Civil Procedure 1 Reviewer
Civil Procedure 1 Notes
last updated 5/14/23
Jurisdiction
The authority of the court to hear, try, and decide a case.
Jurisdiction v. Venue
Jurisdiction is like virginity, it’s either you have it or not.
Jurisdiction and venue must go hand in hand.
Si venue pwedeng mangaliwa, si jurisdiction hindi.
Improper Venue
If the plaintiff filed a complaint to the wrong court and the defendant did not question it, it is deemed waived.
Municipal Trial Courts
Refers to first-level courts which has jurisdiction over 2 or 3 territories/cities
EXCEPT Metro Manila which is under the jurisdiction of the Metropolitan Trial Courts (MeTC) [pero under pa rin ang MeTC sa MTC]
Exclusive Original Jurisdiction means that these civil actions belong exclusively to the MTC.
Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed Two million pesos (P2,000,000.00)
The sum of money must not exceed 2 Million Pesos
EXCLUSIVE OF CLAIM-C
E.g.
A filed for 1.9M pesos against B. → MTC jurisdiction
A filed for 1.9M pesos against B + 100k for legal interest + 100k for moral damages = 2.2M total → MTC jurisdiction. WHY? Because jurisdiction is exclusive of DIAL-C
BUT, if the main cause of action is DAMAGES, then the principal amount + DIAL-C will now determine the jurisdiction of the court.
Totality Rule
The plaintiff has 4 causes of action against the defendant. He may file 4 cases OR a single complaint which the total amount shall be stated in the complaint. He must add his 4 causes of action, sum the total, and that will determine the jurisdiction of the court.
This applies to value of …
2. Ejectment Cases
Forcible Entry
Unlawful detainer
Regardless of the assessed value of MTC.
Assessed value is seen at the tax declaration of property.
Civil actions that involve title to, or possession of, real property, or any interest therein where the assessed value of the property or any interest therein does not exceed Four hundred thousand pesos (P400,000.00) exclusive of CLAIM-C.
The issue must involve title to or possession of real property.
Title is NOT the same as a certificate of title. Title refers to ownership while certificate of title is the piece of paper or proof of ownership.
Ex. P claim involving ownership /recovery of a piece of land for 400k.
Ex. P is the lessor/landlord and D is the lessee. D decided to rent the apartment of P that is fully furnished. D decided to leave the apartment. When he left, P found out that the ref, chairs, and other belongings were gone. P sued D for damages of the real property. Is it within the jurisdiction of MTC?
NO. Although it is related to the real property (apartment) it is not in relation to the title to or possession of the real property.
Exclusive original jurisdiction in admiralty and maritime actions where the demand or claim does not exceed Two million pesos (P2,000,000.00).
Delegated Jurisdiction of MTC
Cadastral
Land registration
Special Jurisdiction of MTC
— in cases of habeas corpus or bail cases in provinces or cities where the RTC judge is absent, the plaintiff may file the complaint to the MTC.
Section 1. Coverage. These rules shall govern the expedited procedures in the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts, for the following cases falling within their jurisdiction:
NOTE: The cases fall within the jurisdiction of the MTC but the procedure that will be followed is the Rules of Summary Procedure instead of the ordinary Regular Rules of Procedure.
(1) Summary Procedure Cases, as follows:
(a) Forcible entry and unlawful detainer cases, regardless of the amount of damages or unpaid rentals sought to be recovered. Where attorney's fees are awarded, the same shall not exceed One Hundred Thousand Pesos (P100,000.00).
(b) All civil actions, except probate proceedings, admiralty and maritime actions, and small claims cases falling under Rule IV hereof, where the total amount of the plaintiff's claim does not exceed Two Million Pesos (2,000,000.00), exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs.
(c) Complaints for damages where the claim does not exceed Two Million Pesos (P2,000,000.00), exclusive of interest and costs.
(d) Cases for enforcement of barangay amicable settlement agreements and arbitration awards where the money claim exceeds One Million Pesos (P1,000,000.00), provided that no execution has been enforced by the barangay within six (6) months from the date of the settlement or date of receipt of the award or from the date the obligation stipulated or adjudged in the arbitration award becomes due and demandable, pursuant to Section 417, Chapter VII of Republic Act No. 7160, otherwise known as The Local Government Code of 1991.
(e) Cases solely for the revival of judgment of any Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, and Municipal Circuit Trial Court, pursuant to Rule 39, Section 6 of the Rules of Court.
(f) The civil aspect of a violation of Batas Pambansa Blg. 22 (the Bouncing Checks Law), if no criminal action has been instituted therefor. Should a criminal action be later instituted for the same violation, the civil aspect shall be consolidated with the criminal action and shall be tried and decided jointly under the Rule on Summary Procedure.
All other cases not included herein shall be governed by the regular rules of procedure.
(2) Small Claims Cases, as defined hereunder, where the claim does not exceed One Million Pesos (P1,000,000.00), exclusive of interest and costs.
A "small claim" is an action that is purely civil in nature where the claim or relief raised by the plaintiff is solely for the payment or reimbursement of a sum of money. It excludes actions seeking other claims or reliefs aside from payment or reimbursement of a sum of money and those coupled with provisional remedies.
The claim or demand may be:
(a) For money owed under any of the following:
1. Contract of Lease;
2. Contract of Loan and other credit accommodations;
3. Contract of Services; or
4. Contract of Sale of personal property, excluding the recovery of the personal property, unless it is made the subject of a compromise agreement between the parties.
(b) The enforcement of barangay amicable settlement agreements and arbitration awards, where the money claim does not exceed One Million Pesos (P1,000,000.00), provided that no execution has been enforced by the barangay within six (6) months from the date of the settlement or date of receipt of the award or from the date the obligation stipulated or adjudged in the arbitration award becomes due and demandable, pursuant to Section 417, Chapter VII of Republic Act No. 7160, otherwise known as The Local Government Code of 1991.
RTC is also known as the Court of General Jurisdiction.
In all civil actions in which the subject of the litigation is incapable of pecuniary estimation;
incapable of pecuniary estimation means it cannot be measured by money or amount
Be careful with the caption as it does not determine the jurisdiction of the RTC or MTC. The Case may be filed with specific performance but the ultimate purpose is not with specific performance but ownership.
Ex. of incapable of pecuniary estimation:
Action to appoint administrator
Support
Annulment of judgment
Annulment of extrajudicial settlement
In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value exceeds Four hundred thousand pesos (P400,000.00), except for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the Metropolitan Trial Courts, and Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts;
In all actions in admiralty and maritime jurisdiction where the demand or claim exceeds Two million pesos (P2,000,000.00);
In all matters of probate, both testate and intestate, where the gross value of the estate exceeds Two million pesos (P2,000,000.00);
In all actions involving the contract of marriage and marital relations;
In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions;
In all civil actions and special proceedings failing within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law; and
In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs, or the value of the property in controversy exceeds Two million pesos (P2,000,000.00).
RTC acquires appellate jurisdiction over cases decided by MTC.
_______-_Original and Concurrent Jurisdiction of RTC_________
This means that the case falls within the RTC, CA, or SC.
In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus, and injunction which may be enforced in any part of their respective regions; and
In actions affecting ambassadors and other public ministers and consuls. (B.P. 129, Sec. 21)
Hierarchy of courts
Even if the case falls in the original or concurrent jurisdiction of the RTC, CA, and SC, you need to follow the hierarchy of courts. So RTC muna bawal na i-diretsyo mo agad sa CA/SC.
The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:
a) Criminal cases where one or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age or where one or more of the victims is a minor at the time of the commission of the offense;
b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;
c) Petitions for adoption of children and the revocation thereof;
d) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains;
e) Petitions for support and/or acknowledgment;
f) Summary judicial proceedings brought under the provisions of Executive Order No. 209, otherwise known as the "Family Code of the Philippines";
g) Petitions for declaration of status of children as abandoned, dependent o neglected children, petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental authority and other cases cognizable under Presidential Decree No. 603, Executive Order No. 56, (Series of 1986), and other related laws;
h) Petitions for the constitution of the family home;
i) Cases against minors cognizable under the Dangerous Drugs Act, as amended;
j) Violations of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," as amended by Republic Act No. 7658; and
k) Cases of domestic violence against:
1) Women - which are acts of gender based violence that results, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman's personhood, integrity and freedom movement; and
2) Children - which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other conditions prejudicial to their development.
P files an action against D to foreclose a chattel mortgage over a motor vehicle. In the same action, P applies for the issuance of a writ of replevin for the seizure of the motor vehicle.As alleged in the complaint, P's main claim against D is the collection of a sum of P1,500,000. The value of the motor vehicle is P2,800,000.What court has jurisdiction over this case?
The MTC has jurisdiction because plaintiff's claim does not exceed P2,000,000. What determines the jurisdiction of the court is the amount of plaintiff's claim, not the value of the motor vehicle sought to be seized by replevin.
Test to be followed in determining whether the subject matter of the litigation is incapable of pecuniary estimation:
Determine the nature of the principal action or remedy sought.
If it’s primarily for recovery of sum of money → claim is considered capable of pecuniary estimation
If claim is not for recovery of sum of money/ money claim is ONLY incidental → claim is considered incapable of pecuniary estimation
Examples of incapable of pecuniary estimation:
Action of nullity of the document denominated as, “Declaration of Heirs and Deed of Confirmation of Previous Oral Partition”
Action for appointment of an administrator for an estate
An expropriation suit
Action for execution of sale
Action for support
Action for annulment of judgment
Actions questioning the validity of mortgage
Action for rescission which is the counterpart of specific performance.
Damages arising from defamatory utterances (damages is merely incidental).
Be careful of this:
TITLE: Specific performance
ACTION: Recovery of real property
TITLE: Specific performance and damages
ACTION: Transfer of property
Kahit na ang title ay specific performance hindi ibig sabihin na incapable of pecuniary estimation na siya. Check the allegations.
For the nature of an action is determined not by what is stated in the caption of the complaint but by the allegations therein and the reliefs prayed for. Where the ultimate objective of the plaintiff is to obtain title to real property, it is a real action; and, therefore, it should be filed in the proper court having jurisdiction over the assessed value of the property subject thereof.
NOTE: A complaint MUST ALLEGE the assessed value of the real property subject of the complaint. If not alleged, it is a ground for a motion to dismiss.
Plaintiff filed an action for cancellation of the defendant's certificate of title over a real property. The complaint alleges that the defendant was issued a certificate of title on the basis of a deed of sale bearing the forged signature of the plaintiff. Is this a real action?
Yes, this is a real action. As held in Padlan v. Dinglasan, if plaintiff's ultimate objective is to obtain title to real property, the action is a real action although plaintiff is demanding the cancellation of the defendant's certificate of title.
May a Regional Trial Court annul the judgment of another Regional Trial Court?
No. Only the Court of Appeals has jurisdiction to annul the judgment of a Regional Trial Court.
Suppose the plaintiff failed to pay the correct amount of docket fee, may the trial court dismiss the complaint?
No, the trial court may not dismiss the complaint. Instead, the trial court should allow the plaintiff to pay the correct amount of docket fee within a reasonable time but before the expiration of the applicable prescriptive or reglementary period. If the plaintiff fails to pay within the applicable prescriptive or reglementary period, then the defendant must move to dismiss the complaint on the ground of lack of jurisdiction. The defendant who fails to timely rvb aise the issue of jurisdiction would be considered in estoppel.
Jurisdiction is acquired upon payment of the prescribed docket fees.
If the filing and docket fees in a real action are paid, but the fees for certain related damages are not paid, does the court acquire jurisdiction over the action?
Where the fees prescribed for the real action have been paid but the fees for certain related damages are not, the regional trial court, although it has jurisdiction over the real action, may not have acquired jurisdiction over the accompanying claim for damages. Accordingly,the court may expunge those claims for damages, or allow, on motion, a reasonable time for amendment of the complaint so as to allege the precise amount of damages and accept payment of the requisite legal fees. If there are unspecified claims, the determination of which may arise after the filing of the complaint or similar pleading, the additional filing fee therefore shall constitute a lien on the judgment award. The same rule applies to third-party complaints and other similar pleadings.
What is the Doctrine of Primary Jurisdiction?
The Doctrine of Primary Jurisdiction (or Doctrine of Primary Administrative Jurisdiction) vests in an administrative tribunal the jurisdiction to determine a controversy involving a question requiring the exercise of sound administrative discretion.
Thus, even where the court has jurisdiction to take cognizance of a particular case, but the resolution of the issues in said case requires the expertise, specialized skills, and knowledge of the proper administrative bodies because of technical matters or intricate questions involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court.
Where jurisdiction is vested upon an administrative body, no resort to the courts may be made before such administrative body shall have acted upon the matter.
What is the principle of hierarchy of courts?
It is the principle that requires litigants to initially seek the proper relief from the lower courts in those cases where the Supreme Court has concurrent jurisdiction with the CA and RTC to issue the extraordinary writs (of mandamus,prohibition, or certiorari). As a court of last resort, the SC should not be burdened with the task of dealing with causes in the first instance. The SC's original jurisdiction to issue extraordinary writs should be exercised only where absolutely necessary, or where serious and important reasons therefore exist.
Is a claim for damages arising from the employer's negligence that resulted in the death of, or injury to, an employee, cognizable by labor tribunals?
No. While the maintenance of a safe and healthy workplace is ordinarily a subject of labor cases, case law nevertheless clarifies that a claim specifically grounded on the employer's negligence to provide a safe, healthy, and workable environment for its employees is no longer a labor issue, but rather, is a case for quasi-delict which is under the jurisdiction of the regular courts...”
Jurisdiction of subject matter
Ask yourself: Does the court have jurisdiction to try that subject matter?
This is determined based on the allegations in the complaint NOT on the caption of the case because sometimes the caption is deceiving.
E.g. Plaintiff filed a complaint against the defendant for 10M. You need to read the allegations to determine that considering that it is 10M it is under the jurisdiction of the RTC.
E.g. Plaintiff filed a complaint against the defendant for 10M. Defendant filed his answer. There, he denied that he is indebted of 10M and attached a copy of acknowledgement receipt of 9M. Therefore, he is only indebted of 1M. He argues that the case is within the jurisdiction of the MTC. Is the defendant correct?
No. Jurisdiction doesn’t depend on the defense of the defendant or in the motion to dismiss. It is based on the allegations in the complaint by the plaintiff regardless of whether the claim will be granted fully or partially.
EXCP: In ejectment cases where after the court conducts a preliminary hearing finds that there is an agricultural tenancy relationship between the plaintiff and the defendant, then it must dismiss the case as it falls within the exclusive jurisdiction of the Department of Agrarian Reform Adjudication Board (DARAB).
Jurisdiction over the persons
The court acquires jurisdiction over the plaintiff upon the filing of a complaint.
The court acquires jurisdiction over the defendant by
(1) valid service of summons where the mode must be among those enumerated under the Rules; or
(2) voluntary appearance (like filing an answer)
NOTE: IF the service of summons is invalid, the court never acquired jurisdiction.
E.g. There is an invalid service of summons. However, the defendant filed an answer.
The court acquires jurisdiction when the defendant filed an answer.
Jurisdiction over the issue
Ask yourself: Does the court have jurisdiction to hear and try the issue?
How to determine the issue:
Allegation of the complaint
E.g. Whether the debtor is indebted
Agreement/Stipulation during pre-trial
E.g. The judge asked the counsels to give him the issue. The counsel gave him the issue and also the sub-issues.
E.g. Plaintiff will present a witness to testify that the 10M debt is due and demandable. But the issue is whether the debtor is indebted or not. What will the counsel of the defendant do?
They should raise an objection that the witness is irrelevant considering that the issue of the case is whether the debtor is indebted not whether the debt is already due and demandable. IF they fail to object, it will be deemed included.
On the matter not raised in the pleading
Jurisdiction over the res/thing
The court acquires jurisdiction by:
placing property or things under custody or constructive seizure; or
E.g. Order of attachment
E.g. Property in Certificate of Title
Authority conferring a public power to give you that thing
E.g. Land registration cases
Error of Jurisdiction v. Error of Judgment
Error of Jurisdiction is when the court has no jurisdiction.
Error of Judgment is when the court has jurisdiction but gives the wrong judgment.
Lack of jurisdiction v. Excess Jurisdiction
Lack of jurisdiction is when the court has no jurisdiction
Excess jurisdiction is when the court acted with grave abuse of discretion which amounts to excess of jurisdiction.
Five (5) Nature of Actions
Real action
Personal action
Action in personam
Action in rem
Action Quasi in rem
Real action is an affection that involves title to, or possession of, real property, or any interest therein. All other actions are personal.
Example of Real Action:
Ejectment case
Recovery of possession
Example of Personal Action:
Sum of collection of money.
Why is it important to determine if it is a real or personal action?
For purposes of determining venue.
E.g. A case is filed in La Trinidad but the property is in Baguio City. Is the venue correct?
Ask yourself, is it a personal or real action?
If it is a real action, then the venue is where the real property or portion thereof is.
If it is a personal action, then the proper venue is the residence of the plaintiff or defendant at the option of the plaintiff.
Action in personam
An action against a person on the basis of his personal liability.
Ask yourself: Will the judgment make the defendant personally liable?
E.g. Sum collection of money worth 10M.
WHY? You are suing the defendant based on his PERSONAL LIABILITY. In the event that a judgment will be rendered in favor of the plaintiff, siya lang ang liable. Walang iba.
Action in rem
An action against the thing itself instead of an individual or person.
There is no defendant but we have to include a defendant because there is a need to have one.
What you are after is NOT for personal liability.
In the event that a judgment will be rendered, the judgment will not make the defendant liable or not.
E.g. Probate of will – last will of testament
The property involved will be the one affected by the judgment.
E.g. Declaration of Nullity of Marriage
If judgment is rendered, the husband or wife is not personally liable. It is their marriage.
Action quasi in rem
There is a defendant but you are suing not based on personal liability but over his interest of the subject matter over the property;
A certain individual is named defendant but the purpose is not to make him personally liable but to subject his interest over the lien or property.
E.g. Foreclosure of mortgage
In the event that a judgment will be rendered, the judgment will be over his interest over the property not personal.
E.g. Attachment - sum collection of money
During the pendency of the case, the defendant had a motive to run away from the case. However, he did not consult his attorney. He ran from the debt. However, in the complaint, the plaintiff attached the property. Hence, the plaintiff has an action over the property.
Ask yourself:
Was the defendant sued based on his personal liability?
Was the defendant sued because there needs to be a defendant?
Will the judgment make the interest of the defendant over the property liable?
Note: The purpose of knowing real action and personal action is to determine the venue. The purpose of knowing the other three (3) actions is to determine the jurisdiction.
If it is action in personam → the court needs to acquire jurisdiction over the defendant.
If it is action in rem or quasi in rem → the court does not need to acquire jurisdiction over the defendant. BUT, the court must acquire jurisdiction over the thing itself. WHY? While it is true that there is no need for a jurisdiction over the defendant, summons must be made for the purpose of compliance of the court with due process.
Cause of action
Is the act or omission by which a party violates a right of another.
It is the basis of an ordinary civil action.
Requisites of Cause of Action
There is a legal right in favor of the plaintiff.
There is a legal duty on the part of the defendant to respect the right of the plaintiff.
The defendant violates the right of the plaintiff by an act or omission.
E.g. Sum collection of money – Defendant borrowed 10M from plaintiff. It became due and demandable.
The cause of action is the non-payment of 10M.
(1) The plaintiff has the right to be paid (2) the defendant did not respect that right (3) the defendant violated the right by not paying → cause of action.
Note: Cause of action may give rise to several relief or remedies.
E.g. D failed to pay P. There is a cause of action. The following are its remedies:
Principal amount
Attorneys fees
Damages
Filing fees and others.
Splitting a single cause of action (not permissible)
Even if you have many reliefs, you still have one cause of action and for one cause of action you can only file a single case;
Having many reliefs does not mean you should file more suits.
Splitting a single cause of actionis the process of DIVIDING a claim/demand into 2/more parts → bringing a suit for each part.
E.g. Real Estate Mortgage – Defendant was not able to pay 10M. The plaintiff has the cause of action to demand payment. Plaintiff has the following remedies: (1) sum collection of money (2) foreclosure of mortgage.
These remedies are successive/mutually exclusive because he only has a single cause of action. Pili ka lang isa beh. Bawal dalawa.
E.g. When there is a splitting a single cause of action, what is the remedy of the defendant?
The defendant may either (1) file an answer wherein he include an affirmative defense invoking litis pendentia or res judicata; or (2) file a motion to dismiss on the ground of litis pendentia or res judicata.
litis pendentia
Both cases are pending.
Dalawa ang sinampang kaso sayo tapos parehas silang pending.
res judicata
There is a prior judgment
Nasampahan ka na ng kaso tapos may judgment na rin ‘yun tapos kinasuhan ka ulit for the same cause of action.
Joinder of cause of action
Is the uniting of two or more demands of right of action in one complaint.
Requisites of joinder of cause of action (Rule 2, Sec 5):
(a) The party joining the causes of action shall comply with the rules on joinder of parties;
(b) The joinder shall not include special civil actions or actions governed by special rules; (under Rule 62-71)
(c) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.
E.g. Sum of collection of money – A lend B 1M then lend B again 5M. Both are covered by a promissory note. Both have become due and demandable. How many are the causes of action?
A has two (2) causes of action (1M and 5M debt). A can file 2 separate cases OR 1 case. The aggregate amount of which will be the basis of jurisdiction. In this case, the RTC has jurisdiction.
E.g. Sum of collection of money – A lend B 1M then lend B again 5M. Both are covered by a single promissory note where the debtor promises to pay several installments. All have become due and demandable. Who has jurisdiction?
The total value of the complaint will determine who has jurisdiction. In this case, it is the RTC.
E.g. According to the rules, the joinder shall not include special civil actions or actions governed by special rules. What if the plaintiff joins several causes of action and one of it is a special civil action. What will happen?
There is a misjoinder of action.
What is the rule with a misjoinder of action?
courtThe rule is that it will be severed and proceeded with separately.
HOW? On motion of a party or on the initiative of the court (it will be dropped).
A complaint may not be dismissed on ground of misjoinder of COA. It is only throughthemotion of the party or initiative of the court that it is severed.
E.g. what if there is a misjoinder of an action and it was tried jointly. The nor the parties did not notice the misjoinder and the trial proceeded. Is the judgment valid?
It depends. If the court has jurisdiction over all the causes of action then the judgment will be valid. However, if the court has no jurisdiction over the misjoinder then the judgment is rendered void.
Plaintiff - the person who files the complaint.
Defendant - the person who is sued.
Who may be parties in a civil action?
Natural persons (e.g. you and I)
Juridical persons (e.g. State, political subdivisions, government-owned or -controlled corporations)
Entities authorized by law (e.g. roman catholic, labor organizations)
Note: Plaintiff and defendant must be a real party in interest; only a real party of interest can be a plaintiff or defendant.
Real party in interest
Is one who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.
How to determine who is the real party in interest?
Go back to the elements of cause of action.
The plaintiff is the one whose right/s is violated. The defendant is the one who violated the right of the plaintiff.
E.g. The plaintiff is the creditor and the defendant is the debtor in an action of sum of collection of money.
E.g. Plaintiff is the real party in interest but has the wrong debtor v.v. What will happen?
The case will be dismissed on the ground of failure to state a cause of action. A civil action must proceed under the real party in interest.
Note: Under the old Rule (Rule 16), failure to state a cause of action is one of the grounds for the dismissal of a complaint. Now, you have to file an answer and include an affirmative defense that either party is not the real party on the ground of a failure to state a cause of action.
What is the difference between failure to state cause of action v. lack of cause of action?
A failure to state cause of action, under the old Rule, if you will read the complaint, some of the elements of cause of action are missing. Ask yourself: Is the plaintiff entitled to the relief prayed for?
A lack of cause of action is where there exists a cause of action and all elements are present so trial will proceed until presentation of evidence or until the plaintiff rests its case. Before the defendant will present evidence he may file for dismissal of the case on the ground that the plaintiff was not able to prove his cause of action. So, the defendant files a demurrer to evidence.
E.g. Plaintiff is not available to file a complaint so someone will file the complaint on his behalf. The plaintiff is Juan Dela Cryuz and the defendant is Pedro Dela Cruz. Maria Dela Cruz filed on behalf of Juan. How will you properly plead the plaintiff?
The caption should be Juan Dela Cruz, the plaintiff, represented by Maria Dela Cruz, versus, Pedro Dela Cruz, the defendant. You should not reverse Juan and Maria in the title as that would cause the dismissal of the complaint on the ground of failure to state the cause of action.
A real party in interest is either an indispensable party or a necessary party.
Indispensable party
Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants.
E.g. A, B, C, D, E are all the children of husband and wife. Husband and wife decided to die and left their children with a piece of land. Article 777 of the Civil Code states that “Successional rights are transmitted from the moment of death.” None of the siblings knew how to partition the land. A decided to file a judicial partition. Are A’s siblings a necessary or indispensable party to the case?
All are indispensable parties because they are all co-owners; they are inseparable.
If there is one omitted the judgment will be void.
Note: Joinder of parties is GENERALLY permissive. EXCEPT when the parties are indispensable then you have to include all.
E.g. A complaint is filed against A, B, C, D. During trial, the judge notices that there is one [person] missing. What should the judge do?
The judge should not outright dismiss the case because the failure to include an indispensable party is NOT one of the grounds for dismissing an action.
Instead, the judge shall order the plaintiff to include ‘E’ as plaintiff.
If the plaintiff failed to comply then that’s the time the court will dismiss the case on the ground of failure to state cause of action. Remember, a civil action should proceed under the real parties in interest (See page 49 of Dean’s book).
Necessary Party
is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action.
E.g. A and B borrowed money from C with a promissory note stating that they are jointly liable to C. A and B failed to pay C. C filed a complaint against A. Is C correct?
Yes. Since A and B are jointly liable, it will not affect the judgment of the proceeding. However, if C wants to have a complete relief then he shall join B as a defendant. A and B are only a necessary party
During hearing B was not included then the court shall ask C to include B as a necessary party. If C fails to include B, without justifiable cause, judgment will proceed but it will be deemed a waiver of C’s claim against B. But if there is a valid reason, then C did not waive his claim over B (See page 47 of Dean’s book).
What if in the promissory note, A and B are jointly and severally liable. Is it a necessary or indispensable party?
B is neither. C may obtain complete relief or complete settlement of his claim against one of the solidary debtors.
The remedy of A, if sued alone, is to file a third party complaint against B for contribution (See page 48 of Dean’s book).
Joinder of parties is GENERALLY permissive. EXCEPT when the parties are indispensable then you have to include all. The exception to the Exception is the case of class suit.
The following are the requisites of a class suit (Rule 3, Sec. 12):
a) The subject matter of the controversy is one of common or general interest to many persons;
b) The parties affected are so numerous that it is impracticable to join all as parties; and
c) The parties bringing or defending the class suit are found by the court to be sufficiently numerous and representative as to fully protect the interest of all concerned.
A class suit may be brought by the plaintiffs as a class or may be filed against the defendants as a class.
Always check for requisite (a) for class suit.
E.g. SM became toxic, many got sick so we decided to file for damages. Since we have the same demand, let’s file a class suit. Is it a valid class suit?
No. The subject matter is not of common interest to many persons. The injury of one is not common with the injury of another. Thus, there is no common or general interest.
The proper remedy of the parties is either to bring suit individually or join them all as parties under the rule on permissive joinder of parties.
E.g. A Cinema collected more than the amount of what they should collect. They collect 15 pesos, sometimes 10 pesos. The customers decided to file for damages in a class suit. Is it valid?
No. There is no common or general interest because each has a separate claim not common to ALL plaintiffs.
E.g. We own Burnham Park. The government of Baguio City said that it can not be expropriated (?) as it is public land. We have different parcels of land. Can we file a class suit?
No. We are filing for our own parcel land which has specific titles.
However, if we only have one title and the share is not identifiable, then it is owned by commoners. This will allow us to file a class suit.
The dismissal or compromise of a class suit requires the consent/approval of the court. WHY?
Because only a few will represent all to protect the interest of the common people.
Death of a party
The death of the plaintiff or defendant does not necessarily follow that the case must be dismissed.
What are the rules to be observed in case of death of the obligor if there are claims against him?
If it is a money claim arising from contract, express or implied, the rules are:
1) if the obligor dies before an action could be filed against him, the obligee will have to file a money claim with the probate court (in the testate or intestate proceedings for the settlement of the estate of the deceased obligor).
2) if the action has already been instituted against the obligor, and he dies before entry of final judgment in the court in which the action is pending at the time of such death, the action shall not be dismissed (there must be a substitution) but shall instead be allowed to continue until entry of final judgment. If plaintiff obtains a favorable judgment, he will have to file it as a money claim based on judgment in the probate court. This is so because a judgment for money, although final, cannot be executed against a deceased party. (Rule 3, Sec. 20)
3) But if the judgment obligor dies after execution has been actually levied upon his property, the property levied upon may be sold in an execution sale for the satisfaction of the judgment obligation. Simply put, if defendant dies after levy has already been made, execution may take place even after such death. This is so because levy has the effect of segregating the property levied upon from the mass of property of the deceased defendant. But if the property levied upon, when sold in the execution sale, is not sufficient to pay the judgment obligation, then the balance or deficiency may be filed as a money claim based on judgment in the probate court. (Rule 39, Sec. 7)
b) If it is a claim that does not arise from contract, such as a claim for recovery of real or personal property or enforcement of a lien thereon the rules are:
1) if the obligor dies before an action could be filed against him, an ordinary action may be filed against his executor or administrator;
2) if the obligor dies after an action has already been instituted against him, the action will continue until final judgment. The judgment may be executed against his executor or administrator. (Rule 39, Sec. 7)
Probate proceedings is for the judicial partition or last will testament (doon ka makisali, doon mo habulin money claim mo).
Rules regarding venue allows us to agree as to venue.
This agreement must be:
In writing
Must be filed before the action
Must be approved by court
And must not be contrary to law, rules, morals, or public policy.
Parties agree on venues for:
exclusivity; or
additional venue
E.g. A is indebted to B. The promissory note states that in case an action will be filed from this, that action can exclusively be filed in Baguio City.
The venue is an exclusive venue. Even if A and B are residents of Makati it will be tried in Baguio because there was an agreement.
E.g. A is indebted to B. The promissory note states that the parties agreed to sue and be sued in Baguio City.
The venue is NOT exclusive but an additional venue. The parties may choose whether the venue will be in Makati or Baguio.
E.g. You bought a ticket in Victory Liner. You went to UC to check the writing on the back and there it states that “In the event that a case may be filed, the venue shall be in the most Southern Part of the PH.” Now, you filed a case for damages against Victory Liner because you were late for a trial (atty ka raw). The Victory Liner’s affirmative defense is that the venue is improper. Is the defense proper?
No. According to the requisites of a valid agreement of venue, it must not be contrary to law, rules, morals, or public policy. In this case, it is.
Why do we allow an agreement of venue?
For the convenience of the parties.
*skipped*
Complaint
It states the ultimate facts and must be written in a methodical and logical form.
Conclusion of law is not allowed.
Negative pregnant - You don’t know; lack of knowledge or information to form a belief.
Denial may be:
Specific Denial - The complaint may deny specifically + state the legal basis. (Stating that he is specifically denying or stating the legal basis does not make it specific).
Affirmative Denial - There are new matters alleged in the answer.
Is the plaintiff mandated to reply to the amended complaint?
No. It is the Rules of Court who will controvert the new matters.
Can you reply to the reply?
You can only file a reply if there is an actionable document.
The following are the 18 affirmative defenses:
Fraud
Statute of limitations
Release
Payment
Illegality
Statute of frauds
Estoppel
Former recovery
Discharge in bankruptcy
Any other matter by way of confession and avoidance
The court has no jurisdiction over the subject matter
There is another action pending between the same parties for the same cause
The action is barred by a prior judgment
That the court has no jurisdiction over the person of the defending party
That venue is improperly laid
That the plaintiff has no legal capacity to sue
That the pleading asserting the claim states no cause of action; and
That a condition precedent for filing the claim has not been complied with.
(1-13 is from Sec. 5, Rule 6; 14-18 is from Sec. 12, Rule 8).
The defendant found out that ANY of these affirmative defenses are present. How will he raise any of these affirmative defenses?
He must file an answer and raise the affirmative defense.
The defendant found out that 11-13 of the affirmative defenses are present. How will he raise these affirmative defenses?
He may file an answer and raise the affirmative defense OR He may file a motion to dismiss.
The court received a copy of the answer and found out that there is an affirmative defense. How will the court resolve it?
If it is 14-18 of the affirmative defenses, then the court shall motu proprio resolve such affirmative defenses within 30 calendar days from the filing of the answer (the court in itself will resolve it).
If it is 1-10 of the affirmative defenses, then the court may conduct a summary hearing within 15 calendar days from the filing of the answer. Such affirmative defenses shall be resolved by the court within 30 calendar days from the termination of the summary hearing. (Rule 8, Sec. 12[d])
Is the 15th day period or summary hearing mandatory?
No. The rule says “may” therefore it is permissive.
When is the earliest opportunity that you can raise a pleading?
In the answer.
Note: You cannot waive 11-13 of the affirmative defenses. You can still file it in a Motion to Dismiss.
What is an actionable document?
It is literally a document or an instrument.
It is the foundation of the cause of action or defenses.
E.g. Plaintiff v. Defendant - Sum of collection of money. 10 Million became due and demandable and the defendant was not able to pay the debt despite demand. It was evidenced by a promissory note.
The cause of action is found in the promissory note making it an actionable document.
If the plaintiff will file a complaint, how will he plead the complaint?
The substance of the actionable document must be stated in the pleading and the original copy of the promissory note must be attached as an exhibit in the pleading;
The rule states that the plaintiff must plead or copy the SUBSTANCE OF THE ACTIONABLE DOCUMENT in his complaint and ATTACH the original copy or a photocopy of the actionable document in the complaint and mark it as an exhibit.
Defendant received a copy and there is an actionable document. How will the defendant controvert the promissory note?
(1) He must file an answer, (2) Controvert the promissory note specifically and under oath, and (3) add a legal basis as the foundation of his denial.
Defendant stated in the answer, denying the promissory note, “I already paid the debt in full. A copy of the acknowledgement receipt is attached and marked as Exhibit 1”. Is there an actionable document?
Yes. The acknowledgement receipt is the actionable document.
Plaintiff received a copy of the answer and the actionable document. How will he controvert the answer?
Plaintiff must file a reply and deny the actionable document and set forth the legal basis for the reply.
The reply is applicable and may controvert ALL answers.
What if the defendant received a copy of the reply and there is an actionable document. How will the defendant controvert the actionable document?
He must file a rejoinder and specifically deny under oath and state the legal basis.
The rejoinder is limited to the actionable document. You cannot deny any other, its only purpose is to controvert the actionable document.
What is the effect if the adverse party has deemed or impliedly admitted the genuineness and due execution of the actionable document?
‘Genuineness and due execution, means that the signatures in the document are genuine, or if someone signed on behalf of the signatory, that someone is truly authorized. Also, at the time it was executed, it was in the same words and figures.
If there are formal requirements missing, then it is deemed to have been complied with. That is the effect if the adverse party has deemed or impliedly the genuineness and due execution of the actionable document.
HOWEVER, there are two instances wherein the adverse party is not deemed to have admitted the genuineness and due execution of the actionable document even if he failed to controvert the same, or he controverted it not in accordance with the rules:
When the adverse party does not appear to be a party to the instrument or document.
When compliance with an order for an inspection of the original instrument is refused
If the adverse party has deemed admitted the genuineness and due execution of the actionable document, then he CANNOT RAISE the following defenses:
That the document or instrument is spurious
That the signatory or signatories in the document are forgeries
That someone who signed on behalf of the signatory is not authorized
That the instrument/document/actionable document was counterfeited
That the actionable document has a different import from its face because when the adverse party admitted the genuineness and due execution of the actionable document, it has the same words and figures at the time it was executed
Why is it that these defenses cannot be raised by the adverse party?
These defenses are contrary to an implied admission
It is inconsistent with an implied admission
*** BUT this does not mean that the adverse party is left with no defense.
The adverse party CAN STILL RAISE the following defenses:
Statute of limitation
Estoppel
One of consideration
That the agreement between the parties is invalid
That there is an intrinsic validity in the agreement between the parties
That there is imperfection in the agreement between the parties
Any other defense which is not inconsistent with implied admission
A third (fourth, etc.)-party complaint
It is a complaint filed by the defendant in the original action against a party or a person who is not a party to the original action for subrogation, indemnity, contribution, or any other relief arising from the original action.
A third-party complaint requires leave of court. Thus, you have to file a motion to file a third-party complaint.
It is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.)-party defendant for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (Sec 11, Rule 6)
The plaintiff here is the defendant in the original action. The defendant is any person who is not a party to the original action.
Why does it require a leave of court? (MET)
The third (fourth, etc.)-party complaint shall be denied admission, and the court shall require the defendant to institute a separate action, where:
matters extraneous to the issue in the principal case are raised;
the effect would be to introduce a new and separate controversy into the action
the third (fourth, etc.)-party defendant cannot be located within thirty (30) calendar days from the grant of such leave.
NOTE: The third party complaint must be denied if any of these are present.
Alternative claims or defenses (Sec. 2, Rule 8)
A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two 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.
Sometimes, the plaintiff doesn’t know what he will file, that's why he will file 2 claims.
E.g. Father and son were passengers of the Victory Liner. They rode a bus to Cubao. The father realized that they forgot a bag. His son followed him and he was hit by a car. The father didn’t know if they were still passengers of Victory Liner so he (1) sued Victory Liner and (2) sued the driver. Are the claims valid?
Yes. Even if they are inconsistent as long as each claim is consistent with itself.
In the defense, there was a (1) denial of an attempt to kill the private complainant and (2) assuming that he did, it was in self-defense. Here the defenses are inconsistent with each other. Are the defenses valid?
Yes. The defenses are valid. It is allowed. What matters is each claim is consistent with itself.
Caption (Sec. 1, Rule 7)
In the original complaint, state all the complete names of the plaintiff and defendant. In the succeeding pleadings, it is okay to just include the first names of the plaintiff and defendant. BUT, you have to indicate that there are other parties (e.g. Plaintiff, et al.).
If you failed to comply with the order, the complaint will be dismissed.
Body of the complaint (Sec. 2 Rule 7)
It refers to the allegations
The complaint is divided into paragraphs which consist of the ultimate facts and it is written in a chronological order followed by the heading.
But if there is only one complaint, you only state the first cause of action.
Relief prayed for
It is those you want the court to grant in your case or favor.
The prayer must be supported by the ultimate facts stated in the complaint.
E.g. If your relief prayed for is for the recovery of 50k, you must mention the 50k in the body AND the prayer.
NOTE: Every pleading must be dated and signed. An unsigned pleading is treated as a mere scrap of paper.
Why does it need to be signed?
To know if the pleading has prescribed.
One of the new amendments to the parts of a pleading is the signature of the counsel. (Sec. 3, Rule 7)
the document is not being presented for any improper purpose;
Due to the attorney's invention of facts. IF the attorney lied and put ultimate facts that are not true, they can be sued.
the claims, defenses, and other legal contentions are warranted by existing law or jurisprudence or by non-frivolous argument for modifying or reversing existing jurisprudence;
It is a proof that there has been a legal basis based on existing laws and jurisprudence.
the factual contentions have evidentiary support or will have evidentiary support after availment of the modes of discovery; and
Again, the pleading must be well supported.
denials of factual contentions are warranted by evidence, or reasonably based on belief or lack of information.
You can sue the attorney/s’ if the pleading is done in bad faith.
This is also essential to lessen the cases docketed in court. (e.g. MTC - 99 cases per week)
Testimonial, object, and documentary evidence
These are [additional] contents of a pleading under the new Rule. Here, you need to state the name of the witnesses and the summary of their testimony. This is applicable in the complaint and answer.
A copy of their judicial affidavit must also be attached to the complaint.
No other documentary evidence must be presented that are not mentioned here (e.g. you are not allowed to present a witness not mentioned in the complaint— their judicial affidavit and evidentiary document must be attached).
(refer to Sec. 6, Rule 7)
[Implication of the testimonial, object, and documentary evidence:]
This is why if you are a lawyer of the plaintiff, you have all the time to prepare the complaint.
If you are the lawyer of the defendant, you only have 30 calendar days to file a reply. If your witnesses will not come (edi wala na).
During pre-trial, when you submit your complaint, the evidence is already there. Thus, the court can already determine the case. The summary hearing is just for formality.
Unlike in criminal cases where the other evidence may be through installment/ to follow up.
Sa civil case, lahat ng evidence dapat ilagay mo na sa complaint at reply.
Verification (Sec. 4, Rule 7)
Who must sign the verification?
It is the client (plaintiff or defendant).
Purpose: to avoid baseless complaints and answers.
What if it is insufficient?
It will not be dismissed. You can cure it by amendment.
Generally, the complaint need not to be verified unless required by court.
Certification against forum shopping (Sec. 5, Rule 7).
If you fail to comply or it is insufficient, it is a ground for dismissal.
Remedy if dismissed: You can re-file and comply with the certification of forum shopping.
The certificate for forum shopping must be signed by the client. WHY? It is only the client who knows if there was a previous or pending case.
The elements of forum shopping are:
the identity of parties or parties that represent the same interests in both actions;
the identity of rights asserted and reliefs prayed for, the relief being founded on the same facts; and
the identity of the two preceding particulars, such that any judgment rendered in the other action will amount to res judicata in the action under consideration, regardless of which party is successful.
Violation of certification against forum shopping under Sec. 5 and violation of forum shopping ARE NOT the same. (Iyong violation of certification against FS nakalimutan mo lang mag-attach ng cert. Pero sa violation of FS may previous or pending case pero nag-file ka pa rin ng new complaint)
Violation of certification against forum shopping
It is when you failed to attach a copy of the certificate against forum shopping or you did but it is insufficient.
Violation of forum shopping
You violated Sec. 5 and is a ground for dismissal due to litis pendentia or res judicata.
The violation against forum shopping or committing forum shopping can be committed in 3 ways:
There is the same cause of action or causes of action
Multiple cases are filed
It has the same prayer
The previous case has not been resolved yet
You can file a motion to dismiss on the ground of litis pendentia
E.g. plaintiff → 10M became due and demandable. While the first case was pending, he filed another.
There is the same cause of action or causes of action
Multiple cases are filed
It has the same prayer
The previous case was dismissed/finally resolved.
You can file a motion to dismiss on the ground of res judicata
There is the same cause of action or causes of action
Multiple cases are filed
It has the same prayer
The prayer is different or there was an addition
E.g. Prayer: 10M + damages
You can file a motion to dismiss on the ground of:
If the previous case is pending → litis pendentia
If the case is final → res judicata
Sometimes, there are so many plaintiffs but not all of them are around. How can they sign the certification against forum shopping?
The SC ruled that they allow that one or some is sufficient to sign the certification against forum shopping but there must be a valid reason.
E.g. 1, 2, 3 owned a parcel of land. Since all of them are co-owners, one signature is sufficient.
GR: All parties must sign the verification and certification against forum shopping
EXCP: When there is a valid reason
Defenses and objections not raised either in a motion to dismiss or answer shall be deemed waived.
However, if the following are raised, the court shall dismiss the claim. This cannot be waived:
lack of jurisdiction over the subject matter;
pendency of another action between the same parties for the same cause (lis pendens, litis pendentia, or auter action pendant);
bar by prior judgment (res judicata); and
bar by statute of limitations (prescription)
E.g. Plaintiff filed a complaint against the defendant. When the defendant received a copy of summons he was given 30 calendar days to give an answer. He failed to file his answer. What would be the effect?
The plaintiff may file a motion to declare the defendant in default. In the motion to declare the defendant in default, the plaintiff must state that the defendant received a copy of the summons together with the complaint that he failed to file. The plaintiff must show proof.
Thus, this motion must be furnished/notice to the defendant that he is being declared in default.
This motion to declare was now furnished and filed in court. What does the court do?
The court may:
deny the motion
When the court denies the motion it means that it gives the defendant a chance to file his answer or the plaintiff failed to comply with the requirements.
If the defendant failed to comply (again), the court will proceed to render judgment. The plaintiff need not present evidence.
the judge may require the plaintiff to present his evidence. This shall be before the branch of clerk who is a lawyer.
The MTC's branch clerk of court is not a lawyer. In the RTC, the clerk is a lawyer. Thus, this applies to second level courts.
You can't present evidence who is not a lawyer. If the case is pending in the MTC, the evidence will be presented before the open court.
Regardless of the Judge/Court to render judgment or present evidence, the relief granted must (a) not exceed the amount prayed for OR (b) different in kind prayed for.
E.g. (a)
Plaintiff filed a complaint against the defendant for the sum of collection of money worth 10M. The defendant was declared in default because he failed to file within the time allowed by the rules. What must the court do?
The judge in either rendering a judgment or requiring the plaintiff to present evidence, must not exceed the amount prayed for. Thus, it must not exceed 10M.
E.g. (b)
Plaintiff filed a complaint against the defendant for recovery of possession. The defendant was declared in default because he failed to file within the time allowed by the rules. What must the court do?
The judge in either rendering a judgment or requiring the plaintiff to present evidence, must not be different from that prayed for. The judgment cannot say the possession and ownership must go to the plaintiff. The judge is not allowed to do that because it is a different kind of prayer.
Partial default
What are the requisites of a partial default?
There must be 2/more defendants.
There must be a common cause of action; and [most important requisite]
Some of the defendants filed their answer and some failed to file their answer.
E.g. P v. A, B, C, D, E
A, B, C filed their answer. D & E did not file their answer. The cause of action is common. Can you declare D & E in default?
Yes. If the cause of action is common you can declare them in default.
However, you cannot declare them in default if the cause of action is not common. Partial default will only apply if no. 2 is present.
When are no defaults allowed? (Sec. 3(e), Rule 9)
In an action for:
Annulment;
Declaration of nullity of marriage;
Legal separation fails to answer; or
Non-litigious cases (where there is no defendant)
E.g. probate of will — no defendant to be declared in default
3 ways to make an amendment in pleadings (Sec. 1):
By adding or striking out an allegation
By adding of striking out of the name of any party; or
By correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect
An amendment may be:
A matter of right
May require leave of court
When is an amendment a matter of right?
An amendment is a matter of right IF the 2 requisites are present:
Amendment must be once
Amendment must be made before a responsive pleading is filed
E.g. P filed a complaint against the defendant. This is the 1st complaint filed by the plaintiff against the defendant. If the plaintiff wants to amend the complaint, is it a matter of right?
[Generally], yes. What was filed was the first complaint hence, the first requisite is present.
The facts did not state if the amendment was made before a responsive pleading. If it was made before, then it is a matter of right. If it was made after, then it is not.
What if the plaintiff wants to amend the pleading again. Is it still a matter or right?
No, because the first requisite is not present.
E.g. The plaintiff filed a complaint against Defendant. Defendant received the summons together with the complaint. Defendant filed a motion to dismiss on the ground that the court has no jurisdiction. Plaintiff filed a motion to amend. Is the amendment a matter of right?
Yes, because the motion to dismiss is NOT a responsive pleading.
NOTE: If the responsive pleading is filed, it requires leave of court.
Leave of court
When you require the approval of the court.
The following are the 3 instances when the court must refuse the amendment (Sec. 3):
If the amendment was made with intent to delay
If the amendment was made to confer jurisdiction on the court; or
The complaint fails to state a cause of action from the beginning which could be amended.
After the responsive pleading, only formal amendments (Sec. 4) are allowed. Substantial amendments need leave of court, EXCEPT the 3 instances when the court must refuse the amendment because in any of these 3 → there is no discretion of the court, the court will just comply with the Rules and refuse amendment.
E.g. The plaintiff filed a complaint against the defendant in the RTC for the sum of money of 2M (which is within jurisdiction of the MTC). The Defendant stated in the affirmative defense a ground of lack of jurisdiction. Plaintiff wants to amend the complaint and increase the amount to 3M. Is it valid?
No, it must be refused by the court because it confers to jurisdiction.
E.g. The Plaintiff filed a complaint against the Defendant. Plaintiff failed to stated a cause of action. Defendant in the answer stated an affirmative defense on the ground that there is a failure to state a cause of action. Plaintiff motioned to amend the complaint. Is the motion for amendment valid?
No. It should be refused. There is nothing to amend since the complaint failed to state a cause of action.
E..g. How about if the amendment is a matter of right but your purpose is 2/3 of the instances? Before the responsive pleading is filed, Plaintiff filed an amended complaint for the purpose of 2 or 3. Is it a matter or right or does it require leave of court?
The amendments of the Rules of Court makes it clear that it is a matter of right.
It was asked in the 2006/2007 bar exam. One argues that it is the ministerial duty of the court to amend the pleading. Another argues that if the court has no jurisdiction the only duty it has is to dismiss the case.
How to amend the pleading (Sec. 7):
Reproduce the complaint, indicate the amendments by appropriate marks (by underlining and changing color).
What is the effect of the amended complaint to the complaint (Sec. 8)?
The amended complaint supersedes the complaint that it amends
Supersedes – the prior complaint no longer exists.
What is the effect if you fail to include the allegation of defense?
It is deemed waived.
What is the rule on allegation of admission?
The admission will be taken against the pleader.
Supplemental v. Amended Pleading
It refers to the time or number of days as to when you will fill your answer or pleading.
E.g. The plaintiff filed a complaint. If the defendant will receive a copy of complaint with summons and there are matters or allegations not alleged with particularity or not specific.
It is normal for the defendant to not have a proper responsive pleading. He cannot deny or accept it in the answer.
E.g. The allegation in paragraph 1 [of the pleading] is not specific. How can the defendant file an answer if it’s not specific? What is his remedy?
The defendant may file for a bill of particulars.
What is the purpose of the bill of particulars?
Its purpose is to make the allegations or matter specific or particular so the defendant can file a proper responsive pleading.
When must a bill of particulars be filed?
It must be filed before he [defendant] files a responsive pleading; if he has filed a responsive pleading then he can no longer file a bill of particulars.
With respect to a reply, the bill of particulars must be filed within 10 calendar days.
What will happen if a motion for a bill of particulars is filed? (Sec. 5)
It may be:
Granted – the court must issue an order directing the plaintiff to comply with the bill of particulars.
The plaintiff can fully comply with the order — he was able to make the allegations or matter specific.
Plaintiff complied with the order of the court but the compliance was incomplete/insuffiecient — the allegations or matters were not yet specific.
Plaintiff failed or refused to comply with the order of bill of particulars.
What will be the effect if the plaintiff compliance was insufficient or has failed/refused to comply? What will the court do?
The court will issue an order striking out the allegation or matter which is the subject of the bill of particulars.
E.g. The subject of bill of particular is paragraph 1 [of the pleading]
The court will issue an order striking paragraph 1
Deny it
Allow the parties to be heard.
What will happen if the motion is granted or denied?
The defendant must file his answer with the remaining period he is entitled to from the time he receives a motion granting/denying it but no less than five calendar days in any event.
E.g. Defendant received a copy of the complaint on March 1, 2023. He filed a motion for a bill of particulars on March 15, 2023.
If the motion was granted/denied, he has 16 days left to file his answer.
E.g. Defendant received a copy of the complaint on March 1, 2023. He filed a motion for a bill of particulars on March 30, 2023.
The defendant is given 5 calendar days to file his answer.
Filing
Is the act of submitting the pleading or other paper to the court
Service
The act of providing a party with a copy of the pleading or any other court submission.
Note: When it comes to filing, forget about ordinary mail. If you file it by ordinary mail it is not deemed filed.
The accredited courier must be accredited by the SC. Who are the accredited couriers?
LBC
JRS
NINJA
What are the (7) modes of service of pleadings, motions, notices, or other court submissions?
Personal service. (1) Personal service is made by personally delivering a copy of the pleading, motion, notice, or other court submission to the party or to the party's counsel, or to their authorized representative named in the appropriate pleading or motion, or by leaving it in his or her office with his or her clerk, or with a person having charge thereof. (2) If no person is found in his or her office, or his or her office is not known, or he or she has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion residing therein. TAKE NOTE.
E.g. Atty. Juan Dela Cruz was served a pleading at six in the evening at his residence. He was not there but his girlfriend was. Will the service be valid if serve to his girlfriend?
No, it was not stated that she was residing there.
Service by mail, either by registered mail or ordinary mail. Service by registered mail is made by depositing the copy in the post office, in a sealed envelope, plainly addressed to the party or to the party's counsel at his or her office, if known, otherwise at his or her residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after 10 calendar days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail.
Service may also be by accredited courier.
The court was silent on this method, just based it on the proof of filing.
4. - 6. Service by electronic mail, facsimile transmission, or other electronic means as may be authorized by the court. Service by electronic means is made by sending an email to the party's or counsel's electronic mail address, or through other electronic means of transmission as the parties may agree on, or upon direction of the court. Service by facsimile is made by sending a facsimile copy to the party's or counsel's facsimile number. However, as provided for in Section 9, Rule 13, service by electronic means and facsimile shall be made if the party concerned consents to such modes of service.
7. As provided for in international conventions to which the Philippines is a party.
When is service complete? Or, what is the rule regarding completeness of service?
If by personal service, it is complete upon date and hour of actual delivery.
If by ordinary mail, it is complete upon the expiration of 10 calendar days after mailing, unless the court otherwise provides. day
If by registered mail, it is completed upon actual receipt by the addressee, or after five calendar days from the date he or she received the first notice of the postmaster, whichever date is earlier.
If by accredited courier, it is complete upon actual receipt by the addressee, or after at least two attempts to deliver by the courier, or upon the expiration of five calendar days after the first attempt to deliver, whichever is earlier.
If by electronic service, it is complete at the time of the electronic transmission of the document, or when available, at the time that the electronic notification of service of the document is sent. Electronic service is not effective or complete if the party serving the document learns that it did not reach the addressee or person to be served.
If by facsimile transmission, it is complete upon receipt by the other party, as indicated in the facsimile transmission printout. (Rule 13, Sec. 15)
But what are the modes of service of judgments, final orders, or resolutions? Regarding judgments, final orders, or resolutions, Section 13, Rule 13 provides for the following modes of service: a) personal service;
b) service by registered mail;
c) service by accredited courier;
d) service by publication.
TAKE NOTE:
When it comes to judgments, final orders, or resolutions, service by ordinary mail is not allowed. Service of judgments, final orders, or resolutions by accredited courier may only be made upon ex parte motion of any party in the case at the expense of such party.
Service of judgments, final orders, or resolutions by publication may only be made if the defendant has been summoned by publication and has failed to appear in the action. Note, however, that Section 18, Rule 13 provides that the court "may electronically serve orders and other documents to all the parties in the case which shall have the same effect and validity as provided herein."
Conventional service or filing of orders, pleadings, and other documents:
The following pleadings, and other documents must be served or filed personally or by registered mail when allowed, and shall not be served or filed electronically, unless express permission is granted by the Court:
(a) Initiatory pleadings and initial responsive pleadings, such as an answer;
(b) Subpoena, protection orders, and writs;
(c) Appendices and exhibits to motions, or other documents that are not readily amenable to electronic scanning may, at the option of the party filing such, be filed and served conventionally; and
(d) Sealed and confidential documents or records.
Substituted service
Substituted service of pleadings, motions, notices, resolutions, orders, and other papers may be made by delivering a copy of the pleading, motion, notice, resolution, order, or other paper to the clerk of court, with proof of failure of both personal service and service by mail. (Rule 13, Sec. 8) Thus, substituted service may only be resorted to if personal service and service by mail cannot be made, the office and place of residence of the party of his or her counsel being unknown.
Presumptive service (Sec. 10)
There shall be presumptive notice to a party of a court setting if such notice appears on the records to have been mailed
at least twenty (20) calendar days prior to the scheduled date of hearing and if the addressee is from within the same judicial region of the court where the case is pending; or
at least thirty (30) calendar days if the addressee is from outside the judicial region.
Note: Judicial region is NOT the same with territorial jurisdiction.
If the plaintiff is from Baguio and the defendant is from La Union, how many days must be the presumptive notice to have been mailed?
Check if Baguio and La Union are within the same judicial region.
According to B.P. 129, Chapter 2, they are within the same judicial region. Thus, at least 20 calendar days.
(For reference only)
CHAPTER II
REGIONAL TRIAL COURTS
Section 13. Creation of Regional Trial Courts. — There are hereby created thirteen (13) Regional Trial Courts, one for each of the following judicial regions:
The First Judicial Region, consisting of the provinces of Abra, Benguet, Ilocos Norte, Ilocos Sur, La Union, Mountain Province, and Pangasinan, and the cities of Baguio, Dagupan, Laoag, and San Carlos;
The Second Judicial Region, consisting of the provinces of Batanes, Cagayan, Ifugao, Isabela, Kalinga-Apayao, Nueva Vizcaya, and Quirino;
The Third Judicial Region, consisting of the provinces of Bataan, Bulacan, (except the municipality of Valenzuela), Nueva Ecija, Pampanga, Tarlac, and Zambales, and the cities, of Angeles, Cabanatuan, Olongapo, Palayan, and San Jose;
The National Capital Judicial Region, consisting of the cities of Manila, Quezon, Pasay, and Caloocan, and the municipalities of Navotas, Malabon, San Juan, Mandaluyong, Makati, Pasig, Pateros, Taguig, Marikina, Parañaque, Las Piñas, Muntinlupa, and Valenzuela;
The Fourth Judicial Region, consisting of the provinces of Batangas, Cavite, Laguna, Marinduque, Mindoro Occidental, Mindoro Oriental, Palawan, Quezon, Rizal (except the cities and municipalities embraced within the National Capital Judicial Region), Romblon, and Aurora, and the cities of Batangas, Cavite, Lipa, Lucena, Puerto Princesa, San Pablo, Tagaytay, and Trece Martires;
The Fifth Judicial Region, consisting of the provinces of Albay, Camarines Sur, Camarines Norte, Catanduanes, Masbate, and Sorsogon, and the cities of Legaspi, Naga, and Iriga;
The Sixth Judicial Region, consisting of the provinces of Aklan, Antique, Capiz, Iloilo, and Negros Occidental, and the cities of Bacolod, Bago, Cadiz, Iloilo, La Carlota, Roxas, San Carlos, and Silay, and the sub-province of Guimaras;
The Seventh Judicial Region, consisting of the provinces of Bohol, Cebu, Negros Oriental, and Siquijor, and the cities of Bais, Canlaon, Cebu, Danao, Dumaguete, Lapu-Lapu, Mandaue, Tagbilaran and Toledo;
The Eighth Judicial Region, consisting of the provinces of Eastern Samar, Leyte, Northern Samar, Southern Leyte, and Samar, the sub-provinces of Biliran, and the cities of Calbayog, Ormoc, and Tacloban;
The Ninth Judicial Region, consisting of the provinces of Basilan, Sulu, Tawi-Tawi, Zamboanga del Norte, and Zamboanga del Sur, and the cities of Dapitan, Dipolog, Pagadian, and Zamboanga.
The Tenth Judicial Region, consisting of the provinces of Agusan del Norte, Agusan del Sur, Bukidnon, Camiguin, Misamis Occidental, Misamis Oriental, and Surigao del Norte, and the cities of Butuan, Cagayan de Oro, Gingoog, Ozamiz, Oroquieta, Surigao and Tangub.
The Eleventh Judicial Region, consisting of the provinces of Davao del Norte, Davao Oriental, Davao del Sur, South Cotabato and Surigao del Sur, and the cities of Davao and General Santos; and
The Twelfth Judicial Region, consisting of the provinces of Lanao del Norte, Lanao del Sur, Maguindanao, North Cotabato, and Sultan Kudarat, and the cities of Cotabato, Iligan, and Marawi.
In case of transfer or redistribution of the provinces, sub-provinces, cities or municipalities comprising the regions established by law for purposes of the administrative field organization of the various departments and agencies of the government, the composition of the judicial regions herein constituted shall be deemed modified accordingly.
E.g Plaintiff filed a complaint against the defendant. The complaint will be filed in court. The first thing that the court will do is NOT to issue summons BUT to check if the complaint is dismissible based on the second sentence of Rule 9.
The first thing that they will do is read the complaint and see it it is dismissible on the grounds of whether the court has:
Jurisdiction over the subject matter;
There is another action pending; or
The action is barred by prior judgment
E.g. There are other grounds for the dismissal. How about if it is not dismissible on the grounds mentioned?
The court will not moto proprio dismiss the case. If the ground is not among those enumerated.
What if there is no ground for the [dismissal of] complaint. What will the court do?
The court has to check if the required legal fees have been paid; and
The court will direct the clerk of court to issue summons.
Note: Summons is NOT served to the plaintiff.
Summons
It is an order directing the defendant to file his or her answer within the time allowed by the rules otherwise the plaintiff may ask for judgment.
Is there a time validity of summons?
None. Once summons has been issued it shall remain valid unless it is recalled by the court.
But if the summons is lost/damaged that's the only time that it will be issued.
Section 4. Validity of summons and issuance of alias summons
Summons shall remain valid until duly served, unless it is recalled by the court. In case of loss or destruction of summons, the court may, upon motion, issue an alias summons.
There is failure of service after unsuccessful attempts to personally serve the summons on the defendant in his or her address indicated in the complaint. Substituted service should be in the manner provided under Section 6 of this Rule.
If summons is lost/damage what should the court do?
Issue allias summons.
Why are summons issued?
If it is action in persona - to acquire jurisdiction over the person. If it is action in rem or action quasi in rem - to comply with the constitutional right of the defendant to due process.
To inform the defendant that the case has been filed against him so the defendant will be given the opportunity to be heard
The court may acquire jurisdiction over the person of the defendant in one of the following ways:
by a valid service of summons upon him; or
by the defendant's voluntary appearance in the action.
Thus, although service of summons upon the defendant is defective, the court still acquires jurisdiction over his person if he voluntarily appears in the action as when he files his answer or a motion for extension of time to file answer.
Example: In an action for recovery of possession of real property, summons was sent to the defendant by registered mail. The defendant received the summons, together with a copy of the complaint, on March 1. On March 14, he filed his answer. Did the court acquire jurisdiction over the person of the defendant?
Yes, not by service of summons because service of summons by registered mail is not authorized by the rules, but by his voluntary appearance in the action.
Who will serve these summons?
Sheriff/deputy/other officers of the court; (Sec. 3)
Plaintiff;
When the plaintiff filed a motion ex parte that he be allowed to served the summons;
When the defendant is outside the judicial region where the case is pending [to be served] together with the sheriff;
If the sheriff or the other officers fails to serve the summons to the defendant
Applies to juridical entities (corps) the person authorized in the board resolution though secretary certificate or special power of attorney – state the name of the person who is authorized to represent the corporation
if the sheriff or deputy cannot serve some or all the defendants then the plaintiff can serve summons through other means allowed by the rules.
Officer of the jail; (officer who has custody over defendant – officer is a special sheriff) (Sec. 8); or
Lawyer for the defendant (Sec. 13)
E.g. The plaintiff filed a complaint against the defendant. Summons were served to the defendant but not in accordance with the rules or the service was improper, then the court did not acquire jurisdiction. The lawyer of the defendant appeared in court on the ground that the court did not acquire jurisdiction.
The Rules of Court will now authorize the court directing the lawyer of the defendant to serve the defendant the summons.
Under the old Rule there is a special appearance. He is only appearing in court to question the jurisdiction of the court. IF the lawyer will not do this, there will be a voluntary appearance. The court will not dismiss the complaint but will authorize the lawyer.
How is service of summons effected?
Summons must be served to the defendant in person by giving him or her a copy of the summons.
What if the defendant refused?
by leaving the summons within the view and in the presence of the defendant (Sec. 5).
Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person and informing the defendant that he or she is being served, or, if he or she refuses to receive and sign for it, by leaving the summons within the view and in the presence of the defendant.
If the defendants are spouses they shall be sued jointly, service of summons should be made to each spouse individually (Sec. 11).
Check if the spouses are being sued jointly or solidarily. IF they are sued jointly then they shall be served individually. If they are sued solidarily then one would suffice.
If the defendant is an incompetent or insane, service of summons shall be made upon him or her personally AND on his or her legal guardian if he or she has one, or if none, upon his or her guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service shall be made on his or her parent or guardian (Sec. 10).
If the defendant is a prisoner, service shall be effected upon him or her by the officer having the management of such jail or institution who is deemed as a special sheriff for said purpose. The jail warden shall file a return within five (5) calendar days from service of summons to the defendant. (Sec. 8)
If the defendant is a domestic entity not registered in the Philippines (e.g. corporations, organizations, associations, partnerships) but are not registered, service may be effected upon all the defendants by serving upon ANY one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was filed (Sec. 7).
When the defendant is domestic private juridical entity, a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the
president,
managing partner,
general manager,
corporate secretary,
treasurer, or
in-house counsel of the corporation wherever they may be found, or
in their absence or unavailability, on their secretaries.
If such service cannot be made upon any of the foregoing persons, it shall be made upon the person who customarily receives the correspondence for the defendant at its principal office.
In case the domestic juridical entity is under receivership or liquidation, service of summons shall be made on the receiver or liquidator, as the case may be.
Should there be a refusal on the part of the persons above-mentioned to receive summons despite at least three (3) attempts on two (2) separate dates, service may be made electronically, if allowed by the court, as provided under Section 6 of this rule. (Sec. 12)
So if you attempted twice or you served it 3 times but on the same date, it is not valid. Note that this is NOT a multiple choice. Dapat unahin mong subukang i-serve sa a-f.
How about if the defendant is a foreign juridical entity duly registered in the Philippines. How is service of summons effected?
To its resident agent
To a government official
To its OTBD - officers , trustees, board of directors
If the defendant is a foreign private juridical entity not duly registered in the Philippines but had transacted or doing business in PH, how is service of summons effected?
By personal service coursed through the appropriate foreign court with the assistance of foreign affairs.
By publication in the foreign country together with a copy of summons and order sent through registered mail.
Facsimile
By electronic means
Other means
NOTE: These require leave of court. You need to seek the permission of the honorable court. If the court will grant your request then that’s the time that you can serve it.
E.g. Can he file a nullity case to his wife who is not a resident and cannot be found in the Philippines?
Yes. Because the nullity of marriage affects his personal status.
E.g. The defendant is no longer a resident and is not found in the Philippines but he has a property in PH and the subject matter is the property. Can he be sued in PH?
Yes, because his property is the subject and is in the PH.
NOTE: In these cases, identify who is the defendant first.
GR: The summons shall be served by handing a copy thereof to the defendant in person and informing the defendant that he or she is being served, or, if he or she refuses to receive and sign for it, by leaving the summons within the view and in the presence of the defendant. (Sec. 5)
What if you cannot service in persona? WHEN are you going to substitute the service?
If, for justifiable causes, the defendant cannot be served personally after at least three (3) attempts on two (2) different dates, substituted service may be effected.
The following are the substituted service (Sec. 6):
In his residence — By leaving copies of the summons at the defendant's residence to a person at least eighteen (18) years of age and of sufficient discretion residing therein;
In his place of office or regular place of work — By leaving copies of the summons at [the] defendant s office or regular place of business with some competent person in charge thereof. A competent person includes, but is not limited to, one who customarily receives correspondences for the defendant;
Officers of the homeowners association or condominium corporation or its chief security officer — By leaving copies of the summons, if refused entry upon making his or her authority and purpose known, with any of the officers of the homeowners association or condominium corporation. or its chief security officer in charge of the community or the building where the defendant may be found: and
By electronic mail —- By sending an electronic mail to the defendant s electronic mail address. if allowed by the court.
In number 1, is it required that the person receiving the summons must know English to read and understand the content of the service of summons?
The SC held that yes.
If the substituted service will be effected at defendant's house or residence, it should be left with a person of "suitable age and discretion then residing therein." A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of a summons. "Discretion" is defined as "the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed". Thus, to be of sufficient discretion, such person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have the "relation of confidence" to the defendant, ensuring that the latter would receive or at least be notified of the receipt of the summons. The sheriff must therefore determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipient's relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. These matters must be clearly and specifically described in the Return of Summons. [G.R. No. 204759. November 14, 2018].
He must also be a resident of the place. He is not required to be a permanent resident. It may be temporary (e.g. boarding house)
If these requirements are not followed there is an invalid service of summons.
Even if he is 45 years old if he only finished grade 1 and has no sufficient discretion the service will be invalid.
In the case of Imelda v. CA (G.R. No. 130974 August 16, 2006) to effect a valid substituted service the following must be complied with:
Impossibility of Prompt Personal Service - 3 attempts on 2 different dates
Specific Details in the Return – Return (Sec. 20)
A Person of Suitable Age and Discretion/A Competent Person in Charge – manner in serving summons (Sec. 6)
We can break down this section into the following requirements to effect a valid substituted service:
(1) Impossibility of Prompt Personal Service
The party relying on substituted service or the sheriff must show that defendant cannot be served promptly or there is impossibility of prompt service.22 Section 8, Rule 14 provides that the plaintiff or the sheriff is given a "reasonable time" to serve the summons to the defendant in person, but no specific time frame is mentioned. "Reasonable time" is defined as "so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done, having a regard for the rights and possibility of loss, if any[,] to the other party."23 Under the Rules, the service of summons has no set period. However, when the court, clerk of court, or the plaintiff asks the sheriff to make the return of the summons and the latter submits the return of summons, then the validity of the summons lapses. The plaintiff may then ask for an alias summons if the service of summons has failed.24 What then is a reasonable time for the sheriff to effect a personal service in order to demonstrate impossibility of prompt service? To the plaintiff, "reasonable time" means no more than seven (7) days since an expeditious processing of a complaint is what a plaintiff wants. To the sheriff, "reasonable time" means 15 to 30 days because at the end of the month, it is a practice for the branch clerk of court to require the sheriff to submit a return of the summons assigned to the sheriff for service. The Sheriff’s Return provides data to the Clerk of Court, which the clerk uses in the Monthly Report of Cases to be submitted to the Office of the Court Administrator within the first ten (10) days of the succeeding month. Thus, one month from the issuance of summons can be considered "reasonable time" with regard to personal service on the defendant.
Sheriffs are asked to discharge their duties on the service of summons with due care, utmost diligence, and reasonable promptness and speed so as not to prejudice the expeditious dispensation of justice. Thus, they are enjoined to try their best efforts to accomplish personal service on defendant. On the other hand, since the defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant. For substituted service of summons to be available, there must be several attempts by the sheriff to personally serve the summons within a reasonable period [of one month] which eventually resulted in failure to prove impossibility of prompt service. "Several attempts" means at least three (3) tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted.
(2) Specific Details in the Return
The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service.25 The efforts made to find the defendant and the reasons behind the failure must be clearly narrated in detail in the Return. The date and time of the attempts on personal service, the inquiries made to locate the defendant, the name/s of the occupants of the alleged residence or house of defendant and all other acts done, though futile, to serve the summons on defendant must be specified in the Return to justify substituted service. The form on Sheriff’s Return of Summons on Substituted Service prescribed in the Handbook for Sheriffs published by the Philippine Judicial Academy requires a narration of the efforts made to find the defendant personally and the fact of failure.26 Supreme Court Administrative Circular No. 5 dated November 9, 1989 requires that "impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts," which should be made in the proof of service.
(3) A Person of Suitable Age and Discretion
If the substituted service will be effected at defendant’s house or residence, it should be left with a person of "suitable age and discretion then residing therein."27 A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of a summons. "Discretion" is defined as "the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed".28 Thus, to be of sufficient discretion, such person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have the "relation of confidence" to the defendant, ensuring that the latter would receive or at least be notified of the receipt of the summons. The sheriff must therefore determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipient’s relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. These matters must be clearly and specifically described in the Return of Summons.
(4) A Competent Person in Charge
If the substituted service will be done at defendant’s office or regular place of business, then it should be served on a competent person in charge of the place. Thus, the person on whom the substituted service will be made must be the one managing the office or business of defendant, such as the president or manager; and such individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. Again, these details must be contained in the Return.
Note: The SC’s decision in this case was copied and pasted in the 2019 amendment. The new provisions are old rules cited in the case of Imelda Marcos Manotoc to prevent further dismissal of substituted service because of improper availment.
Motions
are either written or oral.
It is not a pleading.
It is an application for relief. You are asking for a favor.
The 2019 amendments expressly divided the motions to:
Litigious motions; and
Non-litigious motions
Under the old rule it was NOT divided.
Non-litigious motions (Sec. 4)
motions which does not prejudice the rights of others.
It does not require a copy of the motions to the opposing party and does not set forth a hearing.
The court will resolve it within 5 calendar days.
The court may grant/deny it and it will not prejudice the rights of others.
Litigious motions
motions which will prejudice/affect the rights of the other party.
Is it required that a litigious motion must be set for hearing? (Sec. 6)
It is within the discretion of the court.
(1) If the court thinks it is necessary for the resolution of the motion and; (2) It is the court who will set the time and date of hearing.
Note: Under the old rule, the person who is filing the motion will be the one to set the date and time of the hearing. If he fails [to file], the motion will be treated as as a mere scrap of paper.
GR: Motions are set on fridays.
Is it required that a litigious motion must furnish a copy of the litigious motion?
Yes. The opposing party is given 5 calendar days to file an answer. Upon expiration, the court shall resolve the motion within 15 calendar days.
Omnibus Motion (Sec. 9, Sec 12)
Omnibus Rule
if you file a motion to dismiss, you have to include all the grounds for the motion to dismiss except those mentioned in Sec. 1, Rule 9.
Under the old rule, when you file the motion to dismiss on the grounds that the court has no jurisdiction, no legal capacity to sue, and improper venue. If you file a motion to dismiss and you only stated 1 ground, the other 2 grounds are deemed waived. an you include in the affirmative defense? No more.
In the new rule, the lack of jurisdiction is not waived. You can still include it in the affirmative defense
The omnibus rule is NO LONGER APPLICABLE. The grounds on Rule 16 are deleted or transposed The other grounds that can be waived afe not for motion to dismiss they are raised in the answer as an affirmative defense.
Sec. 13
Modes of service of motions: PARE
Personal service
Accredited courier
Registered mail
Electronic means
Sec. 1
Plaintiff will file a complaint and the plaintiff changed his mind and he wants to dismiss it. Can he do that?
Yes. But for it to fall in Sec. 1 there must be no answer yet. Before the defendant files his answer, the plaintiff must file a Notice of Dismissal.
If the court will receive this notice of dismissal what will the court do?
The court has no discretion. The court will just confirm the dismissal filed by plaintiff.
Requisites of Dismissal:
Plaintiff will file a complaint for the first time.
No answer has been filed yet.
A notice of dismissal is now filed by plaintiff.
[In Sec. 1] There is no room for discretion the court will just confirm the notice of dismissal.
The plaintiff changed his mind and wants to refile the case. Can he do that?
Yes,unless it states the dismissal is with prejudice.
He wanted to withdraw the refiled case, can he do that?
Yes, but now he is covered by the two-dismissal rule.
Two-dismissal rule
Amounts to yje adjudication of the case.
He can no longer re-file the complaint.
Sec. 2
The plaintiff filed a complaint and now an answer was already filed then the plaintiff changed his mind and wanted to withdraw the complaint. Can he do that?
Yes, but this time it should be in a form of motion.
Motion is now within the court’s discretion.
In the event that the court eill grant the motion to dismiss, those counter actions [by the defendant] will not be dismisssed and the defendant can still prove it.
If the judge dismissed the counter action, then the judge has made an erroneous decision.
Sec. 3
The complaint will be dismissed due to the fault of the plaintiff.
3 grounds that the complaint can be dismissed due to the fault of the plaintiff:
Plaintiff fails to appear on the date of the presentation of his or her evidence in chief of the complaint;
to prosecute his or her action for an unreasonable length of time; or
Plaintiff fails to comply with these Rules or any order of the court.
NOTE: The complaint may be dismissed upon motion of the defendant or upon the court’s own motion.
If the complaint was dismissed under Sec. 1 or 2, GR: dismissal is without prejudice.
If the complaint is dismissed under Sec. 3, GR: dismissal is with prejudice.
Sec. 1
After the last responsive pleading has been served and filed, the branch clerk of court shall issue, within five (5) calendar days from filing, a notice of pre-trial which shall be set not later than sixty (60) calendar days from the filing of the last responsive pleading.
E.g plaintiff filed a complaint and the defendant filed an answer. The last responsive pleading is the answer.
The branch clerk of court will set the case for pre-trial.
Is the motion to dismiss the last responsive pleading?
No, it is not yet ripe for the branch clerk of court to set the case for pre-trial.
There is an answer and an actionable document. Is that the last responsive pleading?
No, the last responsive pleading is the reply since there is an actionable document.
The plaintiff is given 10 calendar days to file a reply. If the plaintiff did not file a reply the branch clerk of court can set the date for pre-trial.
2 periods that the branch clerk of court shall set the date for pre-trial:
After the last responsive pleading has been served and filed, the branch clerk of court shall issue, within five (5) calendar days from filing,
a notice of pre-trial which shall be set not later than sixty (60) calendar days from the filing of the last responsive pleading.
Sec. 3
The notice of pre-trial shall include the dates respectively set for:
(a) Pre-trial; (mandatory)
(b) Court-Annexed Mediation; and (mandatory)
(c) Judicial Dispute Resolution, if necessary. (discretionary)
Sec. 6
NOTE: Pre-trial is mandatory. It must come before trial, not after. Before pre-trial, the parties are required to submit their pre-trial briefs and the parties must make sure that it must be personally serve atleast 3 calendar days before the date of pre-trial.
How about if you will serve a copy of pre-trial through accredited courier?
The service is invalid.
If you are the plaintiff and you failed to file the pre-trial brief, the case will be dismissed.
If you are the defendant and you failed to file the pre-trial brief, the plaintiff will present evidence ex parte.
Sec. 2
The pre-trial is mandatory and should be terminated promptly. The court shall consider:
(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;
The parties may:
Have a compromise agreement
One may have an initiative to settle it amicable
No settlement
(b) The simplification of the issues;
This is where they would state the issues of the case
(c) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;
This is were the counsels agree on certain stipulations.
E.g. Does counsel admit to have receive the demand letter?
E.g. Does counsel admit that it should be only 1M and not 10M pesos?
Through this, there is no need to prove if admitted.
(d) The limitation of the number and identification of witnesses and the setting of trial dates;
E.g. How many witnesses will you present?
They will also settle all the dates for the trial.
(e) The advisability of a preliminary reference of issues to a commissioner;
(f) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;
Ito ‘yung last na gagawin.
(g) The requirement for the parties to:
1. Mark their respective evidence if not yet mark ed in the judicial affidavits of their witnesses;
2. Examine and make comparisons of the adverse parties evidence vis-a-vis the copies to be marked;
3. Manifest for the record stipulations regarding the faithfulness of the reproductions and the genuineness and due execution of the adverse parties evidence;
4. Reserve evidence not available at the pre-trial. but only in the following manner;
i. For testimonial evidence, by giving the name or position and the nature of the testimony of the proposed witness;
ii. For documentary evidence and other object evidence, by giving a particular description of the evidence.
No reservation shall be allowed if not made in the manner described above.
(h) Such other matters as may aid in the prompt disposition of the action.
What is the purpose of pre-trial?
To avoid surprise witnesses and evidence.
If counsel will present a witness or evidence not presented during pre-trial, it will be inadmissible.
If the case is subject to mediation, it will be offered to court annexed mediation.
Sec. 1
Who can intervene/who can file a motion to intervene?
a person who can intervene is a stranger;
E.g. A and B are parties. Any person beside A and B.
A and B cannot intervene because they are a party.
This person must have any of these 3:
A person who has a legal interest in the matter in litigation, or
in the success of either of the parties, or an interest against both, or
is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action.
A person who wants to intervene and wants to join the plaintiff – must attach his complaint in intervention in his motion.
A person who wants to intervene and wants to answer the plaintiff – the pleading is the answer in intervention.
Note: The court will either grant/deny this motion BUT, before the court will decide whether to grant it or not, there are 2 questions that he will ask himself.
The court shall consider (Sec. 1):
whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and
If yes, then the court will deny the motion to intervene.
If no, then the judge will ask:
whether or not the intervenor's rights may be fully protected in a separate proceeding.
If yes, then the court will deny the motion to intervene.
If no, then the court will allow the intervention.
Motion to intervene must be filed before rendition of judgment by trial court.
Trial court
court where the case is tried.
E.g. MTC can be a trial court but cannot be an appellate court.
E.g. RTC can be a trial court and also an appellate court
If the case was filed in RTC – trial court
If the case was appealed jn RTC – appellate court
Note: If there is already judgment in the trial court, you can no longer file a motion to intervene BUT in some cases in SC, they accept the motion to intervene.
2 CLASSES (Sec. 1):
Subpoena testificandum
You are required to testify.
Subpoena duces tecum
You are required to appear in court/office to bring books in your possession or deposition or interview.
Section 1. Subpoena and subpoena duces tecum. - Subpoena is a process directed to a person requiring him or her to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his or her deposition. It may also require him to bring with him or her any book s, documents, or other things under his or her control, in which case it is called a subpoena duces tecum.
Summons v. Subpoena
Summons requires you to answer the complaint
Subpoena requires you to testify.
Sec. 2
Who can issue subpoena?
The court - particular date and time either to testify or require to bring documents.
An officer or body authorized by law
Prosecutor's office - subpoena is not limited to the court unlike summons
Supreme Court/Court of Appeals
In all subpoena are you bound by it?
Generally, yes. You have to appear otherwise you can be cited in contempt or a warrant of arrest may be issued and the sheriff will bring you to the court.
EXCP: If the subpoena issued is unreasonable or oppressive.
Examples of when you cannot be bounded by a subpoena:
If the books are irrelevant to the investigation/case pending.
They failed to advance the [money?] for the reasonable production of books or documents.
Masyadong malayo yung place.
What is your remedy so you will not need to comply with the subpoena?
File a motion to quash and state the reason why you are not bound by the subpoena. File the motion to quash BEFORE the date and time specified in the subpoena.
E.g. Feb. 14 ‘yung nakalagay sa subpoena dapat mag-file ka na ng motion to quash before feb. 14
3 grounds when a person is not bound by Subpoena testificandum:
The witness is a prisoner and is sentenced to reclusion perpetua or life imprisonment if no permission from the SC was obtained.
The witness resides more than one hundred (100) kilometers from his or her residence to the place where he or she is to testify by the ordinary course of travel.
The witness is a detention prisoner if no permission of the court in which his or her case is pending was obtained.
What is your remedy so you will not need to comply with the subpoena testificandum?
File a motion to quash and state the reason why you are not bound by the subpoena. File the motion to quash BEFORE the date and time specified in the subpoena.
Sec. 1
Section 1. How to compute time. - In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day.
E.g. The defendant is required to file his answer within 30 days from receipt of the summons together with the attached complaint.
Under Rule 22, Sec. 1, exclude the first day and include the last day.
Plaintiff received a copy from March 1, 2023. That date will be excluded.
E.g. The last day is saturday/sunday or is a legal holiday where the court sits, how will you file it?
The time will not run until the next working day, which is monday.
E.g. The problem is on Monday, the plaintiff filed a motion to declare the defendant in default since the court is open on saturdays for urgent motions like bail. The judge accepted the motion. Is the judge correct?
No. The SC ruled that an answer is NOT an urgent matter. Saturdays are for purposes of urgent matters and to resolve bail.
E.g. The due date is on saturday but even on monday you cannot file it (hindi mo maihabol). So, you file a motion for extension on friday and it was granted on the same day. When will the 15 days start?
If we will base it on Sec. 1., the 15 days [extension period] should start on tuesday. HOWEVER, in this scenario, the LAST DAY is no longer applicable. Saturdays, sundays, and legal holidays are ALREADY counted in the 15 day extension.
Refer to dean’s book 🙂
After plaintiff if D thinks that he is not entitled to relief 200M. What is now the remedy of the defendant.
File a demurrer to evidence. On what ground? Based on the facts and the law plaintiff is not entitled to relief prayed for.
Is it required that the demurrer to evidence is with leave of court?
No.
Demurrer to evidence is either granted or denied.
If granted, the case will be dismissed.
What is the remedy of the plaintiff?
The plaintiff refile the case unless it is prohibited based on 4 grounds.
If denied,
What is the remedy of the defendant?
Sec. 2
The defendant will now present his evidence.
The following are the differences between a demurrer to evidence in criminal procedure and civil procedure:
Demurrer to evidence v. Failure to state a cause of action
Note: Demurrer to evidence and failure to state a cause of action are mutually exclusive.
Plaintiff filed a sum of collection of money against the defendant for 200M.
The defendant must file an answer.
When is judgment on pleadings be filed by the plaintiff?
When the defendant (1) admits the material allegations or (2) denies/fails to tender an issue.
NOTE: A specific denial must (1) specifically deny + reason of denial and (2) must under oath.
2 instances where the court will render judgment:
Plaintiff files a motion on judgment/initiative of plaintiff
Upon motion of the court
The plaintiff, claimant, defendant canf ile a summary judgment on the griund that there is no genuine issue.
If there is no need to present evidence to prove the material facts, then you can dile for summary judgment.
E.g. Sum of collection of money for 200M. The defendant filed an answer. He admitted the 200M bur questioned the interest. Is there a genuine issue?
None The legal interest of 6% is a question of law and not a question of fact; it is not a material fact The material fact in this is wherher the defendant is indebted of 200M.
What are the distinctions between judgment on the pleadings and summary judgment?
The following are the distinctions:
On what ground?
a) In judgment on the pleadings, there is no genuine issue because the answer fails to tender an issue or otherwise admits the material allegations in the complaint; while in summary judgment, there is an apparent issue but it is sham, fictitious, or false as shown by affidavits, depositions, or admissions;
What is the basis?
b) Judgment on the pleadings is based exclusively on the pleadings (meaning, the complaint and the answer); while summary judgment is based not only on the pleadings but also on affidavits, depositions, and admissions of the parties showing that, except as to the amount of damages, there is no genuine issue;answer
Answer
c) In judgment on the pleadings, there must be an answer;while in summary judgment, there may or may not be an answer;whe may
Who can file?
d) Only the plaintiff may move for judgment on the pleadings;file? while either the plaintiff or the defendant may move for summary judgment; and
They have one similarity An ORDER granting or denying the judgment on pleadings or summary judgment is NOT subject to appeal, certiorari, prohibition, or mandamus. But the judgment on pleadings or summary judgment (ruling) itself is APPEALABLE.
Sec. 1
Judgment or final order must be personally prepared and signed by the judge. If the judgment is "stamped" (tinatak) then it is not in accordance with the Rules.
The judgment must clearly state the facts and the law. Why?
Because if you want to question the judgment and the basis of the judgment is the facts and the law then you can raise the facts or the law on appeal.
How will you question the judgment if it is not based on facts and the law?
When must the judgment or final order attain finality?
Within 15 calendar days from receipt of judgment. But in special proceedings within 30 calendar days.
After the lapse of 15 calendar days the clerk of court will enter it in the books of entries.
E.g. Dec. 10, 2022 is the last day of the 15 day period. The problem is that the clerk of court entered it on Dec. 15, 2022 when did the judgment become final?
The judgment becomes final after the lapse of 15 calendar days regardless of the day it was entered. Judgment was final, it is immutable, cannot be revised…
Generally, a judgment that is final and executory cannot be amended or corrected.
EXCEPTIONS:
The correction of clerical error.
E.g. In the hearing the name of the accused is Juan DC. In the judgment it is different.
Nunc pro tunc - to put on the record an act the court did that was omitted in the record through mistake or inadvertence.
Purpose: for the record to speak the truth
A void judgment
a void judgment will never attain finality; it does not exist.
it can still be reversed/nullified.
The existence of supervening events
2 requisites to be considered a supervening event:
This supervening event must alter or modify the parties' situation as to render the execution of judgment inequitable, impossible, or unfair.
This supervening event must be established by competent evidence.
E.g. A husband and wife provides mutual support. The husband left the wife with their children. The wife filed a petition for support. The judgment became final and support for the wife and their children were provided by the husband. Consequently, the marriage was annulled.
The annulment was a supervening event. The husband is no longer obligated to support the wife. The judgment can be a
Grounds for Motion for New Trial:
fraud, accident, mistake, or excusable negligence
newly discovered evidence
Grounds for Motion for Reconsideration:
award of excessive damages;
insufficiency of evidence to justify the decision or final order;
decision or final order is contrary to law. (Rule 37, Sec. 1)
If a motion for new trial is filed, what may the trial court do?
The trial court may either:
deny the motion; or
set aside the judgment or final (it will be vacated) order and grant a new trial. (Rule 37, Sec. 3)
Effect of granting of motion for new trial:
If a new trial is granted in accordance with the provisions of this Rules the original judgment or final order shall be vacated, and the action shall stand for trial ``de novo``; but the recorded evidence taken upon the former trial, insofar as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same (Sec. 6).
If a motion for reconsideration is filed, what may the trial court do?
The trial court may either:
deny the motion; or
amend its judgment or final order if it finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law. (Rule 37, Sec. 3)
E.g. If there is award of excessive damages; insufficiency of evidence to justify the decision or final order; or a decision or final order is contrary to law, the judgment will be amended.
Can you file a 2nd motion for new trial?
Yes, on a new ground that did not exist when the first motion for a new trial was filed.
Can you file a 2nd motion for reconsideration?
Generally, no.
Except, for interlocutory orders.
Thus, what is prohibited is a 2nd motion for reconsideration for a judgment or final order. You can file a 2nd motion for reconsideration for interlocutory orders.
There are 2 grounds for relief:
Petition for relief from judgment, order, or other proceedings (Sec. 1).
Petition for relief from denial of appeal (Sec.2).
2 kinds of fraud:
Extrinsic fraud
It is committed outside the court/trial.
Intrinsic fraud
It is committed during trial.
E.g. Petitioner was prevented from taking an appeal due to fraud, accident, mistake, or inexcusable negligence. Can he file a petition for relief of judgment?
Petition for relief from judgment is an equitable remedy and is allowed only under exceptional circumstances and only if fraud, accident, mistake, or excusable negligence is present. Where defendant has other available or adequate remedy such as motion for new trial or appeal from the adverse decision, he cannot avail himself of the remedy of petition for relief from judgment.
The petition for judgment is the last remedy. If motions for appeal, new trial, or reconsideration are available, he cannot avail a petition for relief of judgment.
When can you file a petition for relief of judgment?
A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken (Sec. 3)
E.g. The judgment was entered on March 1, 2022. Petitioner learned on June 1, 2022. He filed a petition for relief of judgment on December 1, 2022. Did he file it on time?
No. The petitioner filed beyond the 60 day and beyond the 6 month period.
E.g. The judgment was entered on March 1, 2022. Petitioner learned on June 1, 2022. He filed a petition for relief of judgment on August 1, 2022. Did he file it on time?
Yes, it was filed within the 60 day and 6 month period.
NOTE: Petition for relief of judgment is available only in the MTC/RTC and is not available in the CA/ SC. Only the parties can file a petition for relief of judgment.
When are you going to apply Rule 39?
If the judgment or final order is already final and executory and the judgment obligor failed to comply with the dispositive portion.
E.g. The dispositive states that D must pay 10M pesos. What if D failed to comply with the dispositive portion and the judgment is already final and executory?
The remedy of the prevailing party is by filing a motion or action for writ of execution.
The decision is in the dispositive portion.
E.g. What if in the body it states that the defendant owed 10M and in the dispositive portion it states 20M. Which one will you follow?
Follow the dispositive portion.
NOTE:
The issuance of a writ of execution is a ministerial duty of the court.
The issuance of a writ of execution is a matter of right to the prevailing party.
Hence, considering that the issuance of a writ of execution is a ministerial duty of the court, a motion or action must be filed for it to be issued; the court cannot motu proprio issue it.
E.g. The judgment is final and executory and the judgment obligor failed to comply with the dispositive portion. What are the 2 modes of executing a final and executory judgment?
It may be executed through motion or action.
A final and executory judgment may be enforced:
a) by a motion within five years from the date of entry of judgment;
b) by an action after the lapse of five years from the date of entry of judgment but before it is barred by the statute of limitations (meaning, within the next five years). This action is known as an action to revive judgment.
It will be barred by the statute of limitations to prevent litigants from sleeping on their rights.
TAKE NOTE: The revived judgment may also be enforced by motion within five years from the date of its entry, and thereafter by action before it is barred by the statute of limitations. (Rule 39, Sec. 6) The lifetime of a writ of execution is five years from entry of judgment because Section 14, Rule 39, provides that the writ of execution "shall continue in effect during the period within which the judgment may be enforced by motion."
E.g. Judgment of the MTC became final and executory on AUgust 1, 2010. If you want writ of execution you should file a motion within five years from August 1, 2010 or an action to revive judgment before the lapse of ten years from the date of entry of judgment. Can you file a motion for the revived judgment?
Yes, the revived judgment is separate and distinct from the original judgment.
Discretionary execution
Discretionary execution is execution pending appeal.
Requisites of execution pending appeal:
There must be a motion by the prevailing party with notice to the adverse party;
There must be a hearing for the discretionary execution;
It should be filed with the court that has jurisdiction over the case;
There must be a good reason for execution pending appeal; and
The good reason must be stated in a special order.
NOTE:
The 4th and 5th requisites are the most difficult to comply with. A good reason is a case to case basis.
Example of a good reason: Perishable goods.
Example of not a good reason: Posting a bond.
Motion for execution is addressed to the court that the court will issue the writ of execution ordering the judgment obligor to comply with the writ (refer to Sec. 8)
E.g. The defendant will be served a copy of the writ of execution and will be ordered to comply within a certain number of days and if he still failed to comply what is your next remedy?
The sheriff will look for properties of the judgment obligor.
Possible contents of the dispositive portion:
Defendant to pay a certain amount of money (Sec. 9)
Requiring specific performance (Sec. 10 (a))
Direct the delivery of property (Sec. 10 (c))
The Judgment obligor fails to pay 10M. What can the judgment obligee do?
File a motion for writ of execution. The court cannot issue the writ without a motion being filed by the [prevailing] party. If issued without a motion, the court will commit a reversible error.
The writ is addressed to the sheriff to enforce the dispositive portion.
What will the sheriff do?
He must issue a letter addressed to the obligor. It is mandatory. The sheriff cannot immediately attached the property.
Section 8. Issuance, form and contents of a writ of execution. - The writ of execution shall: (1) issue in the name of the Republic of the Philippines from the court which granted the motion; (2) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and (3) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner hereinafter provided…
What if the judgment obligor fails to comply with the letter of the sheriff?
The sheriff will go to the judgment obligor and will say that he will attach/garnish/levy his property. The judgment obligor will be the one to choose which property will be attached/garnished/levied for public sale.
The sheriff shall levy the personal property then real property then garnishment.
Sec. 8 (b) Satisfaction by levy. - If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment.
NOTE: The property will not be given to the judgment obligee but will be sold in a public auction not less than the amount in the dispositive portion. Certificate of sale will be issued to the highest bidder.Such certificate must be registered in the registry of deeds of the place where the property is situated
The judgment obligor, or redemptioner, may redeem the property from the purchaser, at any time within one (1) year from the date of the registration of the certificate of sale, by paying the purchaser the amount of his purchase (Sec. 28).
If not redeemed the ownership is AUTOMATICALLY passed to the highest bidder.
They should consolidate the title from the judgment obligor to the judgment obligee [highest bidder].
E.g. The judgment obligor failed to transfer to the judgment obligee the title even after five years. The judgment obligor offered to redeem the property, can he?
No, the ownership is automatically transferred regardless if the certificate of ownership has been transferred. COnsolidation of ownership is MERE FORMALITY.
E.g. IF the property of judgment obligor is not sufficient to pay the amount in the dispositive portion, what will the court do?
The court will issue an order for the judgment obligor to appear in his sala and check if he still has property to be levied.
However, this is applicable only if the judgment obligor is a resident of the place where the case is pending.
Section 27. Who may redeem real property so sold. - Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons:
(a) The judgment obligor, or his successor in interest in the whole or any part of the property;
(b) 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. Such redeeming creditor is termed a redemptioner. (29a)
E.g. A mortgage his property to B. There is a real estate mortgage. He has to annotate the real estate mortgage. A borrowed money from C and then also borrowed money from B. When A was not able to pay, C filed for a sum of collection of money. B also filed the same. When the obligation became due and demandable, A cannot pay neither of them. B registered a notice of levy. C did the same. Then D also registered a notice of levy. In the public auction, C is the highest bidder. Who is the redemptioner?
It is D. Take note that what is being asked is who is the redemptioner NOT who can redeem.
A can redeem because he is the judgment obligor. B can redeem because he is a creditor who registered a notice of levy prior to C. Although A and B can redeem, they are NOT redemptioners.
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. Such redeeming creditor is termed a redemptioner.
Which lien was able to foreclose the property?
It was C.
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