2020 BAR EXAMINATIONS TRIAL

REMEDIAL LAW
(PART 1)

LEGAL EDGE BAR REVIEW CENTER

legaledge8@gmail.com
0942-949-9176 / 0917-894-5356

A.1

Discuss briefly the following:

a) Doctrine of adherence to jurisdiction. (2%)

b) Doctrine of hierarchy of courts. (2%)
c) Doctrine of non-interference. (2%)

SUGGESTED ANSWER:

a) It means that ones jurisdiction has attached, it cannot be ousted by subsequent happenings or
events, although of a character which would have prevented jurisdiction from attaching in the
first instance. The court, once jurisdiction has been acquired, retains that jurisdiction until it finally
disposes of the case (Bantua vs. Mercader, 350 SCRA 86; Padlan vs. Dinglasan, 694 SCRA 91,
98-99).

b) Under the doctrine of hierarchy of courts, where courts have concurrent jurisdiction over the
subject matter, such concurrence of jurisdiction does not grant the party seeking relief the
absolute freedom to file the case in court of his choice. Pursuant to the doctrine, the case must
be filed first to the lowest court possible, having appropriate jurisdiction (Servo vs. Philippine
Deposit Insurance Corp., G.R. No. 234401, December 5, 2019).

c) The doctrine of non-interference holds that the courts of equal and coordinate jurisdiction cannot
interfere with each other’s order (Lapu-Lapu Development and Housing Corp. vs. Group
Management Corp., 388 SCRA 493, 508). Thus, RTC has no power or authority to nullify or
enjoin the enforcement of a writ of possession issued by another RTC (Suico Industrial
Corporation vs. CA, 301 SCRA 212, 213).

A.2

Roberto is the owner of a parcel of land located in Balanga City, Bataan with an assessed value of
Php100,000.00. Chito, a resident of Malolos City, Bulacan, encroached over Roberto’s land in Balanga
City and claimed ownership thereof. At some other time, Chito happened to have borrowed money from
Roberto in the amount of Php1,000,000.00. The same remained unpaid to this day. Thus, Roberto filed
a complaint against Chito before the Regional Trial Court of Malolos City, joining in one complaint the
Action for Recovery of Possession of the land in Bataan and the Action for Sum of Money. Chito filed
an Answer raising improper venue as an affirmative defense with respect to the Action for Recovery of
Possession of the land in Balanga City.

If you are the judge, how will you rule on Chito’s affirmative defense of improper venue? (2.5%)
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SUGGESTED ANSWER:

I will deny the affirmative defense of improper venue.

A party may join causes of action provided the conditions in Section 5, Rule 2 are complied with. One
of the condition therein is that “where causes of action are between the same parties but pertain to
different venues or jurisdictions, the joinder may be allowed provided one of the causes of action falls
within the jurisdiction of the said court and venue lies therein.

In this case, the two causes of action are between the same parties and they pertain to different venues
or jurisdictions. Thus, the two (2) causes of action may be filed in the RTC Malolos, the latter having
jurisdiction and the proper venue over Action for Sum of Money.

Hence, the affirmative defense of improper venue should be denied.

A.3

Plaintiff ABC (Plaintiff) filed a complaint against defendant DEF (Defendant). The Court issued
summons to the defendant. On March 1, 2019, the Sheriff left the Summons to the guard of the
subdivision where the defendant was residing. The guard informed the defendant about the summons
he received from the Sheriff and based on the Summons, he informed the defendant that he should
answer the Complaint within fifteen (15) days.

On March 15, 2019, Defendant filed a Motion for Extension of Time within which to file Answer up to
March 30, 2019, which was granted by the Court. On March 29, 2019, defendant, instead of filing an
Answer, filed a Motion to Dismiss on the following grounds: 1) that the Court did not acquire jurisdiction
over his person, 2) statute of frauds, and 2) failure to state a cause of action.

If you are the judge, how will you rule on the Motion to Dismiss filed by the defendant? (2.5%)

SUGGESTED ANSWER:

I will deny the Motion to Dismiss.

Under the 2019 Amendment to the Rules on Civil Procedure, the only grounds which may be invoked
in a Motion to Dismiss are: 1) lack of jurisdiction; 2) litis pendencia; 3) res judicata; and, 4) prescription
(Section 12, Rule 15). Other grounds should be alleged as affirmative defenses in the Answer.

In the case at bar, the three (3) grounds invoked by defendant are not proper grounds for a Motion to
Dismiss.

Thus, Defendant’s Motion to Dismiss should be denied.

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A.4

XYZ Co. filed an action for judicial foreclosure against Lita before the Metropolitan Trial Court of Pasay
City. Before the filing of the complaint, Lita executed a Promissory Note in favor of XYZ Co. in the
amount of Php450,000.00, secured by a real estate mortgage over her property with an assessed value
of Php15,000.00. Lita failed to pay said Promissory Note which led to XYZ Co.’s filing of the complaint
for judicial foreclosure. Lita filed a Motion to Dismiss on the ground of lack of jurisdiction. Should the
motion be granted? (2.5%)

SUGGESTED ANSWER:

The motion to dismiss should not be granted. MeTC of Pasay has jurisdiction.

Foreclosure of real estate mortgage is real action (Racpan vs. Barroga-Haigh, G.R. No. 234499, June
9, 2018). Thus, its jurisdiction is dependent on the assessed value of the real property.

Considering that the assessed value of the mortgaged real property in the case at bar, is Php15,000.oo,
then it is within the jurisdiction of MeTC Pasay.

Therefore, the motion to dismiss should not be granted.

A.5

Petitioner Paglaum Management and Development Corp. (PAGLAUM) is the registered owner of three
parcels of land located in the Province of Cebu. In 1994, Union Bank extended HealthTech a credit line
in the amount of P10,000,000. To secure this obligation, PAGLAUM executed three Real Estate
Mortgages in favor of Union Bank. Section 9 of the Real Estate Mortgage Deeds provide as follows:

Section 9. Venue. – The venue of all suits and actions arising out of or in connection with this Mortgage
shall be in Makati, Metro Manila, the parties hereto waiving any other venue.

May PAGLAUM file an action for annulment of mortgages with the RTC of Cebu? (2.5%)

SUGGESTED ANSWER:

No. PAGLAUM cannot file an action for annulment of mortgage with RTC of Cebu.

Exclusive venue may be agreed upon by the parties. Section 4, Rule 4 provides that the venue under
Rules 4 will not apply where the parties have validly agreed in writing before the filing of the action on
exclusive venue of the action.

Here, the venue agreed upon by the parties are exclusive, as the parties waives all applicable venues.

Thus, PAGLAUM cannot file an action for annulment of mortgage with the RTC of Cebu as the parties
agreed that the action should be filed in Makati only.

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A.6

On May 12, 2005, the plaintiff filed with the Regional Trial Court of Quezon City a Complaint for the
collection of P250,000.00. The defendant filed a Motion to Dismiss the Complaint on the ground that
the court has no jurisdiction over the action since the claimed amount of P250,000.00 is within the
exclusive jurisdiction of the Metropolitan Trial Court of Quezon City.

Before the Court could resolve the Motion, the plaintiff, without leave of court, amended his complaint
to allege a new cause of action consisting in the inclusion of an additional amount of P200,000.00,
thereby increasing his total claim to P450,000.00. The plaintiff thereafter filed his Opposition to the
Motion to Dismiss, claiming that the Regional Trial Court has jurisdiction over his action.

Rule on the Motion of the defendant with reasons. (2.5%)

SUGGESTED ANSWER:

The motion to dismiss should be denied.

Amendment to the pleading is a matter of right at any time prior to the service of the responsive pleading
(Section 2, Rule 10). This is regardless of the nature of amendment. The same is true even if what is
to be amendment is the jurisdictional defect in the allegations in the Complaint (Gumabay vs. Baralin,
77 SCRA 258). Amendment is still a matter of right despite the fact that a motion to dismiss has already
been filed. This is because a motion to dismiss is not a responsive pleading (Alpine Lending Investor
vs. Corpuz, 508 SCRA 45, 48-49; Republic vs. Ilao, 4 SCRA 106; Remington Industrial Sales vs. CA,
382 SCRA 499, 506).

In the case at bar, the amendment was effected prior to the service of responsive pleading.

Thus, the motion to dismiss should be denied as the plaintiff was able to amend the jurisdictional defect
in his complaint.

A.7

Lito filed a Complaint for Sum of Money against Carlito and Carlos as each of them owes Lito the
amount of Php1,000,000.00. Carlos is indebted to Carlito in the amount of Php1,000,000.00
representing the unpaid purchase price of the land which Carlito sold to Carlos. After due proceedings,
judgment was rendered adjudging Carlito and Carlos to pay Lito Php1,000,000.00 each. The judgment
became final and executory. Thus, Carlito and Carlos paid to Lito their respective judgment obligation.

Later, Carlito filed a collection suit against Carlos to collect from him the amount of Php1,000,000.00
representing the unpaid purchase price for the land he sold to Carlos. Carlos filed a Motion to Dismiss
on ground of res judicata, contending that the claim of Carlito should have been set up as a cross-
claim.

The Court granted the motion. Is the ruling of the Court correct? Explain. (2.5%)

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SUGGESTED ANSWER:

The ruling of the Court is not correct.

A cross-claim is 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 therein. Such cross-claim may
cover all or part of the original claim (Section 8, Rule 6). Hence, the claim of a co-defendant must be
related to the original action or of counterclaim therein.

Here, the claim of Carlito against Carlos is not related, whatsoever, to the original action. Hence, this
claim cannot be set up as cross-claim. Therefore, there is no res judicata as this claim can still be
ventilated in a separate action.

Hence, the ruling of the Court is not correct.

A.8

Plato filed an Action for Collection of Sum of Money against Socrates in the amount of PhP24M.
Socrates happened to have extended a loan to Aristotle in the amount of Php24M which has become
due and demandable without Aristotle paying the same. Socrates filed a Motion to Admit Third-Party
Complaint against Aristotle. In his Third-Party Complaint, Socrates prayed that in the event that Aristotle
is found indebted and liable to him, Aristotle should be ordered to pay Plato the amount which he
borrowed from Socrates.

Should the Court admit the Motion to Admit Third-Party Complaint? (2.5%)

SUGGESTED ANSWER:

The Court should not admit the Third-Party Complaint.

Under Section 11, Rule 6, 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.

It appears from the third-party complaint of Socrates against Aristotle that it arose from a transaction
which is entirely different from the main action. The issue in Socrates’ third-party complaint is
extraneous to the issue in the main case.

Thus, the Court should not admit Socrates’ third-party complaint.

A.9

Owen, who lives in Paranaque, owns a five-hectare land located in Pakil, Laguna, which he bought
from Wendell. Benjamin, a politician in Pakil, Laguna, sneaked his way into the land of Owen. As Owen
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was too busy attending to his business in Paranaque, he discovered Benjamin’s occupation only after
two (2) years. Two (2) months after Owen’s discovery, he filed an Action for Forcible Entry before the
MTC of Pakil, Laguna. Benjamin filed a Motion to Dismiss on the ground of lack of jurisdiction over the
subject. According to Benjamin, the Complaint did not allege that Owen was in prior physical
possession. He just alleged in his complaint that he is the owner of the subject parcel of land as he
bought the same from Wendell.

Should the Motion to Dismiss be granted? (2.5%)

SUGGESTED ANSWER:

The Motion should not be granted.

In showing the plaintiff has prior physical possession, it is not required that the plaintiff must be in
actual physical possession at the time of dispossession. While prior physical possession is an
indispensable requirement in forcible entry cases, emphasis should be made however that
possession can be acquired not only by material occupation, but also by the fact that a thing is
subject to the action of one's will or by the proper acts and legal formalities established for acquiring
such right. Possession can be acquired by juridical acts. These are acts to which the law gives the
force of acts of possession. Juridical acts were sufficient to establish the plaintiff's prior possession of
the subject property (Mangaser vs. Ugay, December 3, 2014).

In the case at bar, the fact Owen alleged in his complaint that he was the owner of the property as he
bought the same from Wendell is enough to claim that he is in prior physical possession because his
possession can be classified as juridical.

Hence, the motion to dismiss should not be granted.

A.10

Luisito filed against Espinosa a Complaint for Recovery of Possession of real property before the
Regional Trial Court (RTC). Espinosa filed an Answer interposing an affirmative defense of improper
venue. The Court denied the affirmative defense of Espinosa. Believing that the Court committed grave
abuse of discretion in not dismissing the case based on his affirmative defense, Espinosa filed a Motion
for Reconsideration. The Court denied the Motion for Reconsideration. Espinosa then filed a Petition
for Certiorari before the Court of Appeals.

If you happened to be one of the law clerks in the Court of Appeals, what would be your advice to your
Justice who is assigned to write the decision for the Court? (2.5%)

SUGGESTED ANSWER:

My advice would be to dismiss the Petition for Certiorari.

Under the Section 12, Rule 8, if affirmative defences are denied, the order denying the same shall not
be the subject of a motion for reconsideration or petition for certiorari, prohibition or mandamus, but
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may be among the matters to be raised in appeal after a judgement on the merits. So, therefore, petition
for certiorari is prohibited to question the ruling of the Court denying the affirmative defenses.

A.11

A sued B for collection of a sum of money. Alleging fraud in contracting the loan, A applied for a
preliminary writ of attachment with the Court. The Court issued the preliminary attachment after A
had filed a bond. While summons on B was yet unserved, the sheriff attached B’s properties.
Afterwards, summons was duly served on B. B moved to lift the attachment. Rule on the motion. (2.5%)

SUGGESTED ANSWER:

The attachment should be lifted.

Under Section 5, Rule 57, it is provided that “no levy on attachment pursuant to the writ issued under
Section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the complaint, the application for attachment, the
applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the
Philippines.”

In the case at bar, the writ of attachment was filed prior to the service of summons. The Court has not
yet acquired jurisdiction over the person of the defendant.

Thus, the implementation of the writ of attachment is improper. It should, therefore, be lifted.

A.12

a) If the defendant is a corporation, who are authorized to receive summons on its behalf? (2.5%)

b) As a general rule, jurisdiction over the person of the defendant may not be acquired through
summons by publication. Are there exceptions to this rule? If yes, what are these? (2.5%)

SUGGESTED ANSWER:

a) The following are authorized to receive summons on behalf of a defendant corporation under
Section 12, Rule 12:

1) the president
2) managing partner
3) general manager
4) corporate secretary
5) treasurer
6) in-house counsel
7) in their absence or unavailability, their respective secretaries
8) person who customarily receives correspondences for the defendant
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9) receiver or liquidator, if under receivership or liquidation.

b) The following are the exceptions:

1) Actions against defendant whose identity or whereabouts are unknown under Section 16,
Rule 14
2) Actions against residents temporarily out of the Philippines under Section 18, Rule 14.

A.13

PNCC entered into a construction contract with the State of Penang, Malaysia. In relation to the said
contract, Asiavest, a Malaysian company, guaranteed to the State of Penang, the performance of
PNCC’s obligation to the former. PNCC failed to perform its obligation with the State of Penang.
Consequently, Asiavest paid the State of Penang the amount of MYR3.9M. Asiavest filed a collection
suit against PNCC to collect from the latter the amount it paid to the State of Penang basing its cause
of action on Malaysian laws. The PNCC was declared in default. Thus, a judgment by default was
issued by the RTC requiring PNCC to pay Asiavest.

On appeal to the Court of Appeals, PNCC argued that the RTC has no jurisdiction over the subject
matter and that the RTC should have also dismissed the case based on forum non conveniens.

Should the RTC dismiss the complaint based on forum non conveniens? (2.5%)

SUGGESTED ANSWER:

RTC should not dismiss the case based on forum non conveniens.

The determination of whether to entertain a case is addressed to the sound discretion of the court,
which must carefully consider the facts of the particular case. A mere invocation of the doctrine of forum
non conveniens or an easy averment that foreign elements exist cannot operate to automatically divest
a court of its jurisdiction. It is crucial for courts to determine first if facts were established such that
special circumstances exist to warrant its desistance from assuming jurisdiction. Forum non conveniens
is grounded on principles of comity and judicial efficiency. Consistent with the principle of comity, a
tribunal's desistance in exercising jurisdiction on account of forum non conveniens is a deferential
gesture to the tribunals of another sovereign. It is a measure that prevents the former's having to
interfere in affairs which are better and more competently addressed by the latter. Further, forum non
conveniens entails a recognition not only that tribunals elsewhere are better suited to rule on and
resolve a controversy, but also, that these tribunals are better positioned to enforce judgments and,
ultimately, to dispense justice (PNCC vs. Asiavest, G.R. No. 172301, August 19, 2015).

In the case at bar, since PNCC is a corporation organized here in the Philippines, the Philippine court
is the most convenient court to institute the action. Besides, in the given problem, there is no showing
that a case is already filed in Malaysia.

Thus, RTC should not dismiss the case based on forum non conveniens.

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A.14

Cleary, an American citizen, filed a Complaint for Specific Performance and Damages against
Santamaria et.al., on the basis of the Stock Purchase Agreement he entered into with Santamaria,
et.al. It is agreed therein that in case suits are filed in relation to the agreement, Cleary has the option
to institute the case, here or in the US.

Cleary filed the complaint before the RTC of Cebu. Cleary filed a Motion before the RTC to take his
deposition as he intends to use it as his direct testimony. Santamaria opposed the motion on the ground
that deposition cannot be a substitute for an open court examination. Besides, it would be too
cumbersome and costly for Santamaria, et.al., to take the depositions of Cleary. The RTC denied the
Motion.

Is the RTC correct? (2.5%)

SUGGESTED ANSWER:

The RTC is not correct.

The SC rule that utmost freedom governs the taking of depositions to allow the widest scope in the
gathering of information by and for all parties in relation to their pending case. This is regardless of the
fact that the person taking it is a party or the person whose deposition will be taken is a non-resident.
While it is true that the Court can limit the taking of the deposition or even prohibit it to a certain extent
under Section 16, Rule 23, the order prohibiting it must be for good cause shown.

Here, there is no reason to prohibit the taking of deposition. That it is costly and cumbersome to take
the deposition of Cleary is not good reason to prohibit the taking of his deposition (Santamaria vs.
Cleary, G.R. No. 197122, June 15, 2016).

Thus, the RTC should have allowed the taking of deposition of Cleary.

A.15

Carlos obtained a loan from BDC Bank, secured by a real estate mortgage over his parcel of land. On
the allegation that the interest imposed by BDC Bank is unconscionable, Carlos filed an Action for
Annulment of Chattel Mortgage with Damages. At the time of its filing, Carlos’ obligation has already
become due and demandable. In the Answer of BDC Bank, it interposed as counterclaim, the due and
demandable debt of Carlos to BDC Bank. Meanwhile, BDC Bank instituted an Action for Judicial
foreclosure of real estate mortgage.

a) Is the counterclaim of BDC Bank, a compulsory or permissive counter claim? (2.5%)

b) Is the action of Carlos a personal action or a real action? (2%)

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SUGGESTED ANSWER:

a) The counterclaim is compulsory.

In Planas vs. Banaag (17 SCRA 1093), the Supreme Court ruled that in an action by the debtor
against the creditor to prevent extra-judicial foreclosure of chatter mortgage, creditor should file
a counterclaim for mortgage debt and damages, provided the debt is already due.

In the case at bar, the loan obligation of Carlos with BCD Bank is already due and demandable.
Thus, it should be interposed as a compulsory counterclaim.

Hence, the counterclaim of BDC Bank is compulsory.

b) The action of Carlos is a personal action.

Well-settled is the rule that an action to annul a contract of loan and its accessory real estate
mortgage is a personal action. In a personal action, the plaintiff seeks the recovery of personal
property, the enforcement of a contract or the recovery of damages (Chua vs. Total Office and
Services, G.R. No. 152808, September 2005).

A.16

May Certiorari be availed of to question the validity of an ordinance? (2%)

SUGGESTED ANSWER:

Yes. Certiorari be availed to question the validity of an ordinance.

Certiorari under Rule 65 is not confined to assailing the order or judgment of a quasi-judicial or judicial
body or tribunal. Certiorari may also be availed of the question the constitutionality of law or ordinance.
As held in Samahan ng mga Progresibong Kabataan (SPARK), et al. v. Quezon City, as represented
by Mayor Herbert Bautista, et al. (G.R. No. 225442, August 8, 2017), writs of certiorari and prohibition
are considered proper remedies in assailing the constitutionality of an ordinance.

A.17

On account of the negligence of the defendant, the plaintiff filed an action for damages against the
plaintiff for the amount of Php300,000.00 before the Metropolitan Trial Court of Manila. What rule shall
apply: 1) Revised Rules on Summary Procedure, 2) Rules of Procedure on Small Claims, or 3) Ordinary
Rules on Ordinary Civil Action? Explain. (2.5%)

SUGGESTED ANSWER:

It is the Rules on Ordinary Civil Action which will apply.

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The Rule on small claims is applicable in all actions that are purely civil in nature where the claim or
relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money. The money
claim must arise from a demand for payment of money from: 1. Contract of Lease; 2. Contract of Loan;
3. Contract of Services; 4. Contract of Sale; and 5. Contract of Mortgage; or for liquidated damages
arising from contract, or enforcement of barangay amicable settlement or an arbitration award. The rule
on summary procedure is applicable where the claim for money does not exceed Php200,000.00 and
the claim is not covered by the rule on small claims.

Considering that the claim in the case at bar is Php300,000.00 arising from quasi-delict which is not
covered by small claim as to its source or the rule on summary procedure as to the amount, then it is
the rule on ordinary civil action which will govern.

-NOTHING FOLLOWS-

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