LEVEL EIGHT: FILING IN GENERAL

1. What is filing?
- the act of presenting the pleading or other paper to the clerk of court (Rule
13, Sec. 2)

2. What is service?
- the act of providing a party with a copy of the pleading or paper concerned
(Rule 13, Sec. 2)

3. What are to be filed:

a. What is a pleading?
- the written statements of the respective claims and defenses of the parties
submitted to the court for appropriate judgment (Rule 6, Sec. 1)

b. What is a motion?
- an application for relief other than by a pleading (Rule 15, Sec. 1)

c. What is a manifestation?
- a statement indicating the existence, reality, or presence of something

d. What is a notice?
- A legal notification or warning that is delivered in a written format or
through a formal announcement

e. What is a judgment?
- a determination of merits of the case personally written and directly
prepared by the judge, stating clearly and distinctly the facts and the law on
which it is based, signed by him, and filed with the clerk of court.

f. What is an order?
A mandate, precept, a command or direction authoritatively given by the
court

g. What is a constancia?
A document that can serve as a legal evidence of a transaction

4. Aside from the complaint and the answer, what other pleadings may be filed?

a. What is a counterclaim?
- Any claim which a defending party may have against an opposing party
(Rule 6, Sec. 6)

b. What is a cross claim?

- Any claim by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or of a
counterclaim (Rule 6, Sec. 8)
c. What is third party complaint?
- A claim that a defendant party may, with leave of court, file against a
person not a party to the action, called third-party defendant, for
contribution, indemnity, subrogation, or any other relief, in respect of his
opponent’s claim (Rule 6, Sec. 12)

d. Which of these pleadings must be filed with leave of court?

1. Third-party complaint - A claim that a defendant party may, with leave of
court, file against a person not a party to the action, called third-party
 defendant, for contribution, indemnity, subrogation, or any other relief, in
respect of his opponent’s claim (Rule 6, Sec. 12)

5. How are the Answer and other subsequent pleadings and motions filed?
Modes of Filing:
1. Personal Filing – by delivering the copy personally to the Clerk of Court; or
2. Filing by Registered Mail (Rule 13, Sec. 3)

6. What are the different modes of service of pleadings and the corresponding proofs
thereof?
Modes of Service:

1. Personal service. — Service of the papers may be made by delivering

personally a copy to the party or his counsel, or by leaving it in his office with
his clerk or with a person having charge thereof. If no person is found in his
office, or his office is not known, or he has no office, then by leaving the
copy, between the hours of eight in the morning and six in the evening, at the
party's or counsel's residence, if known, with a person of sufficient age and
discretion then residing therein. (Rule 13, Sec. 6)

Proof of Service - Proof of personal service shall consist of a written

admission of the party served, or the official return of the server, or the
affidavit of the party serving, containing a full statement of the date, place
and manner of service. (Rule 13, Sec. 13)

2. Service by mail. — Service by registered mail shall be made by depositing the

copy in the post office in a sealed envelope, plainly addressed to the party or
his counsel at his office, if known, otherwise at his residence, if known, with
postage fully prepaid, and with instructions to the postmaster to return the
mail to the sender after ten (10) days if undelivered. If no registry service is
available in the locality of either the senders or the addressee, service may be
done by ordinary mail (Rule 13, Sec. 7)

Proof of Service - If the service is by ordinary mail, proof thereof shall

consist of an affidavit of the person mailing of facts showing compliance
with section 7 of this Rule. If service is made by registered mail, proof
shall be made by such affidavit and the registry receipt issued by the
mailing office. The registry return card shall be filed immediately upon its
receipt by the sender, or in lieu thereof the unclaimed letter together with
the certified or sworn copy of the notice given by the postmaster to the
addressee. (Rule 13, Sec. 13)

3. Substituted service. — If service of pleadings, motions, notices, resolutions,

orders and other papers cannot be made under the two preceding sections, the
office and place of residence of the party or his counsel being unknown,
service may be made by delivering the copy to the clerk of court, with proof
of failure of both personal service and service by mail. The service is
complete at the time of such delivery. (Rule 13, Sec. 8)

7. What is the order of preference among the modes of service of pleadings?

- Whenever practicable, the service and filing of pleadings and other papers
shall be done personally. Except with respect to papers emanating from the
court, a resort to other modes must be accompanied by a written
explanation why the service or filing was not done personally. A violation
of this Rule may be cause to consider the paper as not filed. (Rule 13, Sec.
11)
8. What is required if the pleading will be served through mail?

Service by mail. — Service by registered mail shall be made by depositing the

copy in the post office in a sealed envelope, plainly addressed to the party or
his counsel at his office, if known, otherwise at his residence, if known, with
postage fully prepaid, and with instructions to the postmaster to return the
mail to the sender after ten (10) days if undelivered. If no registry service is
available in the locality of either the senders or the addressee, service may be
done by ordinary mail (Rule 13, Sec. 7)

Proof of Service - If the service is by ordinary mail, proof thereof shall

consist of an affidavit of the person mailing of facts showing compliance
with section 7 of this Rule. If service is made by registered mail, proof
shall be made by such affidavit and the registry receipt issued by the
mailing office. The registry return card shall be filed immediately upon its
receipt by the sender, or in lieu thereof the unclaimed letter together with
the certified or sworn copy of the notice given by the postmaster to the
addressee. (Rule 13, Sec. 13)

9. May a pleading be served through a private courier?

- Yes, in PSB v. Papa G.R. No. 200469, the court considered service by a
private courier as equivalent to service by an ordinary mail if no
registry service is available in the locality of either the sender or the
addressee.

10. What is the difference between substituted service of pleadings and substituted service
of summons?

Substituted service of pleadings. — If service of pleadings, motions, notices,

resolutions, orders and other papers cannot be made under the two preceding
sections, the office and place of residence of the party or his counsel being
unknown, service may be made by delivering the copy to the clerk of court, with
proof of failure of both personal service and service by mail. The service is
complete at the time of such delivery. (Rule 13, Sec. 8)

Substituted service of summons - If, for justifiable causes, the defendant cannot be
served within a reasonable time as provided in the preceding section, service may
be effected (a) by leaving copies of the summons at the defendant's residence with
some person of suitable age and discretion then residing therein, or (b) by leaving
the copies at defendant's office or regular place of business with some competent
person in charge thereof. (Rule 14, Sec. 7)

11. What is a notice of lis pendens?

- An announcement to the whole world that a particular real property is in
litigation, serving as a warning that one who acquires an interest over the
said property does so at his own risk, or that he gambles on the result of the
litigation over the said property. (AFP Mutual Benefit Association Inc., v.
CA G.R. No. 104769)

12. How may a notice of lis penden be cancelled?

- The notice of lis pendes may be cancelled only upon order of the court,
after proper showing that the notice is for the purpose of molesting the
adverse party, or that it is not necessary to protect the rights of the party
who cause it to be recorded. (Rule 13, Sec. 14)

13. Non-filing
a. Give three instances when a pleading or motion is deemed not filed even if it is
submitted to the Court.
- Rule 7, Sec. 3 – of the pleading filed is unsigned which produces no
legal effect
- Rule 13, Sec. 5 – if the pleadings were not served under the mode
enumerated therein.
- Rule 13, Sec. 12 – if there was no proof submitted when the pleadings
were served.

b. Effect if Answer is not filed: Default

b.1. What is the Doctrine of Default?

- 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. Rule 9,
Sec. 3

b.2. What is the philosophy underlying the Doctrine of Default? (Momarco Import
Company Inc. vs. Felicidad Villamena G.R. No. 192477 July 27, 2016)
- The underlying philosophy of the doctrine of default is that the
defendant's failure to answer the complaint despite receiving copy thereof
together with summons, is attributable to one of two causes: either (a) to
his realization that he has no defenses to the plaintiff's cause and hence
resolves not to oppose the complaint, or, (b) having good defenses to the
suit, to fraud, accident, mistake or excusable negligence which prevented
him from seasonably filing an answer setting forth those defenses. 

b.3. What are the requirements before a defendant may be declared in default?
(Spouses Benedict and Sandra Manuel Vs. Ramon Ong G.R. No. 205249)
Three requirements which must be complied with by the claiming party
before the court may declare the defending party in default:

(1) the claiming party must filea motion asking the court to declare
the defending party in default;
(2) the defending party must be notified of the motion to declare
him in default;
(3) the claiming party must provethat the defending party has
failed to answer within the period provided by the Rule.

b.4. What are the remedies of a party who has been declared in default? (Robert
Otero vs. Roger Tan G.R. 200134 August 15, 2012)

Remedies available to party who has been declared in default, to wit:

a) The defendant in default may, at any time after discovery thereof and
before judgment, file a motion, under oath, to set aside the order of default
on the ground that his failure to answer was due to fraud, accident,
mistake or excusable neglect, and that he has meritorious defenses; (Sec 3,
Rule 18)

b) If the judgment has already been rendered when the defendant

discovered the default, but before the same has become final and
executory, he may file a motion for new trial under Section 1(a) of Rule
37;
 c) If the defendant discovered the default after the judgment has become
final and executory, he may file a petition for relief under Section 2 of
Rule 38; and

d) He may also appeal from the judgment rendered against him as contrary
to the evidence or to the law, even if no petition to set aside the order of
default has been presented by him. (Sec. 2, Rule 41)

b.5. What are the requirements before an Order of Default may be set aside?
(Spouses Benedict and Sandra Manuel Vs. Ramon Ong G.R. No. 205249)
Three (3) requisites that must be satisfied by a motion in order "to warrant the
setting aside of an order of default for failure to file answer, are:

(1) it must be made by motion under oath by one that has knowledge of
the facts;
(2) it must be shown that the failure to file answer was due to fraud,
accident, mistake or excusable negligence; and
(3) there must be a proper showing of the existence of a meritorious
defense.

b.6. What are the grounds for appeal in case of default? (Robert Otero vs. Roger
Tan)
A defending party declared in default retains the right to appeal from the
judgment by default. However, the grounds that may be raised in such an appeal
are restricted to any of the following: first, the failure of the plaintiff to prove the
material allegations of the complaint; second, the decision is contrary to law; and
third, the amount of judgment is excessive or different in kind from that prayed
for

c. What is the effect of the non-filing of a pre-trial brief?

- The failure of a party to file his pre-trial brief shall have the same effect as
failure to appear at the pre-trial. (Rule 18, Sec. 6)