Baltik Remedial Law Reviewer Copy

Remedial Law Review Civil Procedure

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Prof. Antonio R. Bautista

This is the Remedial Law Reviewer for the class of Prof. Antonio R. Bautista, as updated by the Class of 2001. This reviewer is now CivPro 1997 Rules-compliant, and takes into account the pertinent substantive laws that have been passed as of this date, as well as Sir’s latest comments in his lectures. Please be advised, however, that due to time constraints, this reviewer was not edited in its entirety. There may ther efore be errors – typographical or substantial – that have gone unchecked. While reading this reviewer, kindly crossreference with the 1997 Rules of Civil Procedure, your own lecture notes, and other legal materials which you trust. The updated, clean version will be released before April 2001 in time for Bar review. Promise.

I.

I NT R O DU CT I O N Remedial law is also known as adjectiv e lawyer or procedur al law. Prof. Bautista likes to call remedial law as the lawyer’s law – the rules of the lawyer’s game. Even if you are not in litigation, one needs to know remedial law. For example, in contract drafting, it really helps to know remedial law as the lawyer can anticipate how the contract woul d stand in court. In fact, the great dispar ity of lawyers lies largely due to their knowledge or lack of knowledge of remedial law. The goals of remedial law are: 1. uniformity 2. stability 3. predictability Our law provides for the so-called Katarungang Pambarangay. In these proceedings, anyone can appear except lawyers. Prof. Bautista thinks this can be challenged on the ground that it violates the Equal Protection Clause. Many of the provisional remedies found in the Philippine Rules of Court have been declared unconstitutional in the U.S. In the Philippines, it is the Supreme Court which promulgated the Rules of Court. In the U.S., it is Congress which does so. Therefore, it seems highly unlikely that our Supreme Court will declare their own Rules of Court as unconstitutional. In remedial law the following laws are important: 1. Rules of Civil Procedure 2. BP 129 3. Judiciary Act of 1948 – many of these provisions have not been repealed In San Miguel v. Sec. of Labor, the Supreme Court said that the Supreme Court cannot be deprived of its certiorari jurisdiction. In the case of St. Martin Funeral Homes and Fabian v. Desierto, the Supreme Court said that the Supreme Court’s jurisdiction cannot be increased. The Constitution has given the Supreme Court rule-making power.

Compiled by Remedial Law Class of 2001.


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Brief Historical Outline of Remedial Law

General Order 58 – The U.S. uprooted the Spanish procedure and replaced it with their own rules since the Spanish system was so inefficient and abusive. Ist few acts of Philippines Commission was Act 190. This act overhauled procedural law. It codified the rules on civil and special procedure. 1935 Constitution – vested rule making power in the Supreme Court; there was a transitory provision which provided that until the Rules of Court have been promulgated, the existing statutes (Gen Ord. 58, Act 190 and some other statutes) shall first constitute the temporary Rules of Court. 1940 – Ist Rules of Court (Rule-making power cannot modify substantive rights) 1964 – next revision 1985 – Rules on Criminal Procedure 1988 – Changes on the Rules on Evidence 1997 – Rules on Civil Procedure 2000 – New Criminal Procedure The Supreme Court from time to time, amends the rules on a case to case basis. Furthermore, the Supreme Court issues circulars.

II.

JURISDICTION

It is hard to conceive how any system of law which institutionalizes a mode of settling disputes cannot have a concept of jurisdiction. It is a fundamental concept. The concept of jurisdiction is not easy to grasp. It is elastic and admits of many meanings. It is elusive. It is sometimes confused with mootness, standing, ripeness, etc. Furthermore, lack of cause of action is often times confused with lack of jurisdiction over the subject matter. Generally, a judgment which is final is not vul nerable to attack. If a court rendered judgment without subject matter jurisdiction, the judgment is void ab initio . Thus the voidness can be raised collaterally. In fact, one of the grounds for annulme nt of judgment under Rul e 47 is lack of jurisdiction over the subject matter. In one case, the Supreme Court said that jurisdiction over the subject matter is the power to hear and decide a case with binding and enforceable effect. Without this binding and enforceable effect, the proceedings would be useless. There is a distinction between the competence of the court to entertain an action and the power to render a judgment on the merits. One outstanding feature of subject matter jurisdiction which is stressed is that it is conferred by the legislature. Thus, courts cannot be vested or ousted by jurisdiction over the subject matter by the action of the parties. Sec. 2, Art. VIII of the 1987 Constitution provides that the Congress shall have the



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power to create courts. Thus, it is only Congress which has the power to sole power to do so. Therefore, Congress has plenary power to create courts and define jurisdiction. However, there are limitat ions. Congress cannot diminish the jurisdiction of the Supreme Court. Neither can Congress undermine the security of tenure of the judges. Judicial power is vested in the courts. How much judicial power is vested in these courts is up to congress. Which courts exercise which judicial power is also up to Congress. Features of subject matter jurisdiction:

1. 2. 3. 4. 5.

conferred by law can be raised at anytime to be determined by the allegations of the case determined by the allegations in the pleadings, not the evidence sometimes is territorial

Problem: A shipment of goods by sea from HongKo ng to Manila is cover ed by a bill of lading. The

consignee is unhappy with the shipm ent. He brings an action again st the shipper and the carrie r in Manila. The stipulation in the contract provides that cases should be filed in HongKong. The defendants filed a Motion to Dismiss on the ground that the Manila court has no jurisdiction. Rule on the Motion to Dismiss. Answer: Denied. Jurisdiction is vested by law, and the parties cannot stipulate otherwise.

Prof. Bautista however adds that there is a case in Private International Law which says that in a multi-state transaction, contracting parties may stipulate the choice of forum. Problem: A shipment of goods by sea from HongKo ng to Manila is cover ed by a bill of lading. The

consignee is unhappy with the shipm ent. He brings an action again st the shipper and the carrie r in Manila. The stipulation in the contract provides for an arbitration clause. The defendants filed a Motion to Dismiss on the ground of failure to comply with condition procedure – arbitration. Rule on the Motion to Dismiss. Answer: Denied.

If the plaintiff files a case which is premature or fails to exhaust administrative remedies, then the case can be dismissed for failure to state a cause of action. Since there is no cause of action, the case is not yet ripe for adjudication. When the plaintiff fails to resort to Katarungang Pambarangay according to Supreme Court Administrative Circular 14-93, the case can be dismissed for failure to state a cause of action or failure to comply with condition precedent. However, the Supreme Court also said that the proceedings in court can also be suspended. Thus, according to Prof. Bautista, Bengzon v. Chan is probably still good law. If there is no resort to arbitration before the case is brought to court, the court may suspend the case applying Supreme Court Administrative Circular 14-93. What does lack of capacity to sue contemplate?

The general rule is that the court’s lack of jurisdiction over the subject matter can be questioned. There is an exception – estoppel by lach es as held in the Tijam case. According to Prof. Bautista however, the Tijam case has very peculiar facts. The effect was that the parties conferred jurisdiction by themselves.



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Under sec. 21 (1) of BP 129, RTCs can issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corp us and injuncti on. . Effectively, these RTCs cannot be enjoined if the matter is outside their region. Now, how do we determine the region. Is the region the place where the act takes place or where the person to be enjoined is located? See Dagupan Electric v. Pano. Problem: The complaint prays for damages worth P1,000,000. The complaint is lodged with the RTC. But in truth and in fact, the plaintiff is only entitled to P100,000. Defendant files a Motion to Dismiss for lack of jurisdiction over the subject matter. Rule. Answer: Denied. Jurisdiction is determined by the allegations in the complaint and not the evidence presented. Jurisdiction of the courts is based on amounts. Problem: Complaint prays for sum of money. Actual damages are worth P300,000. Attorney’s fees are worth P 50,000. Interest is worth P60,000. The total amount prayed for is P 410,000. Where do you file the case? Answer: File with the RTC. R.A. 7961 which took effec t on April 15, 1994 expanded the jurisdiction of MTCs. In Administrative Circular 9-94, the Supreme Court in the implementation of RA 7961 clarified that: “The exclusion of the term ‘damages of whatever kind’ in determining the jurisdictional amount under sec. 19 (8) and sec. 33 (1) of BP 129 as amended by RA 7691, applies to cases where the damages are merely incidental to or a consequence of the main cause of action. However, in cases where the claim for damages is the main case of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court.

For an outline of the Jurisdiction (Original and Exclusive, Original and Concurr ent, and Appellate), of the Supreme Court, Court of Appeals, RTCs and MTCs please see pages 48-53 of Regalado. If one wants to challenge the constitutionality of a statute, can the plaintiff go directly to the Supreme Court? No. Lower courts have the jurisdiction to rule on the constitutionality of statutes. The Court of Appeals has exclusive and srcinal jurisdiction over actions for annulment of judgments of the RTCs The Court of Appeals has the power to try and receive evidence in cases where a new trial is sought on the ground that there is newly discovered evidence and in cases where the judgment of the RTC is being annulled. Adoption and matrimonial cases are to be filed with the RTCs. Problem: Plaintiff files an action for ejectment and recovery of P1,000,000. Where do you

file? Answer: No answer given. Problem: Plaintiff files an action to collect P10,000,000. The defendants reside in Q.C. Do you have to go through Katarungang Pambarangay? Answer: Yes. Plaintiff must go through the proce ss in the barangay of the defen dant. However there are exceptions to Katarungang Pambarangay:

1. where 1 of the parti es is the government, its subdiv ision or instrumentality thereto



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2. where 1 party is a publ ic officer or empl oyee and the disp ute relates to the performance of his official functions 3. offenses punishable by impr isonment exceeding 1 year or a fine exceeding P5T 4. offenses where there is no private offended party 5. such othe r cases or disp utes whi ch the President may in the interest of justice determine upon the recommendation of the Sec of Justice (Kindly check the law as this enumeration may be incomplete.) Problem: Plaintiff files an action to foreclose a chattel mortgage which secured a loan of P50,000. Which court do you file? Answer: No answer given. (See the provisions of the Chattel Mortgage Law.)

Q : What cases, if any, fall within the exclusive, srcinal jurisdiction of the SC?

A:

1. petition for certiorari, prohibition and mandamus against the CA 2. petition for certiorari, prohibition and mandamus against the ff: a. Sandiganbayan b. COMELEC c. COA d. DOLE and BLR

Q : What cases, if any, fall within the srcinal jurisdiction of the SC concurrent with the RTC?

A: 1. petition for certiorari, prohibition, mandamus, quo warranto and habeas corpus against person and entities other than courts and administrative agencies whose decisions are appealable to the SC or the CA 2. action to prevent and restrain violation of laws concerning monopolies and combination in restraint of trade (sec 17 Judiciary Act of 1948) 3. cases affecting ambassadors, other public ministers and consuls Q : The legislature is prohibited by the constitution from diminishing the power of the SC as defined in the constitution. Although BP 129 did not repeal directly any jurisdiction of the SC, how did it affect the jurisdiction of the SC?

A : Now, the CA has jurisdiction to issue writs of prohibition and mandamus whether or not in aid of its appellate jurisdiction whereas before BP 129, it could issue writs only in aid of its appellate jurisdiction. So under BP 129, the power of the SC to issue those writs especially against lower courts in cases not in aid of its appellate jurisdiction is diminished since this power is now shared by the SC with the CA. COMMENT: This is not constit utional because the only prohibi tion in the constitu tion is that legislature cannot diminish the jurisdiction of the SC as defined in the constitution. The jurisdiction of the SC by other mode may be removed by law. But if the jurisdiction is granted by the constitution, it cannot be removed. That’s why in 1 case, the San Miguel Corp vs Sec of Labor, at that time the Labor Code provided that a decision of the NLRC is final and executory. It did not say that the SC cannot review them but a contention was made that since it is final, the SC cannot review them. The SC said that it cannot be. Jurisdiction is granted by the constitution. You cannot remove that from us. Jurisdiction of the SC as defined in the constitution cannot be removed nor diminished but that is not so with jurisdiction of any other court. Q : What cases, if any, fall within the appellate jurisdiction of the SC?

A:

1. cases decided by the ff courts and administrative agencies: b. CA c. Sandiganbayan



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d. COMELEC (Art. IX. A., Sec. 7) e. COA (Art. IX. A, Sec. 7) 2. subject matter (fr RTC) a. all criminal cases invo lving offen ses puni shable with death or life imprisonment or reclusion perpetua b. all cases in which the const itutionality or validity of any treaty, law, ordi nance or executive order or regulation is in question c. all cases involving the legality of any tax, impost, assessment or toll, or any penalty imposed in relation thereto d. all cases in which the jurisdiction over the subject matter of lower courts is in issue e. all other cases in which only errors or questions of law are involved Q : Complaint filed in the RTC to recover on PN for P15T, atty’s fees of P5T, and interest accrued as of the time of filing P1.5T . defendant moves to dismiss on the ground of RTC’s lack of jurisdiction. Motion granted. Plaintiff appeals to CA. Resolve the appeal.

A : The CA should dismiss the case outright. (Rule 50, Sec. 2) This is a significant change from the old rules where the CA could certify a wrongly-filed case to the SC. Now, this no longer holds. Q : There was a short shipment in a K for the shipment of goods from HK to Mla. The consignee sued the carrier in Mla RTC. The carrier moved to dismiss on the ground of lack of jurisdiction of the C since it is provided in the Bill of Lading that in case of dispute, it must be brought in the HK RTC. Decide.

A : Motion will not prosper. The clause in the Bill of Lading requiring that the case be brought before the HK courts deprives Philippine courts of jurisdiction over the dispute. The parties can stipulate as to the venue but not with jurisdiction. Jurisdiction is conferred by law and cannot be stipulated by the parties. Therefore, it cannot be removed by the parties. ( But take note of the Zapata ruling in Intl Law which contradicts this rule. That we accept the general principles of international law.) Q : K of affreightment cont aining shipmen t from HK to Mla provid es for an arbitration clause where any claim arising out of the BOL shall be filed only in HK courts. Shipment shortlanded in Mla. Consignee brings action claiming P25T in RTC Mla against vessel owner. Latter moves to dismiss on the ground of lack of jurisdiction on the subject matter involving the stipulation in the BOL. Resolve.

A : Motion denied for lack of merit. Sec 19 (3) of BP 129 as amended by sec 8 RA 7154 vests in the RTC exclusive srcinal jurisdiction where the demand or claim exceed P200T (MM). Admiralty cases which are within the exclusive srcinal jurisdiction of the RTC regardless of the amount involved refer to all maritime K or controversies such as K of affreightment and charter parties. (Fireman’s Fund Ins Co vs Cia General de Tabacos de Filipinas) The stipulation in the BOL is void. (Zapata vs M/S Brenem) Where there is no error or overreaching and there is no showing that the enforcement of the choice-of-law clause would be unreasonable or unjust, the clause must be given effect. Basic in the law on procedure is the doctrine that the jurisdiction of a court over the subject matter of an action is conferred only by the constitution or the law and that the Rules of Court yield to substantive law, xxx, jurisdi ction cannot be fixed by the agreement of the parties; it cannot be acquired through, or waived, enlarged or diminished by any act or omission of the parties; neither can it be conferred by acquiescence of the court. (De Jesus vs Garcia, Calimlim vs Ramirez) (Please check the answer to this one. There is jurisprudence – conflicting though – to the effect that arbitration clauses, absent any fraud or unjustness – must be given effect.)



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NOTE : an action against a defendant involving admiralty and lease falling within the jurisdiction of the RTC and an action for a sum of money against an alternative defendant falling within the jurisdiction of a municipal court, if arising from the same transaction, can be joined in a complaint and filed with RTC (Rizal Surety vs Mla Railroad) Q : Suppose a K between 2 parties states that no action arising from the K may be filed in court without first being submitted for arbitration. One party moves to dismiss the case filed by the other on the ground that that case was not yet submitted for arbitration. Decide.

A : Motion denied. Arbitration clause is proper. This is not an instance of contracting away the court’s jurisdiction. Action is merely suspended. COMMENT : If the K’s wording is such that there can be no action brought to court at all without the case first being brought to arbitration, then that would be putting a restriction to file a case in court and is improper. The clause in the K provides that no suit can be brought to court without first resorting to arbitration. In other words, making use of arbitration as a condition precedent to court action. Thereby a motion to dismiss for failure to comply with condition precedent was argued on that ground. However, the ruling of the SC here is that the action will not be dismissed, it will only be suspended. The parties directed to resort to arbitration. Q : Can a vessel be sued in our courts? A : Yes, if with admiralty jurisdiction. See the Ship Mortgage Decree. Q :What are libel suits in the context of civil procedure?

A : Formerly the initiatory pleadings in actions in admiralty which correspond to the complaint now. Q : Action for unlawful detainer filed in the MTC adding also for the payment of arrears and damages of more than P50T. The defendant moved to dismiss on the ground of lack of jurisdictio n. Resolve.

A: MTC has exclusive srcinal jurisdiction over cases of forcible entry and unlawful detainer. Moreover, damages in this case are merel y incidental to the main case of unlaw ful detainer. ( Also note that separate causes of action of unlawful detainer and damages cannot be joined in the RTC because FEUD is a special civil action.) Q : Can you amend a complaint, a pleading to confer jurisdiction on the court when under the srcinal pleading there was none? A: No answer. Q : Action to foreclose a chattel mortgage ofbetamax worth P8T. Which has jurisdiction? A: Check the chattel mortgage law. Q : If the action is to recover P15T balance from K to buy a car worth P500T, which amount is determinative of the jurisdiction of the court?

A : Amount in the claim. The settled rule is that the jurisdiction of the court over the subject matter is determined by the allegations of the complaint. When is the subject matter “incapable of pecuniary estimation?” Problem: Plaintiff files an action to rescind the contract, where do you file? Answer: RTC since it is not capable of pecuniary estimation.

According to Prof. Bautista, unlawful detainer is effectively a rescission of a contract. However, it must still be brought in the MTC.



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Problem: Plaintiff files a case for specific performance of a contract to sell involving P50,000. Where do you file? Answer: RTC. Problem: Plaintiff files a case for specific performance of a contract to sell involving P50,000 with alternative prayer of P50,000 worth of damages. Where do you file? Answer: Check jurisprudence. There are 2 scenarios:

(1) If the alternative prayer can be granted with out granting the main prayer, the cas e is capable of pecuniary estimation and should therefore be filed in the MTC (since the amount of P 50,000.00 is within the jurisdictional limits of the MTC). (2) However, if the alternative prayer cannot be granted without first determining the

main prayer, the case remains incapable of pecuniary estimation, and therefore the case must be filed in the RTC. A contract is renewable for 5 years. Plaintiff files an ejectment suit, alleging that the lease has expired with the MTC. The defendant alleges as an affirmative defense that he is entitled to renewal. The defendant files a Motion to Dismiss on the ground of lack of jurisdiction of the MTC alleging that the RTC has jurisdiction since the subject matter is incapable of pecuniary estimation. According to Prof. Bautista, the Supreme Court said that if it is an interpretation of court, then the subject matter is not subject to pecuniary estimation. Q : Action for rescission of K with prayer for damages amounting to P100T. What court has jurisdiction?

A : RTC Q : What if damages sought is only P10T?

A : RTC. Prayer for damages is incidental to action. Q : What if action for rescission or P10T damages?

A : MTC. The alternative prayer moots lack of pecuniary estimation. Q : What if action is for specific performance?

A : RTC because incapable of pecuniary estimation. Q : What is meant by sec 19 (1) of BP 129 “ in which the subject of litigation is incapable of pecuniary estimation”? Should not the jurisdiction be determined by the allegations in the complaint and answer? Can you determine the subject matter of the litigation from the complaint alone or also by consideration of all pleadings? A : Jurisdiction over the subject matter is conferred by law. It is determined by the amount pleaded in the complaint under the totality ruling. Atty’s fees are included in the determination of the jurisdictional amount. However, interest and cost of suit are excluded. Q : An action for unlawful detainer on the ground of expiration of lease. The K of lease contained a renewal clause which said that “this lease is renewable for a fixed term or for another year upon mutual agreement of the parties.” There is a principle in law that provisions such as this mean that it is renewable upon the option of the lessee. The defendant moved to dismiss on the ground that the transaction is not capable of pecuniary estimation. How should the court rule?

A : When the subject matter of compromise is the expiration of the K, it is not capable of pecuniary action. If you read BP 129, the jurisdiction of the RTC it is said that the subject matter of litigation cannot be determined by complaint. Now where the subject matter is the rescission of mortgage, it is not capable of



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pecuniary estimation. If your cause of action is specific performance or rescission together with damages, there are 2 bases for determining jurisdiction.

Q : Action filed with the RTC to fix a period for K of lease filed by the lessee against his lessor. Defendant-lessor counterclaims for unlawful detainer on the ground that the term of the lease had expired for which prior demand is not necessary when the ground for ejectment is expiration of a lease term. Can the RTC entertain the counterclaim?

A : No. Rule 6, Sec. 7 provides that a compulsory counterclaim, to be cognizable, must be within the jurisdiction of the court both as to the amount and the nature thereof. An unlawful detainer action is within the exclusive srcinal jurisdiction of the MTC. Therefore, the RTC must dismiss the countercl aim. (Double-check this, however.) Q : The political counselor of the Cuban Embassy is renting a house for his personal use and that of his family. Monthly rent of P40T. in arrears for 3 months. Action for unlawful detainer to eject them. In what court should the action be brought?

A : In MTC. BP 129 sec 33 (2) . The political counselor is not a public minister or consul hence Art 8 of constitution is not applicable. Q : Is there any decision of the MTC which can be appealed directly to the CA?

A : No. Rule 40, Sec. 1 provides that appeals from judgments and final orders of the MTC are taken to the RTC exercising jurisdiction over the area to which said MTC pertains. Q : What court has jurisdiction over guardianship cases?

A : RTC Q : Action for unlawful detainer to eject tenant and recover rentals due of more than P120T. Even before the tenant could be served summons, he voluntarily left the place. When he received the summons he filed a motion to dismiss. Case was filed in the MTC. Decide.

A : Motion is denied. The jurisdiction of a court whether in criminal or civil cases, once attached cannot be ousted by subsequent happenings or events, although of a character which would have prevented jurisdiction from attaching in the first instance. Is it really true that the parties cannot confer jurisdiction on a court? look at Tijam vs Sibonghanoy; after trial before the RTC then appeal to CA, at the CA level,

defendant questioned jurisdiction of RTC; CA used principle of latches applied to estop the defendant from raising the issue of lack of jurisdiction

III.

VENUE

If there’s a stipulation as to venue, it must be to the effect that it is the ONLY venue. Meaning, it must be exclusive. Otherwise, the plaintiff can file in other venues. In Eastern Insurance v. Cui, the Supreme Court said that a 3 RD party plaintiff and 3rd party defendant are subor dinate to the principal action. The 3 rd party plaintiff and 3 rd party defendant cannot control the venue of the main action. Questions on venue should be raised at the earliest time possible because you have to resolve it at once. So that where objection to venue is denied, elevate it to higher court at once on certiorari.



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IV. PARTIES Q: What are the different modes by which a person becomes a party in a civil suit? A: 1. When you sue

2. 3. 1. 2.

When you are sued Impleaded later thru third–party (etc) complaint Intervention Defendant on a counterclaim (Rule 6 Section 14) - brought as new party

The following are parties: 1. plaintiff 2. defendant 3. 3rd party plaintiff 4. 3rd party defendant 5. cross plaintiff 6. cross defendant 7. intervenor 8. plaintiff in co unterclaim 9. defendant in counterclaim 10. sureties (Surety becomes a party when the bond is filed – i.e. attachment bond – answers for damages in case attachment is improper; supersedeas bond – bond to stay execution [ sec. 19, Rule 70]. If there is no judgment surety is discharged. One cannot file a separate action to recover against the surety since that would be multiplicity of suits. See also sec. 47 (b), Rule 39) Due process demands that no judgment can bin d one who is not a party. This is one legal significance of being a party. Another implication of parties is that parties are entitled to notice as to orders, pleadings, etc. They can also take part in the proceedings. In the Rules of Court, parties are limited to the following (sec 1, Rule 3): a. natural persons b. juridical persons c. entities authorized by law Note however that a vessel may be a party to a civil litigation under the Ship Mortgage Decree. Q: Can Winlaw sue, assuming it is not incorporated? A: NO, Winlaw cannot sue in Philippine courts since it does not have capacity to sue. It is not a juridical

person. Q: Can it be sued? A: Yes, under Rule 3, section 15. It comes under the term business association. The section is not

limited to business association and is extended to non-profit or charitable associations. Rule 3, sec. 15 – Entity without juridical personality as defendant – when 2 or more persons not organized as an entity with juridical personality enter into a transact ion, they may be sued under the name by which they are generally or commonly known. Q: May a foreign corporation doing business in the Philippines be sued? How about if it wants to sue?

How about counterclaim if it is sued; permissive or compulsory?



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A: These are the rules for foreign corporation doing business in the Philippines:

1. With license – can sue and be sued. 2. Without license – cannot sue but can be sued. 3. Isolated transaction – Foreign corporation can sue, e.g. well-known mark. Note that the phrase “doing business in the Philippines” is defined in RA 5455.

Mrs. Eva Fonda, 16, is a movie actress. She went shooting in the jungle s of Mindoro. She was accidentally shot by a hunter so she was hospitalized, thus taken out of the picture. She brought an action against LVN and against the hunter. What is her capacity to sue? Can she sue alone? A: No. She has to be joined and assisted by her father, since she is a minor. A minor is no longer emancipated by marriage. In the alternative, she must be joined by her mother, guardian, or guardian ad litem. PROBLEM:

Problem: Eva Fonda, married, 19, is a movie actress. While shooting on location in Mindoro,

she was shot in the leg by D, a hunter. She is unable to complete the movie. She is replaced by Ara Mina. Eva sues for tort. Is there a problem with capacity to sue? Can she sue alone, without her husband? Answer: Yes, the suit involves her exercise of profession. It does not involve conjugal property of the spouses. If Eva Fonda sues both D, the hunter, and the movie company, there would be 1 plaintiff with 2 defendants and 2 causes of action (tort and breach of contract). It is necessary to inquire if there is a proper joinde r of parties under sec. 5 (a), Rul e 2. One cannot have a joinder of causes of action if the parties are misjoined. The parties are properly joined becaus e there is the same transaction AND involves common questions of law and fact. In this case, ther e is a common question of fact. The fact that Eva Fonda was shot led to her being unable to finis h the film. Plus, the movie company may be guilty of contributory negligence since it should have made sure that no harm would come to Eva.

Where a corporation can sue, a compulsory counterclaim not set up in the same proceeding will be barred and that permissive counterclaim not set up is not barred. REAL PARTY IN INTEREST

The rationale for requiring that there be real parties in interest is that if the courts are allowed to adjudicate moot and hypothetical cases, then there may be an overlap of legislation. Sec. 1, Art. VIII of the Constitution provides that the courts can only adjudicate actual controversies. If a party is not the real party in interest, he is not entitled to initiate the judicial machinery. Otherwise, that would be a waste of judicial resources. If one is not a real party in interest, then the case can be dismissed on the ground that there is a failure to state a cause of action. Standing is a part of the cause of action. Q: What is the procedural remedy if defendant or plaintiff is not a real party in interest? A: Rule 3, section 11. The parties may be dropped or added by order of the court in 2 ways:

a) by the court’s own initiative b) by motion of any party This may be done at any stage of the action and on such terms as are just. misjoined party may be severed and proceeded with separately.


Also any claim against a


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Q: A building was burned. It was insured. The insurance company paid to the owner the amount of the

insurance under the foll owing documentation: A loan agreement was executed by the owner to the insurance company whereby it was received that the amount paid to the owner may have from the one who caused the fire and obligating the owner to institute the action for such recovery. The owner brings an action for such recovery against defendant alleging that defendant caused the fire. Defendant moved to dismiss on the ground that the owner is not the real party in interest and that it was really the insurer. Resolve the motion to dismiss. A: Motion to dismiss denied. Yes, the owner is the real party in interes t. The test to determ ine whether a party is a real party in interest is whether he stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. More concretely here, suppose the defend ant pays the plaint iff or suppose the judgment is rendered against the defendant ordering the defendant to pay the plaintiff, is the defendant, thereby insulated from having to make payment to anybody else? If so, that is on the same account, then the plaintiff is the real party in interest. Conversely, is the defendant the real party in interest? Yes, if from what he pays it wipes out the obligation then he is the real party in interest. As simple as that. Q: X Co. has fire insurance on its building. It burned and after proper claim, X Co. is paid the insurance.

Under the documentation, “Loan receipt” for P 1 Million, i. e., received on loan to be repaid only in case company is able to reco ver from the party responsible for the fire. D is responsible for the fire. X Co. sues D, the alleged arsonist. D moves to dismiss on the ground of failure to state a cause of action as X Co. is not the real party in interest and the real party in interest subrogated is the insurance company. X Co. says it was not pai d, only loa ned the amou nt by the insurance co. D says in answer that the documentation is a sham. Rule on the motion. A: D’s motion to dismiss sustained. A party, to be qualified to bring an action, must be a real party in interest and the action must be in the name of the real party in interes. The real party in interest ,must have a present substantial interest or such interest of a party in the subject matter of the action as will entitle him, under the substantive law, to recover if evidence is sufficient. Insurance company is the real party in interest in relation to D. REPRESENTATIVE PARTIES (Rule 3, section 3) GENERAL RULE: Unless the action is authorized to be brought in the name of the representative, the

action must be brought in the name of the real party in interest, otherwise, it may be dismissed for failure to state a cause of action. Action by one subdivision owner in a subdivision against the subdivision developer to recover damages for non-compliance with some of the commitments in the contract to sell. The plaintiff instituted the action in his behalf and on behalf of the other subdivision owners as a class suit. Is that a class suit? A: No, see Rule 3 section 12. For there to be a class suit, the parties must have a common or general interest in the subject matter of the litigation, not merely on the question involved. There must be many persons so numerous that it is impracticable to join all as parties. Q:

Rule 3, section 3: If allowed to be brought by the representative: 1. Beneficiary included in the title of the ca se 2. Beneficiary is the real party in interest. Who is a representative? There must be true representation. 1. Trustee of an express trust 2. Guardian 3. Executor/administrator 4. Party authorized by law or by the Rules



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Agent of undisclosed principal acting in his own name: 1. may sue or be sue d without joining the principal 2. EXC: when suit is about things belonging to the principal Q: In a subdivision, the developer puts up a common TV antenna for all residents and assesses them a

sum monthly whether or not the residents use the antenna. P, for and in behalf of all residents, sue the developer re the assessment. Can P properly represent in a class suit? A: Distinguish between common interest in the subject matter and common interest in the legal issue.

Rule 3, section 12. BAUTISTA: Re realty- interest of one is only as to his own house and lot. It is more appropriate to cite

Rule 3, section 6 which authorizes joinder of parties who have a common interest in the same question of fact and law where the relief sought arises, out of the same transaction or series of transactions. Class suit may prosper. (1 Moran 208) Legal implication of a class suit – Everyone will be bound by a judgment even if they disagree. You are being presumptuous in assuming that all residents share that common interest with you. There should be unanimity. Q: City passes ordinance imposing additional tax for park beautification of 10 centavos per movie ticket.

Can X sue to annul the ordinance and recover all he has paid. Can he sue for and in behalf of all other residents in a class suit? How about those who agree to the tax? A: It seems like the class suit cannot be brought by X for he does not satisfy the requisite that the parties

bringing the representative suit be sufficiently numerous or representative of the class and also, Professor Bautista is of the opinion that all residents to be affected should be unanimous in sharing that interest of the plaintiff. INDISPENSABLE PARTIES Q: What should the defendant do if an indispensable party is not impleaded? A: Rule 3, section 11. Note that the body of the provision says that neither misjoinder nor nonjoinder is a

ground for dismissal of action. So move for addition of the new party and if the plaintiff does not comply, you move to dismis s complaint on the ground of Rule 17, section 3. Dismissal of Actions, failure to prosecute. Failure to comply with the Rule for no justifiable cause requi ring the impl eading of indispensable parties for an unreasonable length of time. Q: How do we know if a party is indispensable or not? A: Indispensable parties are those without whom no final determination can be had of an action. Q: Is a junior mortgagee an indispensable party for a foreclosure of mortgage? A: No because final determination of the action can be had without him. BAUTISTA: A party is indisp ensable if you cannot render a judgment in the case with out affecting his

interest. A word more on class suit. An indiscriminate application for the class suit principle may be held bound although he was not really notified of the litigation on the theory that he belongs to a class and that he was properly represented in that class. That is a very violent ruling which must be seemingly resorted to because it is basic that a person should not be bound by a judgment in a case to which he was not a party. And in a class unit, by application of the class-suit principle, a person is risky to apply the principle but it is allowed under the strict requirements of the rules.



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JOINDER OF PARTIES Q: Can a maker and a payee join together as plaintiffs to collect the amount of a check in a suit against

the certifying bank? Are the plaintiffs properly joined? What is the remedy case of a misjoinder? Can you move to dismiss? A: No, misjoinder of parties is not a ground to dismiss an action. They can ask the court to drop the names of the parties misjoined. The court may grant the request on such terms as are just. BAUTISTA: Here is an illustration which is important not so much on the application of that rule but as an

illustration of the way problems in procedure are solved and intersect, interweave and interrelate. That is why one situation can call for the application of myriad procedural rules. This is what makes Remedial Law a little difficult. Actually, it is an exaggeration, everything is easy. You can use the following symbols in your exam. Δ - defendant Π - plaintiff K - contract c/a – cause of action LIN TAN HO VS. REMOLETE

Plaintiff sued 5 defendants on a common cause of action alleging that they are all jointly and severally liable. A and B defaulted. C, D and E answered. After the answer, the plaintiff moved to drop C, D, and E invoking Rule 3, section 11. He Supreme Court said that this is not just. The trial court erred in granting the motion to drop C, D, and E. You have to correlate with the rules on default. If you drop C, D and E that will amount to a substantial amendment of your complaint of which A and B although in default are entitled to notice (Rule 9, section 3a). Second, in Rule 9, section 3c, the evidence presented against non-defaulting defendants is also presented against the defaulting defendants. Why? Because when a person defaults by not answering, it is presumed that he does so knowingly, wittingly, intelligently na sinadya nya. That is why one of the rules on defaul t is that the plaint iff cannot recover more than the amount prayed for. When a party received the compl aint and the summons, he will say, “Ah, P50,0 00 lang pala and hinihingi. Chicken. Anyway, talagang utang ko naman yon, pa bayaan ko, kesa magabogado pa ako.” That’s why he is presumed to have willingly consented to be in default. But when a common cause of action is pleaded against the defendants. Each one has a right to expect that the others will make a common cause with him. Plaintiff, arising out of a series of transactions, has a cause of action to recover on the promissory note from A, another promissory note from B, another from C, etc. The promissory notes arise from the series of transactions. For example: A, B, and C as co-owners bought a resort from the plaintiff (1/3 pro-indiviso). They gave a promissory note in equal amounts. Hindi sya nagbayad. Dinismiss sila ng plaintiff. Q: Can they be joined together in one action? A: Yes. Q: Can he also join another action against C (may utang pa si C na ibang jewelry?). Can the cause of

action be joined? A: No. BAUTISTA: Note that under Rule 2, sec. 5, among the requirements is that there is joinder of parties

which is in Rule 3, section 6. In order for these to be a proper joinder of causes of action where there are multiple parties, there must first be a proper joinder of parties. If there is a misjoinder of parties, the



15


causes of action also multiplied will be misjoined because one of the requirements for joinder of causes of action is proper joinder of parties. Q: The first cause of action is a promissory note. The second is quasi-d elict, damages arisi ng from

physical injuries of a vehicular accident, can they be joined? A: No, because in order for causes of action to be joined together, it is required that they arise out of the same transaction or series of transactions. An action for dama ges arising from quasi-delict is not regarded as a money claim. Q: Now about illustration

Defendant #1 – action on promissory note Defendant #2 – action in promissory note Can they be impleaded together in one complaint? A: No, unless they arise out of the same transaction and also there is a common issue of fact and law

common to defendant 1 and 2, otherwise you will be unnecessarily delaying and dragging one of the defendants into a litigation which he has no concern. SUBSTITUTION OF PARTIES BAUTISTA: We use the term actions which survive and those which do not survive in respect to claim

against the defendant whether you will dismiss them to be prosecuted in the probate court of if it survive, whether to substitute the defendant with his legal representative. But in Civil Law, you also use those terms in connection with whether actions can survive the death of the owner of the action. That is another case. But it is applicable to that case when the plaintiff dies. If his cause of action is one of those which descend or is not extinguished by his death (there are some which are not extinguished by his death, like action for support, action for acknowledgement of a natural child), it survives. Do you suppose there is a difference if the action on a money claim and the defendant dies pending trial, whether the action is in the RTC or inferior cour t? The argument is very strong for the proposition that there is no difference because BP 129 says the procedure is the same. The claims which survive, meaning when the defendant dies bef ore final judgment in the RTC. Please look at Rule 86 Section 5 (Claims Against the Estate). The claims which must be filed in the probate court within the time for filing such claims, otherwise they will be barred are found in Rule 86 Section 5, called the statute of non-claim. These are same claims which do not survive. The claims that survive are enumerated in Rule 87 Section 1. These actions can be brought against the executors or administrators and therefore they survive. Those actions in Rule 87 Section 1 are highly litigious and cannot be resolved summarily by the probate court and a probate proceeding is summary. If the plaintiff is the one who dies, you just substitute him. If the defendant is the one who dies, it depends on what stage he died. If the judgment had already been levied, you can proceed with the levy and sale. If it has not yet been levied, you file the judgment as a money claim in the probate court. In the probate court, you share with the other general unsecured creditors. You will be paid probate if the estate is sufficient. See Rule 3 Section 20. Q: Civil action of libel for damages in RTC. Pending trial, the defendant dies. What happens to the

action? What if it is the plaintiff who dies? A: If defendant dies, there can be substitution of party as the claim is not extinguished. (Rule 3, sec. 16) As to plaintiff dying, same. Action still continues. See also Rule 3, sec. 20. Claims not surviving after death are those for recovery of money, debt, interest. In libel cases, recovery is for damages. Therefore, suit can survive.



16


BAUTISTA: Action not surviving only means that you have to prosecute in another court (probate) and

the case in the regu lar court will have to be dismissed. extinguished.

It is not proper to say that the acti on is

Q: Plaintiff dies during the pende ncy of the libel suit . Action survives and the court orders pla intiff’s

counsel to submit within 30 days for substitution by legal heirs. Counsel does not follow and the court dismisses the action. Is this correct? A: No. See the last paragraph of Section 16, Rule 3. Court may order opposing party to procure appointment of executor who shall immediately appear for deceased. The counsel may be disciplined. Q: Action in the RTC to collect a sum of money based on a promissory note amounting to P401,000.00.

After issues were joined and during the trial, the defendant died. You are the lawyer for the plaintiff, what would you do? A: I will file the case in the probate cour t because the act ion here is a money clai m which does not survive. It dies with the death of the defendant. So the plaintiff has to file it in the settlement of the estate of the defendant. Rule 86 Section 5. Claims which do not survive:

1. 2. 3. 4. 5.

all claims for money arising from contract, express or implied funeral expenses expenses for last sickness money judgment against decedent money debt or interest

Q: What are the actions which survive? A: Real actions, those involving real properties and personal properties. Q: Action to recover damages on personal property. If it survives, what will you do? A: There would be substitution. Q: What if defendant dies after judgment in the RTC and while it is pending appeal in the CA, a money

claim for P50,000 on the promissory note. What do you do, you are the lawyer for the plaintiff. A: I will move for the substitution of the parties and continue with the appeal. Q: Suppose the action is pending trial in the RTC, action to collect on a P50,000 promissory note. The

plaintiff died. You are now the lawyer for the defendant. What do you do? A: Nothing. Q: Can the deceased plaintiff be substituted in all cases? A: No. If the action is personal to the plaintiff, he cannot be substituted.

Rule 87 Section 1:

1. recover real/personal property/interest therein 2. enforce a lien 3. recover damages for an injury to person or property, real or personal Q: Are proper and necessary parties the same? A: Yes. Rule 3 Section 8. Q: Can a co-owner of a row of apartments alone file an ejectment suit against a tenant? A: Yes.



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ALTERNATIVE AND UNKNOWN DEFENDANTS

According to Prof. Bautista, under sec. 6, Rule 3, alternative plaintiffs are allowed, “ … or in the alternative, may except as otherwise provided in these Rules, join as plaintif fs.” Alternative causes of action are allowed under sec. 2, Rule 8. A plaintiff can sue in the alternative is the plaintiff does not know who among the defendants is liable. For example, if paternity is a mystery. According to Prof. Bautis ta, sec. 2, Rule 8 allows for alternative defenses. For example, the defendant borrowed a pot in good condition. When the pot was returned, it was cracked. The defendant files his answer. In it, the defend ant states that he didn’t borrow it or if he did borrow it, it was alre ady cracked, or if he did borrow it, it was returned intact, or the crack was caused by force majeure. However, according to Prof. Bautista, this is not allowed under sec. 3, Rule 7 which provides that the counsel believes that there is good ground to support the pleading. This is not the case. Counsel must be sure. Otherwise, the counsel is subject to appropriate disciplinary action. NEW / ADDITIONAL PARTY IMPLEADER (3rd PARTY COMPLAINT)

Q: What is a third-party complaint? A: A third-party complaint is a claim that a defending party desig nated as the third party plaint iff has against a person not yet a party to the action, called the third-party defendant, for contribution, indemnity, subrogation or any other relief in respect of his opponent’s claim. Q: What is the rationale for allowing 3rd party complaints and actions for interpleader? A: To prevent multiple suits. Q: Does the third-party defendant have to file his answer to the srcinal complaint? A: Rule 11 Section 5, it is provided that the third-party defendant shall file his answer to the third-party

complaint and allege his defenses and counterclaims and cross-claims against the plaintiff, third-party plaintiff and other parties. Q: P sues D to recover purchase price for goods sold to D. D sues X with third-party complaint because

of a promissory note. Is the third-party complaint proper? A: Yes. Rule 6 Section 11. Third-party complaint is proper because it passes the test for the third-party defendant would be liable to the plaintiff or defenda nt for all or part of the plaintiff’s claim against the srcinal defendant although the third-party defendant’s liability arises out of another transaction (1 Moran 282). Q: What is the rule on fourth-party obligation? A: A third-party defendant may proceed against any person not a party to any action who is or may be

liable to him or to the third-party plaintiff for all or part of the claim made in the action against the thirdparty defendant. Illustrations: a.

Contribution – A sues X for collection of P40, 000 based on a promissory note signed jointly and severally with B. X may file a third-party complaint against B for contribution.

b.

Indemnity – S, surety, is sued for recovery of the obligation of M. S may file a third-party

complaint against M for indemnity of whatever amount he may be adjudged to pay.



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c.

Subrogation – The lessor sues the lessee for his failure to make repairs which under the

d.

contract of lease he agreed to do. The lessee may file a third-party complaint against sublessee who failed to comply with the obligation. And Other Relief – X bought a parcel of land from M. Later, B files an action against X to recover the property. X may file a third-party complaint against M for his warranty against eviction.

Problem: Laarni Enriquez sues Loi Estrada for alienation of affections. Can a 3rd party complainant file a

claim for a vehicular accident? Answer: No, the 3 rd party complaint must be in respect of the plaintiff’s claim – contribution, indemnity, subrogation or other relief. rd

Problem: Can a 3theparty defendant raise as defenses in his answer, defenses which are available to the defendant against plaintiff? Answer: Yes, under sec. 13, Rule 6.

The 3rd party complaint must be answered in 15 days except if the court fixes a different period. Even if the requisites of a 3 rd party complaint have been complied with, still it is up to the discretion of the court whether or not to allow the 3 rd party complaint since it may delay the main action. Besides, the 3rd party complainant can always file it in a different action. That’s why it’s always necessary to ask for leave of court when filing a 3 rd party complaint. The plaintiff does not have to amend the complaint in order to hold the 3 rd party defendant liable against him. In the prayer for the 3 rd party complaint, the 3rd party plaintiff prays that if he is adjudged liable to the plaintiff, then it is the 3 rd party defendant who should be liable. A 3rd party complaint basically offers a new defendant. INTERVENTION Problem: Action for sum of money for P1,000,000 is filed by X. Can you as fiancée intervene in the suit? Answer: No, the intervenor must have legal interest.

What if in the same problem, the intervenor is the live-in partner? What if the intervenor is an unsecured creditor of either the plaintiff’s or defendants? What kind of interest is required for intervention? INTERPLEADER

Is there a deadline for filing a interpleader? Is it the prescriptive period under the Civil Code.

IV.

SUMMONS CONCEPT o

o

A writ or process issued and served upon the defendant in a civil action for the purpose of securing his appearance therein. The service of summons enables the court to acquire jurisdiction over the person of the defendant.


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In the absence of service of summons, and unless the defendant waives such defect by his voluntary appearance in court, any judgment rendered in regard to such defendant is null and void.

The general rule is that summons is served by the sheriff or the court offi cer. However, as an exception, the court for justifiable reason allow any suitable person authorized by the court to serve summons (Sec. 3, Rule 14). An example of an instance when a suitable person is authorized by the court to serve summons is when the court is overworked and understaffed or it the court doesn’t know the location. Residence as opposed to domicile is physical. It is possible to have more than one residence.

I.  

Form/Directive (R 14, S. 2) Directed to the defendant Signed by the Clerk of Court under seal

A. File and serve B. Attach copy of complaint and/or order for appointment of a guardian ad litem, if any C. Specification of period within which to answer D. Specification of consequence if D fails to answer, i.e. , judgment by defaul t and grant of relief prayed for 1. 2. 3. 4.

CONTENTS (R14.2) Name of the court Name of the parties to the action A direction that the defendant answer within the time fixed by Rules Notice that unless defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for.

5. Copy of complaint attached Form 2- Summons.

To ___________________________, defendant You are hereby summoned and required to file and serve your answer to the complaint, copy of which is hereby served upon you, within fifteen (15) days after ser vice hereof exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. ___________________,Clerk, RTC of ____________



When an additional defendant is included in the action, summons should be served upon him.



When a defendant is merely substituted for the deceased defendant, such as the substitution of the administrator or the heirs of the deceased, service upon him of the ORDER making him party is sufficient without service of summons.



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II. Issuance and Service A. Who issues? Clerk of Court (R 14, S. 1) upon filing of complaint and payment of the requisite

legal fees Who serves?

1. 2. 3. 4. 1.

sheriff sheriff’s deputy other proper court officer any suitable person authorized by the court issuing the summons Personal

a. handing b. tendering – occurs when the per son refuses (But wha t do you exactly mean by tendering; is putting it under the door tendering?) 2.

Substituted – This is allowed only when the defendant cannot be served summons by

personal service; In the sheriff’s return, there must be a statement that says that personal service is not possible. It must state the efforts exerted by the sheriff. a. Residence – with some person of suitable age and discretion residing therein b. Office – with some competent person in charge thereof •

One cannot leave summons with a receptionist since the person is not in charge of the office.

•

Read the Laus case (219 SCRA 688). This is the law now. The Supreme Court set a very strict standard. The standard is such because substituted service is an extreme case.

3.

Publication

4.

By other means •

What do you mean by other means? Under the Electronic Commerce Act, summons may be served by fax or even e-mai l. However, one cannot serve summons by a pigeon or through smoke signals. According to Prof. Bautista, registered mail is also one of the other means by which summons may be served if the court deems it sufficient.

Extraterritorial service is proper only in 4 instances: 1. when the action affects the personal status of the plaintiff; 2. when the action 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; 3. when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and 4. when the defendant non-resident’s property has been attached in the Philippines For a newspaper to be a newspaper of general circulation, the following elements must concur: 1. it must be a newspaper, i.e. it publi shed local new s and genera l information, not merely feature articles;



21


2. published at regular intervals (not just occasionally); 3. published for the general public and not just a specific group of persons Thus, the Pinoy Times is probably not a newspaper since it does not contain any news articles. It only has featured articles. ( Although as of 1 February 2001, it appears that the Pinoy Times has “evolved” into a newspaper by now publishing predominantly news and matters of general interest.) The Supreme Court in one case said that the Daily Record was a newspaper of general circulation. In some contracts, like international contracts, the parties may agree as to whom summons should be served. The return and the proof of service is not conclusive. III. Where summons effective: Rule 135 (1997)

 Sec. 3 - Process of superior courts enforced throughout RP  Sec. 4 - Process of inferior courts enforceable within the province where the municipality or city lies. May be serve d outside province with the approval of the RTC Jud ge of said province & only in the ff cases:

i) when order for DELIVERY OF PERSONAL PROPERTY lying outside the province is to be complied with;

ii) when an ATTACHMENT of REAL property lying outside the province is to be made;

iii) when the action is against 2 or more defendants residing in different provinces; and

iv) when the place where the case has been brought is that specified in a contract in writing between the parties, or is the place of the execution of such contract as appears therefrom. BP 129, as amended (1980)

 Sec. 38 (2) - Judgments and processes issued by the METC, MTC and MCT C , in cases falling under their jurisdictions, may be served ANYWHERE in the Philippines without the necessity of certification by the Judge of the RTC. IV. Modes of Service of Summons

Note: Important if service is jurisdictional. Handing it to defendant Personal

Tendering it if D refuses to receive it


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Handing v. Tender  note that in both of these modes of personal service , location is not impor tant, so service could be done anywhere, no need for it to be made at the residence of the D WHERE residence Substituted **when D can’t be served within reasonable time

office or place of business

WITH WHOM suitable age & discretion & residing therein competent person in charge thereof

Justifiable reasons for substituted service: (a) staff not available (understaffed) (b) distance (c) identification of person to be sued e..g. Tatalon estate; squatters area/houses with no numbers Publication

2.3.1. 2.3.2.

D whose identity or whereabouts unknown{R 14 (14)} Extraterritorial u HOW DONE?  By leave of court  Either by: a) personal service OR b) publication in a newspaper of general circulation in such places and for such time as the court may order, copy of summons and order of court sent by registered mail to last known address. u Order granting such leave shall specify reasonable time within w/c def must answer  must not be less than 60 days

D does not resident and is not found in RP AND action : ⇒ affects the PERSONAL STATUS of the plaintiff OR ⇒ relates to or the subject matter of which is PROPERTY W/IN RP in which the D has or claims a lien or interest, actual or contingent, OR ⇒ in which the RELIEF demand consists, wholly or in part, in EXCLUDING D from any interest therein OR ⇒ property of D has already been attached w/in RP ** in cases falling under extraterritorial service [R 14(15)], service by publication must be COUPLED with sending of summons and order of the court by REGISTERED MAIL to the last known address of the D

*Registered mail  note the numbering machine has a lock to prevent tampering Resident 2.3.1. first**)

temporarily outside of RP ( but resort to substituted service


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Any other manner the court may deem sufficient Q: Can summons be served by fax/e-mail?

A: SC has allowed it. R 14, S. 15: summons may be sent in any other manne r the court may deem sufficient. Laus v. CA 219 SCRA 688

substituted service allowed only if there is JUSTIFIABLE CAUSE Sheriff must exercise REASONABLE EFFORT to give the summons personally

⇒ ⇒

⇒Sheriff

must substantiate his reasonable efforts (must be thorough) Summons Pleadings & Other papers

Mode of Service

1. Personal * Handing * tendering

1. substituted * residence:

with resident of sufficient age & discretion * office/regular place of business: some competent person in charge thereof

1. publication 2. any other means

ModeofFiling

n/a

1. personal * delivery

party/counsel * leaving it in office with clerk or person in charge * leaving it in residence of party or counsel from 8 am to 6 pm 2. substituted * with clerk of court after personal service fails 3. mail ♦ registered (date of mailing is date of filing) ♦ ordinary

1. personal 2. registered mail • •

1.

to

Final Orders Judgments

&

1. personal 2. mail * registered 3. publication if D summoned by publication fails to appear in action

1. Personal 2. Mail

registered ordinary

Specific Rules: ENTITY WITHOUT JURIDICAL PERSONALITY - service effected upon all the defs by serving upon:  any one of them; or  person in charge of the office or place of business maintained in such name. (R14.8) NOTE: Service shall not bind any person whose connection with the entity has, upon due notice, been severed before the action was brought.



1.

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ASSOCIATIONS a.

DOMESTIC PRIVATE JURIDICAL PERSONS (R14.11) * * * * * *

Note:

President; Managing partner; General Manager; Corporate Secretary; Treasurer; or In-house counsel

This list is EXCLUSIVE! Thus, one cannot leave summons with the Vice President or

Personnel Manager. The case of Summit Trading answered whether or not summons may be left with the secretary of the President. b.

3.

FOREIGN PRIVATE JURIDICAL ENTITY (R14.12) (1) Resident Agent designated in accordance with law; or (2) If no resident agent:  Gov’t official designated by law; or  Any of its officers or agents within the Phil.

PUBLIC CORPORATIONS (R14.13) a. If defendant is the Republic  On Solicitor General b.

If defendant is a province, city, municipality or like public corps  On Executive Head ;or  Other officer/s as the law or the court may direct

3.

MINORS (R14.10)  Upon minor personally; AND  Legal guardian, if he has one, or if none, upon guardian ad litem (appointment to be applied for by plaintiff);  Mother or father – optional

3.

INSANE, INCOMPETENTS(R14.10)  Upon insane or incompetent personally; AND  Legal guardian, if he has one, or if none, upon guardian ad litem (appointment to be applied for by plaintiff);

3.

PRISONERS (R14.9)  Served upon prisoner by the officer having the management of such jail or institution; Said officer deemed deputized as a special sheriff for said purpose “Officer” = Jail warden

3.

UNKNOWN DEFENDANT (R14.14) – by publication o With leave of court, by publication in a newspaper of general circulation in such places and for such time as the court may order



3. 

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RESIDENTS TEMPORARILY OUT OF THE PHIL.(R14.16) By leave of court, service may be effected out of the Phil: a) by personal service; or b) by publication in a newspaper of general circulation in such places and for such ti me as the court may order,  Copy of summons and order of court sent by registered mail to last known address.  BUT REGALADO SAYS: USE SUBSTITUTED SERVICE MUNA before service by publication

3.

NON-RESIDENT - Extra-territorial service (See Above R14.15))

Ì Ì

WAIVER OF SERVICE (R14.20) Defendant’s voluntary appearance equivalent to service of summons. Inclusion in a motion to dismiss (R16) of other grounds aside from lack of jurisdiction over the person of the defendant shall NOT be deemed a voluntary appearance. (R14.20)

PROOF OF SERVICE; ALIAS SUMMONS

R14, S4-5

    

FORM/CONTENT In writing Set forth the MANNER, PLACE AND DATE OF SERVICE Specify any paper which have been served with the process Name of the person who received it Sworn to when made by a person other than a sheriff or his deputy

PROOF OF SERVICE BY PUBLICATION (R14.19) 1) Affidavit of: o the printer, his foreman or principal clerk, or o the editor, business or advertising manager 2) Attach copy of the publication; AND 3) Affidavit showing the deposit of a copy of the sum mons and order of publication in the pos t office, postage pre-paid, directed to the defendant by registered mail to his last known address. RETURN OF SERVICE (R14.4) WHO MAKES THE RETURN: Server (Sheriff, deputy sheriff, or person deputized) WHEN: Within 5 DAYS from completion of service HOW:  Serve copy of return, personally or by registered mail, to the plaintiff’s counsel,  Return summons to the Clerk who issued it, accompanied by proof of service. GEN RULE: Return of service of summons immediately shifts burden of evidence (that summons was

served) from plaintiff to defendant since there’s a presumption of regularity.  Without return of service - burden is on plaintiff XCP: Return was patently irregular XCP to XCP: DOCTRINE OF SUBSTANTIAL COMPLIANCE (i.e., if defendant actually received summons and complaint) ALIAS SUMMONS– (R14.5) Issued by Clerk of Court, upon demand of plaintiff, when:



26


a) summons returned without being served:  Server to make a return within 5 days stating reason for failure of service Copy of return served also on plaintiff’s counsel; OR B) summons lost.

PROBLEMS ON SERVICE OF SUMMONS: Q: A lawy er was a D in an act ion fo r coll ection. When she riff went to hi s hou se to serv e summons, the only perso n he found was D’s daughter who was VISITING the latte r. Can summons be served on the daughter?

A: NO! Rule requires that the person to whom summons may be served must be RESIDING in the D’s dwelling house/residence, not merely a visitor. Q: Defendant is a RP resident. He lives in Forbes park and has an office in Salcedo Village. He left for a five-month vacation in Europe. An action for collection was filed against him. How can he be served with summons.

A: By extraterritorial service, Rule 14, S. 16..Residents temporarily out of the Phil. Q: What to do if service of summons not valid? A: Make a SPECIAL APPEARANCE for the LIMITED and EXCLUSIVE PURPOSE of questioning the

validity of service of summons, to quash it and move to dismiss on the ground of lack of jurisdiction over the person of D. If you add other grounds (e.g. prescription /failure to state a c/a, etc.), you are deemed to have waived the ground because that would be tantamount to an ADMISSION of the jurisdiction of the court . This is because of the OMNIBUS MOTION RULE (R 9, S. 1. Defenses and objections not -pleaded in a MTRD or in the answer are deemed waived.) Q: Is return of the sheriff of the service of summons conclusive on the court? A: NO! it is not conclusive because the recital of the sheriff in the return are FINDINGS OF FACT (e.g. in

the service to the private domestic corporation, the sheriff served it on one of the persons mentioned in Rule). These are very seri ous fact ual issues which even have a heavy legal elem ent. These are reviewable by the court. They cannot take thes e out of judicial review. But there is a presumption of regularity. Q: Can summons be served by registered mail alone? A: NO. Generally, in extra-territorial service, servi ce may, by leave of court be effected out of RP by

personal service as under Sec. 6 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 (so in addition to publication) to the last known address of the defendant, OR in any other manner as the court may deem sufficient (R 14, S. 15) Note that there must be publication first. HOWEVER, in Cariaga Jr. v. Malaya (143 SCRA 441), where extra-territorial service was done by REGISTERED MAIL, the trial judge gave validity to the service of summons, hence, Cariaga filed a petition for certiorari. SC said: “There is no question that the requirement of due process has been met as shown by the fact that defendants ACTUALLY RECEIVED the summons and copies of the



27


complaint and as evidenced by the Registry Return Card x x x . Whatever defect there may have been in the service of summons was aptly corrected by the court a quo in its assailed order x x x which gave said defendants 90 days from receipt of order within which to file their respective pleadings. Defendants have no reason to complain that they were unaware of the action filed against them or claim that they were denied due process.”

Sir Bautista’s interpretation: Extraterritorial service can be made by:

a) b) c) d)

personal service publication Any other manner the court may deem sufficient (includes bus and easy call) Registered mail

Incidentally, Bautista said SEC issued an order that service by bus is valid service. Q: Suppose a motion to dismiss was filed on the ground of lack of jurisdiction over the person because the summons was allegedly improperly served and because of improper venue. Is the first ground waived by being conjoined with the second ground? A: Yes but this puts the D in a quandary. Under the omnibus motion rule (R. 15, S. 8, i.e., motion

attacking a pleading or a proceeding shall include all objections then available for objections not so included are deemed waived), D had to include all objections open to him but the Rule on the other hand says that if he raises a ground other than improper service or summons or lack of jurisdiction over his person, he is deemed to have submitted himself to the jurisdiction of the court. Q: Can you serve summons issued bya court?

A: Siempre hindi unless I am authorized. Q: How about the policeman in the municipality where the court sits?

A: Same answer. Siyempre, he is likewise not authorized. Note: In Bello v. Ubo (117 SCRA 91), the court said the enumeration of who could serve summons is EXCLUSIVE. Hence, aside from the sheriff, his deputy or other proper court officer, all others have to be specially authorized or else service is invalid. In the Bello case, summ ons was not validly served because the POLICE SERGEANT who was not a sheriff or a court officer was not authorized by the court to deliver the summons. Similarly, in Olay v. Anna (90 SCRA 114) where the POSTMASTER of Bato, Leyte was not qualified , service was deemed invalid. Q: Can the sheriff be authorized to serv e summons in Canada? In what cases can be ser ve summons in Canada? Can we not serve summons to Mrs. Marcos?

A: No. Process of the courts effective only within the Philippines just as our judgment cannot be enforced abroad (R. 135, Secs. 3 and 4 & BP 129) Q: An English professor came to you for advice. Final judgement against her was made for a sum of money. Actually, the case wasagainst her husband. Evidently, her lawyer fileda petition in the SC to annul the judgment. According to her, thesheriff’s return read like this: “Summons was served on her maid, 15 years old, Grade 5 education, in her cottage in Area 2. “ She then said that the maid gave her the summons five (5) months later.Was there a valid service of summons?



28


A: NO! The maid is NOT of sufficient age and discretion. She could not have appreciated the importance of the document giv en her. Note however that this defect is curab le by proof that the summons was ACTUALLY DELIVERED to the defendant as when D files a motion to dismiss. (Bautista appealed to the CA on the ground that the service was invalid since the husband is an immigrant (not residing in RP) and service should be by extraterritorial service (by publication). Q: In one case, a lawyer was sued. He was declared in default. He sought to set aside the order of default, even called a psychiatrist to testify. Summons was served on his 21 yr ols son who, according to him, was mentally retarded. He service was made in the 1st floor of his house which was a sari-sari store. Was service valid?

A: SC said YES & scolded the lawyer. SC said that son was of sufficient age and discretion because although mentally retarded, he was tending the store. If he was smart enough to tend the store, he is smart enough to understand the significance of summons. Q: What about substituted service on a receptionist?

A: NO. Rule 14, S 7 says it must be with some competent person in charge of the office or regular place of business. Q: If the complaint is amended, is there a need for issuance of summons?

Answer: It depends. NO if the D has already been served with summons on the srcinal complaint, NO further summons is required on the amended complaint if it DOES NOT INTRODUCE NEW CAUSES OF ACTION (Ong Peng v. Custodio, 3/25, 1961); Yes if the defendant was declared in DEFAULT on the original complaint and the plaintiff subsequently filed an amended complaint. New summons must be served on the D on the amended complaint as the srcinal complaint was deemed withdrawn upon such amendment ( Atkins, Knoll and Co. v Domingo 44 Phil 680).

VI.

PLEADINGS

PLEADINGS – written statements of the respective claims and defenses of the parties submitted to the

court for appropriate judgment (R6.1). PLEADINGS ALLOWED (R6.2) u

The CLAIMS of a party are asserted in a:  Complaint  Counterclaim (CC)  Cross-Claim (XC)  3rd (4th) Party Complaint  Complaint-In-Intervention

u

The DEFENSES of a party are alleged in the:  Answer (answer to CC, answer to XC, answer to 3PC, etc.)

u

An answer may be responded to by a: 

Reply

BP 129, S. 36



29


SUMMARY PROCEDURE IN SPECIAL CASES TO TRY exclusively: FE UD( irrespective of amount of damages) * violations of traffic laws, rules & regulations * violations of rental law (irrespective of paid rentals sought to be recovered) and * other cases as SC determines ♦ ·

RULES to provide that AFFIDAVITS AND COUNTER-AFFIDAVITS may be admitted in lieu of oral testimony and that PERIODS FOR FILING PLEADINGS shall be NONEXTENDIBLE. ♦

Revised Rules on Summary Procedure in MTC Cases, effective 15 November 1991:

In cases under SUMMARY PROCEDURE, the only pleadings allowed are: 1. Complaint 2. Compulsory Counterclaim if not asserted in answer, barred 3. Cross-claim 4. Answer – affirmative and negative defen ses not plead ed are deemed WAIVED except for: lack of jurisdiction over subject matter ♦

***answer to counterclaim must be filed and served within 10 days from service of answer 

All pleadings must be VERIFIED

Gerales v. CA

Pleadings as well as remedial law should be liberally construed in order that the litigant may have ample opportunity to prove their respective claims & possible denial of substantial justice, due to technicalities, may be avoided. DEFN: A pleading in which a defending party sets forth his defenses. (R6.4) SC Administrative Circular No. 04-94 (re forum-shopping) issued on 08 February 1994 and effective 01 April 1994 D) Splitting & joinder of causes of action

3. THE ANSWER Answer – pleading in which the defending party sets forth his defenses (R 6, S 4) TYPES OF DEFENSES

1.

Negative Defense – the specific denial of the material fact/s alleged in the pleading of the

claimant essential to his cause/s of action. (R6.5(a)) Kinds of Denial: a) SPECIFIC DENIAL - defendant specifies each material allegation of fact the truth of which he

does not admit and set forth the substance of the matters upon which he relies to support his denial. (R8.10) if defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny the remainder.(R8.10)



30


a) SPECIFIC

DENIAL FOR LACK OF KNOWLEDGE OR INFORMATION SUFFICIENT TO FORM A BELIEF AS TO THE TRUTH OF A MATERIAL AVER-MENT MADE IN THE COMPLAINT (R8.10)

b) SPECIFIC

DENIAL UNDER OATH – to contest the authenticity or due execution of an actionable document. (R 8.8) - allegations of usury in a complaint to recovery usurious interes t must be denied under oath. (R 9.11) EXCEPTIONS: No need to specifically deny under oath:  

When adverse party not a party to the instrument When compliance with an order for an inspection of the srcinal document is refused.

a) NEGATIVE

PREGNANT – a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied; in effect an admission of the averment it is directed to. (Philamgen v. Sweet Lines, 212 SCRA 194 (1993)

1.

Affirmative Defense – an allegation of a new matter which, while hypothetically admitting the

material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. (R6.5[b])  includes: a. a. Fraud b. Statute of limitation c. Release d. Payment e. Illegality f. Statute of frauds g. Estoppel h. Former recovery i. Discharge in bankruptcy j. Other matters by way of confession and avoidance.


1.

Implied Admissions – defenses and objections not raised in a MTD or answer deemed

WAIVED (R9, S1) EXCEPTIONS: a. Lack of jurisdiction over t he subject-matter b. Litis pendentia c. Res judicata d. Prescription D. COUNTERCLAIM, CROSS-CLAIM AND THIRD PARTY COMPLAINT

R6, S6-9,12; R9.2; R11 S8-10 COUNTERCLAIMS (CC) DEFN: Any claim which a defending party may have against an opposing party. (R6.6) How raised

GEN RULE: Included in the Answer (R 11, s. 8.. a compulsory cc or a cross-claim that a defending party has at the time he files his answer shall be contained therein) EXCEPTION: (when counterclaim or cross-claim may be filed after the answer R 11, S. 9 & 10) : 1. counterclaim or cross claim either matured or was acquired by a party after serving his pleading (S. 9) * How? With permission of the court, by presenting such a counterclaim or cross-claim by SUPPLEMENTAL pleading OR 2. Pleader fails to set up a counterclaim or a cross-claim through :  oversight  inadvertence  excusable neglect  when justice requires * How? by lea ve of court BY AMENDMENT before judgment (S 10)

Kinds of Counterclaims

1. Compulsory CC (R6.7)– requisites: (all must be present)

a. arises out of or is connected with the transaction or occurrence constituting the subjectmatter of the opposing party’s claim

b. does not require for its adjudication the presence of 3rd parties of whom the court cannot c.

acquire jurisdiction court has jurisdiction to entertain the claim

1. Permissive CC – does not arise out of nor is it necessarily connected with the subject of the opposing party’s claim; not barred even if not set up in the action. IMPT: A permissive counterclaim requires the payment of docket fees (Sun Insurance v. Asuncion). COMPULSORY

PERMISSIVE

DEFINITION

ALSO CALLED

One which arises out of or is Does not arise out of nor is it necessarily connected with the necessarily connected with the subject transaction or occurrence that is the matter of the opposing parties claim subject matter of the opposing party’s claim “recoupment” (Lopez v. Gloria) “set-off” (Lopez v. Gloria)

THIRD-PARTIES

Does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction

Requires the presence of 3 rd parties over whom the court cannot acquire jurisdiction

MUST IT BE SET UP IN THE ACTION? TEST

Yes. Otherwise, it is barred. (Rule 9, Sec. 2)

No. It is not barred even if not set up in the action.

The logical relationship between the claim alleged in the complaint and that in the counterclaim, i.e., where separate trials of each of the respective claims would involve a substantial duplication of effort or time by the parties and the courts, as where they involve many of the same factual and/or legal issues (Meliton v. CA)

Remedies

1. For failure to raise a compulsory counterclaim  NONE. -

Compulsory counterclaim not set up considered barred. (R9.2)

1. Oversight, inadvertence, excusable neglect, etc.

 with leave of court, may set up counterclaim by amendment before judgment. (R11.10)

2. In case main action fails

 Dismissal of action due to fault of plaintiff shall be without

prejudice to the right of defendant to prosecute his CC in the same or separate action. (R17 S3) Francisco Motors Corp v. CA (GR No. 100812, June 25, 1999)

Nothing in the Rules of Court says that summons should first be served on the defendant before an answer to the counterclaim must be made. Although a counterclaim is treated as an entirely distinct and independent action, the defendant in the counterclaim, being a plaintiff in the srcinal complaint, has already submitted to the jurisdiction of the court. CROSS-CLAIM (R6.8)

DEFN: Any claim by one party, AGAI NST A CO-PARTY arising out of the transaction or occurrence that is the subject matter either of the srcinal action or of a counterclaim therein. IMPT: A cross-claim is ALWAYS COMPULSORY. A cross-claim not set up shall be barred. (R9.2) Requisites:

1. must be against a CO-PARTY 2. must always arise out of the same transaction that is the subject matter of the srcinal complaint or of ainvolved counterclaim 3. no other parties 4. within the jurisdiction of the court THIRD (4TH) PARTY COMPLAINT

DEFN: A claim that a defending party may, with leave of court, file against a person not a party

to the action for contr ibution, indemnity, subrogation or any other relief, in respect of his opponent’s claim. REQUISITES: 1. 3RD party defendant (3PD) not a party to the action 2. action is for contr ibution, indemnity, subrogation or any other relief in respect of his srcinal plaintiff’s claim 3. crucial character is that defendant is attempting to transfer to the 3PD the liability asserted against him by the srcinal plaintiff. u

rd

A 3 party complaint that is not set up is not deemed barred action.



it may be filed as a separate

TESTS TO DETERMINE WHETHER 3RD PARTY COMPLAINT PROPER:

1. Whether it arises out of the SAM E TRANSACTION on which the plaintiff’s claim is based; or WON the 3 rd party claim, although arising out of another or different contract or transaction is CONNECTED with the plaintiff’s claim; 2. Whether the 3 rd party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the srcinal defendant, although the 3 rd party defendant’s liability arises out of another transaction; and 3. Whether the 3 rd party defendant may assert any defenses which the 3 rd party plaintiff has or may have to the plaintiff’s claim Balbastro v. CA

If the 3 rd party is not secondarily liable to defendant for contribution, indemnity, subrogation and any other relief in respect to the claim of the plaintiff against defendant, then the 3PC is improper. Republic v. Central Surety

3rd party complaint is an ancillary suit which depends on the jurisdiction of the court over the main action. Allied Banking Corp v. CA

GEN RULE is that the court which has jurisdiction over the res of the main action has jurisdiction over the 3PC. However, in situations were 3PC filed without undergoing condition precedent, 3PC will be dismissed independent of the main action. E.

THE REPLY

R6.10 DEFN: A pleading to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. (R6.10)

GEN RULE: Plaintiff has option not to file a reply. In such case, all new matters alleged in the answer are DEEMED CONTROVERTED. (R6.10) EXCEPTIONS: A reply must be filed: 1. To challenge authenticity or due execution of an actionable document (R8.8) 2. Allegations of usu ry in a complaint to rec over usu rious interest (R9 .11) Not e that a responsive pleading to a complaint is the ANSWER, not the reply so reply does not need to file a reply in this case.

F.

FORMAL REQUIREMENTS OF PLEADING

RULE 7 PARTS OF A PLEADING 1. CAPTION – name of court, titl e of action (the names of parties with their respective participation in the case indicated), and docket number (R7.1) 2. BODY – designation of pleading, allegations of party’s claims/defenses, relief prayed for, and date of the pleading. (R7.2) 3. SIGNATURE AND ADDRESS– RULE: Pleading must be signed by the PARTY OR COUNSEL. (R7.3)  SIGNATURE OF COUNSEL a certification that: a. he has read the pleading; b. to the best of his knowledge, information and belief there is good ground to support it; and c. it is not interposed for delay.  IF PLEADING UNSIGNED produces no legal effect  BUT court may allow such deficiency to be remedied if due to mere inadvertence and not intended for delay. 1.

VERIFICATION

A pleading is verified by an AFFIDAVIT that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief GEN RULE: Pleadings need not be under oath, verified or accompanied by affidavit XCP: When otherwise specifically required by law or rule

In what cases are a verification required?

a. Petition for relief from judgment or order (Rule 38, Sec. 3); b. Petition for review from the RTC to the CA (Rule 42, Sec. 1); c. Petition for review from the CTA and quasi-judicial agencies to the CA (Rule 43 Sec. 5); d. Appeal by certiorari from the CA to the SC (Rule 45, Sec. 1); e. Petition for annulment of judgments or final orders and resolutions (Rule 47, Sec. 4); f. Complaint for injunction (Rule 58, Sec. 4); g. Application for appointment of receiver (Rule 59, Sec. 1); h. Application for support pendente lite (Rule 69, Sec. 1); i. Petition for certiorari against the judgments, final orders or resolutions of constitutional commissions (Rule 64, Sec. 2); j. Petition for certiorari (Rule 65, Sec. 1); k. Petition for prohibition (Rule 65, Sec. 2); l. Petition for mandamus (Rule 65, Sec. 3); m. Petition for quo warranto (Rule 66, Sec. 1); n. Complaint for expropriation (Rule 67, Sec. 1); o. Complaint for forcible entry or unlawful detainer (Rule 70, Sec. 4); p. Petition for indirect contempt (Rule 71, Sec. 4); q. Petition for appointment of a general guardian (Rule 93, Sec. 2); r. Petition for leave to sell or encumber property of an estate by a guardian (R 95 S1) s. Petition for the declaration of competency of a ward (Rule 97, Sec. 1); t. Petition for habeas corpus (Rule 102, Sec. 3); u. Petition for change of name (Rule 103, Sec. 2);

v. Petition for voluntary judicial dissolution of a corporation (Rule 104, Sec. 1); and w. Petition for cancellation or correction of entries in the civil registry (R 108 S 1) MUST BE UNDER OATH:

a. b. c. d. e.

Denial of the genuineness and due execution of an actionable document (R 8, S 8); Denial of allegations of usury (Rule 8, Sec. 11); Motion to set aside a default order (Rule 9, Sec. 3 (b)); Answer to written interrogatories (Rule 25, Sec. 2); Answer to request for admission (Rule 26, Sec. 2)

SUPPORTING AFFIDAVITS OR AFFIDAVITS OF MERITS REQUIRED IN:

a. b. c. d.

Motion to postpone for absence of evidence (Rule 30, Sec. 3); Motion to postpone for illness of a party or counsel (Rule 30, Sec. 4); Motion for summary judgment or opposition thereto (Rule 35, Secs. 1, 2, 3, 5); Motion for new trial on the ground of fraud, accident, mistake or excusable negligence or opposition thereto (Rule 37, Sec. 2); e. Petition for relief from judgment or order (Rule 38, Sec. 3); f. Third-party claim (Rule 39, Sec. 16); g. Proof required of a redemptioner (Rule 39, sec. 30); h. Motion for preliminary attachment (Rule 57, Sec. 3); i. Motion for dissolution of preliminary injunction (Rule 58, Sec. 6); j. Application for writ of replevin (Rule 60, Sec. 2); k. Claim against the estate of a decedent (Rule 86, Sec. 9); and l. Motion for ne w trial on the grou nd of newl y-discovered evidence in crim inal cases (Rule 121, Sec. 4)

1.

CERTIFICATION AGAINST FORUM-SHOPPING(R7.5)

(See also SC Admin Circular No. 04-94, 8 Feb 1994) Plaintiff or principal party shall certify under OATH in the complaint or other initiatory pleading, or in a sworn certification annexed thereto and simultaneously filed therewith: a. That he has not comm enced any acti on or file d any clai m involving the same iss ued in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; b. If there is such othe r pending action/claim, a complete statement of its present status; and c. If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within 5 DAYS therefrom to the court where in his aforesaid complaint or initiatory pleading has been filed. NOTE: Absence of certification a cause for DISMISSAL of the case without prejudice, unless

otherwise provided, upon motion and after hearing. 





G.

Submission of false certification – INDIRECT CONTEMPT Non-compliance with any of the undertakings – INDIRECT CONTEMPT WILLFUL AND DELIBERATE FORUM SHOPPING – a ground for SUMMARY DISMISSAL WITH PREJUDICE; shall also constitute DIRECT CONTEMPT, as well as a cause for administrative sanctions. DETAIL IN PLEADING

R8 S1-9;R12 HOW ALLEGATIONS ARE MADE:

1. IN GENERAL

 

in a methodical & logical form plain, concise & direct statement of the ULTIMATE FACTS on which the party pleading relies for his claim or defense  if defense relied on based on law, cite provisions and their applicability. (R8.1) TEST OF ULTIMATE FACTS: WON fact/s can’t be stricken out without leaving the statement of the cause of action insufficient (Tantuico v. Republic) 2. CAPACITY  aver facts showing:  capacity to sue or be sued; or  authority to sue or be sued in a representative capacity; or  the legal existence of an organized association. (R8.4) NOTE: If party wants to question the capacity to sue of the other party, he must do so by SPECIFIC DENIAL with supporting particulars as are peculiarly within the pleader’s knowledge. 3. ALTERNATIVE CLAIMS AND DEFENSES  if one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (R8.2) 4. CONDITION PRECEDENT general averment sufficient (R8.3) 5. FRAUD AND MISTAKE  the circumstances constituting fraud or mistake must be stated with particularity. (R8.5) 6. CONDITIONS OF MIND  malice, intent, knowledge or other condition of the mind may be averred generally. (R8.6) 7. JUDGMENTS  sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. (R8.6) 8. OFFICIAL DOCUMENTS  sufficient to aver that the document was issued or the act done in compliance with law. (R8.9) 9. ACTION OR DEFENSE BASED ON A DOCUMENT (R8.7) allege by: a. copying a substantial portion of the document into the pleading; b. annexing or incorporating the document into the pleading; or c. both copying and annexing the document into the pleading ACTIONABLE DOCUMENT – a document which is really the basis of the cause of action (or defense), and not merely evidentiary thereof. H. AMENDED AND SUPPLEMENTAL PLEADINGS– R10 AMENDEDPLEADING Supersedes the pleading amended

SUPPLEMENTALPLEADING Supplements the pleading; it exists side by side with the srcinal pleading Always a matter of discretion

Either as a matter of right or a matter of discretion Reason for the amendment available at time of Grounds for the supplemental pleading arose after the 1st pleading the 1st pleading was filed Must conform to certain formalities Must conform to certain formalities AMENDMENTS

HOW:

1. By adding or striking out an allegation or the name of any party; or 2. By correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect. (R10.1) PURPOSE: To have the actual merits of the controversy speedily determined, without regard to

technicalities, and in the most expeditious and inexpensive manner. (R10.1) Barfel Dev’t. Co. v. CA

Liberality in allowing amendments is greatest in the early stages of a lawsuit, decreases as it progresses, and changes at times to a strictness amounting to a prohibition. FORM: File a new copy of the entire pleading, incorporating the amendments, which shall be

indicated by appropriate marks. (R10.7) EFFECT: The amended pleading SUPERSEDES the pleading that it amends.  Admissions in superseded pleadings may be received in evidence against the

pleader;  Claims/defenses in superseded pleading not incorporated in the amended pleading

shall be DEEMED WAIVED. (R10.8) KINDS 1. FORMAL AMENDMENTS (R10.4)  

Defect in the designation of the parties; or Other clearly clerical or typographical errors

HOW AMENDED: By the court motu propio or by motion WHEN: At ANY STAGE of the action CONDITION: No prejudice is caused to the adverse party 1.

SUBSTANTIAL AMENDMENTS

a. As a MATTER OF RIGHT – allowed ONLY ONCE  

before a responsive pleading is served; OR In the case of a REPLY, at any time within 10 DAYS after it is served. (R10.2)

a. As a MATTER OF DISCRETION – by leave of court HOW MADE?  Upon motion  Notice to adverse party; and  Hearing GROUND FOR DENIAL: If motion is made with intent to delay. (R10.3)

1.

TO CONFORM TO EVIDENCE (IMPLIED AMENDMENT)(R10.5)   

Issues not raised in the pleadings Tried with the express or implied consent of the parties Treated in all respects as if they had been raised in the pleadings PURPOSE OF AMENDMENT:  To cause pleadings to conform to evidence or  To raise these issues HOW DONE: By motion

WHEN: At ANY TIME, even after judgment BY WHOM: By any party EFFECT OF FAILURE TO AMEND: No effect on the result of the trial on these issues. IF EVIDENCE IS OBJECTED TO AT THE TRIAL ON THE GROUND THAT IT IS NOT WITHIN THE ISSUES MADE BY THE PLEADINGS: Court may allow the pleadings to be amended and shall do so with liberality IF presentation of the merits of the action and the ends of substantial justice will be subserved. 

Court may grant continuance to enable amendment to be made. SUPPLEMENTAL PLEADING(R10.6)

REQUISITES:  Motion of a party  Reasonable notice  Upon such terms as are just CONTENTS: Transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. Shoemart v. CA

A supplemental complaint or pleading supplies DEFICIENCIES in aid of an srcinal pleading, not to entirely subs titute the latter. Unlike in an amended complaint, the srcinal complaint exists side by side with the supplemental complaint. I.

PERIODS FOR PLEADING

R11; R22 ANSWERTO:

FILEWITHIN:

Complaint

15 d ays f rom s ervice of summons

Amended complaint as a matter of right

15 days from service of copy

Amended complaint with leave of court

10 days from notice of order admitting amended complaint

Counterclaim

10 days from service

Crossclaim

10 days from service

3rd(4th, etc.) party complaint

15 days from service of summons

Supplemental complaint

10 days from notice of order admitting the same

COMIfMdef ENa T foreign private juridical entity and service

of summons is made on the gov’t official designated by law to receive them, file answer within 30 DAYS after receipt of summons by such entity.

If no new answer is filed, an answer earlier filed may serve as the answer to the amended complaint

The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed.

Complaint-inintervention

u

15 days from notice of order admitting the same

Court may prescribe a different period

Period to file an answer may be extended upon motion and on such terms as the court may find just. (R11.11)

Reply: file 10 DAYS from service of pleading responded to.

FILING AND SERVICE OF PLEADINGS AND OTHER PAPERS – R13

J.

FILING – the act of presenting the pleading or other paper to the clerk of court. (R13.2) SERVICE – the act of providing a party with a copy of the pleading or paper concerned. (R13.2) COVERAGE (R13.1 and R13.4)

1. 2. 3. 4. 5. 6. 7. 8. 9.

Judgment Resolution Order Pleading subsequent to the complaint, Written motion Notice Appearance Demand Offer of judgment or similar paper

FILING OF PLEADINGS AND PAPERS

PERSONAL

REGISTEREDMAIL

WHEN RESORTED TO

Whenever practicable; It is the preferred mode of filing

When personal filing is not practicable

HOWDONE

Presenting the originals personally to the clerk of court

Sending via registered mail

CONSIDERED DATE OF FILING

Date and hour presented to clerk of court

Date of mailing, as shown by the post office stamp on the envelope or the registry receipt

PROOF OF FILING, IF NOT IN THE RECORD

Written or stamped acknowledgment of filing by clerk of court on a copy of the pleading

Registry receipt, and by the affidavit of the person who did the mailing

SERVICE OF PLEADINGS & PAPERS

PERSONAL HOW DONE

Delivering personally a copy of the papers to the party or his

REGISTERED MAIL

ORDINARY MAIL

SUBSTITUTED SERVICE

Depositing a copy in the post office, in a sealed envelope, plainly addressed to

Posting via ordinary mail

Delivering a copy to the clerk of court, with proof of failure of both personal service and

counsel; Leaving papers in party’s office with his clerk or with a person having charge thereof;

the party or his counsel at his office, or at his residence

service by mail

Leaving the copy (between 8AM6PM) at party’s or counsel’s residence, with ofa person sufficient age and discretion residing therein WHEN COMPLE TED

Upon delivery

actual

Upon actual receipt by the addressee, or after 5 DAYS from the date addressee received the 1st notice of the postmaster, whichever date is earlier

Upon expiration of 10 DAYS after mailing, unless the court provides otherwise.

PROOF OF SERVICE

Written admission of the party served; or

Affidavit of the person mailing of facts showing compliance with Sec. 7 of Rule 13;

Affidavit of the person mailing of facts showing compliance with Sec. 7 of Rule 13

Official return of the server; or Affidavit of the party serving, Containing a full statement of the date, place and manner of service

 

At the time of delivery to the clerk of court

Registry receipt issued by the mailing office 

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

PERSONAL SERVICE always the preferred mode. (R13.11) If other modes: must be accompanied by a WRITTEN EXPLANATION why the service or filing was not done personally.  EXCEPTION: Papers emanating from the court  If no written explanation is filed: paper considered not filed.

NOTE: Party in default entitled to NOTICE of subsequent proceedings but not to take part in the

trial (R9.3[a])

Bautista

1.

Function of Pleadings 1.1. To define issues – so both parties and the court know the issues; narrows down

and clarifies the issues. Issues are important in determining defenses (e.g. litis pendentia, res judicata re identity of issues or WON issues neces sarily adjudicated in prior action) **identify TRIABLE issues To give notice - notice to other parties of claims /defenses; and to the court as to the cause of action or defense

1.1. 1.2.

To characterize action or proceeding – ordinary civil action or special proceedings – If it is an ordinary civil action , it will fall under a particular set of rules

. The objective is to AVOID CHAOS.

2. Rules Governing a Complaint DEFN: The plea ding alleging the plai ntiff’s cause/s of action.

States the names and

residences of the plaintiff/s and defendant/s. 

Every ordinary civil action must be based on a cause of action (R2.1) CAUSE OF ACTION is the act/omission by which a party violates a right of

another (R2.2) 3 ELEMENTS OF A CAUSE OF ACTION a. legal r ight of plaintiff, b. correlative legal duty of defendant and c. act/omission of defendant in violation of plaintiff’s right with consequential injury or damage to the plaintiff

2.1.

Must have all the PARTS

A.

Caption

1. Name of the Court 2. Title of the Action 3. Names of the Parties (same for record on appeal) ONLY OTHER PLEADING which require names of all the parties Note that docket number is assigned by the court (so no docket number pa at this stage) ♦ ♦

B.

Body

1. Designation - Complaint 2. 3. Allegation Actionable documents ♦

based.

written instrument upon which the claims/defenses are

Legal Significance of actionable document - if not specifically denied under oath, document is deemed to be: ♦ genuine and ♦ duly executed 4. Paragraphs --- numbered; 1 paragraph = 1 set of circumstances

C.

Prayer for Relief

Legal significance of relief  R 9, Sec. 3(d) : a judgment rendered against a party in defauolt shall NOT EXCEED the amount or be DIFFERENT in kind from that prayed for nor award ♦

unliquidated damages. ♦ in ALL OTHER judgments  court may award reliefs greater or other than those prayed for ♦ Rule 10, S. 5 - amendment to conform to or authorize presentation of evidence

C.

Signature and Addresses- R. 7.3

1. What it means - jurisdiction 2. Effect of lack E. F. 2.2.

Verification ( required if a provisional remedy is prayed for) Certification Against Forum Shopping

Essential Allegation

A.

All constitutive/operative facts (of the cause of action)

1. Ultimate facts only (not evidentiary facts or conclusions of fact) Rule 8, S. 1  Every pleading shall contain in a methodical and logical form, a PLAIN, CONCISE and DIRECT statement of the ULTIMATE FACTS on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. ♦ Rule 8, S. 11  Allegations NOT specifically denied deemed admitted. ♦

1. Material facts only 2. No allegation of law nor conclusions of law B. Allegations of specific matters: ♦ capacity/authority to sue ( Rule 8, S. 4 ); to deny legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, one must SPECIFICALLY DENY same; ♦

Condition precedent (R. 8, S. 3)

Fraud, mistake, condition of mind ( R 8, S. 5 ) : in all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with ♦

PARTICULARITY. Malice, intent, knowledge or other condition of the mind of a person may be averred GENERALLY. ♦

Specific amount of damages  claim for monetary damages should be specified (what is the legal basis?)  totality rule

C. Alternative/ Hypothethical/ Inconsistent C/a/ Defenses Rule 8, S. 2: Alternative Causes of Action - A party may set forth 2 or more statements of claim or defenses alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When 2 or more statements are made in the ALTERNATIVE, and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. ♦

Service of Pleadings

1. Personal • Personal service is the preferred mode. If one cannot serve the pleadings by personal service, counsel must explain why (i.e. no messenger, distance) • Personal service is complete upon actual delivery. 2. Mail a. Registered • Service by registered mail is complete upon actual receipt by the addressee or after 5 days from the date he received the first notice of the postmaster. b. Ordinary • Service by ordinary mail is complete upon the expiration of 10 days after mailing unless the court provides otherwise. 3. Substituted Service The lawyer of a party must give his office address. The address cannot be a post office box. The law does not allow pleadings to be mailed to P.O. boxes because no one would sign the receipt. Filing of Pleadings

1. Personal 2. Registered Mail Only • The date of mailing is the date of filing. Service of Judgments, Final Orders or Resolutions(Sec. 9, Rule 13)

1. Personal 2. Registered Mail 3. Publication -- When a party su mmoned by publ ication has fai led to appear in the action, judgments, final orders or resolutions against him shall be served upon him by publication.

Pleadings are the written statements of the respective claims and defenses of parties. The following are the functions of pleadings: 1. notice giving a. giving notice to the claim b. giving notice to the defense 2.

issue defining – for purposes of litis pendentia or res judicata.

3. categorize (i.e. special civil action, special proceeding) In the Rules of Summary Procedure, the general rule is that a motion to dismiss is not allowed. The exception is a motion to dismiss on the ground of lack of jurisdiction. Pleadings must state the ultimate facts only and not the evidentiary facts. Ultimate facts are also called operative facts which means those facts which constitute a cause of action. It is important to allege the ultimate facts for 2 reasons: 1.

If ultimate facts are not al leged th en th e com plaint is i nsufficient. It is vulnerable to a motion to dismiss for failure to state a cause of action. 2. If the complaint alleges more than the ultimate facts, then it is vulnerable to a motion to strike since the other allegations would be irrelevant. Problem: The plaintiff alleges in his complaint that the defendant owes him P1,000,000 which is due and demandable. Is this complaint sufficient? Answer: No, the complaint is not sufficient. The complaint must still allege when, how and other issues of fact.

The denial of the allegations in the complaint should create the issue of fact. Under Rule 34, judgment on the pleadings is allowed if there are no triable issues. If the defendant denies the allegations, then there are triable issues. 2 Kinds of Denials 1. General Denial • This is not allowed by the Rules of Court. • There is a general denial when the defendant denies everything without denying it per paragraph 2. Specific Denial a. by specifically denying the averment and whenever possible, setting forth the substance of the matters relied upon for such denial b. by an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party’s pleading A negative pregnant is a denial pregnant with an admission – a bad pleading (2ND sentence of Sec. 10, Rule 8).

The following are the instances wherein a specific denial is insufficient but must be under oath: 1. allegations of usury 2. the authenticity and due execution of actionable documents properly pleaded where the opposing party was a party thereto. Problem: Plaintiff files a case for collection of sum of money based on a

promissory note. The complaint alleges that the plaintiff remains unpaid. The complaint alleges that the defendant tried to pay the note with other notes which the defendant deceived plaintiff into accepting through defendant’s misrepresentations. In the defendant’s answe r, the defendant did not deny the allegations that he deceived the plaintiff in accepting the other notes. Is the defen dant’s failure to deny that allegation an implied admission? Answer: No, it is not an impli ed admission. Such allegation is not a

material averment. defense.

It was merely an allegation in anticipation of a

Problem: Plaintiff files a case for collection of sum of money based on a

promissory note. The complaint alleges that the plaintiff remains unpaid. The complaint alleges that the defendant tried to pay the note with other notes which the defendant deceived plaintiff into accepting through defendant’s misrepresentations. In the defendant’s answe r, the defendant did not deny the allegations that he deceived the plaintiff in accepting the other notes. At the trial, the defendant alleges that there was no valuable consideration for the promissory notes. Is the defendant barred from alleging this? Answer: No, Sec. 8, Rule 8 talks of genuin ess and due executi on. It

does not speak of the validity of the contract itself. Joinder of Parties – compulsory Joinder of Causes of Action – always permissive • The statement that the joinder of causes of action is permissive must be qualified Sec. 47, Rule 39 (b) provides, “The effect of a judgment or final order rendered by a court is that in other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceedings, litigating for the same thing under the same title and in the same capacity.” Causes of Action are important: 1. In order to see if there is splitting of a cause of action. Problem: A, driving a Ford Expedition, hits B who is driving a Kia Pride. B

is injured. B’s car is insured. The insurance company pays for the damage to B’s car. B files a suit against A for physical injuries. The insurance company files a suit ag ainst A for damages against the car. How many causes of action are there? Is there a splitting of a cause of action?

Answer: According to Prof. Bautista, there is only 1 cause of action. The

test is to count how many rights were violated. The number of rights violated would be the number of causes of action. In this case, there is only 1 cause of action. The analogy is similar to a person having 1 leg and 1 arm injured. Does this mean the person files a case for the leg and one for the arm. There would be 2 causes of action here if B is injured and the car B was driving was owned by someone else. 2. In order to see if there are 2 or more causes of action. 3. For amendments of the cause of action. 4. Motions to Dismiss a. res judicata b. ltis pendentia c. failure to state a cause of action It is important to note that compulsory counterclaims have no filing fees (the problem however is that the clerk of court does not have the judicial power to determine whether the counterclaim is compulsory or not). Rule 141 provides for filing fees. Under the ruling in the Manchest er case, the Supreme Court said that the filing fee will be determined by the amount prayed for with respect to all the damages. A counterclaim is compulsory when: a) it arises out of, or is necessar ily connected with, the tra nsaction or occurrence which is the subject matter of the opposing party’s claim; b) it does not require for its adjudication the presence of 3 whom the court cannot acquire jurisdiction

rd

parties of

Under Sec. 2, Rule 9, a compulsory counterclaim which is not set up shall be barred. Problem: The complaint is with the MTC . The counterclaim is for P1,000,000. Does the MTC have jurisdiction over the counterclaim? The complaint is with the RTC. The counterclaim is for P10,000. Does the RTC have jurisdiction over the counterclaim? Answer: The general rule is that the court must have jurisdiction over the nature and the amoun t. The exception is with rega rd to compulsory counterclaims. Regardless of the amount, the court would have jurisdiction over the compulsory counterclaim. Problem: The complaint is with the RTC. There is a counterclaim for unlawful

detainer? Does the RTC have jurisdiction over the counterclaim? Answer: No, the RTC does not have jurisdiction over the counterclaim. Sec. 7,

Rule 6 provides that “such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an srcinal action before the RTC, the counterclaim may be compulsory regardless of the amount. The exception refers only to amount and not to the nature.

as to the amount and the nature thereof, except that in an srcinal action before the RTC, the counterclaim may be compulsory regardless of the amount. The exception refers only to amount and not to the nature. as to the amount and the nature thereof, except that in an srcinal action before the RTC, the counterclaim may be compulsory regardless of the amount. The exception refers only to amount and not to the nature. A wife files an action for separate maintenance. The husband answers with a counterclaim for legal separation, adultery being the ground. The husband impleads the param our as a defendant in the counterclaim. In a separate case, the paramour files an action against the husband for libel because of the husband’s malicious imputation. The husband files a motion to dismiss on the ground that the paramour’s action is a compulsory counterclaim which is barred. Problem:

Answer: No answer.

The test for determining whether the counterclaim is compulsory is the logical relationship between the claim alleged in the compla int and that in the counterclaim, i.e. where separate trials of each would involve a substantial duplication of effort or time by the parties and the courts, as where they involve many of the same factual and/or legal issues. Cross claims are permissive when: a) the cross claim is outside the jurisdiction of the court b) the court cannot acquire jurisdiction over the parties It is always important to remember that cross claims must always arise out of the same transaction. A party does not suffer any adverse consequences if he does not file a reply since new matters are deemed controverted if no reply is filed. Although the reply is optional, filing a reply according to Prof. Bautista may be useful if one wants to bring in new matte rs. Remember, the gener al rule is that one cannot alter the theory of the srcinal complaint. In order to bring in new matters, file a reply. In amendments of pleadings, it is important to see if there is a substantial alteration of the cause of action or if there is merely an amplification. Parties can augment or amplify but they cannot depart from the srci nal theor y of the pleading. Generally courts are stricter with amendments of the complaint. If the courts do not allow the amendment, the plaintiff can always file another case. The courts are more liberal in amendments of answers. PROBLEMS AND CASES ON PLEADINGS:

Q: Is there a need for new summons if the complaint is amended? A: It depends.

a) YES if new D is added b) YES if complaint amended as a matter of right before answer is filed c) NO if with leave of court after answer has been filed

Q: Is leave of court necessary for the plaintiff to amend the complaint?

A: Again, it depends. Leave of court is necessary if the D has already filed the answer. But the plaintiff can amend the complaint as a matter of right (no leave of court needed) if D has not filed and served his answer. Q: A sued B for damages in the srcinal complaint based on tort. B filed answer. Then, A filed a motion to amend the complaint. Complaint was amended on the theory of FRAUD. Additional allegations were added in the complaint, i.e, that the plaintiff was a passenger in D’s bus, thereby anchoring legal theory on a breach of contract. Can this new theory be allowed?

A: No (this is the answer before because it would amount to a substantial amendment of the theory of the case as then provided) But I submit that under the new Rule (R. 10, S 3), this may be allowed because the only ground for the court to refuse the amendment is when the motion to amend appears to be made with INTENT TO DELAY ) Q: If you change the legal theory, does it mean that you change the cause of action? Is the legal theory that which characterizes the operative or constitutive facts of the cause of action. Suppose in a case, the p arties are A, B, C, D and E . Does it mean that if you remove E, there is a substantial amendment?

A: (No answer but I infer that the answer depends). But in the above case, the change in theory also changes the cause of action from a tort to a breach of contract. Q: In an action on a PN, D puts up the defense of PAYMENT but D later on moves to amend his answer, saying that the PN was executed upon P’s fraudulent inducement, thereby changing his previous defense of just payment/ Is that okay? A: Greater liberality is shown by the courts in allowing amendments of answer than amendments to complaint. WHY? Because if you allow amendments to the complaint, it will amount to changing of facts on which the defense is based and to a substantial amendment which is disallowed. NO PREJUDICE TO THE PLAINTIFF IN SHORT. The plaintiff can still file another complaint. But if you disallow an amendment to an answer, wala na. Q: A supplemental complaint changed the cause of action in the srcinal complaint. Substantially, can this be done? A: NO! If it involves new matt ers, it will change the theor y of the case.

The supplemental

complaint must relate to the cause of action in the srcinal complaint. Q: So what is the difference between an amended and a supplemental complaint? A: AMENDED: facts already occurred while the srcinal complaint was filed. SUPPLEMENTAL: facts arose AFTER the filing of the srcinal complaint. Q: In what cases may an amendment to conform to evidence warranted? A: When the facts had already been tried with the express or implied consent of the party (R 10, S. 5) Q: What if the complaint only contains conclusions of law? A: Ask The court for a BILL OF PARTICULAR (R 12 – need for definite statement of any matter not averred with sufficient definiteness or particularity to enable him to properly prepare his responsive pleading) Q: What is an example of conclusion of law ? A: “defendant drove negligently.” Q: How to make it statement of ultimate facts? A: “defendant drove without brakes. Q: Action to recover a sum of money. The complaint said that: 1. plaintiff rendered certain services to D on Saturday. 2. On such date, BY FRAUD OR MISREPRESENTATION, D induced P to accept in payment a PN annexed(?) to A, B. C or 3rd party.

In the answer, the allegation that the services were performed and an obligation as incurred therefor. But in defense. D said that obligation was paid by the PN but he did NOT specifically deny the allegation that the note was forced upon the plaintiff by fraud or misrepresentation. P now moves for judgment on the pleadings on the ground that there was implied admission of that allegation in the complaint which was not specifically denied. Rule on the motion. A: Deny the motion for judgm ent on the pleadings. The allegation need NOT spec ifically be denied under pain of an implied admission because it is NOT A MATERIAL ALLEGATION as to the cause of action. Q: What is meant by material? A: It is material if it constitutes the cause of action. In CAB, 2 ND allegation is in the nature of an anticipatory defense to D’s defense of payment by PN. Q: What is a negative pregnant pregnant with? A: It is pregnant with admission. Q: What rule prohibits a negative pregnant? (bad pleading) A: R. 8, s. 10 (2 nd sentence) … Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Q: You filed an action for damages wherein you allege in the complaint that D negligently drove his vehicle without regard to the conditions of the road, traffic, etc. D answered with a negative pregnant. Can you move for judgment on the pleadings? When is judgment on the pleadings proper?

A: Yes. A negative pregnant is a denial pregnant with admission of the substantial facts alleged in a pleading. As stated in one case ( Galofa v. Nee Bon Seng 22 SCRA 48): “a denial in the form of a negative pregnant is an AMBIGUOUS pleading, since it cannot be ascertained whether it is the fact or only the qualification that is intended to be denied. Where a fact is alleged with some qualifying or modifying language, and the denial is conjunctive, a negative pregnant exists and only the qualification or modification is denied while the act itself is admitted.” Judgment on the pleading is proper when (R 34, s. 1): 1. an answer fails to tender an issue 2. an answer admits the material allegations of the adverse party’s pleading. Q: What is the effect of a negative pregnant? A: It is an admission of the substantial averments in a complaint. Q: Complaint for a sum of money alleges that D borrowed money from P and has not paid it on maturity and while D holds a supposed document purporting to be a receipt for payment signed by P, this receipt was obtained by D by misrepresentation. D’s answer does not deny the allegations of the complaint with respect to the objections over the receipt of payment by misrepresentation. Is the allegation of the complaint to the effect that there is misrepresentation deemed to have been impliedly admitted?

A: No. R 9 s. 1. Only the mater ial facts are deemed admitted. Mater ial averm ents in the complaint, other than those as to amount of damages, shall be deemed admitted when not specifically denied. Q: What are the 2 kinds of specific denial? A: 1) D to specify each material allegation of fact the truth of which he does not admi t and whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial.

2) where a D is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state and this shall have the effect of a denial. Q:

Action to recover damag es arising from phy sical inju ries incu rred in a vehicular accident estimated to be P50T. The answer contains nothing but general denials. Plaintiff moves for judgment on the pleadings. Resolve.

A: Motion GRANTED because admitted..)

of R 9, S. 11

(Allegations not spec ifically denied deemed

Q: When must a D answer under oath?

1. when compl aint pleads an actionable document because failure to deny under oath means admitting the genuineness and due execution of that document. 2. When complaint alleges USURY (R. 9, S. 11) because allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. Q;

In what cases is a reply mandatory or where failure to reply would have adverse consequences?

A: In cases where: 1. answer is base d on actionable document (the genuineness and due exec ution of which will be deemed admitted if the document is not specifically denied under oath (R 8, s. 8) Note: New Rules does not anymore say that when the answer raises NEW MATTERS, there is a need for a reply, otherwise the new matters will be deemed admitted. Now, R 6, S. 11 says that x xx “if the party does NOT file such reply, all the new matters alleged in the answer are deemed controverted “(disputed). Note also that re USURY, R 9, S. 11 refers to the complaint, the responsive pleading to which is an ANSWER (not a reply) so that it is only when “allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath” (in the answer). Q: Action on a PN which was made an integral part of the complaint. There is no specific denial of the genuineness and authenticity of the attached PN. At the trial, D would like to introduce evidence to show that he signed the note as an agent for an undisclosed principal and not for his own behalf. Would that evidence be admissible?

A: YES. The evidence does not relate to the genuineness and due execution of the PN. Note that failure to deny the PN (actionable document) only means admission of the genuineness and due authenticity thereof , nothing more. Q: Is the prayer in the compl aint an essent ial part of the compl aint? What is the legal significance of the prayer?

A: Yes. R. 7, S. 2 (c) requires the prayer as part of the body. In Ras v. Sua, the court said: it is not the caption of the pleading but the allegations therein that determine the nature of the action and the court shall grant the relief warranted by the allegations and the proof even if no such relief is prayed for. Bautista: There is one instance wherein the court cannot award more than what is asked for in the prayer or any relief different from what is asked for. Here, the prayer serves as a limitation. And this is the case where the other party is IN DEFAULT (R. 18,

S. 5). Q: What happens when an attorney of record does NOT SIGN a pleading? A: That pleading may be STRICKEN OFF the record so it is without any legal effect (R 7, S. 3)

Q: When a party is represented by counsel, in what instances may the court direct that an order be served on the party himself and not on the attorney of record?

A: When the court directs something to be done by the party himself. Q: As a general rule, when should a pleading be verified? A: When you assert facts which are not of record (R 133, S 7) re Evidence on Motion, The Court may hear the matter on affidavits and depositions presented by respective parties. Q: Is a complaint which alleges that defendant negligently drove his car causing injuries to the plaintiff sufficient? Why?

A: Yes, such is of a kind of mixed conclusion of fact and law, which are succinct and have a definite meaning to lawyers and is deemed a sufficient allegation. Q: How about a complaint that alleges that D caused P injuries in an unlawful manner? A: Insufficient. It does not enable the D to plead and prepare for trial. It does not state facts showing what acts were done and how unlawfully they were executed. Q; Complaint filed in RTC. MTD on the ground of subject matter jurisdiction. Suit was for recovery of P17T principal, P3 T interest and P3T attorney’s fees. While motion pending resolution, P amended complaint and increased attorney’s fees to P5T. Is the amendment proper?

A: MTD not a responsive pleading (R 10, S 2) so amendment is allowed as a matter of right. HOWEVER, where the amendment is allowed, the result would be that the court is conferred jurisdiction over the subject matter where it had none in the first place and this cannot be allowed. (Note that the jurisdictional amounts under BP 129 exclude attorney’s fees and the amounts are increased to P200T and P400 T in Metro Manila for RTC jurisdiction). Case: Rosario v. Carandang  A proposed amendment may be refused when it confers jurisdiction on the court in which it is filed when the cause of action set forth is not srcinally within the court’s jurisdiction. ***Bautista thinks it is arguable that such amendment conferring jurisdiction on the court which srcinally had none is allowed when the P is making the amendment as a matter of right. Q: Can new causes of action be alleged in a supplemental complaint ?

A: Yes, provided that: 1. they relate to the transactions, occurrence, events which arose since the date of pleading sought to be supplemented and provided further that 2. they relate to the subject matter of the pleading sought to be supplemented Q: July 1- Summons served with copy of the complaint (so until 7/16 to answer) July 10-MTD filed (4 days left to answer) 8/1 - Order of denial of MTD received When is the last day for D to answer?

A: July 6 because under R 16, S4, the D must answer during the balance of the period to file an answer but in no case shall this be less than 5 days. Q: Same facts. What if on 7/14, a bill of particulars was filed and on 8/1, D received order of denial of Motion for BOP. When is the last day to file his answer?

A: 8/16. R 12 S 5 says the moving part y may file his respon sive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than 5 days in any event. (compare this with R 16, S. 4… within the BALANCE of the period…but not less than 5 days in any event..)

Q: How many days to answer 3rd party c omplaint? A: 15 days (R 11 S 5) Q: How many days to answer complaint in intervention? A: 15 days (R 19, S 4) Q; Re service of pleadings. When is service complete? A: Personal service - upon actual delivery  upon expiration of 10 days after mailing unless provided otherwise Ordinary mail Registered mail - upon actual receipt by addressee or after 5 days from date of first notice of the postmaster D filed This was denied. Within the for filing pleading, D files to Q: motion to motion dismissfor forBOP. impro per venue. P opposes MTDtime on the ground that objection improper venue was not raised in the first instance and so deemed waived. Rule on MTD.

A: MTD denied. Bautista says that ques tions on venue mus t be raised at the earlie st time possible because you have to resolve it at once. So if an objection to venue is denied, elevate it to the higher court at once on certiorari. Q: A stays in AIT hotel for a few days. He is not from QC but from Surigao. He makes QC the venue of his suit against B who is in Surigao. Is this proper? Can A be served with summons in AIT hotel?

A: A cannot make QC the venue of his suit because it is not his residence (R 4). However, A can be served with summons at AIT hotel because under R 14, if personal service is effected and not substituted service, it is okay to serve A with summons wherever he may be not, not necessarily his residence. CAUSE OF ACTION : central concept of the Rules

1. rule v. splitting of cause of action 2. case law on substantial amendments to complaints ( those that alter the cause of action)

3. litis pendentia Rule 16, S. 1(e):MTD ground..there is another action pending b/w same parties for same cause ♦

4. res judicata ♦

Rule 16, S. 1 (f)

5. rule on sufficiency Rule 16, S. 1 (h)..claim/demand has been paid, waived, abandoned or otherwise extinguished ♦

V II.

M O T I O NS

Motions are not pleadings. A motion is an application for relief other than by a pleading. When a motion is based on facts not appearing of record, the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (Rule 133, Sec. 7) Q: What motions don’t have or need not have to bear notice of hearing?

A: Bautista: Motions made ex parte. Example: Motions of continuance and where matter is not

litigable, not controversial. Q: Suppose a motion is filed on July 1. When is the earliest time that it can be set for hearing? A: After 3 days, July 4. Q: What is motion day under the rules? A: Except those motions requiring immediate action all motions should be scheduled for hearing on Friday afternoons or if Friday is a non-working day, in the afternoon of the next working day.

The receipt for the form of the notice of hearing advises the adverse party of the date, place and time of hearing. It is mandatory; it is strictly enforced. Failure to comply with this requirement as to form will result in a fatal defect. The motion will be tantamount to no motion at all and to use the colorful language of the court, it can be deemed “an outlaw that can be slain on sight.” The government is especia lly critical with respect to motion for new trial which as you know includes motion for reconsideration. can you imagine a motion wit h a notice of hearing worded like this:

Clerk of court Regional Trial Court of Makati Branch 5 Greetings, Please submit the foregoing motion for reconsideration for approval of the court on such date and time as may be convenient to it.

This is a defective notice of hearing of motion. The burden is on the party or the movant to set the date, place and time of hearing. This cannot be made dependent on the clerk. If a motion for new trial for instance has such defective notice of hearing it will amount to no motion at all. Therefore, it will not interrupt the running of the period for the finality of the judgment which will then become executory. Such is the importance of the form of the notice for hearing.

VIII. OBJECTIONS TO PLEADINGS (also, WAYS OF CHALLENGING PLEADINGS)

Most objections to pleadings would concern the complaint. There are various devices by which a civil action may be pre-terminated, without going to a fulldress trial: (1) MOTION TO DISMISS (a) Rule 16

A court may dismiss motu proprio a case on the following grounds (Sec.1, Rule 9): (i) lack of jurisdiction over the subject matter •

(ii) (iii) (iv)

litis pendentia res judicata

prescription of the action

The general rule however is that a motion must be filed in order to dismiss a case. (Sec. 1, Rule 16) Dismissal by motu proprio is the exception. •

Sec. 20, Rule 14 abandons the old rulings of the Supreme Court to the effect that a motion to dismiss on the ground of lack of jurisdiction over the person should be based exclusively on that ground. The rule now is in accord with the Omnibus Motion rule in Sec. 8, Rule 15. Thus, •

the defendant may now give other grounds other than the fact that the court has not acquired jurisdiction over the person – special appearance. The following are the possible rulings a court can make in a Motion to Dismiss: •

(1) grant the motion (2) deny the motion (3) amend the pleading Under Sec. 3, Rule 16, there is no more deferment. The court is no longer allowed to defer the resolution of the motion until the trial if the ground alleged does not appear to be indubitable. It is has been held that a denial of a motion to dismiss is not appealable, the order being interlocutory. But according to Prof. Bautista, he thinks that parties should be able to appeal right away if the motion to dismiss is denied. Why should the parties wait right that long. •

Problem: Defendant files motion to dismiss theofground of lack of as capacity to sue. The court denies the motion. Can thea defendant re-pleadon lack capacity to sue an affirmative defense? Answer: No, the general rule is that if a Motion to Dismiss has been filed, the grounds alleged in

the motion to dismiss cannot be re-pleaded. The exceptions would be: (1) lack of jurisdiction over the subject matter (2) litis pendentia (3) res judicata

(4) prescription of the action (the exceptions to the Omnibus Motion Rule) Q: Ground for dismissal is failure to state cause of action going to the sufficiency of the allegations of the Cause of Action (not the lack of cause of action). Is it correct to say, as an absolute rule, that in considering a Motion to Dismiss on the ground of failure to state a cause of action, the court is limited to the consideration of the allegations of the complaint which are all deemed to be a dmitted? A: Matters which are outside the complaint may be considered by the Court as in matters of

judicial notice, matters contained in the annexes attached to the complaint. Marcopper vs. Garcia: Court can disregard allegations in the complaint which are legally impossible facts, facts inadmissible in evidence, facts appearing by record/document included in the pleading which are unfounded. Q: H sued W for a sum of money. Wife files answer and shortly before pre-trial, motion to dismiss was filed citing lack of earnest effort to resolve the matter. Rule on the motion. A: Motion to dismiss granted. The lack of earnest effort to resolve the matter between husband

and wife is a condition precedent to the cause of action for the recovery of money such that the

failure of the husband to cite the earnest effort had been undertaken would amount to a failure to state cause of action. And since failure to state cause of action is an exception in rule 9 Sec. 2, the allegation after filing of the answer is not too late. Q: H sues W and her lover for recovery of money. Motion to dismiss by defendants on the ground that earnest efforts to compromise were not exerted. Rule on the motion. A: Motion denied. Where 3 rd party is involved, you don’t have to exert earnest effor t to

compromise. (Magabaleta vs. Bono) Problem: First Action – Annulment of a contract of mortgage Second Action – Foreclosure of a mortgage Should the motion to dismiss be granted or denied? Answer: It should be denied. Although there is identity of parties and there may be identity of

rights asserted yet the judgment which may be rendered in the first action does not necessarily bar the second action. Why?

Identity between the 2 actions must be such any judgment rendered on the other action will amount to an adjudication of the action under consideration. It is not punctuated upon such contingency. It is applicable between the same particularly when the judgement to be rendered in the 1 st action will be such that, regardless of the party is successful, it still results in res judicata with the 2nd action. Problem: First Action – Recovery of a parcel of land Second Action – to quiet title over the same parcel of land Should the motion to dismiss be granted or denied? Answer: The motion should be denied for the same reason given in Problem 1. Problem: First action – A v. B to recover a parcel of land that B bought from the money of A under cestui que trust. A lost in this case. Second action – A v. B recover the same parcel of land this time claiming he inherited it. B interposed res judicata. is there res judicata? Answer:

No answer.

Problem: First action – A v. B recover a parcel of land but before this action can be instituted B already sold the landto C. A lost the case Second Action – B v. C recover the same parcel of land. C moved to dismiss the action on the ground of res judicata. Should the motion to dismiss be granted? Answer:

No answer.

Food for thought:

What is the test for identity of causes of action even though the first action has a different theory from the second action? •

What makes for sameness of a cause of action? Do we follow some kind of test like same evidence rule? test? • Is the samen ess of the relief sough t, the deter mining factor as to sameness of the cause of action? • Is it necessary that all the constitutive facts be the same in order for the cause of action to be the same for the purpose of res judicata? • •

INSUFFICIENT ALLEGATION

Failure to state a cause of action is the groun d and not lack of cause of action. This ground must be based on the allegation of the complaint which a motion based on this ground is deemed to hypothetically admit and that therefore a motion to dismiss on the ground of failure to state must bemust ruledbe upon on thenow. basisThere exclusively of the allegation the complaint. That qualified are many cases, WorldofWide Surety vs. Mc Crown (?) among them, which ruled that annexes to the complaint are part of the complaint and if the allegation in the complaint are contradicted or varied by the recitals in the annexed documents, the documents prevail. So not only the allegations of the complaint but including its annexes. DIRECTOR OF FORESTRY V. WENCESLAO VINZONS TAN Facts: Forestry boundary dispute. Complaint to recover certain area of forest concession. and the complaint embodied an application for preliminary injunction on which there was a hearing. During the hear ing, evidence was adduc ed among them a map. After the injunction incident, the defendant filed a motion to dismiss for failure to state a cause of action. The trial court denied it. The SC reversed. SC said that although the complaint alleged that the boundaries are here but the map presented in evidence during the injunction showed a different boundary, then the case shall be dismissed for failure to state a cause of action. and now the rule more accurately states is… “ In ruling upon a motion to dismiss for failure to state a cause of action, all evidence available, all admissions already on record as of the time of the hearing of Motion to Dismiss may be validly considered together with the allegations of the complaint.” Q: Is it required, when one invokes res judicata that he himself was bound in the prior action? A: NO

LITIS PENDENTIA Q: What are the elements of a motion to dismiss based on litis pendentia?

A: (1) identity of parties or at least representing the same interest in both actions; 2 (2) identity of rights asserted and relief prayed for, relief being founded on same facts; (3) judgment which may be rendered on the other motion will amount to res judicata in the action under consideration. Q: The first action was to annul an REM by mortgagor against mortgagee. While that was

pending, the mortgagee brings action against mortgagor for foreclosure to which the mortgagor moves for dismissal on ground of litis pendentia. (See I Moran 485). Rule on the motion.

A: Motion for dismissal of mortgagor is not proper. Litis pendentia does not apply. Although there

is identity of parties, a resolution of one case will not constitute res judicata, whatever the judgment in 1st action that REM is valid, if not yet dispose of action for foreclosure. (Tambunting vs. de Leon) Q: Petition in Bureau of Lands for issuance of free Patent over a parcel of land and another

action to recover said land during pendency of proceedings in the BOL. Does it constit ute litis pendentia? A: Not litis pendentia because 1 st action is administrative while 2 nd one is instituted in court. (Regalado, p. 155) Q: 1st action - A vs. B for recovery of land and while pending 2nd action – B vs. A to quiet title over

same land. A motion to dismiss was filed by A on ground of litis pendentia. Resolve. A: Francisco vs. Vda. De Blas: Motion to dismiss sustained; there’s identity of parties, of cause of action and or relief and any judgment that may be rendered in the first case, regardless of which party is successful, will necessarily amount to an adjudication of the 2nd. Q: Case in RTC by lessee against lessor to fix period after expiration of srcinal lease and while

this was pending, lessor filed suit for ejectment on ground for expiry of lease. Litis pendentia? A: Yes. (Teodoro vs. Mirasol and see I Moran 487). The ground for dismissal if there is a pending action and not a pending prior action. The fact that the unlawful detainer suit was of later date is no bar for dismissal of the present action for declaratory relief and also the question of whether lessee has a right to occupy the land lased against the lessor is more proper in a suit for unlawful detainer under Rule 70 (Lim Si vs. Lim); since there’s already an action for illegal detainer, the suit for declaratory relief should be dismissed. What is the difference between Bar by prior judgment and Estoppel by judgment?

A: The former is governed by Sec 49(b) of Rule 39 while the latter is governed by Sec 49 (c) of Rule 39. The distinction between bar by prior judgment and estoppel is as follows: In the former, any issue that was raised or which could have been raised but was not raised is barred from being raised in another action in the future . In the latter, only the issu ed actually raised and necessarily adjudged by the Art are barred. Other issues not raised are not barred because the causes of action of the cases are different. Bar by prior judgment is a ground for a motion to dismiss but not estoppel by judgment because in the latter, the cause of action is different. Examples of Estoppel by Judgment 1.

First Action – A v B for recovery of land Second Action – A v B for damages to a piece of land In the first action, one of the issues which was necessarily ruled upon was whether a certain deed of donation was valid and it was held to be valid. If that same issue again as to validity of the Deed of donation was raised in the second action between A and B. Although the cause of action be different, that issue is already settled once and for all. Res Judicata Proper or Bar by prior judgment, the entire case is barred.

2. Unlawful Detainer which by the very provisions of the rules, a judgment in an action of unlawful detainer is conclusive only on the issue of possession so even if the judgment may contain some statements about ownership or other matters, it is not conclusive even between same parties on any other matter except on ownership.

What is the difference between bar by prior judgment and estoppel by (conclusiveness of) judgment? BAR BY PRIOR JUDGMENT (RES JUDICATA PROPER)

1. Sec 47 (b), Rule 39 2. Elements jurisdiction of the court final judgment judgment on the merits identity of parties and cause of action

   

3. Scope of Preclusion – What is precluded is the entire action  all matters directly adjudged in the 1st case  any matter that could have been raised in relation thereto Q: What’s the difference between Res Judicata and Law of the Case (Stare Decisis)?

A: Res Judicata bars the filing of the cas e. It involves 2 different actions. The law of the cas e involves only 1 litigation. LAWOFTHECASE

V.

-refers to what has been decided in the same case between same parties, whether right or wrong, which can’t be overruled anymore except by the Superior Court and until then, such decision is or must be upheld; 1 case involved only Note:

RESJUDICATA

- refers to different cases

Both law of the case and res judicata have the effect of preclusion

Q: P v. AAto r ecthe oveland r a pto arce of la nd2bundt action it tu rns ou tby bePfov. reX. t hDecide. e first ac n wares s commenced, sold X lalready; now Istio there judicata? A: 1st case should have been dismissed for not being against the real party in interest. but,

yes, there is res judicata. (R 39 S 49b). X is a party in interest by title subsequent to the commencement of the action, litigating for the same thing, under the same thing, under the same title and in the same capacity. Q: Meralco vs. CA. X sues Meralco for abatement of nuisance. Judgment was against Meralco

ordering it to reduce noise to a certain decibel. Later, X found that a stipulation in the contract of sale of land by PHMC to Meralco stated that land can be used only for residential purposes. X then brings 2nd suit against Meralco for breach of contract. Motion to dismiss by Meralco. What can be the ground for dismissal of 2 nd suit by Meralco. 2nd action is for recission of contract. A: Res judicata. Meralco’s contention that there is splitting of cause of action is not correct. No splitting because cause of action for abatement of nuisance is different from a cause of action for cancellation of contract. However, it does mean that a judicial proceding can’t be barred by a previous case involving another cause of action. The principle applicable would be estoppel by judgment/collateral estoppel by judgment. The issue of whether the land is for residential purpose only is necessarily adjudged already in the proceeding for abatement of nuisance. Note: Kinds/Forms of Res Judicata 1. R39 S49 – RJ proper 2. R9 S4 – Counter/Cross claim not set up is barred 3. R2 S4 – Splitting a single cause of action

4. R57 S20 – Claim for damages on account of illegal attachment (if you don’t file action against the bond for wrongful attachment before judgment in the same case, ten any form of bond is already barred) 5. R17 S3 – Dismissal for failure to pros ecute in a judgment on the merits unl ess otherwise stated in the order. Distinction between R39 S49 b-Bar by prior judgment

1. scope of preclusio is wider; entire record is precluded 2.identityofparties 3. identity of cause of action

c-Conclusiveness of judgment

1. scope of preclusion is limited to specific issues only; such issue is barred from being relitigated 2.same 3. no identity of COA

Q: How does R39 S49 apply? What is it that can no longer be relitigated? A: In conclusiveness of judgment, the judgment in the 1 st is binding only with respect to the

matters actually raised and adjudged therein (Viray vs. Maonas); matters so adjudged or which were actually and necessarily included therein or necessary thereto. Q: 1st action – P v A & B to annul sale of land and recovery thereof on ground that sale of A to B

is in fraud of P. Judgment for A & B and sale found valid. 2nd action – A v. B to annul sale because sale was only colorable on understanding that the sale is in connivance against P and because B did not honor said agreement. B filed Motion to Dismiss. Decide. A: Carandang vs. Venturanza is case in point. Motion denied because res judicata does not apply where the present protagonists were defendants in the 1 st case, except, where as co-defendants, they submitted conflicting claims between themselves. There is no identity of parties in the sense that they are placed in the same capacity and urging same right, so how can there be res judicata? In the 1 st case A & B weren’t in an adversarial position as they are in 2nd Q: 1st case – P vs. contractor for damages suffered due to negligence of contractor; judgment for

contractor. Later, P vs. the building owner for same cause of action. Is there res judicata? A: No answer.

ESTOPPEL BY JUDGMENT (CONCLUSIVENESS OF JUDGMENT)

1. Sec 47 (c) 2. Elements a. b. c. d. 2.

jurisdiction of the court final judgment judgment on the merit identity of parties

Scope of preclusion – Here only specific issues are prevented from being re-litigated  matters adjudged in a final judgment or final order which appears upon its face to have been adjudged  matters actually and necessarily included therein or necessary thereto Problem: 1st action – A vs. B to foreclose real estate mortgage.

2nd action – B vs. A to quiet title. A files a motion to dismiss.

Answer: Bar by prior judgment Problem: 1st action – A vs. B to recover land

2nd action – B vs. A to quiet title A files a motion to dismiss. Answer: Conclusiveness of judgment. The issue of the validity of the mortgage cannot be relitigated. Problem: 1st action – A vs. B to fix period in a contract of lease

2nd action – B vs. A ejectment Both A and B file motions to dismiss. Answer: Litis pendentia. The 1st case should dismissed even if it were filed first. Problem 1st action – A vs. B to recover land

2nd action – B applies with Bureau of lands A files a motion to dismiss. Answer: No litis pendentia. Different jurisdictions. Problem: A sold to B. B sold to C. A sued B to recover what he sold to B. A lost. A sues C.

Can A sue C? Answer: Yes because A should not have sued B in the first place since B was not the proper party. There was no cause of action. There is no judgment on the merits.

MOTION FOR BILL OF PARTICULARS Q: D filed Motion for Bill of Particulars. This was denied. Within the time for filing pleading, D files

motion to dismiss for improper; P opposes Motion to Dismiss on the ground that objection to improper venue was not raised in the 1 st instance and so deemed waived. Rule on the Motion to Dismiss. A: D’s motion to dismiss must be denied (Sy vs. Tyson Ent.) Nowhere in the rules does it state that the objection to improper venue must be raised at the 1st instance/1st objection. Q: A stays in AIT Hotel for a few days. He is not from QC. He is from Surigao. He makes QC the

venue of his suit against B who is in Surigao. Is this proper? Can A be served summons in AIT Hotel? A: A can’t make QC the venue of his suit because it is not his residence as contemplated in Rule 4. However, A can be served summons at AIT Hotel accdg. To R14 if personal service is effected and not substituted service for AIT Hotel wouldn’t be the residence of A. MOTION TO STRIIKE OUT Q: What are the grounds for a motionto strike out a pleading orany part thereof? A: (1) The pleading contains sham, false, redundant, immaterial, impertinent or scandalous

matter. (Rule 8, Sec. 12) (2) The pleading alleges scandalous or indecent matter therein (Rule 7, Sec. 3) (3) Non-compliance with court's order for bill of particulars (Rule 12, Sec. 4) (4) Refusal to comply with court order to submit to modes of discovery (Rule 29, Sec. 3) NOTE: Q:

A complaint CAN be stricken out!!! What is meant by “sham”. Give examples.

A; The allegation which is go od in fo rm but false in fa ct; example: in my an swer filed, I allege that I am 16 feet tall.

Differentiate between motion for summary judgment and motion for judgment on the pleadings. JUDGMENT ON THE PLEADINGS Q: What is the reason for the rule allowing judgment of the pleadings? A: To expedite litigation. Q: How will it expedite litigation? Why don’t we allow it in all cases? A: Judgment on the pleadings is allowed when there is no issue of fact.

If there is only an issue of law, judgment on the pleadings is still proper. Because you do not try issues of law, you do not receive evidence on issues of law. At most you argue your positions on issues of law. That is if it is a pure question of law and it does not have underlying factual issues. Those are infrequ ent cases where the issues are purely law. So when there is no issue of fact, then judgment on the pleading is proper. Recall when I told you about the problem when there is an issue as to damages. Allegations as to the amount of damages need not be specifically denied. 1. 2. 3. 4.

As to grounds – When an answer fails to tender an issue or admits material allegations Who may ask – plaintiff At what stage may be invoked – after filing of the answer and before trial Partial Judgment is allowed – Secs. 4 & 5, Ru le 36

Sec. 4, Rule 36 provides that in an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others. Sec. 5, Rule 36 provides that when more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgm ent disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. Under Sec 1 (g), Rule 41 the Rules provide that no appeal may be taken from a judgment or final order for or against one or more several parties or in separate claims, counterclaims, cross-claims and third party complaints, while the main case is pending unless the court allows an appeal therefrom. QUERY: Can you appeal from partial judgments found in Secs. 4 and 5 of Rule 36? Are the

partial judgments in these sections final? Can a motion for reconsideration be filed? Final and appealable judgment – can appeal; all issues disposed of Interlocutory order – not appealable but can attack the order via Rule 65, certiorari • If the court denies a motion to dismiss, the party can attack the denial via Rule 65, certiorari. However, most lawyers merely cite the denial of the motion to dismiss as an assignment of error. If you do this thou gh, you would have to go through the whole trial. It is not a speedy remedy. Final and executory – after appeal has lapsed; ripe for execution Q:

May defendant move for judgment on Pleadings?

A:

Yes, under Rule 18, during pre-trial, this is allowed. There is another rule, though ( the former Rule 19, Sec. 1 under the pre-1997 Rules) which seems to indicate that only plaintiff may do so. MOTION FOR SUMMARY JUDGMENT Q:

When is Summary Judgment availed of?

A: When there is no ge nuine issue as t o any m aterial fact involved. (Aegenas v. N agum, Regalado p. 230) Q:

What is a genuine issue?

A:

There is a genuine issue if a regular trial is needed to resolve it (ex. rape, negligence) (1) (2) (3) (4)

As to grounds – When there is no genuine issue as to any material fact in the action Who may ask – plaintiff or defendant At what stage may be invoked – at any time be fore judgment Partial Judgment is allowed – Sec. 4, Rule 35 Rationale: spare the court and the other party of going through with the trial. There is no need to spend time on factually baseless claims and defenses. The failure to state a cause of action is different from a lack of cause of action. T he lack of a cause of actio n means that the re is an intrinsic lack of the cause of action. It requires an evidentiary hearing. On the other hand, the failure to state a cause of action can be seen by merely looking at the complaint. Prayer: asking for relief which the movant is entitled to as a matter of law

Q: What is the rationale for the rule allowing summary judgment? Give an example of a case which is proper for summary judgment. A: A motion filed by plaintiff against defendant whereby plaintiff alleges damages. Defendant

answers that the amount of damages sought to be recovered by plaintiff should only be limited to this particular amount, there should be summary judgment because there is no actual issue. Q: When is an issue as to a material fact genuine? A: An issue is genuine if it is properly triable, when it merits trial, meaning it requires for its

resolution a full dress hearing or a trial where you call witnesses, direct and cross exam. Where, for instance, the plaintiff sues for collection on a PN and the defendant does not deny the execution of the note but defends by saying that he has paid. Why not just present affidavits and the receipt? What is there to try? Kailangan pa ba ng testigo dyan at mag cross-examine? The classic example here in the Philippines, although disputable, is Estrada vs. Consolacion. It involved a three vehicle accident. The plaintiffs were passengers in vehicle C which was parked properly. It was hit by one vehicle B because it was hit by vehicle A. The plaintiff filed a motion for summary judgment and they presented the traffic investigator’s report with the sketch. This was not disputed in the counter-affidavits by the defendant. No, I believe it’s the owner, operator of vehicle C, which moved for summary judgment to get his partial summary judgment to get off the case ahead of A and B. As far as he is concerned, it can clearly be established without need for a full dress trial that it was blameless. The vehicle C was parked properly, not moving, binangga. If there is any triable issue of fact, it is between A and B. There was a dissent by Justice Ramon Aquino who said that the affidavits are hearsay. There is a point to that. Rule 35, Sec. 5 requires that the affidavit should be based on personal knowledge. The classic case in the USA involved Cole Porter, a copyright infringement case. The plaintiff claimed that the songs (Bagin and Bagin) composed by Cole Porter were copied from

him. The defendant denied it. He said that he didn’t even know the plaintiff’s composition existed. Then the defendant Cole porter moved for summary judgment. Among the affidavits he presented were affidavits of musical experts to show that the notes of his songs were radica lly different from those of plaintiff. The trial court granted the summary judgment. It said that obviously there can be no copying. There is no need to go to trial. The Supreme Court in the case of Eistein vs. Porter reversed and pronounced itself strongly against indiscriminate summary judgment by saying that this would result to trial by affidavits. And Justice Aquino saw that point in Estrada vs. Consolascion, when he said that the affidavits were hearsay. Kailangan ang cross examination. How can you know assure that sketch is but significantly the fact is that sketch was not disol by any counter affidavits. Now the theory of summary judgment is that court time like classroom time is very precious, very limited. It should not be noted unnecessarily on issues which don’t really need to be tried. The USSC said in the Cole Porter case, that if the complaint says that if the composition material girl was copied from Rabel’s Bolero then summary judgment could easily issue because it is obvious that they are not the same. They are very dissimilar. Anyway, the Court in that case said that there are other factual issues which need trial, for instance, accuse (?) to copying. But in the same Cole Porter, he said that dissimilarity is not like that as to warrant summary judgment. It requires trial. Estrada vs. Consolascion also stressed that after a motion for summary judgment which is to be accompanied by affidavits and deposition. The other party has 10 days to submit counteraffidavits. There should be an order first granting the motion, o the summary judgment itself. Q:

Is partial Summary Judgment possible?

A:

Yes. R34 S4.

Q:

Is su ch d ecision (p artial su mmary ju dgment) im mediately ap pealable?

A: Yes. (Guevara vs G uevara) were just. Conrado Vasquez ruled that way. However, Bautista says this is wrong because what is referred to is actually R35 S5 which is Judgment at Various Stages. Q:

Can defendant move f or Summary Judgment ev en before filing answer?

A: Yes. R34 S2 provides that the defendant can at any time, move for summary judgment even before or without filing his answer but with respect to summary judgment moved by the plaintiff, he can’t do so if the answer has not been filed yet. Q:

Compare and contrast the following:

Judgment on Pleadings

Summary Judgment

-no issue of fact involved

-issue of fact involved - trial by affidavits (w/o full-blown trial)

IX .

Regular Trial

- issued of fact and law are tried

DISMISSALS A ND D EFAULTS

(1) DISMISSALS Important Points for Dismissals 1.

When is there need for prior leave of court? •

Dismissal is effected not by motion but by mere notice of dismissal which is a matter of right before the defendant has answered or moved

for summary judgment. Otherwise, there is need for pri or leave of court. Since it is dismissal by mere notice and not by motion, there is no need to furnish a copy to the other party. Problem: The plaintiff files today then wit hdraws tomorrow. What does the plaintiff do if he wants to re-file? Answer: The plaintiff can re-file, but he has to pay the docket fees again.

•

•

2.

What is the effect of dismissal on a pending counterclaim?

3.

Preclusive effect •

•

Dismissals under Secs. 1 and 2, Rule 17 are without prejudice except: a) where the notice of dismissal so provides b) where the pla intiff has pr eviously dismissed the sam e case in a court of competent jurisdiction – 2 dismissal rule  If the plaintiff withdraws the case for the 2 nd time, then it is equivalent to an adjudicat ion of the case. According however to Prof. Bautista, for practical purposes, how would the defendant know if the plaintiff has filed the case for the 2 nd time? He probably won’t know. Therefore, for practical purposes, this is illusory. The implication is that the plaintiff can re-file even after a 2 nd time.  Another reason why the plaintiff might want to keep on re-filing is to try to get another judge. c) when stated to be with prejudice in the order of court Dismissals under Sec. 3, Rule 17 amount to an adjudication of the merits unless otherwise declared by the court.

Problem: Plaintiff files a complai nt. After 6 months, there has been no

service of summons. The case is dismissed for failure to prosecute. 2 months later, the plaintiff re-files the same case. The defendant files for a motion to dismiss under Sec.3, Rule 17. Rule on the Motion to Dismiss. Answer: Not granted. The first court did not acquire jurisdiction over the

defendant. No summons had been issued yet. There is no res judicata either. If the complaint has been dismissed, the plaintiff in the counterclaim has 15 days to decide whether to pursue the action in the same case or in a separate action. If the complaint is dismissed before an answer is filed, there is no counterclaim to speak of. The presence of a compulsory counterclaim presupposes that the defendant was able to file an answer. Problem: A purchased a car through a finance company. The finance company files a case against A to pay for the car. The car of A is repossessed through replevin. The finance company then moves to dismiss its complaint. What happens to the replevin? Answer: According to Prof. Bautista, the plaintiff, finance company cannot dismiss the case as a matter of right since it has been afforded an affirmative relief. In fact, even if there was no need for prior leave of court,

the court must still issue an order confirming the dismissal. The purpose of the confirmation is to see to it that rights are not prejudiced (i.e. right to claim against the bond). The effect of dismissing the case would be as if there would be a taking without any hearing. Q. The rule is that plaintiff can move to dismiss (generally, w/ out prejudice) his action before answer is filed by defendant without leave of court. What are the exceptions?

A: a. 2 dismissal rule – R17 S1 – prior dismissal in competent court of an action based on or including the same action/ claim b. class suit – R3 S12 Q: Plaintiff’s lawyer did n’t appear at the trial , can the Court motu propri o dismiss the action?

A: No. R17 S3 says it must be the plaintiff himself who’s absent. Q : If at pre-trial, plaintiff himself doesn’t appear, can the court motu proprio dismiss the case?

A : a. Yes (R17 S5 ), for failure to obey court order. See also R20 S2, the failure to appear at pre-trial may result in the party’s being non-suited/considered in default but court can’t declare party in default motu proprio ( R18 S1 ). But if the court is to give default order instead of having action dismissed, court can’t declare such without motion. b. failure to prosecute is equal to non-suit. Failure to prosecute – motu proprio/def’s motion –judgment on merits

1. failure to appear 2. failure to prosecute for an unreasonable length of time 3. failure to comply with these rules or court order Q: Other than Rule 17, are there no other grounds by which a Court can dismiss an action? Is the enumeration of the grounds for dismissal in Rule 16 e xclusive? Do you need a Motion always or can the court dismiss action motu propio? A: Court can dismiss an action motu propio for any of the 4 grounds enumerated in Rule 9, Sec.

1.

(2) DEFAULTS

Default occurs when the defendant fail s to answer within the time all owed. The court may also order a judgment by default against the disobedient party if such party refuses to comply with the modes of discovery (Sec. 3 (c), Rule 29). If the defendant fails to appear at pre-trial, this is cause for allowing the plaintiff to present his evidence ex parte and the court can rend er a judgment on the basis the reof. If the plaintiff does not appear at pre-trial, then it shall cause the dismissal of the complaint. Q : What is the order/sequence of a party’s being in default?

A : Ist – Motion to declare party in default. 2nd – Order of default -party not entitled to participate, 3rd – Judgment by default Grounds for Declaration of Default– Failure to answer within the required time How Declaration of Default is made – Only upon motion of the party not in default Q: Can a court motu propio declare a judgment in default? A: No. See Rule 9 Sec. 3.

Effect of Declaration – The court shall proceed to render judgment granting the claimant such

relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. In this case, the party in default cannot take part in the trial but is still entitled to notice of subsequent proceedings. The defendant may take part in the trial or the defendant regains his standing upon the granting (not just the mere filing, I think) of a motion to set aside an order of default. It lies within the discretion of the court whether or not the plaintiff shall present evidence. According to Prof. Bautista, if the court decides that there is no need for the plaintiff to present evidence, the basis of the court’s judgment would perhaps be an admission by silence. •

Remedies of a Party Declared in Default 1.

Opposition -- when the other party files a motion to declare the opposing party in default

2.

Motion to set aside order of default -- when there is an order of default •

• •

•

3.

4.

This may resorted to anyt ime. The movant must cit e his grounds accompanied by an affidavit of merits. If the order of default is illegal then there is no need for an affidavit of merits. If the motion to set aside the order of default is granted, the defendant has a clean slate. He is not merely given a chance to cross-examine. It’s as if there was no default. According to Prof. Bautista, he does not like filing a motion to declare the party in default since the other party will merely file a motion to set aside the order of default. Courts usually give defendants a chance.

Motion for new trial or motion for reconsideration •

The party in default cannot file a motion for reconsideration to set aside the order of defa ult. The party in default however, can file a motion for reconsideration when there has been judgment by default.

•

After judgment has been rendered, appeal is available even if the party in default did not file a motion for new trial, did not file a motion to set aside in default.

Appeal

5.

Petition for relief from judgment

6.

Certiorari, Rule 65 •

Since the order declaring the party in default is interlocutory, such order cannot be appealed. The remedy is certiorari, Rule 65.

Q : Can the defaulting defendant appeal without filing a motion to set aside Judgment of Default?

A : Yes, R41 S2, par-3. Q :

A Motion to Set Aside Order of Def ault is deni ed because no affida vit of merit is

attached. Decide. A : If the declaration of default is illegal/improper, then the motion need not be accompanied by

an affidavit of merit. If improvident declaration (given based on mistaken assumption / misleading information / advice), then affidavit of merit must be attached.

Q : Can a party in default question the legality of the Order of Default even if he has not filed a Motion to Set Aside Order of Default?

A : Yes. In the case of Matute v. CA, it was stated that judgment by default /order of Default may be declared void in an appeal even if no Motion to Set Aside it is filed. Q : Is certiorari available against an order of default?

A : No since the remedy of Motion to Set Aside Order of Default is still available. Limitations on Judgment by Default

1. cannot occur for the following cases: a) annulment of marriage b) declaration of nullity of marriage c) legal separation 2. A judgment rendered against a party in default cannot: a) exceed the amount b) or be different in kind from that prayed for c) or award unliquidated damages 



According to Prof. Bautista, this is logical since the law assumes that the defendant is willing allowing himself to be declared in default. For example, the defendant can perhaps afford the sum prayed for. Perhaps he sees no need to spend for a lawyer. The prayer serves as the upper limit of the amount and kind for judgments by default.

Q : P v. A,B,C,D,E,F jointly and severally ; ABC declared in default; P amended complaint to drop DEF & court granted it. Ex-parte presentation of evidence against ABC. Decide.

A : Wrong move by court. Reasons: a. Rule 9, Sec 3(c) provides that the court must try case against all upon the answers filed & render judgment upon the evidence presented. b. Also, dropping DEF is a substantial amendment in the pleading that will expand the liability of defaulting defendants (Lim Tan Ho v. Arboleda). Please check if this is still applicable under the new rules.

X.

PROVISIONAL REMEDIES

Provisional remedies are also known as auxiliary remedies (in aid of). These provisional remedies are not final. These are prejudgment remedies, that’s why the US Supreme Court struck down most of them since these essen tially violate due process. The bonds do not fully relieve the infirmity For example, even if a bond is filed, it doesn’t fully compensate the person since there is a prohibition to transfer the property until the litigation is terminated. the Generally, provisional remedies come in before final judgment. (1) NOTICE OF LIS PENDENS

Lis pendens is not really a provisio nal remedy. It is essence thou gh is theoretically a provisional remedy since it gives provisi onal relief to the movant. The notice of lis pendens

affects the alienability of the property. It serves as a warning to all would-be buyers. For practical purposes therefore, no one would buy the property. Therefore, it operates like an attachment. Q ; A notice on lis pendens would operate like what kind ofprovisional remedy?

A : Attachment, except that a notice of lis pendans only involves real property. Q ; For how long is a notice of lis pendens good?

A : For as long as it is not cancelled by the court. Q : What is the purpose of lis pendens?

A : A notice of lis pendans is a notice of pending action between the parties involving title or the right possession over real property. It serves a warning to all persons, prospective purchases or incumbrances of the property in litigation to keep their hands off the property in litigation, unless they are prepared samble on the result of the proceedings. Q. What are the grounds for cancelling? A. 1. Purpose of molesting the other party 2. not necessary to protect the rights of the party

(2) PRELIMINARY ATTACHMENT

( May be granted Ex parte ) Quote from Sir: Ballroom dancing is harder than learning the Rules of Court kasi it doesn’t make sense. This is child’s play if you understand. Q: What is the purpose of attachment? A: As a security for the satisfaction of any judgm ent that may be recovered in the uses

enumerated in Rule 57. The function of attachment is 2-fold: 1. it seizes the property of an alleged debtor in advance of final judgment and holds it subject to appropriation in satisfaction of the judgment if finally obtained. 2.

Prevents the loss of property by fraud or otherwise

It subjects the debtor’s property to payment of CR’s claim in those instances where personal service cannot be obtained upon the debtor. Under the 1997 Rules of Court, att achment may now issue for quasi-del icts. Before it was only limited to contracts, either expres s or implied. The rational e was that it was easier to evaluate the merits of whether or not to issue the attachment. The probable claims are based on the contract itself. Claims arising from quasi-delict cannot be resolved summar ily. They are litigious and involve issues of fact. A second significant change is that attachment can issue for cases of both dolo incidente and dolo causante. Previously, it was allowed only for dolo causante.

Although it may seem that preliminary attachment is very harsh, this is tempered by the fact that it will not be allowed unless the grounds enumerated by law are present. These grounds are limited. For example, insolvency is not a ground for attachment. Also, the property which is the subject of litigation cannot be attached. According to Prof. Bautista, unliquidated claims cannot be recovered under Sec. 1 (a), Rule 57 since the amount of damages must be specified. In Sec 1 (b), Rule 57, there is a need for preliminary attachment since it is highly likely that there will be prejudice to the applicant. In Sec. 1 (d), Rule 57, the fraud there refers to both

fraud causante and incidente. Sec. 1 (f), Rule 57 refers to natur al persons only and not to juridical persons. The issuance of the attachme nt order and the writs are done by the courts only. The movant can file for prel iminary attachment any time before entr y of final judgment. Thus, the order of attachment can be issued even before summons since it can be filed at the commencement of the action (Sec. 1, Rule 57). However, the writ cannot issue unless preceded or contemporaneously accompanied by service of summons (Sec. 5, Rule 57). There are 2 kinds of attachment: 1.

attachment p roper • •

2.

involves physical custody refers to actual tangible property

garnishment – a species of execution • • •

•

involves a notice of sequestration refers to incorporeal property The Bank Secrecy Law does not apply in cases of garn ishment. The rationale according to the Supreme Court in one case is that garnishment does not involve asking how much money there is in the bank (although if the bank deposit is not enough , you will find out). It merely involves knowing whether the debtor has a bank deposit in that bank or not. The garni shee is a forced intervenor since he is forced to respond because he holds the property.

Q : What is the difference between attachment and garnishment?

A : Attachment usually refers to property being levied upon or being taken into actual custody of the sheriffs whereas garnishment is a notice of sequestration. CLASSIFICATION OF ATTACHMENTS:

I.

According to availability and effects: A. Preliminary:

resorted to at the commencement of the action or at any time before entry of judgment; Merely temporary;

B. Final:

available after the judgment in the main action has become executory; For the satisfaction of a judgment; also known as levy upon execution.

II.

According to form and procedure of enforcement: A. Regular:

Attachment of corporeal possession of the party;

property

in

the

B. Garnishment:

Attachment of money, stocks, credits, and other incorporeal property which belongs to the party but is in the possession or under the control of a third person.

PURPOSES OF PRELIMINARY ATTACHMENT:

(1) To seize the prope rty of the deb tor in adva nce of fin al judgment and to hold it for purposes of satisfying the said judgment; or (2) To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. PROCEDURE IN PRELIMINARY ATTACHMENT (1) Party files a motion for preliminary attachment in the court in which the action is pending, or in the CA or SC. (Of course it goes without saying that the adverse party must have notice of the motion.)

Who:

Any party, including:   

a defendant on his counterclaim; a co-party on his cross-claim; 3rd party plaintiff on his 3rd party claim

When: at the commencement of the action, or at any time before entry of

judgment (2) Applicant (or some other person who personally knows the facts ) must submit an

affidavit stating, among others that: (a) His / her cause of action ( which must be found to be existing and sufficient);

(b) The ground for the application is covered by the instances provided for in Rule 57, Sec. 1; (c) There is no other suff icient secu rity for the claim sought to be enforced by the action; (d) The amount due to the applic ant, or the value of the propert y the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. (3) Applicant must then give a bond executed to the adverse party in the amount fixed by the court in its order. Conditions of the bond:

The applicant will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudged that he (applicant) was not entitled to the writ.

(4) The court will proceed to hear the motion. (5) The cour t will then deci de on whether or not to grant the wri t, and issue its orde r accordingly. (6) If the court grant s the writ, then the sher iff shall enforce the sam e without delay and with all reasonable diligence. Notes: The property attached should:

(1) be located in the Philippines; (2) belong to the party against whom the writ is issued; (3) not be exempt from execution; (4) be sufficient to satisfy the applicant’s demand (not excessive); Enforcement of the writ must be preceded or contemporaneously accompanied by the following:

(1) (2) (3) (4) (5)

Service of summons; A copy of the complaint; A copy of the application for attachment; A copy of the applicant’s affidavit and bond; and The order and writ of attachment.

The exceptions to contemporaneous service of summons are:

where personal or substituted service of summons could not be effected despite diligent efforts; (2) the defendant is a resident of the Philippines temporarily absent therefrom; (3) The defendant is a non-resident of the Philippines; (4) The action is one in rem or quasi in rem (1)

(7) After enforcing the writ, the sheriff must, without delay, make a return of the writ to the court which issued it. The return must be accompanied by the following: (a) Full statement of proceedings under the writ; (b) Complete inventory of the propert y attached; (c) Counter-bond, if any, given by the party against whom attachment was issued. The sheriff shall also serve copies of the foregoing on the applicant. 

AT THIS POINT, the party whose property was attached, or his agent, may move for the discharge of the attachment wholly or in part on the security given.

(7) The sheriff may then cause the judgment to be satisfied out of the property attached as follows: (Please fill in.)

MODES OF ATTACHING PROPERTY: Real property, or standing crops thereon or any interest therein

By filing a copy of the order with the Register of Deeds, together with a description of the property attached, and a notice that it is attached; and Leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Personal property capable of manual delivery

By taking and safely keeping it in his custody, and issuing the corresponding receipt therefor. Stocks or shares of any c orporation or company, or an interest therein

By leaving with the Pres. or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest is attached in pursuance of the writ Debts and credits and other personal property not capable of manual delivery

By leaving with the debtor, or person having possession or control of the credits or other personal property, or his agent a copy of the writ, and the proper notice Interest in property belonging to the estate of a decedent

By serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice; Filing a copy of the writ and notice with the clerk of the court in which the estate is being settled; and Serving copies of the writ and notice upon the heir, legatee, or devisee concerned. Property in custodia legis

By filing a copy of the writ with the proper court or quasi-judicial agency; and Serving a notice of the attachment upon the custodian of the property. ALL PROPERTIES EXEMPT FROM EXECUTION ARE THE PROPERTIES EXEMPT FROM ATTACHMENT. Even property in custodia legis is allowed to be attached. Problem: Can the attaching creditor attach an overdraft? An overdraft is an accommodation by

a bank – a loan. Answer: No, cannot attach an overdraft. That would be tantamount to compelling the person to borrow money If the sheriff for example attaches a car, the sheriff takes the car and stores it in a warehouse. The plaintiff would have to pay for warehouse fees, etc. The sheriff cannot deliver the car to the plaintiff as that would be a replevin. Problem: Defendant has a Benz, an Accord, and a Camry. Can the plaintiff tell the sheriff which

to take? Answer: Unlike execution, there is no order. Differentiate between attachment and execution. There are significant differences.

MOTION TO SET ASIDE / DISCHARGE ATTACHMENT:

Who files:

party whose property has been ordered attached

When:

While the action is pending, before or after levy, or even after the release of the attached property

Grounds:

(1) Th e de btor h as p osted a counter-bond o r ha s made t he re quisite cash deposit; (2) The writ of attachment was improperly or irregularly issued; E.g., no ground for attachment; affidavit filed is defective or Insufficient (3) The writ of attachment was improperly or irregularly enforced; or (4) The bond is insufficient; (5) The attachment is excessive (Note: the discharge shall be limited to the excess); (6) The property attached is exempt from execution and preliminary attachment; (7) The judgment is rendered against the attaching creditor;

3 Kinds of Bonds (1) Applicants Bond (Attachment Bond) •

The amount is based on the amount due or the value of the property.

Conditioned that the applicant will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment , if the court finally adjudge that the applicant was not entitled thereto. •

For the adverse party to collect actual damages, good faith is irrelevant. For the adverse party to collect moral damages, the party must allege bad faith. •

•

Recovery against the attachment bond must be filed (sec. 20, Rule 57)

a) b) c)

before trial beforeappealisperfected beforejudgmentbecomesexecutory

The time is limited because the issue is whether or not the adverse party or creditor is entitled to the attachment. •

(2) Counterbond •

The amount is based on the value of the property.

The value of the property is determined by affidavits. It is not conclusive. So, in case of disagreement as to the value, it will be decided by the court. •

The counterbond is liable if judgment is rendered in favor of the attaching creditor and the judgment cannot be satisfied. •

The general rule is that the plain tiff-creditor must file a claim against the counterbond in the same act ion. There is an exception – if the main acti on is dismissed for lack of jurisdiction or improper venue. •

Problem: Plaintiff attaches and levies property. The counterbond is filed. Trial

ensues. At the end, is rendered favor of the plaintiff. Plaintiff-creditor recovers against the judgment counterbond even if inthe judgment is final and executory. Defendant-debtor argues that the plaintiff-creditor cannot recover against the counterbond since the judgment is now final and executory, relying on Sec. 20, Rule 57. Rule.

Answer: The plaintiff-creditor can recover against the counterbond even if it is final

and executory. Sec. 20, Rule 57 refers to recovery against the attachment bond and not against the counterbond. Problem: After trial the judgment is rendered in favor of the plaintiff. The defendant

files a notice of appeal. Can the plaintiff recover on the counterbond pending appeal. Answer: Yes, since the rules don’t distinguish if appealing is pending or not for as

long as the judgment is unsatisfied. (3) Sheriff’s Bond (Indemnity Bond) •

The sheriff’s bond is filed by the plaintiff.

•

The amount is based on the value of the property.

The value of the property is determined by affidavits. It is not conclusive. So, in case of disagreement as to the value, it will be decided by the court. •

The bond answers for damages which 3 does not re-deliver the property to them •

rd

parties may suffer when the sheriff

Problem: RTC Q.C. rules in favor of the plaintiff. A writ of execution is issued.

The sheriff sees that the defendant has property in Pasig. The defendant gets an injunction from RTC Pasig to prevent the sheriff from levying on the property. Is this allowed? Answer: Yes, this is allowed. This is not interference by RTC Pasig. RTC

Pasig is merely telling the sheriff not to levy on that property in Pasig,. It is not interfering with the judgment of RTC Q.C. itself (Manila Herald Publishing v. Ramos) What are the remedies of a 3rd party claimant? 1.

3rd party claim

Under Sec. 14, the 3 rd party claimant should file an affidavit with the following essential recitals: 1. He has a right to possession 2. Grounds of such right 3. Adverse party has no claim to property Q : Does he have to give supporting documents?

A : Rules do not say. Q. Where is affidavit filed?

A. With the sheriff. Q. What will the sheriff do with the affidavit?

A. Serve to the party attac hment creditor, with notice that if attachment creditor does not give bond, officer shall relinquish possession of property.

If the 3rd party claim is denied by the court, the 3 rd party claimant cannot attack the denial via Rule 65, certiorari. The remedy of the 3rd party claimant would be to intervene. •

2.

reinvindicatory action – action to recover title

3.

damages –recover against the indemnity or sheriff’s bond within 120 days

from the date of the filing of bond 4.

cancel annotation – see Property Registration Decree

If attachment is levied on real property, he may file petition in land registration foronthe of the annotation was under the through property Registration court Decree the deletion ground that the annotation made error or mistake or fraud. 5.

intervention •



Intervention is not available in execution.

These remedies are cumulative (not mutually exclusive). However, the 3rd party claimant cannot recover twice.

Q: Why is there a time limit for damages?

A: Because the issue is WON the creditor was entitled to the attachment. Q: When is he liable?

A: If judgment is for the defendant. Q : Is good faith a defense to aclaim for damages for wrongful attachment?

A : It depends on the type of damages: Reco v. Means, et. Al, L-7550, 4/29/55: XXX an attachment is wrongful if secured by a party who is not entitled thereto. The element of malice is unnecessary. If the plaintiff has no right to attachment because the facts stated in his affidavit, or some of them are untrue, although he may have acted in good faith, he is liable for damages just the same. Gasayta v. Fallon, 32 Phil. 245 XXX the mere fact that the plaintiff dismisses his action renders him liable for damages sustained on account of the attachment issued his instance. (Note : General liability attaches as long as the cour t shall final ly adjudge that the attaching party was entitled thereto. Bangue General v. Bull & Co., 34 Phil. 164: However, even if judgment was rendered against the attaching credi tor but he proves he acted in good faith in procuring such preliminary attachment, the adverse party cannot recover on the attachment bond. (General Rule)

Where there is no issue malice – compensatory damages (actual loss) can be claimed. If there is malice, moral damages can be additionally be claimed (Lazatin v. Tuano, L- 12736, 7/31/61 Q: When is the counterbond liable?

A: When the judgment is in favor or the creditor and it is returned unsatisfied. (Check this!) Q : It is mandatory for the court to dissolve the attachment or to lift it upon the proffer of a counter bond?

A : (Note : Bautista cut de Leon’s answer of no and jumped to another question ) Yes, if the application for a counter bond is made by the party whose property has been attached on the person appearing in his behalf. (Rule 57 sec. 12). In Tiacqui, et al v. Jugo, 69 Phil. 437, the court said of sec. 12; Under this provision, only a defendant, or the party whose property has been attached, and not a stranger, may apply for the discharge of an attachment. Q ; P got an attachment. It is discharged upon D’s filing a counter bond. Judgment for P. D timely appeals to CA but before appeal is perfected is granted immediate execution. This executio n levied but return ed unsatisfied. P would like to levy on the counter bond. D and the surety object. Rule.

A : In City of Manila v. IAC. The Supreme Court said that sec. 17 refers to judgment makes no distinction whether it's final or pending appeal, so it will apply. Q: When is a separate action allowed? A: No answer. Q : Can an overdraft account of thedefendant be attached?

A : No. An overdraft account is not a credit in favor of the judgment debtor, because the latter, supposing he will ever avail himsel f thereof will becom e a debtor instead of a creditor. To attach such overdraf t account would be tanta mount to compelling a person, by judici al process, to borrow funds with which to pay his judgment creditor. Nava v. San Jose, L-3905, 10/31/51. Property legally attached is property in custodia legis and cannot be interfered with without the permission of the proper court but this is confined to cases where the property belongs to the defendant or one in which the defenda nt has propriet ary interest. Traders Royal Bank IAC, L-66326, 10/21/34 Q : What about property under probate administration? A : Sec 7 Rule 57, yes. But take note another remedy (according to Prof. Bautista’s lecture notes, this is the “proper remedy”) is to file a claim against the estate. Q : You take a bus going to Baguio. It falls off the ravine because of a tremor. You were able to hang on to some bran ch of a protruding tree and you surv ive. In your suit against the bus company for breach of contract, can you file a motion for preliminary attachment?

A : YES, provided that the defendant is about to depart from the Philippines with intent to defraud his creditors (Rule 57, Sec. 1a) Take note however that absent any allegation of a specified amount of damages being claimed, it is possible that the motion will be denied. Note that the said rule requires that the action be for recovery of a specified amount of money or damages. Q : What is the rational fornot allowing attachment where the claim isunliquidated?

A :The amount of the bond cannot be ascertained because the amount of the claim is undetermined. (Verify this.) Q : You were sued for libel by Penthouse Magazine. You sued for damages. Can you get an attachment? Do you have a ground for that? A : No. The grounds in Rule 57, Sec. 1 must be strictly construed (Balbastro). Note that the provision applies only to natural persons. Q : A sues B to recover land which according to A he was defrauded by B to sell. Can A attach this land?

A : No. The plaintiff cannot attach property which he is claiming to be his or which is the subject of the litigation. Food for thought: Differentiate between replevin and preliminary attachment.

Q : Apart from giving notice, do you have notify owner? Is it required? If real property?

A : No. Could be occupant. Sec 7 (a). Q. But he can still hold on to the property even if he is not given a bond? (Note: When bond is not needed) A. Yes. 1. If attachment creditor is the Republic of the Philippines or, 2. If he wants to take the risk. Q. Can the attachment debtor direct sheriff as to what properties to attach first? Can he attach real property if there are available personal, or does he have to attach first personal before proceeding to attach real? Is there an order prescribed by the rules that he must attach first personal and exhaust it and only if it is insufficient, can he then proceed to attach real?

A: NO, the attachment debtor cannot direct the sheri ff as to what properties to attach first. Neither is there any requirement in the rules to attach personal proper ty first. This is in contrast to execution where Rule 39, Sec. 8 (d) specifically states that real property will be levied upon only if sufficient personal property cannot be found. Food for thought:

Differentiate between preliminary attachment and execution.

Sir: In execution, execution debtor can direct which property will be executed. (Student) Can sheriff execute on properties of local governments? Sir : No. In administrative code just like salaries of government officials, state property is exempt from execution. Q: How about in the form of writ of attachment? What does form say (Form No. 16)? A. real and personal. Q. How about the form of writ of execution? A. Sec. 8 Rule 39. In case of personal property capable of manual deliv ery, the writ of attachment is implemented by taking physical custody of the property called LEVY and Carry. Although they can make a constructive levy because hakutan can be very violent. Note:

Q. Where will sheriff bring property kung haha kutin niya? Bakit hindi niya big ay sa plaintiff, anyway may bond naman? A. He cannot. Q. In no way can he sell property which is attached? A. He can. (Note : Perishable – on motion, court may order sale) Q. What does the sheriff do with personal property he attached? Sir : He has to take care of it so he will put it in bodega, a safe place and he has to have it guarded. This entails expense. Unless they are gold bars, I don’t think it is worth it. That is the practical thing about attachment because of the warehousing expense which will be at the expense of the creditor to begin although subject to reimbursement. Expense easily outsteps value of property unless they are gold bars. (3) PRELIMINARY INJUNCTION

( Note : Granted at any stage of the action prior to final judgment)

The rationale for prelimi nary injunction is to preserve the status quo. It is important to preserve the status quo since otherwise, the judgment may be rendered academic. The status quo is the last, actual, peaceable, uncontested status prior to the controversy which gave rise to litigation (Rodolfo v. Alfonso). For example, a fence is put up in a certain place . Controversy over that fence ensues. The status quo is the status before the fence is put up. Otherwise, the parties would be racing against time and will try to change the situation before the suit is filed. Why do we want to maintain the STATUS QUO ANTE LITEM or the STATUS QUO ANTE of the parties? If we do not maintain the status quo and parties are free to change status quo ante, the litigation might become moot or the judgment rendered therein may become ineffectual. The parties will be free to take the law in their own hands. The Court must be given the opportunity to decide the controversy between the parties at the point it arose, as it existed at the interruption, without either party being able to alter the situation during the pendency of the litigation and preempt the judgment of the court. This would result in grab law – the parties taking the law in their own hands. Q. What is meant by the “comparative or rela tive con venience in th e law of injunction? A. Injunction can or cannot be granted by considering the situation of the parties. Will the

damage suffered by the plaintiff if injunction is not given be as much or less than the injury to be suffered by the defen dant if injunction is given? (Note: Balance of comparative inconvenience – test of irreparable damage) Q. A group of stockholders is disputing the election of directors of a corp on the ground that the meeting was not properly called in accordance with the by-laws. And this group called its own meeting and elected its own set of directors, and thereafter brings an action to contest the election of the first board and seeks injunction to prevent the first board from sitting and acting as the boar d. Can injunction be properly issued? What is th e status quo to be preserved by a preliminary injunction in such a case?

A: The status quo ante is the situation before the election of the first board. Therefore, none of the boards should sit. Q: A and B own ad joining lots. A claims different boundary and builds fence in new boundary. A files suit again st B and enjoins B from interfe ring or breaking down the fence. A says: When I sued, tapos na ang fence. That is the status quo.

A: That is not the status quo before the dispute. The status quo before the dispute is the original boundary to be maintained. Kung hindi, mag-uunahan sila to change the status quo and then magdedemanda na agad yong isa. That is not the status quo defined.

•

The court may order a bond to be posted upo n its discretion. An injunction may not be granted ex parte. However, a TRO can be granted if it is urgent. Within 72 hours, there is a hearing. If the court finds that the TRO should be extended, the court may grant an additional 17 days.

•

Only the court issues a TRO. If it’s a multi-branch, the executive judge issues.

Ways of Dissolving an Injunction

1. no ground 2. bond insufficient 3. comparative or relative damage • The defendant will suffer more damage if the injunction is issued

Q. Can a court issue preliminary inju nction enjo ining all pers ons from entering certain premises? A. No. To enjoi n party litigant. Injunction operates in personam. You cannot issue

injunction against the whole world. Q: Some actions cannot be enjoined. What are these actions? Suppose Britney Spears was contracted to sing at the Araneta, but it turned out that she had already entered into an earlier cont ract with the Manil a Hotel. Parties in Manila Hotel brin g injunction to prevent her from singing. Is the injunction proper?

A: Yes. You cannot compel her to sing, but you can prevent her from singing. Q: What are the injunction-proof actions?

1. Acts already consummated. 2. Collection of taxes by Revenue Code provision 3. Mortgage foreclosure of government financial institutions with colatilla: if you have not paid so much, e.g. 20 percent 4. Labor disputes, strikes, unfair labor practice. You cannot enjoin strikes. 5. Criminal prosecution. What is the lifetime of a temporary restraining order?

A. 20 days. TRO can be issued by the Supreme Court. Is that TRO good for 20 days only? A. No. Rule 58, Sec. 5 provi des that a restrai ning order issued by the Suprem e Court or any member thereof ( Ma’am Avena finds this anomalous since the Supreme Court decides either en banc or in divi sions; not individually) shall be effective until further

orders. How about the TRO issued by the CA?

A:

A TRO issued by the Court of Appeals or a member thereof ( again, an anomalous situation) is effective for 60 days from service on the party or person sought to be enjoined. (Rule 58, Sec. 5) Q.

Injunction ca n be preventive or mandatory. Can an MTC issue a writ of preliminary mandatory injunction in unlawful detainer case?

A. Rule 70, Sec. 15 provides that the MTC can issue a writ of preliminary mandatory

injunction. Note however that Art. 539, paragraph 2 of the Civil Code provides only for cases for “forcible entry.” Unlawful detainer is different from forcible entry. According to Prof. Bautista’s lecture notes, in unlawful detainer cases, an inferior court has no jurisdiction to issue a writ of preliminary mandatory injunction. Check this please! On what grounds may writ of preliminary injunction be dissolved?

A. 1. No sufficient cause for application. 2. In case bond is required, the bond is not sufficient. (4) RECEIVERSHIP

The function of a receiver is to preserve the property. Sec. 6, Rule 59 enumerates the powers of a receiver. The receiver has no power to operate the business. A party may not be appointed as a receiver since the receiver must be impartial. Under Sec 1 (b), Rule 59, property in custodia legis can be put under receivership. Property is put under custodia legis when it is under attachment or it is under the administration of the court. Prof. Bautista asks, “Will this not cause a confusion as to which court has authori ty

over the property – the court which attaches for example and the court which orders the receivership.” Q. Action to recover on e million peso inde btedness. Defendant debtor is a logging company and operates a lumber mill. Upon allegation and showing that the defendant is in imminent danger of insolvency, can the plaintiff properly sue a receivership over the lumber mill of the defendant?

A. No. Receivership can only be issued for property which is the subject of the litigation. Here, it is not the mill but the indebtedness which is the subject of the litigation. Sir: Receivership is rather drastic, equivalent to sequestration of the PCGG. But there are exceptions, i.e. instances where receivers may be appointed for property not subject of the litigation. See Rule 39, Sec. 43. Problem: A bank files an action to recover an unsecured loan from a borrower who operates a

lumber yard. The bank alleges that the lumber yard is on the verge of insolvency. The plaintiff bank asks the court to issue a writ of receivership. Rule. Answer: This is not proper. The property under receivership must be the subject matter of the

action. In this case , the subject matter of the acti on is not the lumb er yard but the loan. However, there are 2 exceptions to the general rule that only property which is the subject matter of the litigation may be put under receivership: 1. Sec. 1 (c), Rule 59 2. Sec. 41, Rule 39 – this operates like an injunction and attachment combined Who may be appointed receiver?

A. Parties to the litigation unless parties agree. Because the function of the receiver is the representative or arm of the court so he has to be impartial. Sir: A receiver is usually a last ditch remedy. Can property under custodia legis be put to receivership? A. Yes, in the case of judicial mortgage foreclosure under Rule 59, Sec. 1 (c). What bond and who has to put up the bond?

A. 1. Person petitioning for receivership General Rule: No Exception: if ex parte petition 2. Receiver – to assure that he will do his job. 3 Bonds

1. Applicant’s Bond 2. Receiver’s Bond (Sec. 3) 3. Counterbond Q: Action to recover P5,000.00 which was incurred to maintain operation in the premises alleging insolvency of owner, will application for receivership prosper?

A: NO.

(5) REPLEVIN (To recover possession)

Replevin

In replevin, there must be an allegation that the property is not under custodia legis in order to avoid interference. Replevin is allowed at any time before the answer is filed. Also, replevin is allowed only if there is recovery of possession of personal property. In replevin, the sheriff takes the personal property and keeps it for 5 days. After the 5th day, the sheriff should deliver the property to the plaintiff unless the defendant objects to the sufficiency of the bond or files a counterbond. The defendant cannot object at the sufficiency of the bond or file a counterbond at the same time. Replevin bond answers for the return of the property and the loss of the value of the property since most personal property (except wine and jewelry) depreciate. Problem: Can plaintiff use the thing? Answer: No answer. Q. At what stage of the litigation will a writ of replevin be issued?

A. At the commencement of the action and anytime before answer. Q. When sheriff has in hi s hands a writ of rep levin, what does he do w ith it? Assume you are the sheriff entrusted with a writ of replevin, how do you go about it? Assume property is a Trendy motorcycle, what will you do?

The sheriff shall take possess ion of the motorcyc le and retain it in his custody. Within 5 days after the taking of the property, if the adverse party does not avail of any of the remedies available to him, the sheriff must deliver the property to the applicant. Q. Sheriff take s the moto rcycle an d 5 days pass. Defendant did not as k for it nor object to the bond. Sheriff gives it to the plaintiff. Assuming plaintiff knows how to ride the motorcycle, can he ride it? Can he use it?

A. Yes. Q. Di parang sa kanya na. Paano kung nabangga? Can he really use it? How much is the bond – double the value? What is the bond for?

A. 2 things: first, to return, and second, for damages. (Note that in attachment, the sheriff keeps property under guard.) Q. How can defendant obtain redelivery of property pendente lite? If he objects, he cannot unless the bond is found to be insufficient.

A. Defendant gives bond double the value of the property. Q. How about the applicant?

A. Gives bond double the value of the property. (6) SUPPORT PENDENTE LITE

Support pendente lite is allowed only at a proper action (i.e.action for support, legal separation, annulment). Problem: Suppose support pendente lite is denied by the trial court. Can the plaintiff appeal for

support pendente lite in the appellate court. Answer: Yes, see Ramos v. CA (June 30, 1972)

The general rule is that money judgments can only be enforced through execution; not through contempt. However, support pendete lite, a money judgment, may be enforced by contempt. This is one of the two instances wherein money judgment is enforcible by contempt. The other instance is Rule 39, Sec. 40, last paragraph, which provides that a judgment obligor required to pay in fixed monthly installments may be punished for indirect contempt if he fails to pay any such installment when due without good excuse. Q.

An o rder fo r p ayment of a al imony pe ndente lite is i mmediately ex ecutory. Suppose defendant was ordered to pay alimony pendente lite but refuses to pay and therefore disobeys the order. Can he be held in contempt of court?

A.

Yes, provided: 1. He has means to do so and 2. Yet he does not comply with the order

Q.

When can an application for alimony pendente lite be filed?

A.

At the commencement of the action and at anytime afterwards before judgment in the trial court.

Q.

A.

Howaboutpendingappeal?

Alimony p endente l ite ca n no l onger be i ssued pe nding ap peal b ecause pl aintiff h as already been given a more adequate remedy or no right to remedy at all.

Q.

Although there is an alternative means to enforce the order. What is that?

A.

Orderexecution.

X I.

DISCOVERY

The purpose of discovery is to obtain the fullest knowledge of the issues and fact. Originally, discovery was intended as a device for expediting the case. By being able to obtain more knowledge as to the issues and facts, this would ideally save on time. However, according towill Prof. Bautista, always make the case contrary battleground/source to expectations that it expedite thediscovery litigation,does it hasnot protracted it because thisshorter: is an additional of skirmishes. The goals of discovery are: 1. 2. 3.

to find out how strong the case is to anticipate the opponent’s actions to get evidence to support one’s case

The following are not subject to discovery: (1) privileged mat ters •

Work Product Rule

Related to privileged matters is the work-product rule. The work product rule was enunciated in the case of Hickman v. Taylor. In that case, there was a barge which sank. Several crewmembers perished. The owner of the barge hired a lawyer, Fortenbough. He interviewed the surviving crew members. When the heirs of the crew members filed an action against the barge owners, their lawyer asked Fortenbough to produce all his notes and interv iews. Fortenbough refused. The Supreme Court said that the notes, memoranda, impressions of the lawyer, etc. in preparing

for a case are not discoverable. Such are not discoverable not because of the attorney-client privilege but because of the so-called work product rule. If such are discoverable, then the legal profession would collapse. Lawyers would not be diligent since their very own efforts could be used against them. •

Examples of privileged matters: i. right to privacy – the lawyer cannot get the entire sexual history of the other party ii. trade secrets – may be allowed if its an in camera (in the chambers) disclosure

(2) impeaching evidence This is a gray area as commentators are not in agreement. •

The argument is that if the intention is shown in advance – to discover impeaching evidence --then it’s useless. DEPOSITIONS

Depositions are taken to preserve testimony – to avoid flip-flopping. Counsel should try to take the deposition right away when the impressions are still fresh. Sec 6, Rule 25 (Effect of Failure to Serve Written Interrogatories) and Sec. 5, Rule 26 (Effect of Failure to File and Serve Request for Admission) are new provisions. The purpose of these 2 new provisions is to provide sanctions for failure of counsel to resort to these remedies since the time of the court is valuable. Therefore lawyers resort to pro forma interrogatories so that they may not be precluded from calling the adverse party as a witness. Classification of Depositions

1. According to the Stage in Litigation (when taken) a) b)

before action or pending appeal or in perpetuam rei – Rule 24 pending action or de bene esse – Rule 23

2. According to Manner of Taking a) oral b) written 

See Rule 134 for perpetuation of testimony.

Leave of court is necessary when no answer has been filed. One of the purposes of Secs. 16 and 18 of Rule 23 is to confine and limit the scope of the examination. If there is no answer yet, there are no issues. If there are no issues, then anything under the sun can be asked. The scope must be limited. Kinds of Written Interrogatories

1. 2. 3. 4.

Direct Cross Re-direct Re-cross

Under Rules 23 and 24, the written interrogatories are the followi ng: direct, cross, redirect, and re-cross. There can be more than 1 set.

Under Rule 25, there is only 1 set of written interrogatories. In addition, there are no redirect or re-cross interrogatories. Any party make take depositions. The parties may take the deposition of any person. It makes a difference if the deposition is that of party’s or a non-party. The difference is as to use. If the depo sition is that of a non-party, the deposition may be used for impeachment purposes. For example, it may be used to prove a prior inconsi stent statement. If the depos ition is that of a party, the depo sition may be used for any purpose. Any purpose means to use as substantive evidence – to prove the truth. For example, the deposition of Atong Ang can show that his cook makes P2000. However, under Sec. 4(c), Rule 23, the deposition of a non-party may be used for both impeachment or evidentiary purposes if it falls under any of the 5 circumstances. Depositions are exception s to the hearsay rule. Depositions are really hearsa y in the cases enumerated in Sec. 4(c), Rule 23. But this is balanced by the oath taken and the cross. The taking of a deposition does not mean that the deponent is your witness. Since the deponent is not your witness, the party is not bound to introduce the deposition as evidence. If a party uses a deposition, the party makes the deponent a witness except in cases of impeachment. The person before whom the deposition is taken cannot rule on the objections. However, these objections must be made right away. Q: Suppose a deponent refuses to answer a question propounded upon oral examination?

A: The proponent may EITHER STOP the examination or COMPLETE IT ON OTHER MATTERS and then take the necessary steps to secure an order from the court COMPELLING DEPONENT TO ANSWER. Q: Supposes deponent refuses to comply with the order?

A: The court may make such orders as are just, and among others, the ff: 1. an order that matt ers regarding which the quest ions were aske d shall be take n to be established; 2. an order refus ing to allow the disobedient party to support/oppose designated claims/ defenses 3. an order striking out pleadings/parts thereof, or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party 4. an order directing the arrest of the party. Q. What are the kinds of depositions?

A. 1. As to form: Oral and written. 2.

As to when they may be t aken:

De benne esse – those taken for the purpose of a pending action (Rule 23) In perpetuam rei memor iam- those taken to perpetuate evidence for purpos es of an anticipated action (Rule 24) Q. Why is there a need to ask leave of court to take depositions before an answer is filed?

A. So that the court can give limiting orders to protect the deponent as in Sections 16 and 18 of Rule 23.

Q. When is the only instance where you always need leave of court before taking depositions?

A. When the deponent is in prison. Q. Can you tak e the depo sition of a person who res ides within 100 km from th e place of trial?

A. Yes. Q. What is the 100 km limit for?

A. It modifies the use of the deposition but not the right to take a deposition. Q. Does the 100 km limit apply to criminal cases?

A. No. Accused has right to coercive process. Q. Do you make the deponent your witness by taking his deposition?

A. No. (Sec 7 Rule 23). Q. What is th e significance of this? Why is it imp ortant to determine whether he is you r witness or not?

A. Because when the depon ent is not your witn ess, the four kinds of impe aching evidence (contradictory evidence, prior inconsistent statements, reputation evidence and prior conviction) may be used against him. If the deponent is your witness, reputation evidence is not allowed. Q. Why do you want to take a deposition before action or pending appeal?

A. To perpetuate his tes timony in case he migh t die. To pin him down and imp each him with prior inconsistent statements. As substantive evidence, to prove the truth like report ed testimony which is an exception to the hearsay rule. Q. Who can be a deposition officer within thePhilippines?

A. Notary public, Judge, any person authorized to administer oaths. Q. Who are disqualified?

A. Relatives within the 6th degree of consanguinity or affinity or employee or counsel of any of the parties; or who is a relative within the same degree or employee of the counsel, or who is financially interested in the action. Q. Does the deposition officer have the power to rule on the admissibility of evidence?

A. No. He can only take note of the objections. (In contrast, a commissioner can rule upon the admissibility of evidence unless otherwise provided in the order of reference. (Rule 32, Sec. 3)) Q. If the officer cannot rule on the admissibility of evidence, what is the point of raising objections during the deposition-taking?

A. There are objections which will be deemed waived if not raised duri ng the taking of the deposition such as grounds which might have been avoided or removed if presented at that time. Rule 24 Section 29. Q. How many sets of interrogatories may be served a party under Rule 25?

A. One. Q. What is the difference between Rule 26 and Rule 129 on admissions?

A. Rule 26: may not be used for other purposes but only for the pending action. Rule 129: may be used in other proceedings. INTERROGATORIES TO PARTIES

Q: Differentiate between Rule 23 and Rule 25. RULE 23

As to whom addressed.

RULE 25

May b e a ddressed t o a pa rty or non-party.

Addressed only to the adverse party.

Procedure

May be oral or written and sent to an officer.

Served to the advers e party himself.

Need for cross-interrogatories

Served within 10 days from

No cross-interrogatories.

receipt of notice and written interrogatories. Sanctions answer.

On whom binding.

for

refusal

answers

Time to answer.

to

Pay expenses of other party. Contempt, after there has been a refusal of the order to answer.

Judgment by default or dismissal of the action or proceeding or part thereof or strike out all or any part of the pleading. Payment of expenses to the other party or contempt. There are sanctions common to both devices. (Section 3 Rule 29)

are

Any party who was present or represented at the taking of the deposition or who had due notice thereof or who had the opportunity to serve crossinterrogatories.

Only on the party served.

No fixed time.

Within 15 days after service of interrogatories, unless extended or reduced by the court.

Q: What is the effect of failure to serve written interrogatories?

A: The party not served may not be compell ed by the adverse party to giv e testimony in open court or to give a deposition pending appeal. (Rule 25, Sec. 6) Q: Suppose a party to whom R 25 Interrogatories (to Parties) are served, refuses to answer the set of interrogatories?

A: Consequences of refusal are: 1. order to answer 2. contempt 3. subject of discovery deemed admitted/established 4. party prohibited from introducing contradictory evidence 5. suspension of proceeding 6. declared non-suited or in default 7. striking of pleading 8. arrest 9. cost

PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

Q: What is the difference between subpoena duces tecum and an order for production or inspection of document?

Nature

SUBPOENADUCESTECUM

ORDERFOR PRODUCTION/INSPECTION

Process r equiring a p erson t o bring with him any books, documents or other things under his

Order to produce or permit the inspection & copying or photographing, by or on behalf of the

control/possession.

moving party, of any documents, papers, booksdesignated etc. OR order a party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon.

To whom directed Toanyperson When it may beasked Onlyduringtrial Issued whom

by

Onlytoaparty Beforeand/orduringtrial

Issued by a court before whom the witness is required to attend, or court where the deposition is to be taken, or clerk or body authorized by law, or any Justice of SC or CA in any case or investigation pending within the Phil.

Issued by the court where the action is pending

When issued

Issued upon request

Issued upon a motion

Must good cause be shown?

NO.

YES.

Grounds quashal

Unreasonable and oppressive, irrelevant, or the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof.

No good cause shown

for

Q: Who issues subpoena?

A: It shall be issued by the COURT or JUDGE before whom the witness is required to attend or by the JUDGE IF THE RTC of the province or ANY JUDGE OF MUNICIPALITY/city where the deposition is to be taken or the investigation is to be conducted, or by any JUSTICE OF SC OR CA in any case pending within the RP. If a prisoner not confined in a municipal jail, is required to

attend before an inferior court, the subpoena may be issued by the RTC judge of the province where the inferior court is sitting, or by SC or CA Justice. Q: As to form and manner of issuance, is there something special on subpoena duces tecum?

A: For a SDT to be enforced, it must comply with the ff requirements: 1. it shall DES IGNATE OR DESCRIBE REASONABLY the paper s or articles dema nded; and 2. such papers/articles must prima facie appear relevant to the issue. Q: Thee is a special rule for issuance of a SDT for deposition. What is it?

A: Under S. 5 of R 23, when a party wishes to take the deposition of a witness upon oral exam/written interrogatory, the first step to take is to serve the NOTICE provided in S. 15 & 25 of R 24. To secure the attendance before the officer designated to take the deposition, a subpoena should be issued. This subpoena may be issued by the clerk of court of the RTC for the province, or by the judge of the municipality/city where the deposition is to be taken after receiving proof of service of notice. The clerk, however, may NOT issue the SDT without an express order of the court, because the issuance of the order involves the exercise of judicial discretion as to the requirements regarding DESCRIPTION and RELEVANCY of the document/objects required to be produced. PHYSICAL AND MENTAL EXAMINATIONS OF PERSONS Q. Can you ask for a psychiatric examination of a witness?

A. No. only a party. Q. If a party refuses to be subjected to discovery, can you put him in jail?

A. Yes, except for refusal to submit to a physical or mental examination. Q: If the physician is going to report the findings, does that not violate the rule on privileged communication?

A: NO because the privilege covers only a situation where the information was acquired by a physician in attending to a patient in a professional capacity, which info was necessary to enable him to act in that capacity and which would blacken the character of the patient. The physician cannot testify only in a CIVIL case. Q: How about the person who is examined, does he get a copy of the report? Is he entitled to a copy?

A: Yes. If requested by the person examined, the party causing the examination to be made shall deliver to him a copy of the detailed written report of the examining physician setting our his findings and conclusions. Q: What are the consequences of his asking for a copy?

A: He waives any privilege he may have regarding the report of examination made at ANY OTHER TIME of the same mental or physical condition and consequently, he may be compelled to produce such report. (Rule 28, Sec. 4) Q: Effects where a party refuses to submit to a physical/mental exam?

1. contempt 2. 3. 4. 5. 6.

subject of discovery deemed admitted/established party prohibited from introducing contradictory evidence suspension of proceedings declared non-suited or in default striking of pleadings

7. cost

X II.

PRE-TRIAL

Q: What is the purpose of pre-trial?

A: 1. To arrive at amicable settlement 1. to simplify issues 2. limit the number of witnesses 3. amend pleadings 4. obtain admissions 5. advisability of referring the matter to commissioners and possibility of compromise Q: Does it cover only factual issues?

A: No. Factual as well as legal issues. Sir; pre-trial is not mandatory if the issue is purely legal. •

When conducted: after the last pleading has been served and filed Exception: where the period to file the last pleading has lapsed.

•

Sarmiento vs. Juan: PT may be properly scheduled even if plaintiff had not yet filed his answer to the defendant’s compulsory counterclaim since no answer is required to be filed thereto.

•

It is the duty of the plaintiff to move ex parte that the case be set for PT.

•

The notice of PT is served on counsel or on the party who has no counsel

•

Sec. 4: Appearance of Parties There is a necessity for the personal appearance of the parties at the PT Conference. The purpose is to compel the parties to appear personally before the court to reach, if possible, a compromise. Special authority for an attorney to compromise is required under Sec. 23 Rule 138. If the party is a corporation, such authority must be made with an appropriate resolution of its BOD. Where nobody appeared at the PT except the counsel for the plaintiff but said counsel had no special authority to represent the plaintiff, the plaintiff may properly be declared non-suited. The plaintiff may be so declared non-suited and the case dismissed without motion by the defendant.

•

Sec. 5: Effect of failure to appear Plaintiff: cause for dismissal of action WITH prejudice unless otherwise ordered by the Court Defendant: shall be cause to allow plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. Trial court has discretion to declare a party non-suited and, unless otherwise provided, such dismissal has the effect of an adjudication on the merits. REMEDY: 1. Defendant: 2. Plaintiff:

file MR (without need for affidavits of merit) on the grounds of FAME If denied, file certiorari (R.65) as such order of default is interlocutory Appeal from Order of dismissal, as it is a final order.

•

When a PT has already been held, the fact that an amended complaint was later filed does not necessitate another PT

•

Sec. 6: Filing of PT Brief is mandatory. The failure to file will have the same effect as failure to appear at PT.

Q: Can a lawyer ask for postponement onthe ground that he is suffering from LBM?

A: Yes, if every 5 mins, he has to go to the bathroom. Q: Does he have to submit a medical certificate?

A: NO. Q: Is it possible serve to the party A: Yes, but only iftothe partythe hasnotice counsel. Rule 18, thru Sec. counsel? 3 provides that notice of pre-trial shall be

served on counsel or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. Q: Is pre-trial mandatory?

A: Yes for both civil cases (Rule 18, Sec. 2) and criminal cases (under Speedy Trial Act). Q: Can you still resort to discovery after pre-trial?

A: YES. (Rule 19, Sec. 6 (e))

XIII. TRIAL SUSPENSION OF ACTION Q: What are the grounds for postponing a trial upon motion of a party?

A: The only grounds are: 1. ABSENCE OF ENCE, being shown byEVID affidavit; andthe mate riality of which and the diligence used to obtain it, 2. ILLNESS OF PARTY OR COUNSEL if it appears on affidavit that the presence of such party /counsel in the trial is indispensable and that the character of his illness is such as to make his non-attendance excusable. Q: What about impending death?

A: On a case to case basis. Q: Must it be in the form of a medical certificate?

A: Yes AND accompanied by an affidavit. Q: can reverse trial be done in civil case ?

A: YES. Q: Can The court require the plaintiff to present his witnesses first, on direct testimony before anyo ne of them is cross-examined? For instance, the court says, how may witnesses are going to be presented? Lima po. Judge says, Okay, bring all of them here and let’s listen to their direct testimony and after the direct testimony of all of them, I will allow the defendant to cross examine them one by one. Is that proper?

A: YES because it is still within the rule that the P present his evidence first in the form of testimony…

Q: Can a judge in a civil case direct that P or a party present all the direct testimony of all his witnesses in the form of affidavit subject to cross examination?

A: YES in the case of SUMMARY PROCEEDINGS. (By affidavits & counter-affidavits) NO in non-summary proceedings. Q: Can a deaf-mute testify?

A: YES Rule 132 (5) you can ask LEADING QUESTIONS if he is a deaf mute. Q: In a vehicular accident case, can the parties stipulate that the road where the accident occurred is FIVE METERS WIDE at least for purposes of litigation?

A: Theoretically, yes. BUT this might collide with the prescription found in the Consti v. rendering advisory opinion because if this can be done, you can practically take a hypothetical case and submit it for resolution by the court. TRIAL BY COMMISSIONER Q: If the right to trial with the assistance of assessors is demanded, is it a matter of right?

A: Yes under R 32 (1), the judge SHALL x x x meaning judge has no discretion. Sir: this is practically a dead provision but it is the kind of provisions which they resurrect in the bar exams. Q: How many commissioners may be appointed?

A: 2. Q: What are the functions of the commissioners?

A: Rule 32(8). They shall sit with the judge during the hearing of an action & advise him in the determination of the questions of facts involved. Q: Can commissioners also write opinions?

A: Yes BUT it is the judge who finally determines the ruling. The value of the opinion is merely to advise the judge on questions of fact. Q: When are commissioners appointed by the trial court?

A: By motion of BOTH PARTIES OR by the COURT MOTU PROPRIO (R 33, s. 2) Q: Can any matters/issues be referred to Commissioners? A: YES. See Rule 32, Sec. 9.

DEMURRER TO EVIDENCE Q: What is the ground for demurrer to evidence?

A: Upon the facts and the law, the P has shown no right to relief (R 35,S1) Q: If the demurrer is denied, the D can still present his evidence. What are the courses of action available to defendant after the P has concluded the presentation of his evidence?

A: His options are: 1. commence with the presentation of his evidence 2. submit case for decision on the basis of P’s evidence alone and WAIVE the presentation of his evidence. 3. File demurrer to evidence. Q: What is the risk in D filing a demurrer?

A: If the motion is granted and there is an appeal of the judgment and it is reversed, the movant D loses right to present his evidence.

XIV. JUDGMENTS Q: What is a judgment?

A: It is in WRITING, personally 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. Note that the requirements as to the contents/recitals of a judgment on a criminal case is a little different. Q. Basic requirements of a valid judgment? A. 1) in writing; 2) personally and directly prepared by judge; 3) state findings of fact and law; 4) signed by judge Q. Does this apply to judgments of inferior courts? A. Yes, for uniformity of procedure and due to constitutional requirements. No decision shall be rendered by any court without expressing clearly and distinctly the facts and the law on which it is based. (Art. VIII, sec. 14, Consti) Q. Suppose there is a conflict between the dispositive portion and the body of the decision, what will prevail? A. Dispositive portion. Q: What is a judgment by COMPROMISE?

A: this is a judgment which is IMMEDIATELY EXECUTORY and final whereby the parties agree on the issued litigated upon. It is NOT APPEALABLE because parties have consented . Q: What is an example of a NUNC PRO TUNC JUDGMENT? (Judgment rendered by court NOW FOR THEN)

A: One rendered a court, ordering the recording of an actit FORMERLY DONE but which to does not appear on theby record. The recording of such judgment previously rendered retroacts the fate when it is was previously rendered. Q: What is a COGNOVIT NOTE?

A: It is a provision in a promissory note usually appointing the holder in case of default of the maker to pay the note on maturity. The holder is appointed as attorney in fact to go to court and confess judgment for the maker, These provisions authorize getting judgm ent on the note, to confess judgment on the maker. Q: Are these cognovit notes valid?

A: NO. It is prohibited because the maker is DENIED HIS DAY IN COURT therefore due process is not observed. It violates rules on appeals, on compulsory counterclaim, and Art. 1308 of CC. Q: Who is entitled to recover costs ?

A: Prevailing party. Q: Suppose there is no promulgation as to costs, who will pay the costs?

A: Each will bear his own cost. TREBLE COSTS if action is frivolous (S 3) Q. What is a sin perjuicio judgment?

A. A judgment without stating any of the facts in support of the court’s conclusion and reserving the making of such statements of facts in a subsequent decision. ( Director of Lands v. Sanz, 45 Phil 119) Q. Is it possible for the RTC to issue a minute resolution? A. No. (Art. VIII, sec. 14, Consti) Q. What about an RTC judgment on an appeal from an MTC case? A. Yes. Every decision on final resolution of a court in appealed cases shall clearly and distinctly state the findings of fact and the conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted by reference from those set forth in the decision, order or resolution appealed from (BP 129, sec. 40). Q. What do you understand by a cognovit judgment? Is this a judgment by confession? A. Yes. A cognovit judgment is defined as a confession of judgment whereby a portion of the complaint is confessed by defendant, who denies the rest thereof. (PNB vs. Manila Oil Refining, 43 Phil. 460). This is not a valid judgment because it violates due process requirements, rules on appeals and compulsory counterclaims. 

COGNOVIT NOTE o Provision in a promissory note usually appointing the holder, in case of default of the maker to pay the note on maturity, as attorney in fact to go to court and confess judgment for the maker. o Prohibited because the maker is denied a day incourt o Due process is not observed because it violates the following: 1. Rule on appeals 2. Rule on compulsory counterclaim (if the maker has a CCC, it will be barred) 3. Art. 1308 of the New Civil Code



NUNCo PRO TUNC JUDGMENT Rendered by a court, ordering the recording of an act it had formerly done but which does not appear on the record o The recording of such judgment it previously rendered retroacts to the date when it was mutually rendered. o Judgment rendered by the court now for then o There srcinally was two classes of nunc pro tunc judgments, but no only the second kind is allowed: 1. When a judgment has alr eady been iss ued but th rough the jud ge’s fault or through no fault of the parties, it was not made of record. Ex. Judgment issued but before it could be reduced into final form, the plaintiff died, then they could issue a judgment antedated before the plaintiff died. (not allowed anymore) 2. Judgment had real ly been is sued but due to error /mistake was not mad e of record. Q. Are judgments nunc pro tunc valid in our jurisdiction? A. Lichauco v. Tan Pho (51 Phil. 862) held that it is not valid. The attempt to enter an order nunc pro tunc there approving the loan was not allowed. However, it may be valid there basis therefor. may be deduced from thethen notes that if the case has already come to ifits end isbut the facts haveItnot been made of record, a judgment nunc pro tunc may be valid.

Q. How about a judgment directing defendant to pay plaintiff the equivalent in Philippine currency of US$12,000 at the rate of exchange prevailing at the time of payment. Is that a valid judgment? A. Yes. The Rule of Obl igations and Cont racts says th at payments of money mus t be in Philippine currency even if pegged in foreign currency. SIR: That refers to obligations incurred in the Philippines. But there is an issue here. Is not the judgment thereby rendered indefinite or conditional? A. 2 Moran, p. 194. Q. Who taxes costs? Judge or clerk? A. Rule 142, sec. 8. Notes: lower court – municipal judges; SC – clerk or corresponding court; no pronouncement – each bears own costs Q. When does judgment become final? A. When time for appeal has lapsed and no appeal was filed. Q. What judgments are immediately final and executory? A. 1) judgment by compromise; 2) judgment for accounting; 3) judgment for partition; 4) judgment for support; 5) judgment in unlawful detainer



JUDGMENTS BY COMPROMISE Immediately executory and final, whereby the parties agree on the issues litigated upon.



JUDGMENTS FOR COSTS o Prevailing party is entitled to recover costs o If there is no promulgations as to costs, each bears his own costs o Treble costs are imposed if the action is frivolous (Sec. 3)

Q. What are actions to consolidate ownership? A. E.g. pacto de retro sales Q. What is the difference between an advisory opinion and a declaratory judgment? A. Advisory opinion  facts are hypothetical and there is no actual controversy. Declaratory judgment  there are ripening seeds of controversy 

DECLARATORY JUDGMENTS Declaratory Judgment

o

Advisory Opinion

Proceeding determinative of the Rendered at request of the executive rights of the parties to the case or legislative dept Quieting effect Ripening seed of controversy Discretionary Not available to test the validity of a tax ordinance, Philippine citizenship, and moot cases.

Q. How does declaratory relief action differ from an ordinary action? A. Ordinary action  there is an actual controversy and the judgment therein has coercive effect. Declaratory relief  no actual controversy but only ripening seeds of controversy and the judgment has no coercive effect. Q: How do you distinguish an ADVISORY OPINION from a declaratory judgment? ADVISORYOPINION

DECLARATORYJUDGMENT

*

*

*

Rendered by the executive legislative department

or

Proceeding determinative of the rights of the parties to the case Coercive relief – may be in separate action in advisory opinion, everything is Proper and often resorted an can be the subject of cons iderable state laws. Here, there is vague and hypothetical already a ripening seed of controversy not just an actual controversy. Toguideaction Effectisquieting,pacify

Q. What are of the the court may decline to declare the parties’ rights on contract, will some or statue, or grounds construeon thewhich instrument? A. 1) Where a decision would not terminate the uncertainty or controversy which gave rise to the action. 2) In any case where the declaration or construction is not necessary and proper at the time under all circumstances. (Rule 64, sec. 5) Q. There are some well-settled rules regarding the availability or non-availability of declaratory relief. For instance, it is well-settled that declaratory relief is not available to test the validity of a tax. Why? What is the reason for that? A. Because the collection of taxes, even though the statute granting the right of the government to collect taxes is invalid, cannot be enjoined. Q. Or to declare Philippine citizenship? (to test citizenship) A. Because of reasons of public policy. Whether a person is a citizen or not is already defined by law. Q. The validity of an ordinance “imposing certain fees on certain merchants dealing with certain goods” was tested or challenged a declaratory relief action by an association of merchants who were affected by the surcharge . The court in that actio n declared the ordina nce invalid and additionally, decreed that the fees and charges collected be refunded. Was it proper for the court to make an order for refund in an action for declaratory relief? A. As a general rule, an action for declaratory relief shall not be followed by any coercive decrees of the court. However, in that case, the SC held that it was pro per for the court to ord er the municipal council to refund taxes in order to avoid multiplicity of suits. They need not convert the action into an ordinary action since the SC already declared the ordinance null and void. (Matalin Coconut Co. v. Mun. Council of Malabang)

XV.

REVIEW AND CORRECTION OF TRIAL COURT ERRORS

MOTION FOR NEW TRIAL

Q: There are various modes of obtaining a review of a judgement or order of the court. The basis of the distin ction is whether the order or judgeme nt is already final . Another way of distinguishing modes of review is whether it is with the same court or with another court. Before the judgment becomes final, the modes of review are generally limited to the issuing court itself. What are the modes by whic h one may obtain review of a judgmen t by the issuing court before it becomes final? A: Motion for Reconsideration (MR) or Motion for New Trial (MNT)

Q: Is there a difference between an MR and a MNT? A: Yes. In an MR, the grounds are limited to the same case where the court made errors in deciding the case. In an MNT the grounds are specified in Rule 37, Sec. 1 Q: Is an MNT always a MR? A: No. Q: Is an MR a MNT? A: Yes. Q: What are the grounds for MNT? A: 1. FAME- fraud, accident, mistake, excusable negligence; 2. Newly discovered evidence 3. Award of excessive damages, insufficiency of evidence to justify the decision, or that the decision is against the law SIR: In common parlance, Rule 37, Sec. 1 (c) is popularly called Motion for Reconsideration Q: Is there a time within which MNT may be filed? A: Yes. Within the period for perfecting an appeal - 15 days or 30 days as the case may be, from notice. Q: How many MNT may you file? Do we distinguish as to th e court? As to the ground? Because you can file the MNT in different levels of courts. Does it make any difference in what court? A: As to grounds - the Interim Rules provide that no second MR shall be allowed. The third ground for MNT refers to the grounds for MR. But as to the first two grounds, it is possible that a second MNT shall be allowed. Q: What is your authority for that? A: Rule 37, Sec. 4 - when the ground was not existing nor available at the time of the filing of the first motion. Q: How about in the Court of Appeals? Can you file a second MNT? A: Yes. If the first motion resulted in the reversal of the srcinal judgment. The party who lost can file a second MNT. Q: The time for filing an MNT is the time for appeal. Can the time for filing an MNT be extended? A: Habaluyas v. Japson (142 SCRA 208), no, except when the case is pending in the Supreme Court. Q: Cannot the period for appealing be extended? How about the time for filing a notice of appeal? Can it be extended? A: Lacsamana v. IAC., No, in ordinary appeals. Q: What are the other kinds of appeals? A: Appeals in special proceedings or multiple appeals. Court allows extension.

Q: The Lacsamana case does not cover the filing of notice of appeal from the inferior court to the RTC, does it? A: It is covered. It cannot be extended if from the inferior court to the RTC. Q: RTC to CA? A: No extension. Q: Are you telling us that the period for filing a notice of appeal from the RTC to the CA cannot be extended, regardless of whether it is an appeal from the decision of the RTC in an srcinal case, or a decision of RTC in an appellate case? A: There is a distinction: 1. RTC to CA - no extension 2. MTC to RTC to CA - the 15 days can be given an extension of another 15 days. Q: Or if it goes to the SC? A: Yes. Q: Where is the rule which says that if you file your MR on the last day for appeal, you have the whole next day after you receive the denial within which to perfect an appeal? A: Rule 41, Sec. 3, 2nd paragraph. Q: One student said that you can file a second MNT, meaning when the ground is 1 (a) or 1 (b) of Sec. 1, Rule 37. You agree? You can file 2nd MNT? A: Yes. Q: Within what time can you file 2nd MNT? A: Rule 37, Sec. 4 - "filed within the time herein provided excluding the time during which the 1st motion has been pending." Q: Just subtract. It is just like the time for appealing. You subtract the time during which the MNT was pending. Assume that the first MNT is filed on the 15 th day from notice of the judgement. And then, according to the Rule 41, sec. 3, you have the whole of the following day that you received the order to appeal. Can you use that extra day to file a 2nd MT? SIR: According to Rule 37, Sec. 4 you have the remaini ng time within which to appeal, withi n which to file a MNT minus the time that the 1 st was pending. You have still one more day according to Rule 41, Sec. 3, so if you have one more day appeal, you have that other day within which to file a 2nd MT. But there is a query whether it can be used for the filing of a 2 nd MNT. The SC only said that it cannot be used for a Motion for Execution ending appeal. It did not say it can only be used for appeal. So, I don't know if it can be used for a 2nd MNT. Although a student was arguing that the clear wording ways that you have that extra day within which t appeal. Pwede bang magamit iyon for some other purpose? The SC seems to insinuate that no - you cannot file a motion for Execution Pending Appeal anymore on that extra day.

But Rule 37, Sec. 4 also says that the only day you have to appeal, you can file MNT. Q: You know what a pro-forma MR is? You know that if the 2 nd MR does not meet the requirements - what is the danger? A: You lose your right to appeal. Decision becomes final and executory. SIR: It is a pro forma MR if: 1. It fail s specifically to point out the findings and conclusions of the judgment as required by Rule 37, Sec. 2 par. 2; 2. It does not contain a notice of hearing in accordance with the Rules; 3. It raises grounds which were already considered by the cou rt in its decision. If it does not raise any argument. If it repeats the same arguments which were raised, say, in your memorandum before decision. Usually, before judgment, the parties, especially in very complicated cases are requested to file memoranda. If the arguments in the MR are the same argumen ts which were raised in the memoranda and were already considered by the court, such a MR has been ruled as pro form a. If you repe at the same arg uments tha t you made in your memorandum in your MR, then that MR is pro forma. It is very dangerous. If you do that, you do not interrupt/ toll the period for appeal. Which means, that you might be shocked to find out that the decision had become final. It is not bad practice unless you really have something new to say, especially after you have filed a memorandum, to just go ahead and appeal. Q: What is the effect of the grant of a MNT? A: It depends on what ground the new tr ial is granted - if it is granted under Se c 1 (a), (b), and (c). If it is granted under (a) or (b) - trial de novo. Q: Suppose the ground is (b)? A: Trial de novo and particular newly discovered evidence should be received. Q: If (a)? A: Evidence of record will stay and if necess ary, the introduction of new evidence will take place. Q: When is a motion for new trial pro forma?

A: when it fails to point out SPECIFICALLY the FINDINGS or CONCLUSION of the judgment which are contrary to law, making express reference to the testimonial or documentary evidence or to the provision of law alleged to be contrary to such findings or conclusions. Q: How many motions for NT may be filed in the trial court?

A: No answer. Note: There are 3 broad grounds for a MB\NT under Rule 37 , S. 1 (a to c). If the MNT is placed under ©, it is commonly known in legal parlance as a MFR. So MFR is always a MNT. If you will notice , there are requirements for motion whether the ground is A, B or C and also effects when motion is granted under a, b, or c/ this is one way of arguing that MFR is only under c. Q: A complaint under RTC is dismissed on D’s motion on the ground that the court has no jurisdiction over the subject matter. The P moves in due time for MFR and the motion was denied. Then he went up on certiorari questioning the denial. The D said that the MFR is defective because it did not contain an affidavit of merit. Is D correct?

A: NO. the affidavit of merit is not necessary. This is based under letter © and affidavit of merit only is needed for letter a (?) Q: How about in b, is AM required?

AL YES, it involves allegation on the part of the P and defense on the part of D which is necessary in the case. Q: Judgment is rendered in favor of P and v. D on 1 July and served on 1 July on D. On 14 July, D file d a MFR. On 1 Sept., the court den ied the MFR of D. When is the fir st day to appeal.

A: 5 DAYS after 1 Sept (no case less 5 days) so on 6 Sept. Q: Suppose there is an order granting new trial, then new trial was held and on 1 Sept., there is an amended decision, when is the last day to appeal?

A: (five days pa rin di ba?) Q: When is entry of judgment material?

A: In Petitions for Relief from Judgment (R 38) and in Execution for the motion. Q: Is a MFR a condition precedent to filing of an appeal?

A: No. Q: Suppose after trial is concluded, court requires party to submit memorandum and judgment was rendered in favor of P and v. D. Then D filed MFR reiterating what he had written in the memorandum. Is that pro-forma?

A: Not necessarily.

RULE 41

APPEAL FROM THE RTC

WHEN TAKEN:

If notice on appeal: If record on appeal:

Within 15 days from notice of the J / FO appealed from Within 30 days from notice of the J / FO appealed from

CONTENTS OF NOTICE ON APPEAL:

(1) (2) (3) (4)

Parties to the appeal; Judgment or final order or part thereof appealed from; Court to which the appeal is being taken; The material dates showing the timeliness of the appeal

CONTENTS OF RECORD ON APPEAL: (1) Full names of all the parties to the proceedings;

(2) Judgment or final order from which the appeal is taken; (3) In chronological order, copies of such pleadings, petitions, motions, and all interlocutory orders as are related to the appealed judgment or final order for the proper understanding of the issues involved; (4) Data that will show that the appeal was perfected on time; GROUNDS FOR DISMISSAL OF APPEAL:

(1) Appeal taken out of time (2) Non-payment of docket fees (See 2000 midterms)

WHEN APPEAL DEEMED PERFECTED:

If notice of appeal:

As to appellant, upon filing of the notice of appeal in due time

If record on appeal:

As to appellant, with respect to the subject matter of the appeal, upon approval of the record on appeal filed in due time

WHEN LOWER COURT LOSES JURISDICTION:

If notice of appeal:

Upon perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties


With respect to the subject matter, upon approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties

RULE 42

PETITION FOR REVIEW FROM THE RTC TO THE CA

WHEN TAKEN:

Petition should be filed and served within 15 days from notice of the decision sought to be reviewed, or Within 15 days from the denial of the motion for new trial or reconsideration filed in due time after judgment.

HOW APPEAL TAKEN:

(1) (2) (3) (4)

File a verified petition for review with the CA. Pay to the clerk of court the corresponding docket and other lawful fees. Deposit the amount of P 500.00 for costs. Furnish the RTC and the adverse party with a copy of the petition.

CONTENTS OF PETITION:

(1) Full names of the parties to the case , without impleading the lower courts or judge s thereof either as petitioners or respondents; (2) Specific material dates showing that it was filed on time; (3) Concise statement of the matt ers invol ved, the issue s raised, the speci fication of errors of fact or law, or both, allegedly committed by the RTC, and the reasons relied upon for the allowance of the appeal; (4) Clearly legible duplicate srcinals or true copie s of the J / FO of both lower cour ts, certified correct by the clerk of court of the RTC; (5) The requisite number of plain copi es thereof and of the pleadin gs and other mate rial portions of the record as would support the allegations of the petition. (6) Certification under oath against forum-shopping GROUNDS FOR DISMISSAL OF THE PETITION: (1) Non-payment of docket and other lawful fees;

(2) Non-deposit for costs; (3) Non-compliance with proof of service of the petition; (4) Failure to comply wi th the requisite contents and documents that should accompany the petition; (5) Petition is patently without merit; (6) Petition is prosecuted manifestly for delay; (7) The questions raised in the petition are too unsubstantial to require consideration. WHEN APPEAL DEEMED PERFECTED:

As to petitioner, upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees. WHEN RTC LOSES JURISDICTION:

Upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. If notice of appeal:

Upon perfection of the appeals filed in due time and the expiration of the time to appeal of the other parts


With respect to the subject matter, upon approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties

EFFECT OF APPEAL: Shall stay the judgment or final order EXCEPTIONS:

(1) If the case is a civil case decided under the Rule on Summary Procedure; (2) If otherwise provided by the CA, the law, or the Rules of Court.

RULE 43

APPEALS FROM THE CTA and QUASI-JUDICIAL AGENCIES TO THE CA

WHEN TAKEN:

Within 15 days from notice of the award, judgment, final order or resolution; or Within 15 days from the date of its last publication, if publication is required by law for its effectivity; or Within 15 days from the denial of petitioner’s motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo.

HOW APPEAL TAKEN: (1) File a verified petition for review with the CA in 7 legible copies, with proof of service

of a copy thereof on the adverse party and on the court or agency a quo. (2) Pay to the clerk of court the corresponding docket and other lawful fees. (3) Deposit the amount of P 500.00 for costs.

Note: Exemption from payment of docketing and other lawful fees and the deposit for costs may

be granted by the CA upon a verified motion setting forth valid grounds therefor. CONTENTS OF PETITION:

(1) Full names of the part ies to the case , without impleading the court s or agenc ies either as petitioners or respondents; (2) Concise statement of the facts and issu es and the grounds relied upon for the review; (3) Clearly legible duplicate original or certified true copy of the award, J / FO or resolution appealed from, together with certified true copies of such material portions of the record referred to therein and other supporting papers; and (4) Sworn certification against forum-shopping; (5) Specific material dates showing that the petit ion was filed wi thin the period fixed in the Rules. GROUNDS FOR DISMISSAL OF THE PETITION: (1) (2) (3) (4) (5) (6) (7) (8)

Non-payment of docket and other lawful fees; Non-deposit for costs; Non-compliance with proof of service of the petition; Failure to comply wi th the requisite contents and documents that should accompany the petition; Petition is patently without merit; Petition is prosecuted manifestly for delay; The questions raised in the petition are too unsubstantial to require consideration; Absence of prima facie showing that the court or agency concerned has committed errors of fact or law that would warrant reversal or modification of the award, J / FO or resolution sought to be reviewed.

EFFECT OF APPEAL: Does not stay the award, judgment, final order or resolution EXCEPTION:

If the CA directs otherwise upon such terms as it may deem just (Sec. 12)

XVI. ENFORCEMENT OF JUD GMENTS 3 Types of Judgment 1.

Money J udgment •

Procedure a) Motion for execution b) Order of execution c) Writ of execution d) Levy – Levy is effected by taking physical possession or by garnishment

•

Under Sec. 9 (b), Rule 39, the judgment debtor is given the option to choose which property officer shallon levy. If theproperty judgment debtor exercise the option, the officerthe shall first levy personal if any anddoes thennot on real properties if the personal properties are insufficient.

•

Execution Sale

a) Notice   







Written notice in 3 public places preferably in conspicuous areas of the municipal or city hall, post office and public market. Duration of notice will depend on the type of property. Notice by publication is also necessary in case the sale involves real property if such real prope rty exceeds P50,000. The notice must be once a week for 2 consecutive weeks in a newspaper selected by raffle, whether in English, Filipino or any major regional language. The notice requirement is for the benefit of the judgment debtor. The notice info rms pote ntial bidders of the sale. This facilitates debt rehabilitation. If these notice requirements are not complied with, the sale is voidable at the instance of the judgment debtor unless the judgment debtor was in connivance with the sheriff. Sec. 17, Rule 39 provides the penalty for selli ng without notice, removing or defacing notice.

b) Auction  

The auction sale can be postponed under Sec. 22, Rule 39. However, there must be a notice as to postponement. The highest bidder shall get the object being sold. The highest bidder must always pay cash. Even if the judgment creditor is the highest bidder, he must pay cash when there’s a 3 rd party claim,

c) certificate/deed of sale d) redemption(s) – There might be more than 1 redemption.  Only real property may be redeemed.  The following persons may redeem (Sec. 27, Rule 39) 1. judgment obligor 2. redemptioner – a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold.  If the redemption is made by the judgment debtor then there can be no more possible redemptions.  The period for redemption cannot be extended.  During the period of redemption, possession remains with the judgment deb tor. If the re is a lease, the rents would go to the judgment debtor. 2.

Judgment f or S pecific Act s

a) b) c) d) e) 3.

Conveyance, delivery of deeds, or other specific acts; vesting title Sale of real or personal property Delivery or restitution of real property Removal of improvements on property subject of execution Delivery of personal property

Special Ju dgments •

•

An example of a special judgment is a judgment ordering a judgment debtor to sing in a concert. If the judgment debtor does not wish to comply with the special judgment, then he may be cited for contempt.

Under Sec. 13 (k), Rule 39, life insurance proceedings are exempt. There is no limit as to the amount. Under Sec. 13 (d), Rule 39, necessar y clothing is limited for ordin ary personal use. 3rd parties have the same remedies as in provisional remedies except intervention. The 3rd party is not a party to the case. Since he is not a party, he can always file damages in a separate action. 6.

3rd party claim • If the 3rd party claim is denied by the court, the 3 rd party claimant cannot attack the denial via Rule 65, cert iorari. The remedy of rd

the 3 party claimant would be to intervene. 7. reinvindicatory action – action to recover title 8. damages –recover against the inde mnity or sheri ff’s bond within 120 days from the date of the filing of bond 9. cancel annotation – see Property Registration Decree 

These remedies are cumulative (not mutually exclusive). However, the 3rd party claimant cannot recover twice.

4 Proceedings in Aid of Execution

(1) examination of judgment debtor (2) examination of the debtors of the debtor (3) installment (4) receivers FLOW OF EXECUTION

1. 2. 3. 4. 5.

Judgment, then it becomes final, then you Move for execution Order of execution Writ of execution Levy. The proce dure in execution sale is more in ordinary judgment or judgment for payment of a sum of money. 6. Sale. In sale, you have procedure: notice, publication, auction, certification, delivery, registration, redemption. Q: What are the grounds to stay execution of final judgment?

A: 1. relief 2. injunction 3. equitable grounds Q: Within what time may you move for execution of judgment?

A: 5 years. Q: Suppose there is an injunction v. the enforcement of a judgment during that five-yr period, do you deduct the time during which the injunction was enforced from the running of the 5-yrd period? Suppose the compromise provides for the default to pay an installment, will the 5-yrd period run?

A: No answer. Q: Suppose the execution writ was issued within 5 yrs , can it be levied after five years?

A: Not by motion but by independent action. Q; Can you levy the writ after 5 yrs?

A: After 5 yrs from date of entry of judgment or from date it becomes final and executory, and before it is barred by the statute of limitations, a judgment may be enforced by action. Q: What is the chronology of execution procedure? A:

1. Motion for Execution 2. Order of Execution – not appealable 3. Writ of Execution –issued by clerk of court in name f the court in which J/Order is entered; you give the writ to the sheriff; date when you gave writ to sheriff has legal significance (this is when you start counting the 60 DAYS which is the lifetime of the writ) 4. Levy in execution 4.1. Third party claim 4.2. Demolition order 5. Sale 5.1. notice 5.2. auction 5.3. redemption 6. Return of Writ Q: A revived judgment, can it also be revived?

A: YES, YOU HAVE ANOTHER 10 YRS TO REVIVE IT. Q: What is the s pecial judgment?

A: Judgment requiring the performance of ANY ACT OTHER THAN THE PAYMENT OF MONEY or the sale or delivery of real property Q: Classify Judgment

A: Judgment for payment of money (R 39, S. 15) Judgment for delivery/sale Q: What is an ordinary judgment for the recovery of money? How is it imposed when the J debtor does not pay? A: Levy on his personal property first before real. Q: J for the delivery of real and personal property under S. 13. In case of perishable properties, it is personal. Real property is not perishable. Q. Example of perishable property? A. Bananas. Q. Notice requirement for bananas? A. Rule 39, sec. 18 (a) Q. Personal property not per ishable? A. Posting of the notice of sale in 3 public places where the sale is to be conducted.

Q. Notice requirement for real property? A. Rule 39, sec. 13 (O) notice of sale and publication requirement 3 public places, notices of sale. In the place where the property is to be sold and in the place where the sale is to be conducted, and the place where the property is situated hence in 6 public places. Publication requirement is necessary if the value of the property exceeds P400.00 published in the newspaper of general circulation in the places where the property is situated. Q. How many newspapers and for how l ong? A. Rule 39, sec. 18. Q. you publish notice of spaper sale of a ty circulation here in Makati in province the El Ponente? A. Can No, because it isanot a new ofproper general in the where the property is located? Q. What is the significance or purpose of th e notice? What will happen to the sale if any of the requirement is not fulfilled. e.g. it is only published for 19 days or 2 weeks or if the newspaper is not of general circulation of rif there is a newspaper of general circulation in Spanish and it is not published in the newspaper or it is reported only in 2 newspapers or if it is posted only in 2 public places, what is the effects if any of these requirements is not fulfilled? A. It depends, if the creditor induce the sheriff to proceed with the sale notwithstanding non-

compliance with the requirement, the sheriff can be sued for actual damages. Purpose of the requirement as to notice, publication? A. Due process. Q. For whose interest is the publication and notice requirement? A. For the interest of the judgment debtor. Q. How does this requirement tend to subserve the interest of the judgment debtor? A. To enhance the debt repayi ng capacity of the proper ty, to minimize its repayment value. The more who knows the greater is the chance that more bidders will bid and the better price you are likely to get. Q. Anybody disqualified from purchasing in the execution sale? A. Sheriff, presiding judge, deputy sheriff, lawyers who participated in the case. Q. Why is the lawyer of the debtor disqualified? A. There might be a clash in their interest. Q. A right of redemption is allowed if the property sold is real property. What is the purpose of the law in allowing successive redemption? A. To maximize the debt repaying capacity of the property because usually execution sales are forced sale and therefore sacrifice sales. Q. Who may redeem? A. Judgement debtor and its successors in interest and redemptioner (sec. 29, Rule 39) Q. Who is a r edemptioner? A. Creditors of the debtor subsequent to the judgment.

Q. Period of redemption. A. Sec. 30, Rule 39. Q. What is the difference between a redemption of a judgment debtor and a redemption of a redemptioner? A. In case of a judgment debtor the period is within 12 months from the date of the sa le. In the case of a redemptioner, the period is within 60 days from the last redemption. As the amount payable upon redemption : by judgment debtor – pay the purchase price, taxes paid by the judgment creditor and interest of 1% per month; by redemptioner – price which constitutes the value of the lien of the subsequent redemptioner and interest of 2% per month plus taxes paid. Another important distinction between a redemption of redemptioner and redemption by a judgment debtor is that if it is the judgment debtor who redeems, no further redemption is allowed. Q. Plaintiff v. Defendant. Judgement is for P100 ,000. Execution was levied upon the property of the defendant and is sold for P50,000. It is sold to X thereafter and after the levy and before the sale, the property was mortgaged to Y for P25,000. If the defendant should like to redeem the property from X, how much does he pay? A. P50,000 plus taxes plus interest. Q. Y is also qualified to redeem. Can he redeem ahead of the defendant? A. Yes. Q. How much does Y have to pay to redeem? A. P50,000 plus taxes plus interest. Q. If there is another mortgage (D) after him for P10,000 can D also rede em? Can he redeem pay of X? A. Yes, he has to pay P50,000 to X plus interests. Q. He does not have to pay the P25,000? A. No. Q. If Y can redeem ahead of the defen dant, what wil l happen to the defen dant, can he still redeem the property after Y has redeem it? R. Yes. (questionable, sir did not give the right answer) Q. How much time does he have to redeem it? A. 12 months. Q. How much does the defendant have to pay Y for him to redeem the property? A. Cost of lien which is P50,000. If the defendant will redeem the property directly from Y then he only has to pay P50,000. Q. Can a redemptioner redeem ahead of the judgment debtor? A. Sec. 31, Rule 39 provides that a judgm ent debtor in effec ting redemption must mak e the same payment as a redemptioner does. Then that presupposes it might be that the redemptioner goes ahead. Q. What are the payments to be made by the redemptioner? A. Sec. 30, Rule 39. Amount paid by the purchase is 1% interest together with the amount of any assessments or taxes which the purchaser may have paid plus interest.

Therefore is judgment debtor redeems from a redemptioner, he must pay what the redemptioner paid plus interest. That means a redemptioner can go ahead. e.g. Judgment – debt – P100 Property of the debtor levied upon and sold for execution for P30. It was sold to X. If the judgment debtor wants to redeem the property, how much would he pay to s? P30 + interest. If after the judgment was levied on the property which was sold for P30, the debtor mortgagee; the property for P20 to (also)?, but X who is a mortgagee of the property, the mortgage came after the levy of execution but X bought it at the foreclosure. How much should the judgment debtor pay X to recover the property? P30 + interest. If you want the property badly and it is worth more than what it might draw at an execution sale (an execution sale is a sacrifice sale). You will never get the fair market value here, so it is better to lend the debtor money on the security of the property which was already levied upon and then you buy the property because for the debtor to redeem it from you he has to pay both for what you pay for it plus P20. Q. Who is entitled to the rents pending redemption? A. It depends who is in possession of the property. If the property is in the possession of a third person or a tenant, the rents will go to the judgment creditor and rents received will be credited from the redemption money. If the property is in the possession of the judgment debtor he is not required to pay rents. This is not unfair because the purchaser is supposed to get a 1% a month interest to make up for the difference between the fair market value and the value at which he paid. It is considered that he got a bonus because he bought it cheap. Ex: A. Dasmarinas property rented out to a foreigner for P40,000 a month. B. Judgment against its owner and it was levied upon and sold on exec ution to X for P3M. C. Pending redemption at the time of the sale it was being leased to a for eigner for P40,000 a month. D. To whom will the rent go? to X, P40,000 x 12 months = P480,000 E. How much will the redemptioner money be? P3M – P480,000 – P2520 interest. Q. What is the difference between redemption by judgment debtor and redemtion by redemptioner? A. If redemption made by the judgment debtor, no further redemption is allowed under sec. 31 Rule 39. Q Is it possible for the redemption period to go ahead beyond one year? A. Yes, when during the period of redemption a suit is brought to destroy the right to redeem and judgment is rendered in favor of the existence of the right of redemption. Another reason is stated under Sec. 34. The execution sale is conducted by auction sale between the hours of 9am to 5 pm. Q. What are the actions against a reneging bidder? A. 1) He is liable for the amount of the loss – difference between the amount which have been realized and the amount which was actually realized. 2) Contempt

Redemption is to maximize the debt repaying capacity. That is why successive redemption is allowed. If judgment debtor redeems it he does not have to pay the balance of P100, only P50 because the lien of the judgment creditor is also derived from the judgment which is the subject of execution. What execution is returned unsatisfied, what is the remedy of the judgment creditor? A. B. C. D.

_____________ of judgment debtor. _____________ of ____ _ of judgment debtor. Debtor may pay execution against creditor. Order For Application of Property and inc ome to satisfaction of judgment in fixed monthly installment. E. Appointment of a receiver F. Sale of ascertainable interest of judgment debtor in interest Junior encumbrances usually redeems the property because it is in this way that his lien can be paid. He can also redeem ahead of someone more senior to him. How is satisfaction of judgment entered? By who? Sec. 46, Rule 39. Illustration: A v. B. If the judgement is adverse to B, the right of redemption of B cannot be levied upon by A. Suppose there is another case C v. B (another plntf) and a judgment against B was rendered then C can levy on B’s right to redeem the property subject of the first case (A v. B). THIRD PARTY CLAIMS:

Procedure is the same as in attachment. The remedies of a third party claimant are same with the exemption of the third party complaint, in an execution for bidding unlike a third party claimant in an attachment proceeding intervene. Q. What are the remedies of a person who claims a righ t or interest or title on prope rty levied upon on attachment? A. 1. He can file a third party claim. (What the third party claim will recite, with whom will he file it, we have already taken that up) 2. He can fil e an action for dam ages against the ind emnity bond filed by the judg ment creditor. 3. He can intervene in the action under Rule 12. 4. He can fil e a petition if the levy is on rea l property for the rem oval of the annot ation of levy on the ground that it is done through error or mistake under the Property Registration Decree. 5. He can bring a separate reinvindicatory action against the sheriff, and the levying creditor in which he can also ask for a writ of _______(?). In all these remedies are available to a third party claimant in an execution for …… except that he cannot intervene because trial has already ended and intervention can only be done before and or during trial. Q. What are the notices for execution sale? A. sec. 18, Rule 39 Kinds of notice in this kind of sale: a. posting b. publication

XVII. SPECIAL CIVIL AC TIONS What is a special civil action? How is it distinguished from an ordinary civil action?

Special civil actions are the actions provided for by the Revised Rules of Court from Rules 62 to 71, all basically ordinary civil proceedings. They include interpleader, declaratory relief, certiorari, prohibition, quo warranto, eminent domain, foreclosure of mortgage, partition, forcible entry and unlawful detainer and contempt. What makes them special are the distinct peculiarities inherent in their very nature not found in ordinary civil actions. For example, in an action for foreclosure of mortgage, two judgments are possible; this is not true in ordinary judgments of the court. In an ordinary civil action, for a plaintiff to go to court, two basic factors must be present: he must have a right, and this right is violated by the defendant, thereby causing prejudice or damage. However, in a special action, it is not necessary for these 2 factors to be present. For example, in an action for declaratory relief, before breach of the contract, any of the parties may institute an action in court for a determination of any question of construction or validity arising under the instrument or for a determination and declaration of his rights and duties thereunder. FORCIBLE ENTRY AND UNLAWFUL DETAINER

By the very provisions of the rules, a judgment in an action for unlawful detainer is conclusive only on the issue of possession such that even if the judgment may contain some statements about ownership or other matters, it is not conclusive even between the same parties on any matter other than possession. Forcible entry and unlawful detainer are given special treatment because they affect publicthe order. needed since the situation is volatile. If this were an ordinary action, then actionInstant wouldrelief be forisrescission of contract. The procedure here is summary. There are prohibiting pleadings. Postponements are not allowed. The judgment is immediately executory. If the period to file a case of unlawful detainer lapses, then accion publiciana will lie. Under Sec. 2, Rule 70, in unlawful detainer cases, there is a need for a prior demand. The demand must be to vacate and to pay the rent. The demand SHOULD NOT be to vacate or pay the rent. Otherwise, this will not qualify as an unlawful detainer since the lessee is given an option. Tacita reconducta means impliedly renewed. This occurs if the lessor allows the lessee

to stay. Problem: Plaintiff lessor files an unlawful detainer case against the lessee. Plaintiff loses. He

appeals. He wins the appeal. Is this immediately executory? Answer: Yes, under Sec. 21. Problem: Does the immediate execution refer to vacate or to pay the rentals? Answer: Prof. Bautista didn’t answer. Problem: What if the tenant does not vacate, can he be held in contempt?

Answer: No, the order is not directed to the tenant. It is directed to the sheriff. The sheriff can

bodily throw out the tenant. If improvements must be removed, then the sheriff needs a special order. Q: Can the MTC grant a writ of preliminary mandatory injunction in an unlawful detainer case? A: YES. See Rule 70, Sec. 15. Q: May a person not in possession of the premises bring an action for unlawful detainer of these premises?

A: Yes, as where the acti on is brought by a vendee or other person against whom the possession is unlawfully withheld after the expiration or termination of the right to hold possession. (Pangilinan v. Aguilar, 43 SCRA 136) Q: In an ejectme nt case, the MTC order ed the defend ant to vacate the leased prem ises and to pay a monthly rental plus attorne y's fees. On appeal, defendan t deposited the current rentals with the RTC. But the RTC granted plaintiff's motion for execution on the ground of defendant's failu re to file a supersedeas bond. Is the order of execu tion correct?

A: No. Rule 70, Sec. 19 requires a supersedeas bond only if there are rentals in arrears. The attorney's fees need not be covered by a supersedeas bond. (De Lauriano v. Adil, 72 SCRA 148) Q: T was leasing his apartment from L at P 5,000.00 a month under a written contract for one year. One month before th e expirati on of the lease, L served a deman d upon T to vacate the premi ses upon its expiry beca use he was going to demolis h the buildi ng. T refused to vacate. In consequence, L's building plans were del ayed. So L brought an action for unlawful detainer against T and obtained judgment therein directing T to pay him the P 5,000.00 stipulated rental and P 500.00 a day for every day of delay as damages until he finally vacates the premis es, plus P 10,000.00 attor ney's fees. Is the decisio n objectionable in any way?

A: Yes. The award of P 500.00 a day for damages cannot properly be made in an unlawf ul detainer action where the only damages recoverable are those which are caused by the loss of the use and occupation of the property and not such damages as may be recovered only by the plaintiff if he were the owner and he cannot be declared as such in an unlawful detainer action. The award of attorney's fees is proper, though. (Reyes v. CA) A and B inherited from their father C, a parcel of land in 1985. IN 1992, D forcibly entered into and took possession ofthe property. May A by himself and without including Bas his co-plaintiff, bring an action for ejectment against D?

Yes. Anyone of the co-owners may bring an action for ejectment. (NCC 487)

Can an MTC award moral and exemplary damages in an unlawful detainer suit?

No. The only damages that can be recovered in an unlawful detainer suit are the fair rental value or the reasonable compensation for the use and occupation of the real property. Other damages must be claimed in an ordinary action. (Felisilda v. Villanueva, 139 SCRA 431) Unlawful detainer action by P against D was decided in P's favor by MTC. On P's motion, MTC granted executi on pending appeal for D's failu re to post a supersedeas bond. D challenged the validity of the immediate execution for having been issued without any previous notice to him. Rule.

The order of immediate execution is OK. (?) MTC is not duty-bound to notify D of immediate enforcement of the appeale d decision. It is the prevailing party moving for executi on pending

appeal who is obli ged to serve a copy of such motion on the adverse party' s counsel. (De los Santos v. Montesa, 221 SCRA 15) P filed a complaint for unlawful detainer against D in the MTC. In his complaint, P prayed for judg ment ordering D to vacate the leased premi ses and to surrender them to P, declaring the residential building constructed on the lot by D as forfeited in P's favor, and adjudging D liable to pay accrued rentals and P 5,000 attorney's fees to P. After D filed his answer, the MTC rendered a judgment on the pleadings granting all the reliefs prayed for in P's complaint. Is this judgment assailable on anyjurisdictional grounds?

DECLARATORY RELIEF What is the purpose of a declaratory relief device?

It does not require the party to wait to violate the law before it can acquire vested rights. So, it is an opportunity for the party without having to violate but they have already acquired vested rights. (Eh?) Distinguish an advisory opinion from a declaratory judgment.

An advisory opinion is rendered at the request of the executive or legislative department. A declaratory judgment is a proceeding determinative of the rights of the parties to the case. When a party has doubts about a certain act, can the party file an action for declaratory relief in th e SC? Does the SC hav e juri sdiction ov er suc h a case? Can it re nder a declaratory relief judgment?

Is the granting of declaratory relief discretionary?

Yes. What will give forth to the court's discretion whether to grant or deny declaratory relief?

In what instances is declaratory relief not appropriate?

(1) Citizenship (2) Invalidity of a tax ordinance where the tax is due and demandable

CONTEMPT The RTC rendered judgment ordering D to vacate a certain house and deliver it to P. This judgment became final but D refused to vacate the house despite service upon him by the sheriff of the writ of execution. For refusing to comply with the writ of exec ution, P moved to have D cited and adjudged incontempt. Should the motion be granted?

The motion for contempt should be denied. The writ of execution, being for the delivery of real property (Rule 39, Sec. 8 (d)), is addressed to the sheriff and not to D. So, D cannot be punished for contempt for his alleged disobedience of an order not addressed to him. (Lipata v. Tutaan, 124 SCRA 877)

P sued D in the RTC to recov er a parcel of land. Judgment was rendered in P' s favor directing D to reconvey the land to P. A writ of execution and a writ of possession were subsequently issued. In an effort to enforce the writ of possession, the sheriff sought to physically remove X and Y, the alleged occupants, from the subject land. For refusing to vacate the lan d, P moved to have X and Y cited for contem pt. Should the mot ion be granted?

No. X and Y were not parties to the case in which the judgment was issued and so this judgment cannot bind them. Moreover, the writ of possession was addressed to the sheriff, not to X and Y. It was a process intended to enforce a judgment for the delivery of the possession of real property as contemplated by Rule 38, Sec. 8 -- not a special judgment under Sec. 9 of Rule 39, disobedience to which may be punished by contempt. For P to recover the properties from X and Y, P has to file another action. (Gatchalian v. Arlegui, 75 SCRA 234) Judgment for a sum of money was rendered by the RTC against D and in favor of P. Execution of this judgment was levied on a parcel of land owned and occupied by D. The land was sold on executi on sale to P. After the expiration of the redemp tion period, D refused to vacate the land despite the issuance of a writ of execution and possession. P then moves to have Dcited for contempt. Is D liable for contempt?

No. What would constitute contempt is the pre-entry of D after possession has been delivered to P by the sheriff in enforcement of the writ of execution. The writ of execution is addressed solely and exclusively to the sheriff who is called upon to oust D and place P in possession. D's mere refusal or unwillingness to vacate the property is not contempt. (Flores v. Ruiz, 90 SCRA 428)

CERTIORARI, PROHIBITION AND MANDAMUS

We take them up as modes of review of trial court actio ns although these prerogati ve writs are available as modes of review not only of judicial actions but even of actions of quasi-judicial government bodies. The requisites are generally the same, whether the mode of review is directed at a trial court or at an administrative body, and we study them as modes of review of trial court actions which are the modes they are commo nly used as in a defense. They usually are asked for in tande m -certiorary and prohibition, or C, P & M. Their elements are similar. As to the histo ry of these prerogative writs, these remedies emanated from the Court of Chancery. These remedies were instituted by a king to temper the harshness of the judgments of the law courts and to avoid the clash between the courts of law and the courts of equity. These equitable remedies were granted only when the remedies of law were not adequate. Certiorari as a mode of review of trial court action is available only when there is no appeal or

other remedy. So when we are thinking of the modes of attacking a judgment, we always put at the bottom Rule 65, certiorari. When all else is lost, there's always Rule 65. In a Rule 65 certiorari, it is limited to a review of the records. Facts are not tried, so evidence is not received. That is why you can not file a petition for Rule 65 certiorari to review an order of default and you cannot avail of the motion to set aside an order of default, or a petition for relief. (?) Even if the other remedies are no longer available, it does not mean that these extraordinary writs are available. You must show that you did not lose those other remedies by neglect. Mandamus is available to compel the performance of a mandatory duty mandated by law.

Where the act to be performed is discretionary, its performance cannot be compelled by a

mandamus although the exercise of discretion may be compelled by mandamus but not the exercise of discretion in a particular way. Mandamus is also used as a mode of testing entitlement to an office. In this case, we have to be

careful in distinguishing it from quo warranto . IN mandamus, the occupant of the office is an absolute usurper and the petitioner claims no title to it for himself. Prohibition can be used not only to stop actions not yet performed but also to undo acts already

done on the principle that equity affords a complete relief. CERTIORARI Certiorari – Rule 45 differentiated from Rule 65

In appeal by certiorari, the petition is based on questions of law which the appellant desires the appellate court to resolve. In certiorari as an srcinal action, the petition raises the issue as to whether the lower court acted without or in excess of jurisdiction or with grave abuse of discretion. •

Certiorari, as a mode of appeal, involves the review of judgment, award or final order on the meri ts. The original action for cert iorari may be directed again st an interlocutory order of the court prior to appeal from the judgment or where there is no appeal or any other plain, speedy or adequate remedy. •

Appeal by certiorari must be made within the reglementary period for appeal. An srcinal action for certiorari may be filed not later than 60 days from notice of the judgment, order or resolution sought to be assailed. •

Appeal by certiorari stays the judgment, award or order ap pealed from. An original action for certiorari unless a writ of preliminary injunction or a temporary •

restraining order shall have been issued, does not stay the challenged proceeding. • In appeal by certiorari, the petitioner and respondent are the srcinal parties to the action. In certiorari as an srcinal action, the parties are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties, who thereby respectively become the petitioner and respondents. In appeal by certiorari, the appellate court is in the exercise of its appellate jurisdiction and power of review, while in certiorari as an srcinal action, the higher court exercises original jurisdiction under its power of control and supervision over the proceedings of lower courts. •

In certiorari for purposes of appeal, the prior filing of a motion for reconsideration is not required while certiorari as an srcinal action, a motion for reconsideration is a condition precedent. The following are the exceptional instances when a motion for reconsideration need not be filed before a Rule 65 petition for certiorari: •

e) where the order is a patent nullity f) where the que stions raised in the cer tiorari proceeding have bee n duly rais ed and passed upon by the lower court, or are the same as those raised and passed upon in the lower court g) where there is an urgent necessity for the reso lution of the ques tion and any further delay would prejudice the interests of the Government

h) where under the circumstances, a motion for reconsideration would be useless i) where the pet itioner was deprived of due proce ss and the re is extr eme urgency for relief j) where the proceedings in the lower court are a nullity for lack of due process k) where the proceeding was ex parte or in which the petitioner had no opportunity to object l) where the issue raised is one purely of law or where public interest is involved Defendant was order ed by the MTC to produc e certain documents. Claiming that the documents are privileged, defendant refused to comply with the order. So, after due notice and hearing, the RTC ordered defendant to be jailed until he complies with the order to produce. Alleging MTC's grave abuse of discretion and want of jurisdiction, defendant filed with the RTC a petition for certiorari seeking to set aside the RTC contempt order directing him to be jailed. Is the certiorari petition proper?

No. Defendant has available to him the remedy of appeal an d this is an adequat e remedy because the execution of the judgme nt is suspended pendi ng the appeal. (Rule 71, Sec. 4 in relation to Sec. 2) PARTITION May a court approve an extrajudicial partition among the co-heirs of a deceased who died intestate and without debts, without the court first requiring the partitioning heirs to put up any bond at all?

Yes. There is no need for a bond if only realty is parti tioned and no personalty is distributed. (Rule 74, Sec. 1 and 3)

QUO WARRANTO

Quo Warranto may be distinguished from election contests as follows: The basis for quo warranto is that the occupant is disqualified from holding the office by reason of ineligibility or disloyalty. An election contest challenges the right of a person to hold office on the ground of irregularities in the cond uct of elections for the said offi ce. If the quo warranto proceedings succeeds, the respondent will be ousted but the petitioner will not assume the office. In election contests, the successful protestant will assume the office if he had obtained a plurality of the valid votes.

EXPROPRIATION

An appeal may be taken from the order authorizing expropriation and, thereafter, another appeal lies against the judgment on the just compensation. The significance of this fact is that, just as in special proceedings, the reglementary period to appeal shall be 30 days and a record on appeal shall be requir ed for each of the permissible appeals. In the condemnation proceedings the issues are whether or not there is a right to condemn and whether or not the property is condemnable. In determining just compensation, the commissioners take into account unearned or accrued benefit (Sec. 6, Rule67) FORECLOSURE OF REAL ESTATE MORTGAGE

1. Execution Sale • • •

There is right of redemption for real property. There is no need for judicial confirmation of the sale. The excess of the proceeds goes to the judgment debtor.

2. Real Estate Mortgage Foreclosure (a) Judicial •

There is no right to redeem. But there is what is called “equity of redemption”.

•

There is a need for confirmation of the sale. There is a need for confirmations since the sale may be unconscionable or the buyer may have been prohibited from purchasing the real property (i.e. auction officer, etc.)

•

The excess of the proceeds goes to the junior encumbrancers.

(b) Extrajudicial •

There is a right of redemption within 1 year from registration of sale.

•

See Sec. 47 of the General Banking Law of 2000.

•

The excess of the proceeds goes to the junior encumbrancers.

•

Junior encumbrancers are necessary and not indispensable parties.

Note the difference in redemption in cases of REM foreclosure and execution sales.

Baltik Remedial Law Reviewer Copy

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