
GR: No, because this is not an initiatory pleading.
XPN: if with permissive counterclaim, it now requires
a certification against forum shopping.
There are no major changes in this section, just take
note of the one amendment here which refers to the
authorization. Again, if the one who signs the
certification against forum shopping is not the party
himself/herself, the authority of the affiant or
signatory should be attached to the pleading. This
applies again if the one who signs the certificate
against forum shopping is not the party himself, in
which case the authority of the signatory should be
attached to the pleading or to the certification against
forum shopping. This may be in the form of a
secretary's certificate or a special power of attorney.
This is the only amendment in this section.
Thus, the concept is the same. If you say forum
shopping as an act is different from certification of
forum shopping. Forum shopping as an act as in
legal ethics or that in remedial law as discussed in
Chua v. Metrobank case. This case illustrates the
expanded concept of forum shopping. (As referred
only by Atty. Kit)
Chua v. Metropolitan Bank and Trust Co. G.R.
No. 182311
Petitioner initially filed a case before the f RTC-
Branch 258 for the nullification of the feigned
auction sale of his foreclosed property. Petitioner
7

then filed another complaint with RTC-Branch 195
for damages suffered due to the feigned auction.
Hence, this was dismissed for forum shopping by
the RTC and CA.
SC held that petitioner committed forum shopping
because he filed multiple cases based on the
same cause of action (splitting of causes of
action). premised on the same action. It further
discussed that forum shopping can be committed
in three ways: 1. Where there is litis pendentia; 2.
Res judicata; and 3. splitting of causes of action.
Descallar - 1:20:01 - 1:34:00
Number 2 pag may res judicata may forum
shopping, number 3, splitting of a cause of action sa
Rule 2 Section 4, there is also forum shopping. Hindi
lang limited sa filing several cases simultaneously.
Having said that, certification for forum shopping,
authorization to file should be attached in the
pleading.
Now as answer, maraming changes. Let me
categorize it into 4
1. Revised evidence to be attached in the
answer
Discussion: now when you file a complaint or an
answer, you must attach your evidence.
Include names of the witnesses and the defendant,
the summary of the intended testimonies of the
witnesses, including judicial affidavit. Pag walang
JA, you cannot testify except for meritorious
reasons.
Attach documentary and object evidence when you
talk about an answer
2. Revised periods to file an answer under
rule 11
Discussion: if you talk about revised periods, before
kasi, the period to file answer is 15 days. Now, the
period to file the answer is 30 days na. CALENDAR
DAYS, hindi working days.
We have an expanded period to file an answer.
3. Rule 8 section 1 in relation to rule 7 sec 6,
rule 11 period to file answer -pati na rin
rule 11 sec 11 motion for extension of
time to file an answer
Question: can you file for a motion to extend time to
file an answer? YES! 30 days. Under sec 11 rule 11,
a motion for extension of time now, is solely allowed
if we talk about filing an answer. Wala nang ibang
pleading ang pwede i extend ang filing. Ang motion
for extension of time to file a pleading is solely
allowed if you talk about an answer and that is now
the rule. The filing of any other pleading cannot be
extended anymore.
TN: the defendant is allowed motion for extension to
file an answer is only ONCE. So ang maximum
ngayon, 60 days lang. No further extensions shall be
allowed. Noon, file lang nang file hanggat
papayagan ng judge. Yung 30 days, dapat may
meritorious reason.
Motion for extension any other pleading (other than
answer) is considered a mere scrap of paper, no
force and effect. In civil procedure, this is called a
pro-forma motion. A pro-forma motion is one that
violates the rules, that does not satisfy the
requirements of the rules, therefore a mere scrap of
paper, no force and effect, thereby not resulting in
an extension to file an answer. Pro forma din ang
2nd motion to extend, di na pwede.
Kapag wala paring answer within 30 days, the
defendant(?? Defendant iya giingon complainant
guro iya pasabot??) can already file a motion to
declare the defendant in default.
4. Affirmative Defenses
(rule 6 sec 5b in relation to rule 8 sec 12b; rule 15
sec 12; rule 9 sec 1)
What is the period to file an answer if a complaint is
amended? Is this a matter of right or discretion?
Pag wala kang answer, ang effect, issues are not yet
joined. Ibig sabihin non, no answer, no specific
denial. If you deny (rule 8 sec 10) it must be
specifically. If there is specific denial, the result is,
may issue. Kapag general denial lang,o kaya
negative pregnant, it tantamounts to an admission.
In this case, walang issue. So kapag mag aanswer
ka, may specific denial dapat. Pag meron specific
denial, may issue na.
Under rule 34, if the answer to the defendant, fails to
tender an issue or otherwise admits the material
allegations contained in the complaint, the remedy is
motion for judgement in the pleadings.
8
Pag matter of right yung amendment, ibig sabihin
nun wala pang answer. Xxinaudiblexx to file the
answer, wala pang answer eh, pag inammend nya
matter of right, 30 days ka parin to file an answer to
the amended complaint.
Pag hindi matter of right, ibig sabihin may answer
na, nakasagot na yung defendant eh, amended na
yung complaint as allowed by the court. What will
happen? Of course, you can file an answer to the
amended complaint for 15 days nalang. Bakit?
Inaral mo na yang kaso na yan eh, amendment
nalang yan eh. Usually formal amendment lang.
Therefore, pag discretionary, may answer na, 15
lang. And this rule applies equally to an answer to
the amended counterclaim. Kasi, a counterclaim is a
claim by the defendant against the plaintiff, so 15
days, 30 days. This applies equally to a cross claim,
a claim by one defendant against a co defendant. 30
days and 15 days to file an answer. This applies
when we talk about 3rd party complaint, etc
complaint. The purpose of which, you want to bring
in someone who is not yet inside. For the purpose
of contribution, indemnity, subrogation or any other
relief with leave of court.
Pag 3rd party complaint, the same 15 days 30 days.
Complaint intervention, this time you want to join the
complaint, hindi ka naman isinama, gusto mong
pumasok, intervenor ka, hindi ka kasama. Bakit?
Kasi you have an interest against the plaintiff or
defendant or both. Or you are so situated that you
may be adversely affected by the disposition of the
properties subject of the action. Ang tawag dun,
intervention. The same rule parin, as a matter of
right, or discretion, 15 days 30 days respectively.
Counterclaim, 20 days na yan. The rest puro 20
days na yan. Answer to the counterclaim/cross
claim, 20 days. Answer to the third party complaint,
30 days.
De Los Reyes - 1:34:01 - 1:47:00
Summary:
a. If there’s already an answer - 20 days.
b. If there’s no answer yet - 30 days.
c. Reply - 15 days.
Affirmative Defenses will be discussed based on
Rule 6 sec. 5b in relation to:
a. rule 8, sec. 12b
b. rule 15, sec. 12
c. rule 9, sec. 1
d. old rule 16 (already removed by the SC)
To expedite the proceedings in civil cases, motion to
dismiss is now prohibited.
Grounds on motion to dismiss based on old Rule
16, sec. 1:
1. lack of jurisdiction over the subject matter
2. lack of jurisdiction over the person of the
defending party
3. Improper venue
4. Failure to state the cause of action
5. Lack of legal capacity to sue
6. Lis pendencia
7. Res judicata
8. Prescription
9. That the claim has been paid, waived,
abandoned or extinguished
10. The claim on which the action has been
founded is unenforceable under the statute
of frauds
11. That the condition precedent of the action
has not been complied with.
Before, you can automatically file a motion to
dismiss based on the aforementioned 11 grounds.
SC now removed the motion to dismiss based on
rule 16, sec. 1, however, you have to take a look at
Rule 15, sec 12:
1. Motion to dismiss is prohibited except on four
grounds:
a. lack of jurisdiction over the subject
matter
b. Lis pendencia
c. Res judicata
d. Prescription
Note: All the 11 grounds based on old rule 16 are
now considered as affirmative defenses.
Before, just like in omnibus motion rule, when you
file a motion to dismiss, all grounds available should
be included, otherwise it is deemed waived except
on the four grounds.
Now, in omnibus waiver rule (Villasis wordings), it’s
the same, when you file an answer, all grounds
available or all affirmative defenses should be raised
in your answer at earliest possible opportunity,
otherwise, these affirmative defenses shall be
considered waived. Now, you cannot anymore file a
motion to dismiss only except on four grounds
provided in Rule 15, sec. 12.
9
All grounds for dismissal in old rule 16, sec. 1 are
now considered as affirmative defenses (affirmative
defense simply means, there’s a hypothetical
admission of allegation. Invoking these affirmative
defenses is for one to avoid escape from liability. e.g.
one loaned from the other, payment of such is an
affirmative defense or an admission that the other
loaned money but one already waived the obligation,
thus obligation has been extinguished, still an
affirmative defense).
However, in lack of jurisdiction and improper venue,
there’s no hypothetical admission of the allegation
here. But these are now considered as affirmative
defenses because of the goal of the committee
which is to expedite the disposition of cases.
Evangelista - 1:47:01 - 2:00:00
Ang tawag natin 15-30 rule. There are 5 categories
of affirmative defenses found in Rule 6 Sec 5-B,
that’s what we call the 15-30 rule.
Second category of affirmative defenses is found in
Rule 8, Section 12(B). These are called the motu
proprio rule.
TN: 15-39, motu proprio rules are merely codes for
easy recall. Do not use these in the exam or during
the bar.
What is an affirmative defense? Pag nag file ka ng
answer, sa answer mo meron kang defenses.
There are 2 types of defenses:
1) affirmative defenses and
2) negative defenses.
Which one is more controversial? Affirmative
defenses. Because in negative defenses, madali
lang yan, specific denial—that is what is needed in
civil procedure. You have to deny specifically each
and every matter contained in the complaint;
otherwise, deemed admitted.
Pero if we talk about affirmative defenses, you
hypothetically admitted the allegation but you now
nonetheless invoked these affirmative defenses for
you to avoid civil liability. That’s affirmative
defenses.
Having said that, dito sa answer mo para magkaroon
ng defenses, negative defense: specific denial;
otherwise, tantamount to an admission.
Yung ginawa ng SC sa first rule which I call 15-30
rule (affirmative defenses), lahat ng affirmative
defenses (old provisions), no problem. Pero ang
ginawa ng committee, yung 4 na grounds sa
dismissal: lack of jurisdiction over the subject matter,
lis pendentia, res judicata and prescription—all of
these are now considered affirmative defenses dun
sa first rule.
So it’s that simple, dinagdag nya. Other affirmative
defenses may also include: lack of jurisdiction over
the subject matter, lis pendentia, res judicata and
prescription.
Therefore, if those 4 are present, there are 2
remedies:
1. File a motion to dismiss
2. File an answer and use these ground as
affirmative defenses
Ngayon, what is the rule on the 15-30 rule? All
affirmative defenses are required to be present;
otherwise, deemed waived.
So the 15-30 rule means that pag lahat ng ito,
ginamit mu sa answer mo, automatic the court has
15 days to conduct a summary hearing. And 30 days
to resolve the affirmative defenses.
Under Rule 6 Sec 5, the court may conduct a
summary hearing within 15 days from the filing of an
answer.
Hearing may be required although summary. And
these affirmative defenses shall be resolved by the
court within 30 calendar days from termination of the
summary hearing.
#4 is very important. When there is an answer and
meron affirmative defense, the court has 2 options:
1. Grant the affirmative defenses
2. Deny the defenses
If the court grants the affirmative defenses, it means
the case is dismissed based on affirmative
defenses. If the case is dismissed, the plaintiff will
file and MR and appeal.
If the court denies the affirmative defenses, to
expedite the case, defendant cannot file a MR. The
defendant can file a petition for certiorari, prohibition
or mandamus but the defendant shall participate in
the trial. File a pre-trial brief. Ofc, thereafter proceed
to pre-trial to trial. Pag may judgment of the merits
na, you file an appeal and you raise the denial of the
10
affirmative defenses as one of the grounds in filing
an appeal.
The second category is what we refer to as motu
proprio rule. What is this? Here, this is what you do:
memorize the affirmative defenses in Rule 8,
Section 12(B). Memorize the second category so
that whatever is not in the list is under the first
category (for easy recall).
The defenses under the motu proprio rule are the ff:
1. Lack of jurisdiction over the person of the
defending party
2. Failure to state cause of action
3. Lack of legal capacity to sue
4. Improper venue
5. Condition precedent for the filing of an action
has not been complied with (very important)
If these grounds are present, the effect is wala ng
summary hearing. The court is given a period of 30
calendar days to resolve the affirmative defenses
motu proprio from the filing of the answer. Walang
pwedeng summary hearing na magyayari if under
the second category.
Now, the next area you have to remember is this: the
same rule basta affirmative defenses, whether on
the first or second category…
Jacobo (2:0:01 – 2:14:00)
The denial of the affirmative defenses cannot be a
subject of a motion for reconsideration, petition for
certiorari, prohibition or mandamus. But can only be
raised as errors on appeal. After judgement on the
merit.
--- break ---
Failure to comply with the order of the court results
in the dismissal of the case under Rule 17, Section
3.
Even when this is a new provision, as mentioned,
there is no procedural consequence pero kung
magaling yung judge, Rule 17, Section 3 will apply
which means dismissal due to the fault of the
plaintiff.
Without a judicial affidavit, you can present the
witnesses during the trial except for meritorious
reasons. Ultimately, you can have the case
dismissed because of non-compliance with the
Rules of Court.
REPLY
In the amendments, reply is not allowed. Under the
old rules, reply is generally optional.
General rule: Reply is not allowed.
Exception: Only if the answer of the defendant
pleads an actionable document.
If an actionable document is attached to a reply, a
rejoinder is also allowed.
Actionable document – a document that is the
basis of the defense of the plaintiff or the defendant
or the basis of the claim of the plaintiff.
For instance: If there is an actionable document
attached and a receipt showing payment in a
collection of sum of money case, plaintiff is allowed
to file a reply. But if there is no actionable document
in the answer of the defendant but you want to refute
the matters raised in the answer, and you are the
plaintiff, can you file a reply? No. Rather, you file an
amended/supplemental pleading.
TN: If a reply is allowed because precisely there is
an actionable document in the answer, the opposing
party will also be allowed to file a rejoinder.
Rule 6, Section 10
If the plaintiff wishes to oppose any claim arising out
of new matter to allege such claim shall be set forth
in an amended or supplemental complaint.
REJOINDER
Under the new rules, rejoinder is now allowed.
However, it is only allowed if a reply attaches an
actionable document.
Reply and rejoinder should be verified as based
under Rule 2, Section 8 and Rule 8, Section 7.
If a party pleads an actionable document. The duty
of the opposing party can:
1. There should be a specific denial;
2. The specific denial must be under oath.
Failure of which is deemed to have admitted the
genuineness and execution of the actionable
document. Therefore, reply and rejoinder should be
verified or under oath. (Rule 2, Section 8 and Rule
8, Section 7)
11

ARTICLE 3 – COUNTERCLAIM
Compulsory Counterclaim not raised in the same
action is fined unless otherwise allowed by the
Rules.
Garcia - 2:13:01 - 2:26:00
A compulsory counterclaim not raised in the
same action is barred, unless otherwise allowed
by the Rules.
If you talk about a counterclaim, basically it is a claim
on the defendant against the plaintiff. There are 2
kinds:
1. Permissive Counterclaim
2. Compulsory Counterclaim
If you say compulsory counterclaim, upon the ruling
laid down in the case of Spouses Mendiola v. CA,
remember the four tests.
when the multiple claims involve the same factual
and legal issues; or when the claims are offshoots
of the same basic controversy between the
parties. If these tests result in affirmative answers,
the counterclaim is compulsory.
TN: compulsory counterclaim it arises out or it is
necessarily connected with transaction and
occurrence with the subject matter of the complaint.
In other words, it is an off-shoot of the complaint.
You apply the compelling test of compulsoriness.
Q: What does this mean? Is there a logical
connection with the counterclaim and the subject
matter of the complaint?
If the answer is YES, it is compulsory.
Q: What is the effect if the counterclaim is
compulsory?

You have to set up the compulsory counterclaim in

the same action, otherwise it is barred already.
Spouses Mendiola v. CA, G.R. No. 159746, July
18, 2012
Atty: Yan ang turo sa atin palagi. If you will check
the amendments in the Rules of Civil Procedure,
The four tests to determine whether a
counterclaim is compulsory or not are the there is only one provision that was amended here.
Sa compulsory counterclaim, it merely included the
following, to wit:
(a) Are the issues of fact or law raised by last sentence – compulsory counterclaim not raised
the claim and the counterclaim largely in the same action is barred.
the same?
But these are established by jurisprudence is
(b) Would res judicata bar a subsequent
already established by some provision of the Rules
suit on defendant’s claims, absent the
of Court: Rule 9, 11.
compulsory counterclaim rule?
(c) Will substantially the same evidence
General Rule: Rule 9, Sec. 2
support or refute plaintiff’s claim as
well as the defendant’s counterclaim?
and
(d) Is there any logical relation between Section 2. Compulsory counterclaim, or cross-
the claim and the counterclaim, such claim, not set up barred. – A compulsory
that the conduct of separate trials of counterclaim, or a cross-claim, not set up shall
the respective claims of the parties be barred. (2)
would entail a substantial duplication
of effort and time by the parties and the
XPN: Rule 11, Sec. 10 and 9
court?

Of the four, the one compelling test of

compulsoriness is the logical relation between
the claim alleged in the complaint and that in
the counterclaim. Such relationship exists when
conducting separate trials of the respective claims
of the parties would entail substantial duplication
of time and effort by the parties and the court;

12

Section 9. Counterclaim or cross-claim arising
after answer. – A counterclaim or a cross-claim
which either matured or was acquired by a
party after serving his or her pleading may,
with the permission of the court, be presented
as a counterclaim or a cross-claim by
supplemental pleading before judgment. (9a)
Section 10. Omitted counterclaim or
crossclaim. – When a pleader fails to set up a
counterclaim or a cross-claim through
oversight, inadvertence, or excusable neglect,
or when justice requires, he or she may, by
leave of court, set up the counterclaim or
crossclaim by amendment before judgment.
(10a)
Sec. 10 refers to an omitted counterclaim or
crossclaim.
Q: Kapag na omit or hindi naisama sa answer, can
you still set up an omitted counterclaim or cross-
claim even after the answer?
Yes, if it is a case of an oversight, inadvertence, or
excusable neglect, or when justice requires. You are
allowed to set up your counterclaim or crossclaim by
amendment before judgment.
Sa Sec. 9 of Rule 11, refers to an after-accrued
counterclaim or crossclaim which either matured or
was acquired by a party after serving his pleading
can still be set up even after filing of the answer.
Summary: 2 exceptions
1. Omitted counterclaim
Papayagan pa rin after the answer based on the
grounds of oversight, inadvertence, or excusable
neglect, or when justice requires. You can set up the
counterclaim by amendment before judgment.
2. After-accrued counterclaim
Na file na answer, then ni accrue ang answer. You
set up your counterclaim or crossclaim by
supplemental pleading before judgment because
you talk about facts, transactions, or occurrences
that transpired after the filing of the pleading.
THIRD (FOURTH, ETC) PARTY COMPLAINT
10th amendment under the rules of pleadings.
Remember: dati walang limit. In other words, the
courts were vested with jurisdiction or authority and
discretion to rule on a motion for leave to file a third
party complaint. There was no rule before that the
third party complaint must be related to the
complaint of the main action. So even if different
matter, as long as it is for contribution, indemnity,
subrogation of any other relief.
Under the current rules now, it is mandatory that
the third (fourth, etc) party complaint must be
related to the main action, otherwise, it will be
denied admission.
When you file a third-party complaint, there should
be a motion for leave of court pursuant to Sec. 11 of
Rule 6.
Section 11. Third, (fourth, etc.)-party
complaint. – A third (fourth, etc.)-party
complaint is a claim that a defending party
may, with leave of court, file against a person
not a party to the action, called the third
(fourth, etc.)-party defendant for contribution,
indemnity, subrogation or any other relief, in
respect of his or her opponent’s claim.
The third (fourth, etc.)-party complaint shall be
denied admission, and the court shall require
the defendant to institute a separate action,
where: (a) the third (fourth, etc.)-party
defendant cannot be located within thirty (30)
calendar days from the grant of such leave; (b)
matters extraneous to the issue in the principal
case are raised; or (c) the effect would be to
introduce a new and separate controversy into
the action. (11a)
Purpose: contribution, indemnity, subrogation or
any other relief with leave of court. So file a motion
with leave of court.
TN: the second paragraph is a new rule which
means that even though you file a motion with leave
of court to file your third party complaint, the court
may nonetheless deny admission of the third party
complaint in any of the following situations, maski na
grant pa yung motion for leave to file a third party
complaint, the court will later on deny admission. If
the court denies admission, the court shall require
the defendant to institute a separate action.
Q: What are these situations?
13
 1. Defendant cannot be located within thirty
(30) calendar days from the grant of such
leave
What will happen? Gi grant yung motion for leave to
file a third party complaint, but the court will deny
admission of the third party complaint.
2. There are matters extraneous to the issue
in the principal case are raised
The third party complaint must be related to the
same action because if the matter raised is
extraneous to the issue in the principal case, the
court shall deny admission to the third party
complaint.
3. The effect would be to introduce a new
and separate controversy into the action.
(Memorize this kai this is a critical area in civil
procedure)
If the effect in granting or admitting the third party
complaint would be to introduce a new and separate
controversy into the action, what happens is it will
delay the disposition of the case.
AUTHENTICATED COPY OF THE JUDGMENT OR
DECISION SHALL BE ATTACHED TO THE
PLEADING
The court has already issued an Admin Order 251-
2020, which became effective on October 2020,
refer to the Guidelines on the Implementation in
the Philippines of the Hague Service Convention
on the Service Abroad of Judicial Documents in
Civil and Commercial Matters. (please check)
Atty: Kunyari, I am going to file a petition for
recognition of a foreign judgment divorce decree. Of
course, applying the provisions of the Rules on
Evidence under Section 24, under Section 19 of
Rule 132, ang authenticated copy of the judgment of
decision shall be attached to the pleading because
remember, Philippine courts cannot take judicial
notice of decisions of foreign courts or tribunals.
Philippine courts who take judicial notice of Foreign
laws, they required to be alleged, required to be
proven; kaya nga sa evidence, if you failed to allege
foreign laws, or you allege foreign laws but failed to
prove the same, you have to apply the Doctrine of
Presumed Identity Approach or otherwise known as
the Doctrine of Processual Presumption, that the
Philippine laws are presumed to be the same with
foreign laws and vice-versa.
Having said that, ang authenticated copy of the
judgment of decision shall be attached to the
pleading. What does this mean? Depende kung
yung foreign judgment, yung country na yon is a
member of the Hague Convention. If member (dati
kasi you go to the embassy, pa red ribbon) meron na
tayong tinatawag na “Apostile”.
Apostile is a french word meaning certification.
It is simply the name of the specialized certificate
issued by the Secretary of State. The apostile has
to pass through a regional document to verify that
it is legitimate and authentic for it to be accepted
in one or the other countries who are members of
the Hague Apostile Convention. Apostilised lng sha.
To make it simple, Apostile is a certificate.
------------- GREGORIO 2:26:01 – 2:40:00-------------
Is a certificate stating therein that the document or
judgment attached thereto is legitimate or authentic.
That is how you authenticate it if the country of origin
is a member of the Hague Convention. Otherwise,
you apply the provisions of Rule 132 of the Rules of
Evidence Section 19 (Public Documents) Section 24
(Proof of Foreign Judgments)
RULES OF EVIDENCE, RULE 132B
Section 19. Classes of Documents. — For the
purpose of their presentation evidence,
documents are either public or private.
Public documents are:
(a) The written official acts, or records of
the official acts of the sovereign authority,
official bodies and tribunals, and public
officers, whether of the Philippines, or of a
foreign country;
(b) Documents acknowledge before a
notary public except last wills and
testaments; and
(c) Public records, kept in the Philippines,
of private documents required by law to the
entered therein.
All other writings are private. (20a)
14

Section 24. Proof of official record. — The record
of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may
be evidenced by an official publication thereof or
by a copy attested by the officer having the legal
custody of the record, or by his deputy, and
accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has
the custody. If the office in which the record is kept
is in foreign country, the certificate may be made
by a secretary of the embassy or legation, consul
general, consul, vice consul, or consular agent or
by any officer in the foreign service of the
Philippines stationed in the foreign country in
which the record is kept, and authenticated by the
seal of his office. (25a)
Decisions should be attached to a pleading. There is
no mention of any particular consequence but
AGAIN, the catch-all provision of Rule 17, Section 3
will apply (Non-compliance of the order).
RULE 17 RULES OF CIVIL PROCEDURE
Section 3. Dismissal due to fault of plaintiff. — If,
for no justifiable cause, the plaintiff fails to appear
on the date of the presentation of his evidence in
chief on the complaint, or to prosecute his action
for an unreasonable length of time, or to comply
with these Rules or any order of the court, the
complaint may be dismissed upon motion of the
defendant or upon the court's own motion, without
prejudice to the right of the defendant to prosecute
his counterclaim in the same or in a separate
action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise
declared by the court. (3a)
MATERIAL AVERMENTS
RULE 8, ROCP
Section 11. Allegations not specifically denied
deemed admitted. – Material averments in a
pleading asserting a claim or claims, other than
those as to the amount of unliquidated damages,
shall be deemed admitted when not specifically
denied. (11a)
General Rule: You have to deny each and every
material allegation contained in the pleading.
Otherwise, these allegations are deemed admitted.
Exception: If it pertains to unliquidated damages.
Unliquidated damages - damages that are not
agreed upon (as opposed to liquidated damages
which are damages that are agreed upon in the
contract).
If unliquidated damages are not specifically denied,
it is not considered admitted because unliquidated
damages are required to be proven.
Hence, even if there is no specific denial herein, you
are not deemed to have admitted the amount of
unliquidated damages.
DEFAULT
RULE 9, ROCP
Section 3. Default; [d]eclaration of. – If the
defending party fails to answer within the time
allowed therefor, the court shall, upon motion of
the claiming party with notice to the defending
party, and proof of such failure, declare the
defending party in default. Thereupon, the court
shall proceed to render judgment granting the
claimant such relief as his or her pleading may
warrant, unless the court in its discretion requires
the claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.
Default - Occurs when an answer is not filed or the
defendant fails to file an answer. However, there are
situations wherein default is not allowed.
Instances wherein default is not allowed:
- Annulment of marriage
- Declaration of nullity of marriage
- Legal separation
The amendment is just a matter of wordings (before,
they used “prosecuting attorney”).
In the above-mentioned instances, even if you do not
file an answer to an annulment of marriage, the
defendant cannot be declared in default.
In cases where no defaults are allowed, the court
shall order the Solicitor General or his or her
deputized public prosecutor to investigate whether
or not collusion between the parties exist.
15
The words or phrase “prosecuting attorney” was
changed to “Solicitor General or his or her deputized
public prosecutor”. That’s already clear, the trial
prosecutors are deputized already via Solicitor
General.
AMENDMENTS
RULE 10, ROCP
Section 2. Amendments as a matter of right. – A
party may amend his [or her] pleading once as a
matter of right at any time before a responsive
pleading is served or, in the case of a reply, at any
time within ten (10) calendar days after it is served.
(2a)
Section 3. Amendments by leave of court. –
Except as provided in the next preceding
[S]ection, substantial amendments may be made
only upon leave of court. But such leave shall be
refused if it appears to the court that the motion
was made with intent to delay [or] confer
jurisdiction on the court, or the pleading stated no
cause of action from the beginning which could be
amended. Orders of the court upon the matters
provided in this [S]ection shall be made upon
motion filed in court, and after notice to the
adverse party, and an opportunity to be heard.
(3a)
Substantial amendments – amendments that
would affect the substantial rights of the opposing
party. In which case, there should be a motion for
leave of court.
General Rule:
Substantial amendments can only be made upon
leave of court.
Exception:
In Section 2, if there is no answer to a pleading
served to the plaintiff and filed to the court by the
defendant, if there is still no responsive pleading,
amendment is still a matter of right.
If there is no answer yet, amendments, whether
formal or substantial, are allowed. As long as there
is no answer, amendment is still a matter of right.
Exception to the exception:
Substantial amendments should be made upon
leave of court. However, leave of court shall be
refused if:
1. Motion was made with intent to delay
2. The purpose of the amendment is to
confer jurisdiction to the court
3. The pleading stated no cause of action
from the beginning which could be
amended.
Section 3 in reconciliation with jurisprudence
Discussion on the phrase: “If there is an amendment
but the purpose is to confer jurisdiction to the court”
If there is already an answer, there shall be a motion
for leave of court. If there is an amendment but the
purpose is to confer jurisdiction to the court,
Supreme Court ruled in Gumabay v. Baralin:
GUMABAY V. BARALIN
Facts: Celestina Gumabay sued defendants to
recover possession of a 17,000 sqm cornland
assessed in the name of Celestina Gumabay. She
alleged that the defendants forcibly entered the
land on August 5, 1959.
The defendants moved to dismiss the complaint
on the ground that inasmuch as it alleged a cause
of action for forcible entry, which occurred within 1
year before the complaint was filed, the CFI had
no jurisdiction over the case. It should be filed in
the proper inferior court.
Without awaiting the resolution of that motion,
Gumabay filed an amended complaint wherein
she alleged that the defendants claimed to be the
owners of the land. She transformed her forcible
entry action into an action to quiet title.
Ruling: Amendment to confer jurisdiction to the
court is only allowed if amendment is still a matter
of right. Amendment is no longer a matter of right
if defendant has already filed his answer.
Therefore, leave of court shall be refused if
defendant has already filed his answer.
Illustration: Complaint filed in RTC of QC (400k
above to confer jurisdiction RTC of QC) but the claim
is only P350,000. Thus, RTC QC has no jurisdiction.
16
As a plaintiff, you file a motion for leave of court to
amend the complaint and increase the claim from
P350,000 – P1M to confer jurisdiction to the RTC of
QC.
Q. Is this allowed?
- It depends if the defendant has already
filed an answer.
Discussion on the phrase: “The pleading stated no
cause of action from the beginning which could be
amended”
This is exactly what happened in the case of
Swagman Hotel and Travels Incorporated:
SWAGMAN HOTEL AND TRAVELS, INC. V. CA
(SWAGMAN DOCTRINE)
Facts: Swagman Hotel, Inc. obtained from Neal a
loan which is payable after 3 years and with
interest per annum payable every 3 months.
Barely 2 years after however, Neal sent a letter
informing the corporation that he is terminating the
loans and demanding that the total amount of the
loan and unpaid interests be paid. Subsequently,
Neal filed a complaint for sum of money and
damages. Swagman answered that the complaint
is dismissible for lack of cause of action since the
loan is not yet due and demandable and that there
was novation in the contract.
Ruling: If there is no cause of action at the
commencement of the suit, it will not be cured by
the accrual of the cause of action subsequent
because there is no cause of action to speak of in
the first place. The after-accrued cause of action
can only be, as a matter of remedy, a subject of a
separate suit, but it cannot be pleaded to the
complaint if there is no cause of action that exists
in the first place.
Illustration: Filed a complaint on June 1, 2020 for
sum of money (P1M) in the RTC but the obligation is
due and demandable on December 1, 2020. The
obligation was not yet due and demandable at the
time of the filing of the complaint. At the time of the
filing of the complaint (June 1, 2020), there was no
cause of action because cause of action will only
arise after December 1, 2020.
In the interim, eventually, naabutan ng December 1,
2020, the date when the claim would already be due
and demandable.
Q. If such is the case, can you file a motion for
leave of court to be allowed to amend your
complaint and state therein that after the
complaint is filed, the obligation became due and
demandable?
- No.
This jurisprudential pronouncement of the SC in
Swagman was incorporated in the provisions of
Section 3, Rule 10 of the ROC. Therefore, if there is
a motion for leave of court to amend the complaint,
it should not be allowed by the court. It should be
refused, denied precisely because at the outset,
there is no cause of action to speak of.The
Swagman Doctrine is now part of the ROCP.
Moving forward, IMPORTANT AMENDMENT in
RULE 10
Before, you can amend the complaint to conform to
the evidence presented. If there is an evidence
presented on a matter that is not an issue on the
case, for example:
Filed a complaint for sum of money. There was a
demand letter but it was not alleged in the complaint.
(Recall: What is not alleged cannot be a subject of
proof).
You want to present the demand letter because of
the Civil Code provision (1169) which provides: “no
demand, no delay.”
Q. If the demand letter was presented during trial
with the express or the implied consent of the
opposing party, what is the remedy?
Under the old rules, you file a motion for leave to
amend the complaint to conform to or authorize the
evidence presented.
- However, the rule now is: there is no
need to file a motion for leave to amend
the complaint to conform to the evidence
presented because under the new rules,
no amendment of such pleading deemed
amended is necessary to conform to the
evidence presented.
To simplify it, we apply the doctrine of implied
amendment if there is no amendment of the
17
complaint and there was presentation of the demand
letter which was supposedly not alleged in the
complaint.
If the demand letter was not alleged in the complaint
and the complaint was not amended but still the
demand letter was presented on trial without the
objection of the opposing party (or with express or
implied consent of the opposing party), apply the
doctrine of implied amendment or doctrine of
amendment by implication.
Now, the SC has incorporated this in the provisions
of Section 5 of Rule 10:
RULE 10, ROCP
Section 5. No amendment [necessary] to conform
to or authorize presentation of evidence. – When
issues not raised by the pleadings are tried with
the express or implied consent of the parties, they
shall be treated in all respects as if they had been
raised in the pleadings. No amendment of such
pleadings deemed amended is necessary to
cause them to conform to the evidence. (5a)
-------------NACUA 2:40:01-2:53:00-----------
Which means that even though there is no
amendment to conform to the evidence
presented, nonetheless, the court can consider that
demand letter (in our problem), precisely because
no amendment is necessary to conform to or to
authorize evidence presented.
AMENDED PLEADINGS (last amendment or
change introduced to the rules of amendments)
What is the effect of amended pleadings?
RULE 10, ROCP
Section 8. Effect of amended pleadings. – An
amended pleading supersedes the pleading that it
amends. However, admissions in superseded
pleadings may be offered in evidence against the
pleader, and claims or defenses alleged therein
not incorporated in the amended pleading shall be
deemed waived.
Just remember: (kase ganito yan eh) all the
allegations contained in the pleadings are
considered judicial admissions.
Check rule 129, sec. 4 under rules of evidence.
RULE 129, SEC. 4 RULES OF EVIDENCE
Section 4. Judicial admissions. — An admission,
verbal or written, made by the party in the course
of the proceedings in the same case, does not
require proof. The admission may be contradicted
only by showing that it was made through
palpable mistake or that no such admission was
made. (2a)
If you talk about “admissions whether verbal or
written, made by the party in the course of the
proceedings and in the same case are considered
judicial admissions”.
If you see these admission under rule 129 sec. 4, it
is considered to be conclusive, it cannot be
contradicted EXCEPT if there is palpable mistake
or there is no such admission made. (that’s the
rule)
Illustration
Now, if you file your complaint therefore, (na file na
sa korte), lahat ng allegations doon are considered
judicial admissions.
Therefore, it cannot be contradicted EXCEPT if
there is palpable mistake or there is no such
admission made.
Anong epekto kapag inamendahan ang pleading?
Illustration
Let’s say there are originally 40 allegations in the
pleadings/complaint but later on it was amended, 20
allegations ang naiwan.
So, what will happen to the 20 allegations that were
removed to the original complaint / or which are now
removed to the amended complaint? What will
happen? Are they still considered judicial
admissions?
REMEMBER
What is the rule?
18
NEW RULES: admissions in the superseded
pleadings may be offered in evidence against the
pleader.
In short, pag judicial admission yan need not be
offered. (diba rule 129, what need not be offered if
we talk about judicial admission – need not be
offered, judicial notice – need not be offered/proved)
Here, pag tinanggal na sya sa original pleading, in
order for it to be considered as evidence by the
court, it should be offered in evidence.
In other words, these are not considered judicial
admissions anymore, but these can be
considered extrajudicial admissions, therefore,
these are now required to be offered.
TAKE NOTE of the amendments introduced to the
rules of amendments regarding leave of court in the
case of swagman doctrine (supra) and gumabay
vs baralin (sinabi ko kanina regarding refusal of
leave of court if the purpose of the amendment is to
confer jurisdiction to the court and finally, if at the
time of filing the complaint there is no cause of
action.)
GUMABAY V. BARALIN (supra)
Facts: Celestina Gumabay sued defendants to
recover possession of a 17,000 sqm cornland
assessed in the name of Celestina Gumabay. She
alleged that the defendants forcibly entered the
land on August 5, 1959.
The defendants moved to dismiss the complaint
on the ground that inasmuch as it alleged a cause
of action for forcible entry, which occurred within 1
year before the complaint was filed, the CFI had
no jurisdiction over the case. It should be filed in
the proper inferior court.
Without awaiting the resolution of that motion,
Gumabay filed an amended complaint wherein
she alleged that the defendants claimed to be the
owners of the land. She transformed her forcible
entry action into an action to quiet title.
Ruling: Amendment to confer jurisdiction to the
court is only allowed if amendment is still a matter
of right. Amendment is no longer a matter of right
if defendant has already filed his answer.
Therefore, leave of court shall be refused if
defendant has already filed his answer.
Ruling in Swagman Doctrine: even though
amendment is a matter of right before the service
to the responsive pleading filed by the defendant /
plaintiff, if there is no cause of action at the
commencement of the suit, it cannot be cured by
the accrual of the cause of action subsequent
thereto.
And the after accrued cause of action can only be
a subject of a separate suit, it cannot be pleaded
in the complaint if there is no cause of action in the
case in the first place.
SWAGMAN HOTEL AND TRAVELS, INC. V. CA
(SWAGMAN DOCTRINE) (supra)
Facts: Swagman Hotel, Inc. obtained from Neal a
loan which is payable after 3 years and with
interest per annum payable every 3 months. After
a year, Swagman suffered business reverses
prompting it to renegotiate the terms of the loan
with Neal. It was agreed that Neal waives the
payment of interests and that the principal loan
shall be paid every month instead of quarterly.
After the renegotiation, the cash vouchers or
receipts acknowledged by the parties state that
the payments therein represent “Capital
Investment” and “Capital Repayment”.
Barely 2 years after however, Neal sent a letter
informing the corporation that he is terminating the
loans and demanding that the total amount of the
loan and unpaid interests be paid. Subsequently,
Neal filed a complaint for sum of money and
damages. Swagman answered that the complaint
is dismissible for lack of cause of action since the
loan is not yet due and demandable and that there
was novation in the contract. But the RTC held in
favor of Neal, rationating that although there was
no cause of action at the filing of the complaint, the
debt has already matured during the days the
hearings were held, thus making it due as of date.
Ruling: If there is no cause of action at the
commencement of the suit, it will not be cured by
the accrual of the cause of action subsequent
because there is no cause of action to speak of in
the first place. The after-accrued cause of action
can only be, as a matter of remedy, a subject of a
separate suit, but it cannot be pleaded to the
complaint if there is no cause of action that exists
in the first place.
So, hindi na pupwedeng amging subject ng
amendment yan.
19

Anong remedy mo?
REMEDY: the after accrued cause of action can
only be a subject of a separate suit.
And of course, if the purpose is to confer jurisdiction
(but atty interpreted it and explained itong section 5
by discussion likewise the case by Gumabay vs
Baralin, Sante vs Claravall, Feb 22 2010.
SANTE VS CLARAVALL
(ATTY) SC: amendment to confer jurisdiction to
the court may be allowed if amendment is a matter
of right.
Facts:
Petition for certiorari under Rule 65 of the 1997 Rules
of Civil Procedure. The assailed decision affirmed the
orders of the Regional Trial Court (RTC) of Baguio City,
Branch 60, denying their motion to... dismiss the
complaint for damages filed by respondent Vita
Kalashian against them. Respondent filed before the
RTC of Baguio City a complaint for damages against
petitioners.
Petitioners filed a Motion to Dismiss on the ground that
it was the Municipal Trial Court in Cities (MTCC) and
not the RTC of Baguio, that had jurisdiction over the
case. They argued that the amount of the claim for
moral damages was not more than the jurisdictional
amount of P300,000.00, because the claim for
exemplary damages should be excluded in computing
the total claim.
Petitioners filed on August 2, 2004, a Petition for
Certiorari and Prohibition. Court of Appeals held that
the case clearly falls under the jurisdiction of the MTCC
as the allegations show that plaintiff was seeking to
recover moral damages in the amount of P300,000.00,
which amount was well within the jurisdictional amount
of the MTCC.
The Court of Appeals added that the totality of claim
rule used for determining which court had jurisdiction
could not be applied to the instant case because
plaintiff's claim for exemplary damages was not a
separate and distinct cause of action from her claim of
moral damages, but merely incidental to it.
Respondent averred that the nature of her complaint is
for recovery of damages. As such, the totality of the
claim for damages, including the exemplary damages
as well as the other damages alleged and prayed in the
complaint, such as... attorney's fees and litigation
expenses, should be included in determining
jurisdiction. The total claim being P420,000.00, the
RTC has jurisdiction over the complaint.
Issues:
Did the RTC acquire jurisdiction over the case? and
Did the RTC commit grave abuse of discretion in
allowing the amendment of the complaint?
Ruling:
We deny the petition, which although denominated as
a petition for certiorari, we treat as a petition for review
on certiorari under Rule 45 in view of the issues raised.
Based on the foregoing, there is no question that at the
time of the filing of the complaint on April 5, 2004, the
MTCC's jurisdictional amount has been adjusted to
P300,000.00.
But where damages is the main cause of action, should
the amount of moral damages prayed for in the
complaint be the sole basis for determining which court
has jurisdiction or should the total amount of all the
damages claimed regardless of kind and nature, such
as exemplary... damages, nominal damages, and
attorney's fees, etc., be used?
However, in cases where the claim for damages is the
main cause of action, or one of the causes of action,
the amount of such claim shall be considered in
determining the jurisdiction of the court.
In the instant case, the complaint filed in Civil Case No.
5794-R is for the recovery of damages for the alleged
malicious acts of petitioners.
It is clear, based on the allegations of the complaint,
that respondent's main action is for damages. Hence,
the other forms of damages being claimed by
respondent, e.g. exemplary damages, attorney's fees
and litigation expenses, are not merely incidental to or
consequences of the main action but constitute the
primary relief prayed for in the complaint.
Considering that the total amount of damages claimed
was P420,000.00, the Court of Appeals was correct in
ruling that the RTC had jurisdiction over the case.
Lastly, we find no error, much less grave abuse of
discretion, on the part of the Court of Appeals in
affirming the RTC's order allowing the amendment of
the original complaint from P300,000.00 to
P1,000,000.00 despite the pendency of a petition for
certiorari filed before the Court of Appeals.
If the purpose is to amend the complaint, to increase
the claim from 350k to 1M, to confer jurisdiction to
the RTC, the court CAN GRANT it IF there is no
answer filed by the defendant.
Because if an answer has already been filed by the
defendant, absolutely, amendment to confer
jurisdiction to the court is NOT ALLOWED.
20
We apply the landmark case, Campos Rueda (?)
ruling (1955) – amendment to confer jurisdiction
to the court is not allowed.
(sorry. wala ko ka include sa rueda case kay idk TAX related
ang mugawas)
Finally, sa amendment, it is clear that there is no
need to amend the complaint to conform to the
evidence presented because we now apply the
doctrine of implied amendment / amendment by
implication.
Finally, if there is a supersedent / amended
pleading, the allegations that are not part
anymore of the amended pleading are required
to be offered in order for the court to consider it
as evidence.
RULE 13, ROCP
FILING & SERVICE OF PLEADINGS AND
OTHER COURT SUBMISSIONS
Important: filing and service.
Atty: primarily, well ganito kasi yan, dati kase if you
say filing and service of pleadings, motions, notices,
may enumeration pa, but what if it is a
manifestation?
NGAYON (now) sa amendments, it includes any
other court submissions.
TN: amendment and service are NOT THE SAME.
RULE 13, ROCP
Section 2. Filing and service, defined. – Filing
is the act of submitting the pleading or other paper
to the court.
Service is the act of providing a party with a copy
of the pleading or any other court submission. If a
party has appeared by counsel, service upon such
party shall be made upon his or her counsel,
unless service upon the party and the party’s
counsel is ordered by the court. Where one
counsel appears for several parties, such counsel
shall only be entitled to one copy of any paper
served upon him by the opposite side.
Where several counsels appear for one party,
such party shall be entitled to only one copy of any
pleading or paper to be served upon the lead
counsel if one is designated, or upon any one of
them if there is no designation of a lead counsel.
Pag sinabing filing and service are not the same, if
you say filing…
FILING – where do you file your pleadings and other
court submissions? Sa korte.
SERVICE – “kanino?” Opposing party.
But in fact, even the clerk of court / even the judge
pag may judgment na sya? Ipa file nya rin sa clerk
of court after the rendition of the judgment.
But having said that, we file the pleading to the court,
we serve the pleading and other papers to the
opposing party.
Recall
PLEADINGS – it covers all other court submissions.
What is clear to us is, we file our pleadings to the
court, we serve it to the opposing party.
Let’s talk about FILING.
BEFORE (old rules): there are 2 manners of filing:
1. Personal filing;
2. Registered mail
TN: ordinary mail is not allowed if you talk about
filing.
Ordinary mail is only allowed if you talk about
service.
Atty: walang ordinary mailing ng pleading sa korte,
bakit? Ang ordinary mailing is only allowed if you talk
about service to the opposing party.
Therefore, under the old rules, dalawa lang ang
recognized under rule 13: (1) personal filing; and (2)
registered mail.
While rule 13 merely tells us / provides 2 manners of
filing, however, atty sought refuge before to
jurisprudence, in the case of planters development
bank vs jose Panlilio, heirs of miriano miranda
vs pablo miranda.
(sorry, lahi ang mugawas sa planters nga case kay
lahi usahay ang defendant, dili tugma)
21
HEIRS OF MIRANDA VS PABLO MIRANDA
(TN: murag di nani siya relevant, but ako lang e apil hehe)
FACTS:
Petitioners’ Complaint for Annulment of Titles and Specific
Performance was decided by the RTC against their favor on
August 30, 1999. Without any appeal, the Decision became
final and executory. On December 11, 2001, the RTC issued
a Writ of Execution but was not implemented. On July 8, 2005,
respondent filed an Ex-parte Motion praying that the RTC
issue a “Break-Open and Demolition Order” in order to
compel the petitioners to vacate his property. But since more
than five years have elapsed from the time the Writ of
Execution should have been enforced, the RTC denied the
Motion in its Order dated August 16, 2005. This prompted
respondent to file with the RTC a Petition for Revival of
Judgment, which was granted.
On July 13, 2006, petitioners filed a Notice of Appeal via LBC,
which was opposed by respondent on the ground that the
Decision dated August 30, 1999 has long become final and
executory. Petitioners, in turn, moved for the transmittal of the
original records of the case to the CA, insisting that
respondent’s opposition is without merit. Finding the appeal
barred by prescription, the RTC denied the Notice of Appeal
in its Order dated October 10, 2006. Feeling aggrieved,
petitioners filed a Petition for Mandamus with the CA praying
that their Notice of Appeal be given due course, but was
denied on June 14, 2007 for being filed out of time. Petitioners
assert that an action to revive judgment is appealable, and
that their appeal was perfected on time. They insist that the
Notice of Appeal, which they filed on the 15th day via LBC,
was seasonably filed since the law does not require a specific
mode of service for filing a notice of appeal. Besides, even if
their appeal was belatedly filed, it should still be given due
course in the interest of justice, considering that their counsel
had to brave the storm and the floods caused by typhoon
“Florita” just to file their Notice of Appeal on time.
ISSUE:
Was the Notice of Appeal filed on the 15th day via private
courier like LBC considered to be belatedly filed?
HELD: YES.
It is basic and elementary that a Notice of Appeal should be
filed “within fifteen (15) days from notice of the judgment or
final order appealed from.Under Section 3, Rule 13 of the
Rules of Court, pleadings may be filed in court either
personally or by registered mail. In the first case, the date of
filing is the date of receipt. In the second case, the date of
mailing is the date of receipt. In this case, however, the
counsel for petitioners filed the Notice of Appeal via a private
courier, a mode of filing not provided in the Rules. Though not
prohibited by the Rules, we cannot consider the filing of
petitioners’ Notice of Appeal via LBC timely filed. It is
established jurisprudence that “the date of delivery of
pleadings to a private letter-forwarding agency is not to be
considered as the date of filing thereof in court;” instead, “the
date of actual receipt by the court x x x is deemed the date of
filing of that pleading.” Records show that the Notice of
Appeal was mailed on the 15th day and was received by the
court on the 16th day or one day beyond the reglementary
period. Thus, the CA correctly ruled that the Notice of Appeal
was filed out of time.
Neither can petitioners use typhoon “Florita” as an excuse
for the belated filing of the Notice of Appeal because work in
government offices in Metro Manila was not suspended on
July 13, 2006, the day petitioners’ Notice of Appeal was
mailed via LBC. And even if we, in the interest of justice,
give due course to the appeal despite its late filing, the result
would still be the same. The appeal would still be denied for
lack of merit. The Decision dated August 30, 1999 is already
final and executory.
Atty: itong mga cases ang ginagamit ko noon to tell
the students) that filing to a private courier
service, such as, LBC, AIR 21, UPS express etc.,
is NOT ALLOWED.
Pero wala yung categorical *inaudible*, although if
you read Judicial Affidavit Rule (JAR), pinapayagan
ang private accredited courier service.
If you check the website of the SC (for the
practitioners here) if *inaudible* let us say private
courier service provides private courier service,
meron inissue ang SC guidelines about how to be
accredited as a courier service for the purpose of
complying the requirements of rule 13, rocp. (idk if
related pani haha)
BOTTOMLINE: before jurisprudence lang. BUT
NOW, check SECTION 3 OF RULE 13.
RULE 13, Section 3. Manner of filing. – The
filing of pleadings and other court submissions
shall be made by:
(a) Submitting personally the original
thereof, plainly indicated as such, to the
court;
(b) Sending them by registered mail;
(c) Sending them by accredited courier; or
(d) Transmitting them by electronic mail or
other electronic means as may be
authorized by the court in places where the
court is electronically equipped.
In the first case, the clerk of court shall endorse on
the pleading the date and hour of filing. In the
second and third cases, the date of the mailing of
motions, pleadings, [and other court submissions,
and] payments or deposits, as shown by the post
office stamp on the envelope or the registry
receipt, shall be considered as the date of their
filing, payment, or deposit in court. The envelope
shall be attached to the record of the case. In the
fourth case, the date of electronic transmission
shall be considered as the date of filing
22
Based on jurisprudence, it was already incorporated
under Section 3, Rule 13.
Therefore, if you say manner of filing, how do you file
your pleadings and other court submissions?
A. Personal;
B. Registered mail;
C. Accredited courier service;
D. Electronic mail (e-mail), or other
electronic means as may be authorized
by the court in places where the court is
electronically equipped.
There’s a hierarchy in the modes of filing.
Now, papayagan lang ang electronic mail or
electronic means e.g. viber, if it is authorized by
the court. pag pinayagan ng korte in places where
the court is electronically equipped.
So dalawang requirements yan para magkaroon ng
filing by way of e-mail or electronic means:
1. Authorized by the court;
2. In places where the court is
electronically equipped.
Admittedly, not all parts in the country are
electronically equipped because of unstable internet
connection.
Having said that, clear sa atin na papayagan...
------STARTS AT 2:53:01 ENDS 3:06:00----
PANERIO
Pero makinig po kayu maam/ sir. Mamaya don sa
dulo ng provision pero sabihin ko na in advance
pinapayagan na po yung courier, electronic mail
or other electronic means, mamaya may
tinatawag tayung conventional filing ang service.
Q. Ano po itong conventional filing and service?
Ito po ang mga pleadings na required to be filed
personally or registered mail.
Kunyari complaint and answer. A complaint it is file
through pleading and an answer can only be filed via
conventional service which means personal lang
yan at registered. Electronic mail papayagan lang
kung papayag ang korte.
If you talk about sealed and conventional documents
yun po conventional filing yun. If you talk about
appendices, annexes sa motion that are not
amenable through electronic scanning conventional
filing parin ang tawag doon.
Mamaya kapag ka mga ma:
· writ of attachment,
· writ of injunction,
· protective orders, yung mga writs na yan,
· subpoena
all of these are required to be served conventional
service. Ibig sabihin ng conventional, personal lang,
o registered so para clear na po kaagad may
exceptions na po tayu. It is authority pleading or
responsive pleading it should be conventional
filing or service. Tandaan niyo yan.
Having said that if you talk about filing as mention.
Q. Kapag personal filing, when is filing deemed
complete?
Ito pangalawang part, take note of this it is very
important amendment because friends remember,
now, under the current rules my friends, noong araw
po kasi ganito yan e, ako practitioner din po ako, let
us say today is the last day of filing the answer. What
will I do? Naku matatapos na hindi aabot sa court.
Q.So what should I do?
Ang practice po natin magpafile tayu ng registered
mail ng answer pero mag avail tayun ng LBC, Air 21
Express para makarating agad sa korte kasi thinking
that if it is filed through registered mail, the date of
mailing is the date of filing. Ganon po yun e. Ngayon
kung accredited service naman para lang
makarating sa korte maski dumating kinbukasan yan
kasi ang reckoning point natin is the date of mailing
of registered mail that used to be the strategy of
lawyers. But now po, because of the amendments of
the new rules of civil procedure, let me highlight now,
let me highlight my friends that whether it is through
registered mail or accredited courier service, the
date of mailing now is considered as the date of
filing.
You know, I always discussed case of:
Heirs of Numeriano Miranda Sr v. Pablo
Miranda
Facts:
In this case, heirs of Numeriano Miranda filed a
complaint for annulment of titles and specific
23
 performance before RTC. Petitioners did not file and
appeal hence the decision became final and executory.
RTC grant the petition for revival of judgment.
Petitioners filed a notice of appeal via LBC which was
opposed by respondent on the ground that the decision
dated o August 1999 has long become final and
executory. RTC denied the notice of appeal. CA Denied
the notice of appeal on the ground that it was filed out
of time.
ISSUE:
WON THE APPEAL WAS PERFECTED ON TIME.
RULING:
No. The notice of appeal was belatedly filed.
It is basic and elementary that a notice of appeal should
be filed within fifteen (15) days from notice of the
judgment or final order appealed from.
In this case however the counsel for petitioners filed the
notice of appeal via a private courier, a mode of filing
not provided in the Rules. Though not prohibited by the
Rules, we cannot consider the filing of petitioners
Notice of Appeal via LBC timely filed. It is established
jurisprudence that “the date of delivery of pleadings to
a private letter forwarding agency is not to be
considered as the date of filing in court instead date of
actual receipt by the court is deemed the date of filing
the pleading.
The case of Heirs of Pandillo yung a Jose Pandillo
development, in this case supreme court said
sample, in the case of heirs of mariano miranda,
may judgment against him. He has 15 days to file an
appeal, all aware that in the mean time you can file
a motion for reconsideration. He filed his motion for
reconsideration in the 15 th day, however he filed his
motion for reconsideration through LBC or Air 21 or
private courier service so admittedly it was filed on
15th day and the court received the MR on the
following day 16th day.
1Q. In this case of Heirs of Mariano Miranda, can
you file your MR through private courier or
service?
Well, in that case, SC said while not expressly
mention in the rules however it is not prohibited that
is why allowed siya in effect.
2Q. Did he timely file the Motion for
Reconsideration?
Dun siya bumagsak because while the MR was
delivered to the LBC on the 15 th day in the case of
Mariano Miranda and Pabliano Miranda SC said my
friends if it is filed through a private forwarding
agency or a private courier service, the date of the
delivery of the pleading to the LBC is not considered
as the date of filing. Instead, the date of the actual
receipt by the court is deemed as the date of
filing. Ngayon yan po ang sinasabi natin lagi, and I
want you to remember this my friends, allowed yung
forwarding agency or courier service that is the LBC.
However, the date of mailing is not the date of filing
but rather the date of actual receipt. However, in
effect because of the amendments to
the new rules, the rules of civil procedure, the new
rules now, let say abandons or modify this ruling.
Q. Why?
Because the rule now is this, whether it is by
registered mail or an accredited courier service or
private letter forwarding agency the date of mailing
is now considered is the date of filing. Isa pa, the
date of mailing is now considered as the date of
filing.
The fourth manner or mode my friends is electronic
mail and I already told you my friends the date of
electronic transmission if allowed by the court
whether through electronic mail or electronic means
shall be considered as the date of filing.
What do you mean?
But this applies only in two situations:
1. If the court authorizes it
2. If the court or places again is electronically
equipped.
PROOF OF FILING
Let me talk about the proof of filing,
Q. What are the proofs of filing?
Pag personal filing yan=>exixtence of the record
okay na.
Q. Pero pag registered mail, ano proof mo na na
file mona yung pleading?
E syempre yung registered receipt at affidavit of
person of service or affidavit of the person who
mailed it. Diba? So yun yung kanyang proof,
registered receipt bakit yung lang kasi wala pa yung
return card proof na file muna sa korte. Diba? Proof
of filing, registry receipt at tsaka affidavit of the
person who mailed it. Babalik sayu yung return card
kapag ni received ng korte.
24
Q. Private courier service, what are your proofs?
You filed a pleading, and other court submissions,
affidavit of the person who mailed the same. Yun
mga practitioners po dito yung may official receipt.
Yung LBC may official receipt naman yun. Pangatlo
yun pong may tracking number, yung reference
number. Yun lang po. This are now proof of filing the
pleading now,
Q. if it is done through the filing of electronic
means what is the proof?
Affidavit din, and accompanied by the paper copy in
the pleading e print muna natin. Print out mga
kaibigan of the electronic mail. Alright.
Q. Are electronic means, similarly affidavit of
electronic filing and of course accompanied by a
copy of electronic acknowledgment. May mga
emails po na may mga return receipt notifications.
Tsaka delivery receipt. Diba may ganon. Pwede yun,
electronic acknowledgment of the filing. Pagka
tungkol sa court clear naman yun pag ni receive ng
court.
Now, sa modes of service mga kaibigan, ito yung
service of the opposing party. And I told you already
if you talk about about service which serve a
pleading in other court submissions though
opposing party or service to the opposing party.
And before we talk about modes of service there are
three rules to remember: (based on the new rules,
amendment po lahat ito)
1. If the party has appeared by counsel, service
upon such party should be made upon his
counsel. Ibig sabihin po, kung meron ng counsel
of record ng appearance. Service of defendants
counsel or service of the opponents counsel and
service of the opposing counsel is now
considered as service to the client. That is the
rule kaibigan. So it should be made upon the
counsel of record unless service upon the party’s
counsel order by the court. Okay.
2. Where one counsel appears for several
parties, ito po importante, dito po applying
efficient use of paper rule. Diba one copies
naman for where one counsel appears for
several parties multiple defendants isang
abogado lang. What is the rule? Such Counsel
shall be entitled to one copy of any papers or
pleadings deserve to the opposing side, maski
limang defendants yan isang abogado. Service
of the counsel is service to all five client. We
do that in practice, after all.
3. Ito ay importante, explain ito kailangan. Q.
Papaano kung there are several counsels
appear for one party. Example po isang senador,
e siyay maraming pondo, limang law firms nag
appear sa isang business man. So limang law
firms or limang abogado, what is the rule sa
number of copies? Remember, the rule is that
such party, limang law firms diba? That party is
entitle only to one copy. Sampung abogado,
hindi na kailangan lahat, one pleading only, one
copy.
To whom should it be filed? To whom should it
be served by the opposing party by the lead
counsel kung meron pong designated na lead
counsel. But what if there is no designated lead
counsel?
Bahala kana, kung saan mo eserve. Defendant
kunyari yan. Limang law firms, limang abogado it is
just that one lawyer there. Okay na. And service to
one counsel to all the counsel is already considered
a valid service to the defendant.
Ngayon makinig po kayu ha, ang amendment po
about service lang. Extend ko yung discussions sa
judgment kasi I saw one case
Philippine Asset Growth Two, Inc. v. Fastech
Synergy Philippines, Inc
Facts:
April 2011 respondents filed a verified joint petition
for corporate rehabilitation before RTC. RTC
issued commencement order with stay order and
appointed Atty Rosario Bernaldo as rehabilitation
receiver. RTC dismissed the rehabilitation petition
despite favorable recommendation of its
appointed receiver. CA reinstated the
rehabilitation petition.
April 2013 Divina Law on behalf of Philippine
Asset Growth Two, Inc filed a motion for
substitution of parties averring that PAGTI had
acquired claims and interest in the instant case.
PAGTI and PDB filed the instant petition claiming
that PDB received a copy of the Mar 2013
resolution on Apr 13, 2013.
25
 July 2013, respondents filed their urgent motion to
dismiss petition on certiorari for being filed out of
time positing that contrary to petitioners claim that
PDB received notice of March 5, 2013 resolution
on Apr 2013, its counsel, Janda Asia &
Associates, already received a copy of the said
resolution in March 12, 2013. Thus, petitioners
had only March 27, 2013 to file petition for review
on certiorari before the court, and the petition filed
on April 18, 2013 was filed out of time.
ISSUE:
WON THE PETITION FOR REVIEW ON
CERTIORARI WAS TIMELY FILED.
RULING:
No. It is a long-standing doctrine where a party is
represented by several counsels, notice to one is
sufficient, and binds the said party. Notice to any
one of the several counsels on record is
equivalent to notice to all, and such notice starts
the running of the period to appeal
notwithstanding that other counsel on record has
not received a copy of the decision or resolution.
In the present case, PDB was represented by both
Janda Asia & Associates and Divina Law. It was
not disputed that Janda Asia & Associates, which
remained a counsel of record, albeit, as
collaborating counsel, received notice of CA’s
March 5, 2013 resolution on March 12, 2013. As
such, it is from this date, and not from Divina Law
receipt of the notice of said resolution on April 3,
2013 that the fifteen (15)-day period to file the
petition for review on certiorari before the Court
started to run.
Hence, petitioners only had until March 27, 2013
to file a petition for review on certiorari before the
court, and the petition filed on April 18, 2013 was
filed out of time.
Kasi ito common concern kunyari limang abogado,
e natalo itong defendant, he loss the case then there
are five counsels of record. Right? Now the first
counsel, let us say, limang abogado na received
yung judgment March 1, 2, 3, 4, 5. Of course, as a
matter of course, you have to file a motion for
reconsideration.
Q. What is the reckoning point of the filing of
motion to reconsideration?
The fifth lawyer, received it on March 5, and
therefore he filed the MR on March 20. And the court
accept.
Q. Should the court take cognizance over the
motion for reconsideration? What is the rule my
friends?
-------------STARTS AT 3:06:01---------------
(SALAZAR)
ATTY: What is the rule?
What is the reckoning point?
Is it the receipt of the first lawyer which is
March 1? Kasi kung march 1 yan, tapos na yung 15
days by March 20.
Or tama ba na yung march 5 na receive kasi
before sa march 15 yan pasaok pa rin sa 15 days
yan kasi exclude the first day, the day of the
happening of the event under Rule 22.
So what does it mean? Can we still file the
MR?
Let’s say March 1 na receive nung una
abogada pero last lawyer receive it march 5.
Pagdating sa March 15 or March 18 or let us say sa
March 1 kasi within 15 days lang he filed an MR,
can the court still take cognizance of the MR? Is it
within the reglementary period?
ATTY: The answer is not anymore because in
relation to this, when you talk about judgments
already and there are several counsels
appearing for one party, notice or service receipt
of any of the counsel is already considered the
receipt of the client.
So the reckoning point is the receipt of the
first lawyer. Kahit may lead counsel or wala, it is still
the receipt of the first lawyer because in the case
of Philippine Asset Growth 2 Inc. vs. Static
Synergy Philippines, the SC said where a party
is presented by several counsel, notice to one is
efficient and binds the said party.
So therefore a notice to anyone of several
counsel on record is equivalent to notice to all
and such notice now starts already the running
of period to appeal notwithstanding that the
other counsel on record has not receive a copy
of the decision or the resolution.
26

ATTY: I will talk about modes of service.
Before what are the modes of service?
Personal, service opposing party, registered
ordinary mail and substituted service.
Substituted service, if there is a proof of failure to
serve the pleading personally or register mail or
ordinary mail so substituted service ka of the
pleading to opposing party but you filed it to the clerk
of court.
But of course, registered ordinary mail is allowed if
the locality there is no available registry service
whether the locality of the sender or the addressee.
ATTY: Now, what is the amendment?
Under Section 5 of Rule 13, what are the
modes of service?
1. Personal Service;
2. registered mail,
3. ordinary mail (not mention but different
rule mentioned check parin);
4. accredited courier is new rule (e.g. LBC,
Air21) to the opposing party;
5. electronic mail to the opposing party;
6. fax mail transmission to the opposing
party (not mentioned by court but pwede
consider as other electronic means);
7. Fax Transmission or other electronic
means as authorized by court or provided by the
international convention.
ATTY: Now I will explain it. Yung service po
papayagan lang if the party consents to that.
General rule filing a service pwede na po ang
electronic mail, electronic transmission, facsimile
transmission and other international conventions at
pati nga conventional filing which means there are
pleadings and documents that are required to be
serve and file personally or through registered mail.
Exceptional situation lang ang electronic
filing of service and it is allowed If the court gives its
express permission or upon express permission of
the court saka lang papayagan ang electronic filing
service.
ATTY: We are talking about conventional service of
filing of orders, pleadings and other documents
which means therefore at the risk of the issues.
If it is a initiatory pleading and initiatory
responsive pleading hindi po pwede yan, hindi po
pwede accredited courier service kasi sa
conventional filing sa Section 14, you only talk about
personal or registered mail.
Subpoena, protection orders and writs as
mentioned are require to be serve by the court to the
parties through personal or registered mail only.
Same is true also if talk about exhibits,
appendices, promotion or other documents that are
not readily amenable for electronic scanning in
which case at the option of the party it can be file and
serve to the opposing party conventional through
personally or registered mail.
Finally, sealed and confidential records, it
cannot be served and file electronically there should
be personal and registered mail.
Electronic is only allowed only if the court
expressly gives its permission or If not allowed then
conventional filing through personal or registered
mail or else it is invalid.
ATTY: Now, how is service opposing party made?
Mayroon na pong amendment. If it is
personal filing then serve to the party or counsel but
there is already an authorized representative. In fact
you named it in your complaint.
Service of the authorized representative of
the plaintiff/defendant is a valid service to the
opposing party. But again if there counsel on record
it must be to the counsel on record.
Next if it is not possible to serve it personally
to the party, you can go now to the office of the party
and you serve it to its clerk or person having charge
of the office.
So again (1) served to party or counsel or
authorized representative; (2) serve it to the office of
the party to its clerk or person in charge of the office;
(3) if not known office or no office, then at 8:00am-
27
6:00pm serve it to the residence of the party or
counsel.
Now, to whom serve in the residence?
Ans: To a person of suitable age discretion
and residing therein.
ATTY: What about registered mail? Deposit mo sa
post office once receive may return card then that’s
how you serve it.
ATTY: Now, ordinary mail is only available in locality
when there no available registry service whether the
locality of the sender or the addressee.
ATTY: Of course substituted service, seldom lang
gamitin.
Kunwari nag file ako ng complain but
defendant failed to file its answer. What should I do
now?
I want to declare the defendant is in default.
I will file now motion to declare defendant default.
If di mahanap ang defendant, we can avail
substituted service with the proof of the failure to
serve the pleading through personal, registered mail
or other modes of service.
Paano po to?
If you say substituted service don’t be
surprise you can serve the pleading to the clerk of
court if di parin Makita then last resort substituted
service na tayo sa clerk of court with a proof of failure
of personal service and other modes of service. And
if there is service to the clerk of court, upon the
receipt of clerk of court, substituted service to
defendant through the clerk of court is now
considered complete at the time of the delivery and
can now declare the defendant in default.
ATTY: Moving forward, if it is by way of electronic
means and facsimile transmission, it is very
important to note if you want to serve your pleading
to opposing party by electronic means and facsimile
transmission there is one requirement you have to
remember and its such party concern SHALL
give its consent thereto.
Consent is mandatory if the mode of service
is electronic means and facsimile transmission and
if there is no consent of the party then there is no
valid service of the pleading and any point of
submission on part if opposing party.
Now how it is made?
Sending an email to parties or counsel’s
electronic mail address or electronic means or
transmission as the parties may agree on or upon
direction of the court.
Facsimile Transmission shall be made by
sending a facsimile copy to the party.
Kapag ang service is with opposing party
with consent through electronic mail or facsimile
transmission may presumption po ang batas na
validly na receive yan sa opposing party and the only
exception is when the opposing party notified the
court of change of email address within 5 calendar
days from such change and there must be notice
otherwise if there is no notice of the email address
or facsimile transmission then service shall be
presumed valid. Again unless such party notifies the
court of any change.
----------------ENDS AT 3:19:00-----------------
Santiago (3:19:01-3:32:00)
B. Completeness
WHEN SERVICE CONSIDERED COMPLETE
Sec 15, Rule 13- Completeness of service –
· Personal service is complete upon actual
delivery.
· Service by ordinary mail is complete upon
the expiration of ten (10) calendar days after
mailing, unless the court otherwise provides.
- There is a presumption here that after 10
days, it is already received by ordinary mail.
· Service by registered mail is complete upon
actual receipt by the addressee, or after five (5)
calendar days from the date he or she received
the first notice of the postmaster, whichever date
is earlier.
28
New:
a) Service by accredited courier is complete
-upon actual receipt by the addressee, or after at
least two (2) attempts to deliver by the courier
service, or upon the expiration of five (5) calendar
days after the first attempt to deliver, whichever
is earlier.
What if there is no actual receipt? The law has a
presumption that the service is complete after two
attempts to deliver by the courier service or after 5
calendar days after the first attempt to deliver,
whichever is earlier.
b) Electronic service is complete
-at the time of the electronic transmission of the
document, or when available, at the time that the
electronic notification of service of the
document is sent.
Note: electronic service is not effective or
complete if the party serving the document learns
that it did not reach the addressee or person to be
served.
If you already have a proof of your electronic
transmission, i.e., if you have already sent it and
saved in your sent box, the service is complete thru
electronic means. The same thing with service by
facsimile transmission, as indicated in the printout.
c) Service by facsimile transmission is
complete
-upon receipt by the other party, as indicated in the
facsimile transmission printout.
SERVICE OF JUDGMENTS, FINAL ORDERS OR
RESOLUTIONS
Section 13, Rule 13- Service of Judgments, final
orders or resolutions –
Judgments, final orders, or resolutions shall
be served either personally or by registered mail.
Upon ex parte motion of any party in the
case, a copy of the judgment, final order, or
resolution may be delivered by accredited
courier at the expense of such party.
When a party summoned by publication
has failed to appear in the action, judgments, final
orders or resolutions against him or her shall be
served upon him or her also by means of
publication at the expense of the prevailing
party.
- Before, only through personal service or
otherwise registered mail. That’s it.
- Under the old rules, if a party is served with
summons thru publication, judgments can
likewise be served to him by publication, but at
the expense of the prevailing party. This one is
carried over to the new rules.
- But interestingly, in the amendments, it is
acceptable to be delivered thru accredited
courier.
- You wanted to execute the judgment, but the
opposing party has yet to receive the judgment.
You can use LBC, the new rules will allow it,
upon an ex parte motion of a party, at the
expense of such party.
- If a party is summoned thru publication but
failed to appear, the judgment can likewise be
served to him thru publication.
New provision
Sec 18, Rule 13. Court-issued orders and other
document.—
The court may electronically serve orders
and other documents to all the parties in the
case which shall have the same effect and
validity as provided herein.
A paper copy of the order or other
document electronically served shall be retained
and attached to the record of the case.
However, if the court serves this, the document
electronically served shall be retained and attached
to the record of the case.
New:
PRESUMPTIVE NOTICE OF A COURT SETTING
Section 10, Rule 13. Presumptive service. — There
shall be presumptive notice to a party of a court
setting if such notice appears on the records to have
been mailed at least twenty (20) calendar days
prior to the scheduled date of hearing and if the
addressee is from within the same judicial region
29
of the court where the case is pending, or at least
thirty (30) calendar days if the addressee is from
outside the judicial region.
- For example, Today is scheduled for Pre-trial
or trial, but what happened is there is not yet
proof of service. The court will reset. And it
delays so much. But now the rules provide a
presumptive notice of a court setting.
- It depends if the parties reside in the same
judicial region or not.
- If the within the same judicial region, there is
20 days.
E.g. You have already mailed the order 20 days
ago, there is already a presumptive notice of a
court setting today if the party resides within the
same judicial region.
- If it is outside the judicial region, 30 days.
E.g. if you have mailed 30 days ago, then today
the defendant did not appear in today’s trial, you
move to present evidence ex parte. If hearing
today, the hearing will proceed.
- And this is WITH PREJUDICE under rule 18.
RULE 14- SUMMONS
WHO MAY ISSUE SUMMONS
Sec 1. Clerk to issue summons.—
Unless the complaint is on its face
dismissible under Section 1, Rule 9, the court
shall, within five (5) calendar days from receipt of
the initiatory pleading and proof of payment of
the requisite legal fees, direct the clerk of court to
issue the corresponding summons to the
defendants.
Before, when does the clerk issue summons? In the
old rules, it is upon filing of the complaint and
payment of docket fees. But there is no period. Now,
it is automatic that within 5 days from receipt of the
initiatory pleading and proof of payment of the
requisite legal fees, the clerk of court shall already
issue summons.
The section 1’s amendment is good. Here, it tells us
that the court can motu proprio dismiss the case
because there is no motion upon receipt of the
complaint.
Under rule 9, sec1, there are 4 grounds:
1. Lack of jurisdiction over the subject matter
2. Litis pendentia
3. Res judicata
4. Prescription
If these grounds are present, there is no need for a
motion, there is no need for the court, in fact, to issue
summons. It is useless because the court can
already dismiss the case.
That’s it. If the complaint has been received and the
proof of payment of docket fees, the court can do
two things: Issue summons within 5 days, or
otherwise dismiss the complaint outright. Because
this is allowed under Rule 9, Sec 1. In civil
procedure, this is called the principle of residual
prerogative by Atty Kit.
Who may serve summons?
Section 3, Rule 14. By whom served. —
1. The summons may be served by the sheriff,
his or her deputy, or other proper court officer,
and in case of failure of service of summons
by them, the court may authorize the plaintiff
- to serve the summons - together with the
sheriff.
2. In cases where summons is to be served
outside the judicial region of the court where the
case is pending, the plaintiff shall be authorized
to cause the service of summons.
In the new rules, the plaintiff now can serve
summons.
The plaintiff can now help the court and only allowed
under 3 situations: When?
1. When the sheriff or deputy or court officer
fails to serve the summons to the defendant. The
court may authorize the plaintiff - to serve the
summons - together with the sheriff.
If I am the plaintiff, I can serve the summons together
with the sheriff. If the plaintiff is a corporation, its
designated officer can. The plaintiff can serve
summons, you file ex parte motion to the court.
2. If the defendant resides outside of the judicial
region.
30
If I filed a complaint in Quezon City, but the
defendant is a resident of Cebu City, what will
happen? The plaintiff, alone (inaudible 3:31:38) with
the sheriff, will serve the summons to the defendant
3. There are multiple defendants…
Sarigumba - 3:32:01 - 3:45:00
Atty: Summons must be served, let’s say, 3
defendants. The sheriff and other court officers are
having a hard time serving the summon to the two
other defendants. The plaintiff can serve the
summons to the 2 other defendants. That is now the
rule.
In summary, there are 3 situations wherein the
plaintiff can serve summons:
1. If the sheriff, his deputy or any court officers failed
to serve the summons, the plaintiff can be authorized
upon ex parte motion to serve the summon on behalf
of the sheriff.
2. If the defendant resides outside the judicial region,
the plaintiff can serve summons.
3. If there are multiple defendants, and some of the
defendants were not served with summons, plaintiff
can serve summon to the defendant.
Atty: What if nagsinungaling si plaintiff, sabi “Your
honor, I have already served the summon to the
defendant.” But in truth and in fact, in reality, he was
not able to serve the summon to the defendant.
What will happen?
There is a procedural consequence. If the plaintiff
misrepresents of the court, that the defendant was
served with summons, and later on, was proved no
summon was served, CASE of PLAINTIFF would be
DISMISSED with PREJUDICE. All the proceedings
will be nullified. And the plaintiff will be meted with
appropriate sanctions.
What is the validity of summons?
Atty: Dati kasi sa practice, nag issue ng summons,
sinerve sa defendant; hindi na serve kay defendant,
returned to sheriff, alias summon na naman, 2 nd alias
summon, 3rd alias summon, 4th alias summon, 5th
alias summon. Ngayon, wala na po.
[Definition of alias summons- An alias summons is a second
summons served when the first attempt at serving a summons
is unsuccessful. It is also sometimes called a pluries summons,
which more generally refers to an additional summons.]
Current Rules:
Summons shall remain valid and effective until and
unless it is recalled by the court.
So there is no need to file a motion for issuance of
alias summons. There is a provision: In case of loss
or destruction of summons, the court upon motion
issue alias summons.
There is no need to issue alias summons unless
there is loss or destruction.
What if service of summons to defendant is
defective?
Atty: Defective ang summon served to the
defendant. It was served to the residence of the
defendant, to the 14-year old daughter of the
defendant. Kung defendant’s counsel ako, ang
strategy ko magfa-file ako ng motion sa korte –
motion to dismiss on the ground of lack of jurisdiction
over the person of the defendant, noong araw.
Ngayon, I have read some books. Nakalagay, you
can file a motion to dismiss on the ground of lack of
jurisdiction over the person of the defendant kasi nga
naman sa Rule 15, Section 12, apat ang
pinapayagan. Yung prohibited motions. Yung motion
to dismiss except lack of jurisdiction over the subject
matter; litis pendentia, res judicata and prescription.
[Note: Rule 15, Section 12 of the 2019 Amendment to the
1997 Rules of Civil Procedure
Motion to dismiss except on the following grounds:
1) That the court has no jurisdiction over the subject matter
of the claim
2) That there is another action pending between the same
parties for the same cause, and
3) That the cause of action is barred by a prior judgment or
by statute of limitations]
Atty: Ang view respectfully, instead of to file a
motion to dismiss on the ground of lack of jurisdiction
over the person of the defendant, gawin mo syang,
AFFIRMATIVE DEFENSE under Rule 8 Section
12(b).
31

[Note: Rule 8, Section 12 – Affirmative defenses
(a) A defendant shall raise his or her affirmative defenses in
his or her answer, which shall be limited to the reasons set
forth under Section 5(b), Rule 6, and the following grounds:
1. That the court has no jurisdiction over the person of the
defending party;
2. That venue is improperly laid;
3. That the plaintiff has no legal capacity to sue;
4. That the pleading asserting the claim states no cause of
action; and
5. That a condition precedent for filing the claim has not been
complied with.
(b) Failure to raise the affirmative defenses at the earliest
opportunity shall constitute a waiver thereof.]
Atty: Ang view ni Atty Villasis if you check Section
23, Rule 14, clear naman sa codal, you can file a
motion to dismiss on the ground of lack of jurisdiction
over the person of the defendant.
[Note: Rule 14, Section 23 – Voluntary appearance
The defendant’s voluntary appearance in the action shall be
equivalent to service of summons. The inclusion in a motion
to dismiss of other grounds aside from lack of jurisdiction over
the person of the defendant shall be deemed a voluntary
appearance. (20a)]
Atty: Etong Section 23, Rule 14, nakalagay dyan,
inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the
defendant shall be deemed a voluntary appearance.
Dati po itong Section 20 Rule 14 Voluntary
Appearance. Dalawang amendments dyan.
Una, noong araw, old rules, inclusion in a motion to
dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant, noong
araw, old rules, shall NOT be deemed a voluntary
appearance.
But now, if it would be other grounds, indeed
voluntary appearance. Nagdagdag ka ng improper
venue, failure of cause of action, sa apat na grounds
lang na allowed in filing a motion to dismiss,
voluntary appearance. That’s the first situation, old
rules, not voluntary appearance. Ot does not
constitute voluntary appearance. Under the new
rules, it is voluntary appearance. Second thing you
can infer from this provision. Sabi satin bawal mag
file ng motion to dismiss except on four grounds.
However, if you read the second sentence, very
clearly, the inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the
person of the defendant shall be deemed a voluntary
appearance.
Very clearly, we can file a motion to dismiss on the
ground of lack of jurisdiction over the person of the
defendant even though there is no mentioned rule.
Clear naman sa sentence, other grounds aside from,
so pu-pwede therefore mag file a motion to dismiss.
(Going back to defective summons)
What if service of summons to defendant is
defective?
Atty: Kung defective service ang summons, what
will happen? Pag defective ang summons,
defendant’s counsel tayo, punta tayo sa korte, file a
motion to dismiss on the ground of lack of jurisdiction
over the person of the defendant. And you will argue
with the court, respectfully, “my way of conditional
and special appearance precisely to question only
the jurisdiction of the court over the person of the
defendant. It appears after the reading the sheriff’s
___ for instance, that the summons were served
upon the 14-year old daughter of the defendant, so
under Rule 14, there is defective service of
summons precisely because …you should have
served it upon the person with suitable age of
discretion, at least 18 years, so yun ang argument
mo dyan, and move that the court dismiss for lack of
jurisdiction on the person of the defendant.”
Atty: Is there voluntary appearance? None, because
precisely you filed a motion by way of conditional
and special appearance only to question precisely
the jurisdiction of the court of the person of the
defendant. Ngayon, may bagong provision na
nakakatawa. Eto yung provision wherein the
defendant’s counsel can be deputized by the court
to serve summons to his client, the defendant.
“Since you are the defendant’s counsel, alam mo
kung san ang defendant”. In which case, the court
now shall deputize the defendant’s counsel to serve
the summons to his or her client, the defendant. This
is provided in Section 13, Rule 14.
[Note: Rule 14, Section 13. Duty of counsel of record
Where the summons is improperly served and a lawyer
makes a special appearance on behalf of the defendant to,
among others, question the validity of service of summons,
32
 the counsel shall be deputized by the court to serve summons
on his or her client. (n)]
Atty: Dalawa lang yan, individual at corporation. Pag
corporation, domestic at foreign corporation. Pag ito
po ay individual defendant, how do we serve
summons?
Pwede ba mag acquire ng jurisdiction over the
person of the defendant even though there is no
service of summons? Yes, as mentioned, voluntary
appearance. Pag nag file ka ng motion for extension
of time to file answer, tapos defective and service of
summons, Allan Go vs. Cordero (Villarama) Ruling.
Sabi doon, defective ang service of summons but
defendant filed a motion for extension of time to file
his answer, thereafter, nag file ng motion to dismiss
on the ground of defective service of summons.
ALLAN C. GO v. MORTIMER F. CORDERO
[ GR No. 164703, May 04, 2010]
Supreme Court said “too late in the day” precisely
because when you filed your motion for extension
of time, you are deemed to have voluntarily
submitted yourself for jurisdiction of the court.
Atty: Kung walang voluntary appearance, there
should be service of summons. And there is a
hierarchy. There are modes in the service of
summons.
SERVICE OF SUMMONS – INDIVIDUAL
1. PERSONAL SERVICE
Atty: May amendment dyan dun sa tendering. How
do you serve summons, sheriff through personal
service? You hand the summons personally,
papermahan mo yung receiving copy ng summons.
And if he refuses to receive the summons, you
tender it to him. Yung ang dating rule. Sa
amendment ngayon, inexplain na kung ano ang ibig
sabihin ng tendering. Ang ibig sabihin ng tendering
summons, dati iipit lang, hindi na pwede yun.
Tendering of summons is done primarily if the
defendant refuses to receive and sign the receiving
copy and the sheriff shall leave the summons within
the view and in the presence of the defendant.
Atty: Parang in flagrante delicto arrest, in the
presence and within the view of the arresting officer.
Dito naman, in the presence and within the view and
of the defendant, dun lang nagiging valid. Ilalagay
yan sa kanyang sheriff’s return.
2. SUBSTITUTED SERVICE
Atty: Yung substituted service is very important.
Inspired, influenced by the ruling of the Supreme
Court in the case of Manotoc vs. Court of Appeals,
Constantino Pascual vs. CA, Isagani Francisco,
andaming rulings.
MA. IMELDA M. MANOTOC vs. HONORABLE
COURT OF APPEALS
[ GR No. 130974 August 16, 2006]
When can substituted service be resorted to by
the sheriff?
At least three attempts on at least two different
days
Atty: Remember the at least three attempts on at
least two different days. Saka pa lang mag
substituted service. Ibig sabihin, three attempts on
at least 2 different days ng PERSONAL, pero hindi
pa rin na serve kay defendant, sa bahay wala sya,
sa opisina wala sya, hindi sya makita. After 3
attempts on 2 different days, the sheriff now will
return to the defendant’s residence and he can serve
it to the person at least 18 years of age and of
sufficient discretion residing therein. Yung dating
wordings, sufficient age. Ngayon sa new rules,
nilagay na at least 18 years of age and of sufficient
discretion at the place or residence of the defendant.
(TAUCAN) 3:45:01 - 3:58:00
ATTY: Nakalagay, “you can’t file a motion to dismiss
on the ground of lack of jurisdiction over the person
of the defendant.” Kasi nga naman, sa Rule 15, Sec.
12 apat lang pinapayagan. Diba, yung prohibited
motions:
GR: Motion to dismiss
EXC:
1. Lack of jurisdiction over the subject matter
2. Litis pendencia
3. Res judicata
4. Prescription
So ang view respectfully is you can’t file a motion to
dismiss on the ground of lack of jurisdiction over the
33
person of the defendant but gawin mo syang
affirmative defense under Rule 8, Sec. 12 (a).
Ang view ni Atty. Villasis is if you check Se. 23 of
Rule 14, clear namans a codal na you can file a
motion to dismiss on the ground of lack of
jurisdiction over the person of the defendant.
Itong Sec. 23 of Rule 14, nakalagay dyan:
Sec. 23, Rule 14:
Voluntary appearance. — The defendant's
voluntary appearance in the action shall be
equivalent to service of summons.The inclusion
in a motion to dismiss of other grounds aside
from lack of jurisdiction over the person of the
defendant shall be deemed a voluntary
appearance.
Dati po itong Sec. 20, Rule 14 ang voluntary
appearance. Dalawang amendments dyan:
1. The inclusion in a motion to dismiss on other
grounds aside from lack of jurisdiction over
the person of the defendant shall NOT be
deemed voluntary appearance in the old
rules. But now, it is deemed as voluntary
appearance. (*inaudible*)
2. Sabi sa atin bawal magfile ng motion to
dismiss except on the 4 grounds. However, if
you read the second sentence, very
clearly,“inclusion in a motion to dismiss on
other grounds aside from lack of jurisdiction
over the person of the defendant shall be
deemed a voluntary appearance.” So as you
can see very clearly, we can file amotion
to dismiss on the ground of lack of
jurisdiction over the person of the
defendant even though there is no
mention in the rule.
Duty of the counsel on record
ATTY: OK, balik ako dun sa e-deputize yung
abogado. So may defective summons ang
client/defendant. Kung defective ang summons,
what will happen? Pag defective ang summons,
defendant’s counsel tayo so punta tayo sa korte and
file a motion to dismiss on the ground on lack of
jurisdiction over the person of the defendant;
precisely to question only the jurisdiction of the court
over your client because the summons was served
to the 14 year old daughter of the defendant so
obviously there is defective service of summons
under Rule 14.
ATTY: Is there voluntary appearance? NONE
because you filed the motion by way of
conditional and special appearance to question
only the jurisdiction of the court over the person
of the client/defendant.
Noong araw, baka e resolve pa ni judge yan pero
ngayon, may bagong provision na nakakatawa.
Sec. 13, Rule 14 (new rule by Dua Lipa)
Duty of the counsel on record. — Where the
summons is improperly served and a lawyer
makes a special appearance on behalf of the
defendant to, among others, question the
validity of the service of summons, the
counsel shall be deputized by the court to
serve summons on his or her client.
ATTY: Ibig sabihin, since ikaw ang defendant’s
counsel eh malamang alam mo where your
client/defendant is located. In this case, the court
now shall deputize the defendant’s counsel to serve
the summons to his or her client. Tama rin naman
eh, nagme-meeting sila at nag-uusap eh bakit pa
patatagalin? So wala tayong kawala dito pag nag file
tayo ng motion, uutusan tayo ng korte to serve the
summons instead to our client.
MODES OF SERVICE OF SUMMONS
ATTY: Service, dalawa lang naman yan eh:
1. Individual
2. Corporation
a. Domestic
b. Foreign
Pag individual defendant, how do we serve
summons? Pwede ba mag acquire ng jurisdiction
over the person of the defendant even though there
is no service of summons? YES, as mentioned,
voluntary appearance.
Q: Paano pag nag-file ka ng Motion for Extension of
Time to File An Answer, tapos defective ang service
of summons, thereafter, nag file ng Motion to
Dismiss on the ground of defective service of
summons?
34
Ans: The SC said, it’s too late in the day precisely
because the moment you filed the motion for
extension of time, you were deemed to have
voluntarily submitted yourself to the jurisdiction of
the court.
ALAN GO VS. MORTIMER CORDERO
In this case, however, although the Motion to
Dismiss filed by Robinson specifically stated as
one (1) of the grounds the lack of "personal
jurisdiction," it must be noted that he had earlier
filed a Motion for Time to file an appropriate
responsive pleading even beyond the time
provided in the summons by publication. Such
motion did not state that it was a conditional
appearance entered to question the regularity
of the service of summons, but an appearance
submitting to the jurisdiction of the court by
acknowledging the summons by publication
issued by the court and praying for additional
time to file a responsive pleading.
Consequently, Robinson having acknowledged
the summons by publication and also having
invoked the jurisdiction of the trial court to secure
affirmative relief in his motion for additional time,
he effectively submitted voluntarily to the trial
court’s jurisdiction. He is now estopped from
asserting otherwise, even before this Court.
ATTY: Now having said that, kung walang voluntary
appearance there should be service of summons.
And there are modes of service for summons. Pag
individual, una muna personal service but may
amendment dyan dun sa tendering.
Q: How do you serve a service of summons thru
personal service?
OLD RULE: You hand the service personally,
papirmahan mo yung receiving copy ng summons
and if he refuses to receive the summons, you
tender it to him.
“Service in person on defendant. — Whenever
practicable, the summons shall be served by
handling a copy thereof to the defendant in
person, or, if he refuses to receive and sign for
it, by tendering it to him.”
AMENDMENT: The meaning of “tendering” is
explained in the new rule. Ang meaning ng
tendering hindi lang ibig sabihin na bsta lang iipit ni
sheriff yung summons, hindi na pupwede yun.
Bakit?
NEW RULE: Tendering of summons is done
primarily, if the defendant refuses to receive and sign
the receiving copy and the sheriff should leave the
summons within the view and the presence of the
defendant.
Sec. 5, Rule 14
Service in person on defendant. — Whenever
practicable, the summons shall be served by
handling a copy thereof to the defendant in person
and informing the defendant that he or she is being
served, or, if he or she refuses to receive and sign
for it, by leaving the summons within the view and
in the presence of the defendant.
Substituted Service
ATTY: Yung Substituted Service is very important.
This is influenced by the SC’s decision in the case of
Manotoc vs. CA (and many more rulings).
MANOTOC VS. CA
FACTS: The Summons and a copy of the
Complaint were allegedly served upon (Mr.)
Macky de la Cruz, an alleged caretaker of
petitioner at the condominium unit. When
petitioner failed to file her Answer, the trial court
declared her in default. Petitioner, by special
appearance of counsel, filed a Motion to Dismiss
on the ground of lack of jurisdiction of the trial court
over her person due to an invalid substituted
service of summons. The grounds to support the
motion among others was that the party (de la
Cruz), who was found in the unit, was neither a
representative, employee, nor a resident of the
place.
HELD: Before resorting to substituted service,
a plaintiff must demonstrate an effort in good
faith to locate the defendant through more
direct means. More so, in the case in hand, when
the alleged petitioner’s residence or house is
doubtful or has not been clearly ascertained, it
would have been better for personal service to
have been pursued persistently.
35
Q: When can substituted service be resorted to by
the sheriff?
Ans: Remember the “at least 3 attempts on 2
different dates” before you can do the
substituted service.
TN: AT LEAST 3 ATTEMPTS ON 2 DIFFERENT
DATES IN PERSONAL.
1. DEFENDANT’S RESIDENCE
OLD RULE: Substituted service. — (a) by leaving
copies of the summons at the defendant's
residence with some person of suitable age and
discretion then residing therein
NEW RULE: Sec 6., Rule 14
Substituted service. — If, for justifiable causes, the
defendant cannot be served personally after at
least 3 attempts on 2 different dates, service may
be effected:
a) By leaving copies of the summons at the
defendant’s residence to a person at
least 18 years of age and of sufficient
discretion residing therein;
2. DEFENDANT’S OFFICE OR REGULAR PLACE
OF BUSINESS
OLD RULE: or (b) by leaving the copies at
defendant's office or regular place of business with
some competent person in charge thereof.
NEW RULE:
b) By leaving the copies of the summons at
the defendant’s office or regular place of
business with some competent person in
charge thereof. A competent person
includes, but is not limited to, one who
customarily receives correspondence
for the defendant.
ATTY: This provision was influenced by the SC’s
ruling in Gentle Supreme PH vs. Ricardo Consulta.
GENTLE SUPREME PH VS. RICARDO
CONSULTA
FACTS: Ricardo Consulta alleged that he was not
properly served with summons because, although
his address stated in the complaint was his regular
place of business, Canave, who received the
summons, was not in charge of the matter.
Consulta invoked the Court's ruling in Keister v.
Judge Navarro, that "the rule (on substituted
service) presupposes that such relation of
confidence exists between the person with whom
the copy is left and the defendant and, therefore,
assumes that such person will deliver the process
to defendant or in some way give him notice
thereof." Consulta claimed that Canave was only
Sarayba's secretary. Thus, neither the sheriff nor
the RTC had basis for assuming that Canave
would find a way to let Consulta know of the
pending case against him. Consulta concluded
that the RTC did not acquire jurisdiction over his
person.
HELD: The Court ruled that "it is not necessary
that the person in charge of the defendant's
regular place of business be specifically
authorized to receive the summons. It is
enough that he appears to be in charge." In this
case, Canave, a secretary whose job description
necessarily includes receiving documents and
other correspondence, would have the semblance
of authority to accept the court documents.
3. DEFENDANT’S EXCLUSIVE CONDOMINIUM
OR SUBDIVISION
ATTY: Ang problema is pag sa Security Guard
sinerve yung summons, what will happen? Pwede
pa ba yun? In the case of (did not hear the case title
properly but something…) MAC Asia vs. Tiu (or
Chiu) ruling, the SC said it’s defective.
HOWEVER, under the NEW RULES, if the
defendant’s residing in a condominium or exclusive
subdivision, paano makaka-akyat or makapasok
ang sheriff dun if hindi pinaygan ng guard?
NEW RULE:
(c) By leaving copies of the summons, if refused
henry upon making his or her authority and
36
 purpose known, with any of the officers of the
homeowner’s association or condominium
corporation or it’s chief security officer in
charge of the community or the building where the
defendant may be found;
(VILLA)
START 3:58:01
ATTY: The Chief Security Officer in charge of the
community or the building where the defendant will
be found may now receive summons through
SUBSTITUTED SERVICE.
There is a valid substituted service where you just
need to be indicated by the Sheriff.
If the mail is rejected,summons may be mailed by
way of an electronic mail. It is sent to the defendant’s
electronic mail address. If allowed by the Court, it will
be allowed as substituted service.
ATTY: As what I call as “9060 RULE”. How is
summons served through publication?
In the old rules, pwede pag 1) Where the
whereabouts or identity of the defendant is unknown
and; 2) It cannot be ascertained despite diligent
inquiry; 3) The resident defendant is temporarily
outside the Philippines; 4) Extra-territorial service of
summons (Secs. 14, 15, & 16)
Pero may amendment, so kapag yung una pwede
yung publication “Where the whereabouts or identity
of the defendant is unknown and It cannot be
ascertained despite diligent inquiry. Pero ngayon,
yung despite “it cannot be ascertained despite
diligent inquiry” may period na yon which is ninety
(90) days.
ATTY: It is 90 days from the commencement of the
action and the whereabouts of the defendant is
unknown cannot be ascertained despite diligent
inquiry, pwede na mag file ng motion for leave of
court to serve summons through publication to
the defendant.
The reason why I call it 9060 RULE because if the
summons are served through publication, there is
sixty (60) days where the defendant may file his
answer.
RULE 14, SECTION 17
Section 17. Extraterritorial service. – When the
defendant does not reside and is not found in the
Philippines, and the action affects the personal
status of the plaintiff or relates to, or the subject of
which is, property within the Philippines, in which
the defendant has or claims a lien or interest,
actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding
the defendant from any interest therein, or the
property of the defendant has been attached
within the Philippines, service may, by leave of
court, be effected out of the Philippines by
personal service as under Section [5]; or as
provided for in international conventions to which
the Philippines is a party; or by publication in a
newspaper of general circulation in such places
and for such time as the court may order, in which
case a copy of the summons and order of the court
shall be sent by registered mail to the last known
address of the defendant, or in any other manner
the court may deem sufficient. Any order granting
such leave shall specify a reasonable time, which
shall not be less than sixty (60) calendar days
after notice, within which the defendant must
answer. (15a)
ATTY: Now, take note also, this only applies to
Spouses, if spouses A and B Dela Cruz accrued,
under the new rules, summons are served to
BOTH spouses, INDIVIDUALLY.
Another thing to remember, JURIDICAL ENTITY
and DOMESTIC CORPORATIONS. Question: Who
can serve summons for the Domestic Corporations?
Answer: Service may be made on the president,
managing partner, general manager, corporate
secretary, treasurer, or in-house counsel of the
corporation wherever they may be found, or in their
absence or unavailability, on their secretaries. (Sec.
12, Rule 14)
37

BALTAZAR vs.THE HONORABLE COURT OF
APPEALS and GOOD EARTH ENTERPRISES,
INC., (G.R. No. 78728, December 8, 1988)
FACTS: Good Earth Enterprises, a domestic
corporation was sued. Sheriff went to the address
of the corporation but the corporation was no
longer there. It moved to another place.
Subsequently, the sheriff returned the summons to
the court. Plaintiff Baltazar filed a motion for leave
to serve the summons and a copy of the complaint
upon defendant Good Earth by publication
ISSUE: Can there be a proper service by
publication in this case?
RULING: NO. Service by Publication (Section
14) will not apply because there was no
diligent inquiry made by the sheriff.
“Under Section 14, therefore, petitioner must show
that the address of Good Earth was ‘unknown’ and
that such address could not be ascertained by
diligent inquiry. More importantly, We do not
believe that the acts of the sheriff satisfied the
standard of ‘diligent inquiry’ established by Section
14 of Rule 14. The sheriff should have known what
every law school student knows, that Good Earth
being a domestic corporation must have been
registered with the Securities and Exchange
Commission and that the SEC records would,
therefore, reveal not just the correct address of the
corporate headquarters of Good Earth but also the
addresses of its directors and other officers.”
Atty.’s Question: Is it a requirement that the
Sheriff shall serve the summons in the Principal
Place of Business or Officer of the Corporation?
Answer: The Supreme Court said NO. In the case
of Baltazar vs. CA, the Court held that as long as
any of the officers ( president, managing partner,
general manager, corporate secretary, treasurer,
or in-house counsel of the corporation) received
the summons on behalf of the corporation, it is
a valid service of summons to the corporation
already.
ATTY: In the absence or unavailability of those
mentioned, the NEW RULES provide that the
SECRETARIES of these Corporate Officers can
now receive the summons for and in behalf of
the corporation.
In cases where the secretaries are unavailable, it
shall be made upon the person who customarily
receives the correspondence for the defendant
at its principal office. (This provision is not
mentioned in the old rule)
ATTY: In case the domestic juridical entity is under
receivership or liquidation, service of summons shall
be made on the receiver or liquidator, they may also
receive service of summons.
Example: In a Bank, the clients of the bank have
board resolution and authority to receive summons
and proceed correspondence letters and so his
work, he customarily receives the correspondence
for the defendant corporation sa principal’s office.
Pwede din siya mag receive ng summons ngayon.
Question: Pwede ba yung Chronic Service of the
Summons to Corporation?
Answer: Doon sa individual kanina it is allowed if
allowed by the Court. Dito sa corporation, it is also
allowed by the court and it is easier because these
corporations have websites where you can check
the email addresses.
Kumbaga substituted service sa corporation if there
is refusal on the part of the persons mentioned to
receive summons despite three (3) attempts on
two (2) separate dates, that is when you resort to
service of summons through electronic means if
allowed by the court.
MOTIONS
ATTY: The changes on rules on Motions, basically,
there are two (2) kinds of motions now.
TWO KINDS OF MOTIONS:
1. Litigious Motions
2. Non-litigious Motions
Question: What is the difference between a
Litigious Motion and a Non-litigious Motion?
Answer: Non -litigious motions are those which the
court may act upon without prejudicing the rights of
the adverse parties. The opposing party shall file his
or her opposition to a litigious motion within five
calendar days from receipt thereof. These motions
shall not be set for hearing and shall be resolved by
the court within 5 calendar days from the receipt
thereof. (Sec. 4, Rule 15) On the other hand, for
litigious motions, the court may, in the exercise of its
38
discretion, and if deemed necessary for its
resolution, call a hearing on the motion. (Sec. 6, Rule
15)
ATTY: Kapag non-litigious motions, hindi na
kailangan i-set for hearing because it will not
prejudice the rights of the adverse party.
In which case, what will happen is, it will be
automatic and without any hearing.
NON-LITIGIOUS MOTIONS:
1) Motion for the issuance of an alias summons;
2) Motion for extension to file answer;
3) Motion for postponement; (3 grounds: force
majeure, acts of God, physical inability of the witness
to appear)
4) Motion for the issuance of a writ of execution;
5) Motion for the issuance of an alias writ of
execution;
6) Motion for the issuance of a writ of possession;
7) Motion for the issuance of an order directing the
sheriff to execute the final certificate of
sale; and
8) Other similar motions.
So, if those mentioned in the example are your
grounds, it is automatic and does not set any
hearing. The courts will try to resolve it within five (5)
calendar days.
ATTY: In Litigious Motion, this affect the rights of the
adverse party. Question: Ano na ang gagawin?
Answer: Remember, para bumilis ang caso sa
hukuman, under the NEW RULES, there is no need
to set for a hearing and the setting of the hearing is
discretionary on the part of the Court. Parang
automatic na, parang guidelines ng continuous
criminal cases. This means that pag nag file ng
litigious motions, automatic may five (5) calendar
days from the receipt of the motion in which to file
a comment or opposition of the opposing party.
ATTY: With or without such opposition within five (5)
days, the motion will be submitted for resolution and
the court has a period of fifteen (15) calendar
days to resolve that litigious motion.
Question: What are the examples of Litigious
Motions?
LITIGIOUS MOTIONS:
1) Motion for bill of particulars;
2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has
been filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of
demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
11) Motion for summary judgment;
12) Demurrer to evidence;
13) Motion to declare defendant in default; and
14) Other similar motions.
The opposing party shall file his or her opposition to
a litigious motion within five (5) calendar days from
receipt thereof. No other submissions shall be
considered by the court in the resolution of
themotion.
The motion shall be resolved by the court within
fifteen (15) calendar days from its receipt of the
opposition thereto, or upon expiration of the period
to file such opposition.
ATTY: Finally, we have the PROHIBITED
MOTIONS.
The following motions shall not be allowed:
(a) Motion to dismiss except on the following
grounds:
39
1) That the court has no jurisdiction over the subject
matter of the claim;
2) That there is another action pending between the
same parties for the same cause; and
3) That the cause of action is barred by a prior
judgment or by the statute of limitations;
(b) Motion to hear affirmative defenses;
(c) Motion for reconsideration of the court’s action on
the affirmative defenses;
(d) Motion to suspend proceedings without a
temporary restraining order or injunction issued by a
higher court;
(e) Motion for extension of time to file pleadings,
affidavits or any other papers, except a motion
for extension to file an answer as provided by
Section 11, Rule 11; and
(f) Motion for postponement intended for delay,
except if it is based on acts of God, force majeure or
physical inability of the witness to appear and testify.
If the motion is granted based on such exceptions,
the moving party shall be warned that the
presentation of its evidence must still be terminated
on the dates previously agreed upon.
ATTY: You cannot file a Motion to Dismiss except
for four (4) grounds. 1) Lack of Jurisdiction over
subject matter, 2) Litis pendentia, 3) Res judicata,
and 4) Prescription.
Of course you will file a Motion for Reconsideration
on the affirmative defenses.
Affirmative defenses, if denied, shall not be the
subject of a motion for reconsideration or petition for
certiorari, prohibition or mandamus, but may be
among the matters to be raised on appeal after a
judgment on the merits. (sa appeal nalang siya)
ATTY: You will file a Motion to suspend proceedings
without a temporary restraining order or injunction
issued by a higher court. (this is now the rule)
These are all prohibited motions.
-Motion for extension of time except a motion for
extension to file an answer, is a prohibited motion.
-Motion for postponement intended for delay, except
if it is based on acts of God, force majeure or
physical inability of the witness to appear and testify.
If the motion is granted based on such exceptions,
the moving party shall be warned that the
presentation of its evidence must still be terminated
on the dates previously agreed upon.
ATTY: Kapag nagpa postpone, meron na sa trial 90
days for the plaintiff and 90 days for the defendant
to present evidence. Pag nag motion for
postponement, papagayan naman yon or ibabawas
yon sa 90-day period mo. Dapat sa presentation of
evidence is within that 90-day period.
PRE-TRIAL
ATTY: What are the changes?
Answer:Yung new rules of pre-trial and modes of
discovery. Before you still need to file an ex parte
motion to set the case for pre-trial for the plaintiff
pursuant to the reply but today, no need. After the
last pleading is filed, pwedeng rejoinder, pwedeng
supplemental pleading or pwedeng hanggang
answer lang.
After the last pleading is filed, the branch clerk of
court shall issue, within five (5) calendar days from
filing, a notice of pre-trial which shall be set not later
than sixty (60) calendar days from the filing of the
last responsive pleading.
ATTY: Now, baliktad na ang rules. Pati sa pre-trial,
ma uuna na muna yung preliminary conference of
the clerk of court.
Sa NEW RULES, 1) WALA NG PRELIMINARY
CONFERENCE OF CLERK OF COURT. Tinangal
na and 2) BALIKTAD NA ANG PROCEDURE.
Before, before you have a pre-trial proper mag
kakaroon muna ng mediation but NOW, MA UUNA
NA YUNG PRE-TRIAL.
After the pre-trial, there is only 30 days non-
extendable period to conduct a court a mediation,
after that if there is a possibility that the case will be
settled, pwede i-refer ang kaso sa JDR ( Judicial
Dispute Resolution) or to another branch, another
court, another judge, but only for a period of 15 days
and that 15-day period is non-extendable in
character for the JDR.
Remember that the 15-days will be carried over to
the 90 days of the plaintiff and 90 days of the
40
defendant. The 90 days will be subtracted due to the
JDR.
PROCEDURE OF PRE-TRIAL in the New Rules:
1. Automatic Pre-trial
2. Pre-marking
(some missing; wala gi continue ni atty. Wa jud klaro
huhu)
3. Court Annexed Mediation
4. JDR
ATTY: Baliktad na yung procedure.
JUDGMENT AFTER PRE-TRIAL
Question: Pwede ka bang mag reserve ng evidence
after pre-trial?
Answer: Pwede po pero you must comply with this
requirement:
i. For testimonial evidence, by giving the name or
position and the nature of the
testimony of the proposed witness;
ii. For documentary evidence and other object
evidence, by giving a particular description
of the evidence.
NOTE: No reservation shall be allowed if not made
in the manner described above.
ATTY: Eto ang importante, kapag sa pre-trial
ngayon hindi lang ang parties ang mag appear pati
na ang counsel.
If the party and counsel are absent without just
cause, they are deemed to avoid the objection or the
truthfulness, faithfulness and genuineness of the
reproduction and execution thereof, pag wala ka
doon you are deemed to have waived your objection
. etc. aabutin soya ng maximum period of 10 months
Another thing, if you are not present during the pre-
trial, you failed to bring the required evidence and
wala yung answer mo, sa pre-trial brief mo hindi mo
na dala, in these instances, you are deemed to have
waived the presentation of the said evidence.
Another thing to remember is you are not only
required to appear during the pre-trial but also during
the court annexed mediation and the JDR.
If the party failed to appear, if you are the plaintiff
and counsel without valid cause, the case will be
dismissed. That is the ground of dismissal of an
action pag di dumating sa pre-trial, mediation at
JDR. It will result to dismissal without prejudice,
ATTY; If the defendant and his counsel failed to
appear, the plaintiff will be given a period of ten (10)
calendar days and failed to present evidence ex
parte. (under the old rules, this does not apply)
The Most Important Witness Rule where the court
shall determine the most important witnesses and
limit the number of such witnesses and require the
parties and/or counsels to submit to the branch of
clerk of court the names, addresses, and contact
numbers of the witnesses to be summoned by
subpoena. (this was asked in the BAR before)
ATTY: In the judgment of pre-trial, this is a favorite
in the BAR, in the new rules in the pre-trial, if there
is a summary judgment hindi pwede mag render ng
summary judgment agad during the pre-trial, pero sa
old rules sa 1964 pwede. Pero sa 1987 rules hindi
na pwede yon.
Yung sa 1964 rules, pwede na si judge motu propio
include the summary judgment during the pre-trial.
The judge can state that this case can now have a
summary judgment or judgment on the pleadings
without the need of any submissions of any position
papers or memoranda. You can expedite the
proceedings, you can cut it short.
ATTY: Kapag meron ng summary judgment or
judgement on the pleadings hindi na pwede ang
certiorari and mandamus. You can no longer file a
petition for certiorari and mandamus.
Likewise sa trial, 90 days for plaintiff and 90 days for
the defendant for the presentation of evidence. This
means it is six (6) months, 3 months each for both
parties. Aabot lang po hanggang 10 months yan
kapag meron cross-claim, third-party claim, rebuttal,
for the conduct of trial. No more, no less.
VILLA END 4: 18: 07
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