Rem Civil Procedure R6 - R35 Flashcards

Question

Parts and Contents of a Pleading What is the Body? All & ReL What is the Paragraph? What is the Heading?

Answer 1

The body of the pleading sets forth a. its Designation b. the ALLEGATIONS of the party's Claims or Defenses, c. the RELIEF prayed for d. and the DATE of the pleading. The allegations in the body of a pleading shall be divided into paragraphs so numbered to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. When 2 or more COA causes of action are JOINED, the statement of the first shall be prefaced by the words "first cause of action', "second cause of action' and so forth.

Answer 2

The first criterion is to ascertain the nature of the; a. Principal action or the b. Remedy sought. If the action is primarily for the recovery of a SUM of money, the claim is considered Capable of Pecuniary estimation (and whether jurisdiction is in MTC or RTC depends on the amount of the claim). However, where the BASIC ISSUE is something the Right to Recover A SUM OF MONEY, where the to, or a CONSEQUENCE of the Principal Relief sought, such action belongs to the jurisdiction of the RTC.

Answer 3

1. That the lawyer has READ the pleading and document. 2. And to the BeKi BEST of his knowledge, information & belief (formed after his reasonable inquiry) : (4) a) the Document is NOT presented for IMPROPER purpose (such as to harass, delay or increase litigation costs) & b) the Claims, Defenses and other Legal Contentions are WARRANTED by Law or Jurisprudence & c) the Factual Contentions have EVIDENTIARY support & d) the Denials of these factual contentions are supported by evidence

Answer 4

1) The court may SANCTION any attorney, law firm or party responsible for the violation. 2) The law firm responsible shall be held JOINTLY & SEVERALLY LIABLE for the violation committed by its partner, associate or staff. 3) Sanctions may include Non-Monetary directive, an order to PAY the court, or an order to PAY the movant for Atty's fees & other expenses resulting from the violation. 4) The lawyer at fault can NOT pass on the monetary penalty to his client.

Answer 5

A pleading is Verified when a) the AFFIANt Attests that he has READ the pleading and b) that the Allegations therein are TRUE and Correct based on his personal knowledge or based on authentic records. PLUS Under the amendments, the above is not enough. The verification must ALSO have the following: c) the pleading is NOT filed to harass, Delay, or increase litigation Costs & d) the FAES Factual Allegations have ES evidentiary SUPPORT. Purpose of verification is to ensure that the allegations therein are true & correct and the pleading has been filed in good faith. A defective verification is merely formal defect which does not affect the jurisdiction of the tribunal.

Answer 6

Forum party is an Act of 1) a party against whom an adverse judgment has been rendered in one forum AND 2) possibly getting a favorable opinion in another forum Other than by Appeal or SCA of Certiorari. MEMO The filing of Multiple cases to Difrnt Courts based on the same cause of action In order to get a favorble outcome fr any of the courts 3 Ways - By filing multiple cases. A. based on the Same COA & Same Prayer (Litis Pendentia) B. based on the Same COA & Same Prayer with the previous case having been finally resolved (Res Judicata) or C. based on the Same COA But with Different Prayers (Either Litis Pendentia or Res Judicata) The affiant's AUTHORIZATION TO ACT on behalf of a party, whether in the form of a secretary's certificate or SPA should be attached to the pleading.

Answer 7

a) Chairperson of the Board of directors b) President c) GM or acting GM d) Personnel officer e) Employment specialist in a labor case.

Answer 8

Ultimate fact means the ESSENTIAL Facts constituting plaintiff's Cause of Action. Without it the COA is insufficient. It does not refer to the details of the probative matter which are to be established in the proceedings - these are the evidentiary facts. Every pleading shall contain in a Methodical & Logical form, a PCD plain concise and direct Statement of UA, including the (documentary and object) EVIDENCE on which the party relies for his claim or defenses.

Answer 9

Every pleading shall contain in a M & L form a PCD s of UA, including the do Evidence. If the COA/Defense is based on law, the pertinent provisions shall be clearly and concisely STATED. The SC allows alternative COA or Defense provided that each is Consistent in itself.

Answer 10

The following must be alleged as conditions precedent: a. Art 151 FC - No suit between members of same family... b. Section 412 (a) of RA 7160 provides conduct of barangay conciliation...

Answer 11

Sec 412 - No complaint, petition, action, or proceeding involving any matter...

Answer 12

Lack of LEGAL CAPACITY means that the Plaintiff does NOT have the NECESSARY QUALification to appear in the case or does not have the Character/Representation that the claims. Lack of capacity to sue refers to a Plaintiff's GENERAL Disability to sue such as on account of Min, Insan, Incomp, Lack of JP or when a corp no longer possess a JP by reason of its a.Dissolution and b.Lapse of 3 year grace period.

Answer 13

Allegations that must be alleged with particularity; a. Capacity b. Fraud c. Mistake The following must be alleged generally a. Condition precedent b. Judgment c. Malice d. Knowledge or other condition of the mind

Answer 14

An authenticated copy of the judgment or decision must be attached. Authenticated in accordance with " The Hague Convention Abolishing the requirement of Legalisation for Foreign public documents" Legalisation is the formality by which the consular agents of the country in which the document has to be produced CERTIFY the authenticity of a) the signature, b) the capacity and c) identity of the seal/stamp the document bears.

Answer 15

The following are deemed to be public documents: a) documents emanating from an authority, or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, clerk of court, or process server. b) administrative documents c) notarial acts d) official certificates which are placed on documents signed by persons in their private capacity ( such as official certificates recording the registration of a document or the fact that it was in existence on a certain date) and e) official and notarial authentications of signatures

Answer 16

Whenever an action or defense is based upon a written instrument or document; (1) the SUBSTANCE of such instrument or document shall be INTRODUCED in the pleading, & the (2) ORIGINAL or a Copy thereof shall be ATTACHED to the pleading, as an exhibit, which shall be deemed part of the pleading.

Answer 17

When there is an Admission, it means that; 1) the party whose signature it bears, ADMITS that he VOLuntarily signed the document or it was Signed by another With his AUThority; 2) that at the time it was signed, STATEMENTS waERE AS exactly as SET OUT in the pleading of the party relying on it; 3) that the document was delivered; AND 4) that any FORMalities required by law which it LACKS (such as seal, acknowledgement, or revenue stamp) are WAIVED by him. Admission effectively eliminated any defense relating to the authenticity and due execution of the document, eg. that the document was a) spurious (false) b) counterfeit c) of different import on its face as the one executed by the parties; or d) the signatures therein are forgeries or unauthorized.

Answer 18

The opposing party UNDER OATH, must specifically (1)DENY them, and (2)SET FORTH what he claims to be the Facts. Exception: the under oath requirement is not needed when the adverse party is NOT NAMED in the instrument or when an ORDER for INSPECTION was REFUSED by the party introducing the Actionable Document.

Answer 19

In pleading an official document or official act, it is sufficient to declare that a) the document was issued or b) the act was done ... IN COMPLIANCE WITH THE LAW

Answer 20

A. A defendant must STATE Each allegation the truth of which he does not admit and PROVIDE the Substance suporting his Denial. When Only a PART of the allegation is denied, Specify what is admitted as true and Deny ONLY the Remainder. B. When the defendant is " WITHOUT Knowledge or Information to Form a belief as to the TRUTH of a MATERIAL statement in the complaint" , D shall STATE it AS SUCH and it shall have the Effect of Denial.

Answer 21

MATERIAL ALLEGATIONS in CITING a claim (other than those as to the amount of unliquidated damages) shall be DEEMED ADMITTED When Not Specifically Denied.

Answer 22

A. Defendant must 1) FILE an answer AND 2) RAISE as Affirmative defenses the GROUNDS (under Rule 6) of a) Fraud; b) Statute of Limitations; c) Release; d) Payment; e) Illegality; f) Statute of Frauds; g) Estoppel; h) Former recovery; i) discharge in bankruptcy; j) Confession and Avoidance. B. These are the ONLY Ground for FILING a Motion to Dismiss Affirmative defenses may also include GROUNDS for Dismissal of a Complaint: a) Court has NO JURISDICTION over the SUBJECT MATER b) There is another ACTION PENDING BETWEEN the SAME PARTIES for the SAME CAUSE c) Action is BARRED/BLOCKED by a Prior Judgment and/OR d) Prescription of Claims C. Defendant must 1) FILE an answer AND 2) RAISE as Affirmative defenses the GROUNDS (under Rule 8) of a) Court has no jurisdiction over the person of the Defending party b) Venue is IMPROPERLY LAID c) Plaintiff has NO Legal Capacity to SUE d) The Pleading Asserting the claim STATES NO Cause of Action AND e) A condition precedent for filing the claim has not been complied with In this rule Confession of Judgment is an ACKNOWLEDGEMENT that a debt is Justly Due & CUTS OFF all defenses & Right of Appeal. It's a SHORTCUT to a Judgment in a case where the defendant concedes liability. It is seen as an INSTRUCTION for Entry of Judgment Against the debtor.

Answer 23

Court's action will depend on the affirmative defense RAISED thus: A. If affirmative defense was any grounds under Rule 8 (LackofCapofPlaintf, WrongVen InsufForm Etc) - the court < SHALL > RESOLVE the affirmative defense raised in the Answer WITHIN 30 days from filing thereof B. If the affirmative defense RAISED was any of the grounds under Rule 6 - ( payment, confsn&avoidnc, Fraud, ) The court < MAY > conduct a SUMMARY HEARING for that WITHIN 15 calendar days from the filing of the Answer. Then the court SHALL RESOLVE the Affirmative defense WITHIN 30 days from termination of the Summary hearing

Answer 24

Upon Motion to Strike, court may ORDER any Pleading to be STRICKEN OUT or any false / scandalous matter contained therein

Answer 25

Defenses & Objections NOT PLEADED (either in a Motion to Dismiss or in the Answer) = GR- Deemed Waived EXC: Even AFTER an Answer has been FILED, defendant CAN STILL FILE a motion to dismiss on these grounds: 1) Lack of Jurisdiction 2) Litis Pendentia 3) Lack of Cause of Action 4) Discovery DURING trial of Evidence that is a Ground for DISMISSAL

Answer 26

WAIVED if Not Raised

Answer 27

If a party fails to plead (or def3nd against a claim) the opponent may move for Entry of Default Means: Courtvmay grant judgement in favor of Complainant - if a party Fails to Comply court orders or Rules, the Court may Strike OUT all or any part of the Pleading

Answer 28

If the Defending party FAILS to ANSWER WITHIN the Time allowed, the Court shall DECLARE the defending party IN DEFAULT. Then, the court Shall PROCEED to RENDER JUDGMENT Granting the Claimant such Relief requested from the pleading unless the court REQUIRES further Evidence. Default Judgment is FROWNED UPON because of the policy to hear every case ON THE MERITS. But this DJ will not be vacated Unless the Defendant can Justify his Failure and SHOW that he has a GOOD DEFENSE

Answer 29

A party in default shall be ENTITLED to NOTICES of proceedings BUT Shall NOT Take part in the Trial. A party Declared in Default, (before Judgment) may File a Motion to SET ASIDE the Order of Default upon Showing that his default was DUE TO: 1) Fraud 2) Accident 3) Mistake 4) Excusable NEGLIGENCE PLUS he has MERITORIOUS DEFENSE. In the interest of justice, the court may allow that motion.

Answer 30

A defendant DECLARED in DEFAULT has the following REMEDIES A) Motion to SET ASIDE the order of default B) Motion for NEW Trial if the default order was Discovered After judgement but WHILE Appeal is Still AVAILABLE C) Petition for RELIEF (Rule 38) if Judgment has become Final & Executory and/or D) Appeal from the Judgment (Rule 41) even if No motion to set aside order of default has been availed before

Answer 31

A judgement RENDERED against a party in default SHALL: a) NOT Exceed the amount prayed for or b) NOT be Different in kind from that prayed for

Answer 32

Pleadings may be amended by a) ADDING or STRIKING out an allegation/ name of any party, b) CORRECTING a Mistake in the inadequate allegation or / name of party/ or description Purpose of amendment : to DETERMINE the Controversy in the MOST Expeditious and Inexpensive manner.

Answer 33

A party may Amend his pleading ONCE as a Matter of RIGHT at any time BEFORE a Responsive Pleading is Served. But the Court May, upon Motion, ALLOW a party to AMEND his Pleading for the Purpose of COMPLETELY DETERMINE or PUT AN END to ALL matters in dispute between the parties. WHEN to file the Motion to Amend? It SHOULD be filed BEFORE the Order of Dismissal BECOMES FINAL. Otherwise, there is NOTHING to Amend.

Answer 34

Motion to Amend the Complaint may be DENIED on the ff grounds: a. The motion was made with Intent to DELAY b. The motion seeks to CONFER JURISDICTION on the Court OR c. The pleading stated NIL COA no cause of action FRom the Beginning which could be AMENDED

Answer 35

Yes if amendment is a MATTER OF RIGHT under Rule 10 section 1 . Only in Rule 10 section 2 that these types of changes are expressly DENIED. If amendment is Denied, the ORDER OF DENIAL is APPEALABLE within the timeframe allowed to appeal FROM the time of the ORDER OF DENIAL was issued. InterlocO r65

Answer 36

defect in the designation of parties other clerical errors - these may all be corrected at any stage Not substantial to the claim or defenses Eg. Wrong referemce to law #

Answer 37

Judgment may nonetheless be rendered NOT MERELY on the basis of the ISSUES ALLEGED but rather ALSO on the basis of ISSUES DISCUSSED & PROVEN in the course of Trial. The court may treat the pleading as if it had been amended to CONFORM to the EVIDENCE.

Answer 38

Court may allow supplemental pleadings for Transactions, Occurrences, or Events which have happened since date of pleading.

Answer 39

a NEW copy of the ENTIRE pleading indicating the amendments SHALL be filed The new SETS ASIDE the old pleading. However, the admissions in the superseded pleading may be OFFERRED in evidence against the pleader as extrajudicial admissions. SUPERSEDED or AMENDED (the old) Pleadings DISAPPEAR from the Record.

Answer 40

Pleading - Answer Period: within 30 days to file Answer From: Service of summons - Personal or Substituted types Pleading - Answer Period: 60 days if Service is by PUBLICATION From: Notice thereof Pleading - Answer of a Defendant - Foreign Juridical entity Period: within 30 days from service of Summons to RESIDENT AGENT Period: within 30 days from service of Summons on GOVT OFFICIAL Pleading - Answer to AMENDED COMPLAINT Period: within 30 days to file Answer From: Service of summons - IF amendment is a MATTER OF RIGHT but its Period: within 15 calendar days to file Answer From: Notice of Order admitting AMENDMENT if change is NOT a MATTER OF RIGHT Pleading - Answer to SUPPLEMENTAL complaint or Answer to COUNTERCLAIM (Permissive/Compulsory) or CROSSCLAIM Period: within 20 calendar days From: Notice of Order admitting the same

Answer 41

Only a motion for extension of time to file an Answer may be filed - only ONCE. A motion seeking ADDITIONAL PERIOD within which to file other pleadings will be considered a mere scrap of paper. It is a prohibited pleading.

Answer 42

BEFORE RESPONDING to a Pleading A party may File a MOTION for a DEFINITE STATEMENT or for a Bill of Particulars of ANY MATTER which is NOT AVERRED w PARTICULARITY. To ENABLE a party to PROPERLY PREPARE his Responsive Pleading. If the INDEFINITE PLEADING is a REPLY, the motion for a DS/BOP must be filed WITHIN 10 days from service of the reply.

Answer 43

The Clerk of court must immediately BRING it to the COURT which WILL EITHER DENY OR GRANT it outright or ALLOW PARTIES to be HEARD. The motion MUST be COMPLIED with by the parties WITHIN 10 calendar days From Order of the court. The Definite Statement (requested) may be filed EITHER in a) Separate or b) Amended Pleading and serving a copy to the adverse party. The court may ORDER to STRIKE out the portions requested with BOP.

Answer 44

Filing is the ACT of SUBMITTING a pleading & other papers in court Service is the Act of PROVIDING a party with a COPY of the Pleading (or other court SUBMISSIONS). When a party is represented by a Counsel, service of the copy shall be made to the LEAD Counsel lawyer. His receipt will be the RECKONING POINT of the regulatory period. If there is NO DESIGNATED Lead Counsel, Notice to ANY of the counsels is a Notice TO ALL.

Answer 45

Modes of FILING the PLEADING in court a. Personal filing b. Registered mail c. Court accredited private courier; and d. Electronic Mail IF with PRIOR APPROVAL of the court Note that there is NO MORE PRIORITY as to which mode to use in Filing & Service of Pleadings.

Answer 46

The Date as SHOWN by the Post Office STAMP on the envelope or by the REGISTRY RECEIPT shall be considered as the date of filing of motions, pleading & other court submissions. In the case of Heirs of Numeriano, the date of delivery to a private agency/letter forwarder is NOT to considered as the Date of Filing in Court but rather the DATE OF ACTUAL RECEIPT by the court is DEEMED THE DATE OF FILING.

Answer 47

Modes for SERVING a PLEADING to the adverse party 1. Personal service 2. Registered mail 3. Court-accredited private courier 4. Facsimile transmission (eg. photocopy) 5. Electronic mail 6. Other electronic means 7. As may be provided for international conventions 8. SUBSTITUTED service 9. ORDINARY MAIL

Answer 48

Modes of PERSONAL SERVICE (of a pleading to adverse party) By 1. PERSONAL delivery of a copy to the party or to the party's counsel, or to NAMED authorized rep; 2. LEAVING it in his OFFICE or With a Person IN CHARGE thereof; 3. IF No Person is FOUND in the office, or his Office is UNKNOWN, or there is NO OFFICE, hence LEAVE a COPY at the RESIDENCE of the Party or Counsel between 6am & 6PM with a Person of SUFFICIENT AGE & DISCRETION

Answer 49

Service by mail can be effected BY; A. Registered Mail or B. Ordinary mail - ONLY IF No Registry service is Available in the locality

Answer 50

1. It is the DELIVERY of a Copy of the pleadings A. Representative or Counsel of Def or B.TO THE CLERK OF COURT with PROOF of FAILURE of BOTH 1. Personal service & 2. Service by Mail 2. Substituted service can be RESORTED to AFTER; a) Failure to personally serve the pleading; AND b) Failure to serve by Mail. 3. The service is complete at the time of such delivery - see #2 4. Clearly, there is no need to resort to these 2 modes BEFORE One can RESORT to SUBSTITUTE SERVICE of pleadings.

Answer 51

1. The parties must agree to have pleadings served either through facsimile or through electronic means 2. Pleadings, motions, notices, orders, judgments, and other court submissions shall be a) served personally, or b) served by registered mail, or c) served by accredited courier, or d) served by electronic mail, e) served by facsimile transmission, or f) served by other electronic means as may be authorized by the court. 3. Service by electronic means shall be made by sending an email to the party or counsel's electronic email address or through other electronic means as may be agreed on or upon the direction of the court.

Answer 52

The Presumptive NOTICE to a party of a court EVENT or setting may ARISE & INVOKED if: it appears from records that the NOTICE was MAILED - at Least 20 calendar days BEFORE the scheduled date of hearing (but 30 calendar days IF ADDRESSEE is FROM OUTSIDE the judicial region where the case is PENDING)

Answer 53

It is the responsibility of a party or counsel TO INFORM the court any changes in his facsimile or email address WITHIN 5 Calendar days from such change.

Answer 54

As to form, the pleading may either be attached or the pleading can be the body of the email. Requirement: It shall contain SUFFICIENT information to enable the court to ASCERTAIN from the Title: 1) the Party or parties FILING or serving the paper; 2) the Nature of the PAPER; 3) the Party or parties AGAINST whom relief, if any is sought; and 4) the Nature of the RELIEF sought.

Answer 55

Modes of service of JFOR 1. Personal service 2. Registered mail 3. Publication, if summons was served through publication; and 4. Accredited private courier can be resorted to only: a. upon ex parte motion b. and payment by the movant of the expenses to be incurred to do the Service

Answer 56

1. INITIATORY pleadings and INITIAL responsive pleadings such as an Answer. 2. SPoW Subpoena, Protection Orders & Writs 3. Appendices and Exhibits to Motions, or other documents that are amenable to electonic scanning 4. Sealed & Confidential documents or records

Answer 57

Service is complete when a. Personal Service - act receipt By mail - upon the EXPIRATION of 10 TEN calendar days after mailing, unless otherwise provided by court b. Registered mail - upon a) ACTUAL RECEIPT by the Addressee, or b) AFTER FIVE (5) calendar days From Receipt of FIRST NOTICE of the POSTMASTER --- WHICHEVER CAME FIRST c. Accredited Private courier service - upon a) ACTUAL RECEIPT by the Addressee, or b) AFTER (2) TWO Attempts to Deliver by the Courier Service, or c) upon EXPIRATION of 5 Calendar days after the 1ST Attempt to deliver ---- WHICEVER IS EARLIER d. Electonic Service - at the TIME of the Electronic TRANSMISSION of the document Or Electronic Notification it was SENT e. Facsimile service - upon RECEIPT by the other party/ addressee as indicated in the Transmission Printout

Answer 58

Proof of FILING of Pleading can be found in the Court's CASE FOLDER or RECORDS. If the pleading could not be found in the court records, but is claimed to have been filed, the PROOF shall DEPEND upon the Mode of filing: 1. if filing is by Personal service - Proof it was filed is - by the written or stamped ACKNOWLEDGEMENT of its filing by the Clerk of court on a copy of the pleading or court submission 2. if filing is by Registered mail - Proof it was filed is a) by the Registry receipt AND b) by the AFFIDAVIT of the Person who Mailed it (containing a full statement of the (i) date and place of deposit of the mail in the post office (ii) in a sealed envelope (iii) addressed to the court, (iv) with postage fully prepaid, AND (v) with instructions to the postmaster to Return the mail to the Sender after 10 calendar days if NOT Delivered. 3. if filing is by Accredited Private Courier - Proof it was filed is a) by the AFFIDAVIT of the person who BROUGHT the pleading TO the Service Provider AND b) OR - Official Receipt from the Courier & its TRACKING number 4. if filing is by AuthorizeD ELECTRONIC Means - Proof it was filed is - by an AFFIDAVIT of the ELECTRONIC FILING of the filing party WITH a Copy of the ELECTRONIC ACKNOWDLEDGMENT of its filing by the COURT

Answer 59

Proof of SERVICE of Pleading A. Service By Ordinary Mail - proof that it was served to the opposing party of his Counsel: - AFFIDAVIT of the person who MAILED the Pleading & STATING the facts showing : No Registry service is Available so it was done through Ordinary Mail; B. By Personal Service - proof that it was served to the opposing party of his Counsel: - A written ADMISSION of the Party Served OR - OR Official Return of the Server or - AFFIDAVIT of the party Serving, containing a Statement of the DPM of the service C. if Service By Registered Mail - proof that it was served to the opposing party of his Counsel: - Above mentioned Affidavit in B. PLUS - Registry RECEIPT from the Mailing office. D. if Service By Accredited PRIVATE COURIER - proof that it was served to the opposing party of his Counsel: - Affidavit of service executed by the person who BROUGHT the pleading/paper to the Service Provider PLUS - Courier's official receipt or Document Tracking number E. if Service By Electronic Mail, Facsimile, or Other AUTHORIZED electronic means of transmission - proof that it was served to the opposing party of his Counsel: - Affidavit of service executed by the person WHO SENT THE email, facsimile, or other Electonic Transmission PLUS - Printed proof of TRANSMITTAL

Answer 60

Yes the court may electronically serve ORDERS BUT Service of Judgments & Final Orders shall be under Rule 13 section 13.

Answer 61

Action affecting 1. Title or 2. Right of possession of real property may record in Registry of deeds a notice of the pendency of the action.

Answer 62

If not dismissible (4), the Clerk of Court shall ISSUE the SUMMONS to the Defendants. Acquired either upon a) Summons validly served or b) Defendant's voluntary APPEARANCE in court. Judgment over the person whom the court did not acquire jurisdiction is Null and Void. Courts are given 5 calendar days From RECEIPT of the initiatory pleading, with Proof of paid legal fees, TO ISSUE the SUMMONS.

Answer 63

1. Under R8 S12 a, This ground should be RAISED as Affirmative defense in the Answer 2. Under R8 S12 b, the court shall RESOLVE MOTU PROPIO the aforementioned Affirmative defense Within 30 calendar days FROM Filing of the Answer 3. In case this Affirmative defense is DENIED, it shall NOT be Subject to MR, or Petition for Certiorari, Prohibition or Mandamus because ... ... the proper Remedy is to GO TO TRIAL, and in the event of adverse judgment, appeal the same and RAISE the Order of DENIAL as one of the ASSIGNED ERRORS

Answer 64

1. Name of the Court and Parties 2. If allowed by court, Authorization to the Plaintiff to serve the Summons to the Defendant 3. An order that the Defendant ANSWER within the time allowed 4. NOTICE that unless the defendant so answers, Plaintiff will TAKE Judgment by DEFAULT. Hence, may be GRANTED the relief applied for The following are authorized to serve summons: A. Sheriff B. Deputy sheriff C. Plaintiff if authorized by court - see rules below for C. C. - service of summons BY PLAINTIFF rules: 1) Where there is failure to serve summons, the Court may AUTHORIZE plaintiff to serve the summons WITH the Sheriff 2) If service is to be made OUTSIDE of court's Judicial Region, plaintiff shall be authorized to serve the summons. In this case, the sheriff CAN NOT assist because its outside his Jurisdiction. 3) If Plaintiff is a juridical entity, it shall assign a representative authorized to serve the summons.

Answer 65

1. Case DISMISSED WITH Prejudice 2. Proceedings will be NULLIFIED 3. Court will issue appropriate penalty to Plaintiff

Answer 66

The court shall ORDER the Plaintiff to Cause the Service of Summons by OTHER MEANS such as - Summons by Publication.

Answer 67

Summons will remain valid until it is DULY SERVED or its; a) recalled b) destroyed or c) lost In case of loss or destruction of summons, upon motion, the court may issue an alias summons. An alias summons is merely a CONTINUATION of the original summons. There is failure of service after unsuccessful attempts to personally serve the summons on the defendant IN HIS address INDICATED in the complaint

Answer 68

A. Personal Service: By HANDING a copy to the defendant in person and INFORMING him that he is being served summons. If he Refuses, serve it by LEAVING the summons within his View & presence. B. Substituted Service (modes): Res>Ofc>Sekyu>>email If summons could NOT be Served in Person because of his Absence at the stated address (3x attempts on 2x different dates), summons can be served by: A) LEAVING copies of the summons at the Defendants Residence WITH SOME PERSON of Suitable Age & discretion RESIDING therein. OR B) LEAVING copies at Defendant's office or Regular place of business with some competent person in charge thereof. C) Leaving copies with Any of the OFFICERS of the HOMEOWNERS ASSOCIATION or CONDOMINIUM corporation, or its CHIEF SECURITY OFFICER. OR D) By sending an electronic mail to the defendant's electronic mail address, IF ALLOWED BY COURT.

Answer 69

1. Impossibility of Prompt Personal Service 2. Specific details in the return (re: attempted personal service narration of efforts) 3. SAD- Person of suitable Age & Discretion 4. CPiC- Competent person in Charge - if done at defendant's office or business

Answer 70

When persons associated in an entity without juridical personality are sued , service may be made upon ALL Defendants by SERVING UPON ANY of them.

Answer 71

The JAIL WARDEN, not the Sheriff , will serve summons on the prisoner-defendant and JW will prepare the Return within 5 calendar days from service to prisoner-defendant.

Answer 72

Service may be made through Methods WHICH ARE CONSISTENT with Established International conventions to which the RP is a party.

Answer 73

Service must be made on: A) the Minor AND his parent/legal guardian B) the Insane/Incompetent AND his Guardian ad LITEM Plaintiff is NOT required to file a SEPARATE action to secure a Guardian ad litem. Plaintiff can secure the appointment in the SAME case

Answer 74

When spouses are Sued JOINTLY, service of summons should be made to each spouse INDIVIDUALLY.

Answer 75

An action in personam is an action against a person Based on his PERSONAL LIABILITY. In this case, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. An action in rem is an action against the thing itself instead of against the person, while an action quasi in rem is one wherein an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. In both actions, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court, provided that the court acquires jurisdiction over the res. Jurisdiction over the RES is acquired either: 1) by the SEIZURE of the property under legal process, whereby it is brough into actual custody of the law; or 2) as a result of the iNSTITUTION of legal proceedings, in which the power of the court is recognized and made effective. Nonetheless, SUMMON must be SERVED upon the defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirement.

Answer 76

This defendant must be PERSONALLY SERVED with summons in accordance with the Rules of Court. If she could not be personally served with summons within a reasonable time, SUBSTITUTED SERVICE may be EFFECTED.

Answer 77

The sheriff cannot on the first attempt to serve the summons to the WIFE, leave the summons addressed to the wife to the latter's husband as this would be deemed improper substitute service of summons. This constitutes DENIAL of DUE PROCESS from want of a valid service of summons warrants the ANNULMENT of the JUDGMENT of the TRIAL COURT. General rule is that When spouses are sued JOINTLY, service of summons should be made to each spouse INDIVIDUALLY.

Answer 78

The amended provision no longer limits the service of summons on domestic private juridical entities through its : 1. President 2. Managing partner 3. General manager 4. Corporate secretary 5. Treasurer or 6. In-house counsel In case of their absence, it can be served on Their Secretaries. Note that service to secretaries is NOT SUBJECT to the requirement that summons was attempted to be served at least 3 attempts on 2 different dates. If service still could not be made to these secretaries, summons can be served upon the person who customarily receives the correspondence for defendant at its principal office. Service of summons through electronic means can be resorted to only when summons could not be served on all above persons DESPITE at least 3 attempts on 2 different dates.

Answer 79

A counsel can now be deputized to serve summons to his client. The concept of special appearance (in which a party makes a special appearance to challenge the court's jurisdiction over the defendant) which is NOT considered as submitting to court's authority - is NO LONGER Applicable!

Answer 80

A. Summons may be served on foreign private-juridical entity doing business in the Philippines through the following: 1. Its resident agent designated in accordance with law for that purpose 2. The government official designated by law to receive summons OR 3. Any of its officers, agents, directors, or trustees within the Philippines B. Summons may be served outside of the Philippines on a foreign private juridical country not locally registered or which has not appointed a resident agent WITH LEAVE OF COURT 1. By Personal service coursed through the appropriate court in the foreign country with Assistance of DFA 2. By PUBLICATION once in a newspaper of GC in the foreign country where defendant may be found AND by sending a registered mail to defendant's last known address 3. By facsimile 4. By electronic means with prescribed proof of service 5. By other means the court may order.

Answer 81

A. Defendant is Republic of the Phil - serve it to the Solicitor General B. Defendant is a Province LGU - to the Governor C. City, Municipality, or Baranggay - serve summons to the Mayor

Answer 82

Service may be made by Publication in a Newspaper of GC Requirements: 1. Unknown defendant or unknown whereabouts 2. Can not be determined by diligent inquiry WITHIN 90 days from action 3. With Leave of court

Answer 83

PS P Extra territorial service of summons is proper when defendant does NOT Reside and Not Found in the Philippines AND A. Action affects the Personal STATUS of Plaintiff or B. Subject matter is a PROPERTY of defendant WITHIN the Philippines or C. Relief demanded is to Exclude defendant from any interest Or D. Property of Defendant has been Attached within the Philippines.

Answer 84

The normal method of service of summons on one temporarily absent is by SUBSTITUTED SERVICE because a) Personal Service Abroad and b) Service by Publication are NOT Ordinary means of summoning defendants.

Answer 85

Service of Publication may be authorized with Prior Leave of Court in the following instances: 1. Service upon Foreign Juridical entities NOT Registered in Philippines or NO resident agent BUT a. have Transacted in the Philippines or b. Doing Business in the Philippines. 2. Service upon defendants whose identity or whereabouts are UNKNOWN 3. Extra-territorial service of summons; and 4. Service upon residents temporarily OUTSIDE the Philippines.

Answer 86

The proof shall be Made in Writing by the SERVER and Shall SET FORTH the Manner, Place, & Date of service If summons was served by electronic mail - a 1) printout of said email, 2) a copy of the summons as served, AND 3) Affidavit of the person mailing Shall be Proof of the service.

Answer 87

Service by Publication may be proved by The affidavit of the Publisher/Editor/or Advertising manager plus A copy of the Publication plus affidavit showing the deposit of summons in the post office to the defendant;s last known address

Answer 88

A motion is an AFaR application for a Relief OTHER THAN by a Pleading. Kinds of motion as to form: a. Written motion; and b. Oral motion (bench motion) - which must be Resolved AFTER the other party is Heard A motion shall STATE a) the Relief asked from the court AND b) the Grounds it is based from AND c) if required to prove the allegations therein, shall be accompanied by AFFIDAVITS

Answer 89

A. The court may HEAR the matter on affidavits or depositions. B. But the court may DIRECT that the matter be HEARD on ORAL testimony or Deposition

Answer 90

NLM are motions which the court may act on WITHOUT HARMING the rights of opposing party. In NLM, the court may in its discretion, CALL a Hearing for its resolution. NLMs 1. Motion for issuance of 'Alias summons' 2. Motion for extension to file an answer 3. Motion for Postponement 4. Motion for issuance of a writ of execution 5. Motion for issuance of 'Alias writ of execution' 6. Motion for issuance of a writ of possession 7. Motion for issuance of an order directing the sheriff to execute the final certificate of sale 8. other similar motions

Answer 91

It is the court that will determine whether the LM Need to be Set for Hearing. Failure to SERVE Notice on the adverse party renders the LM a mere scrap of paper. LM shall be served a) by Personal service, b) by accredited Private courier, or c) by registered mail, or d) by electronic means - To Ensure RECEIPT by other party. 5/15 DAYS - within 5 days to file opposition; 15 days from opposition to Resolve the motion.

Answer 92

The court in setting the motion for hearing, will set it on a Friday.

Answer 93

Under this rule, ALL available OBJECTIONS MUST be INCLUDED in the party's motion. Otherwise, said objections shall be DEEMED WAIVED. Exception to this rule: The only grounds the court could take cognizance of, even if not pleaded in said motion are: a) Lack of Jurisdiction over the subject matter b) Litis pendentia - another pending action for same cause, same parties c) Res judicata - a bar by prior judgement ( or due to statute of limitations)

Answer 94

Rule 1 - The motion for leave shall be ACCOMPANIED by the Pleading or the Motion sought to be admitted. Rule 2 - The rules applicable to pleading shall apply to WRITTEN MOTIONS so far as concerns caption, designation, signature, & other MATTERS OF FORM.

Answer 95

A motion to dismiss is a Prohibited Pleading, unless it is based on any of the following grounds: 1) The court has no jurisdiction over the subject matter of the claim; 2) There is another action pending between the same parties for the same cause; and 3) The cause of action is barred by a prior judgement or by the statute of limitations Note: These 3 are the same grounds for Dismissal of Complaint MOTU PROPRIO Laches must be RAISED as an AFFIRMATIVE defense, not in a motion to dismiss. It must be proven Positively wherein both parties have the chance in a hearing to prove their claims and defenses.

Answer 96

1) Dismissal of a case with prejudice bars the refiling of a complaint, unlike the dismissal of a case without prejudice. 2) Where the law permits, a dismissal with prejudice is subject to the right of appeal. 3) Dismissal due to the grounds of a) res judicata; b) bar by statute of Limitations or Statute of Frauds; or by c) Claim has been paid/waived/abandoned - is a Dismissal WITH PREJUDICE.

Answer 97

M2D is Generallly prohibited Limited to 1. Lack of J over subj mat 2. Pending another action LP 3. COA barred by priorJ or StatLimtn Conduct summary hearing if M2D raised in affirmative answer

Answer 98

A complaint may be dismissed as a MATTER OF RIGHT: a) Before the Service on plaintiff of the Answer (from Defendant) or b) Before the Motion for Summary Judgment HOW: By Filing a Notice of dismissal EFFECT: The court shall issue an order CONFIRMING the dismissal & The dismissal is WITHOUT PREJUDICE The dismissal will no longer be a matter of right - if the plaintiff who has ONCE DISMISSED in a competent court an action based on or including the SAME claim.

Answer 99

In this case, the dismissal shall be LIMITED to the Complaint. A dismissal of the action is Different from a mere dismissal of the complaint. Hence, defendant may still prosecute his counterclaim in the same action even the complaint here was dismissed already. Within 15 days from notice of motion to dismiss by Plaintiff, the Defendant is required to file a Manifestation to prosecute his counterclaim because after the 15 day period, the dismissal of the complaint PREVENTS further proceedings.

Answer 100

The court may dismiss a complaint in case there are no justifiable reasons for plaintiff's absence during the presentation of the evidence-in-chief.

Answer 101

Pre-trial is a procedural device intended to CLARIFY and LIMIT the basic issues between the parties. Its main objective is to simplify, abbreviate and expedite the trial, or totally dispense with it. After the Last Responsive pleading has been Served & Filed, the branch clerk of court shall ISSUE, within 5 calendar days from filing, - a notice of pre-trial. Note: The last responsive pleading is not necessarily the answer. It may be the reply or the Rejoinder if defendant denied the due execution and authenticity of an actionable document attached in the reply. Issues must be joined before pre-trial can be scheduled. Issues are joined when all the parties have pleaded their respective theories.

Answer 102

PreTrial is Mandatory and should be completed ASAP through the partie's Pre-Trial Briefs. Failure to submit these briefs is a ground for Dismissal of the case with Prejudice. Purpose/Objectives are to -Possibility of Settlement or - ADR and - to Simplify-Shorten-SpeedUP the Trial. Judicial admissions can be Disputed ONLY upon showing that a) it was made through mistake or b) No such admissions were made.

Answer 103

Documents identified and marked as exhibits during pre-trial or trial but which were not formally offered in evidence cannot in any manner be treated as evidence. No evidentiary weight or value.

Answer 104

Reservation evidence is now expressly allowed subject to the following conditions: a) For Testimonial evidence - by giving name of proposed witness and nature of the testimony b) For Documentary evidence and Object evidence - by giving a particular description of the evidence No reservation is allowed if not described as above.

Answer 105

1. Failure of Plaintiff and counsel without valid cause = Dismissal of the action with Prejudice 2. Failure of Defendant and counsel = Plaintiff may present evidence EX PARTE and Court can render Judgment based on these evidence. 3. Failure without just cause of a party to bring the evidence requested = waiver of the presentation of that evidence eg. not allowed to be presented in court.

Answer 106

The NOTICE will set the dates for 1. Pre-trial 2. CAM - court annexed mediation 3. JDR - judicial dispute resolution

Answer 107

1. Concise statement of the case & reliefs prayed for 2. Summary of admitted facts 3. Main Factual issues and Legal issues 4. Referral of factual issues to Commissioners 5. Other Object evidence 6. Names of witnesses & summary of their testimonies 7. Statement of the applicable law

Answer 108

1. Admitted facts 2. Minutes of pre-trial Conference 3. Issues to be tried (Factual & Legal) 4. Applicable law, rules, & jurisprudence 5. Evidence MARKED 6. Specific TRIAL Dates 7. Case Flowchart up to Promulgation 8. Statement that these rules are followed; a. One Day Examination of witness rule & b. Most Important Witness rule 9. Statement that the court may render a. Judgment on the Pleadings or b. Summary Judgment as the case may be.

Answer 109

After court has acquired jurisdiction of the case, it will refer parties to mandatory Court annexed mediation which i any mediation process under the guidance of the court. Period for CAM shall not be more than 30 days. Information obtained through mediation shall be privileged and confidential and not subject to discovery. Hence, mediator may not be called to testify. Exception: a) if authenticated by all parties; b) if available to the public; c) a Plan to commit a crime; d) child protection matter; e) professional misconduct

Answer 110

Under Civil code 1. civil status of persons 2. validity of marriage or legal separation 3. ground for legal separation 4. future support 5. jurisdiction of courts 6. future legitime

Answer 111

Referral to JDR is not a matter of right because it is only resorted to when the judge handling the case is CONVINCED that settlement is still possible - hence the case will be referred to ANOTHER court for JDR. Matters discussed like in CAM are confidential. If JDR fails, trial before the original court shall proceed.

Answer 112

In the course of the pre-trial proceedings, court may order that the case be submitted for a) Summary Judgment or b) Judgment on the Pleadings WITHOUT NEED of position papers. This order cannot be subject to Appeal or Certiorari. Remedy available against this order is Motion for Reconsideration.

Answer 113

Intervention is a remedy by which a 3rd party (not originally part of the proceedings) becomes a litigant therein TO PROTECT his RIGHT or Interest affected by those proceedings. WHEN allowed : Movant must Move BEFORE rendition of judgment because Intervention is an ANCILLARY action supplemental to an existing litigation. Exception: a) for higher interest of justice; b) to afford Indispensable parties not impleaded, to have the right to be heard; c) to avoid grave injustice or d) due to a Grave legal issues involved - all subject to sound discretion of the court. Intervention is not a matter of right but instead subject to the sound discretion of the courts.

Answer 114

Intervenor shall file a Cii if he asserts a claim against either or all of the original parties or Answer in intervention if he unites with the defending party to resist a claim. The answer to cii shall be filed within 15 days from notice of Order admitting the same.

Answer 115

1. The clerk of court KEEPS a calendar of cases for pre-trial, for trial , adjourned cases, postponements and those motions set for hearing. Preference given to cases for a. Habeas corpus b. Election & c. Special Civil Action 2. In an open session, Clerk of court uses a system to raffle the assignment of the case to a particular branch of the court.

Answer 116

AdTest - compels att Testimony - no reqs on relevancy DucesTecum -compels Prodctn of Document -documnt must be relevant

Answer 117

Judge or Clerk Court

Answer 118

Signed by Clerk or Judge Seal and Name of court Title of the Action Directod to a person Specify time and place for A. Attendance B. Production of documents

Answer 119

A subpoena Duces Tecum once issued may be Quashed upon motion if: a) issuance thereof is unreasonable & oppressive or b) books & documents are not relevant ( as to SDT) or c) party requesting subpoena failed to pay the cost of its production. Requests by a party for the issuance of subpoena do not require notice to the other party. No violation of due process results by such lack of notice since the other parties would have ample opportunity to examine the witnesses and documents subpoenaed once they are presented in court. Books and documents sought to be produced must contain evidence Relevant & Material to the issue. Also, it must be adequately described that it can be identified.

Answer 120

A subpoena for depositions is a legal document issued by a court requiring an individual to appear and provide testimony in a legal proceeding. Depositions are part of the pre-trial discovery process in which witnesses, including the individual being subpoenaed, are questioned under oath by attorneys. The purpose is to gather information, preserve evidence, and obtain a preview of potential testimony.

Answer 121

A subpoena may only be SERVED/FILED a) personally by sheriff or b) by substituted service. OR by registered mail or electronic mail IF PERMITTED by court.

Answer 122

In case of failure of a witness to attend, the court may issue a warrant to the sheriff to ARREST the witness & BRING him before the court. Failure by any person without adequate cause to obey the subpoena shall be deemed a CONTEMPT of court. These shall not apply to a Defendat witness who a) RESIDES more than 100 km from residence to court or to a b) detention prisoner if there is no permission from the court.

Answer 123

The day of the event begins to run is excluded while the date of performance is included. If the last day is Saturday or Sunday or Holiday, the time shall not run until the next working day.

Answer 124

DIPAM Depositions pending action Interrog to parties Prod Insp of Documents or Things Admission by adverse party Mental & Physcl Examntn of Persons Depositions Before Action

Answer 125

Provisional remedies include: Preliminary Attachment: A remedy that allows a creditor to attach or seize the property of the debtor during the pendency of the main case. Preliminary Injunction: A court order restraining a party from performing a particular act or compelling a party to continue a specific action during the litigation. Receivership: The appointment of a receiver to take possession and control of the property, assets, or business involved in the case. Replevin: A remedy to recover possession of personal property taken or detained from the owner unlawfully. Support Pendente Lite: Provisional support granted to a spouse or child during the pendency of the case. Production or Inspection of Documents or Things: A remedy allowing a party to request the production or inspection of documents or things in the possession of the adverse party. Ex-Parte Orders: Orders issued by the court without notice to the adverse party in situations where delay could cause irreparable harm. Hold Departure Order (HDO): A court order restricting the departure of a person from the country. Stay of Execution: A remedy seeking to stop the enforcement or implementation of a judgment or order. Support Pendent Elite in Annulment of Marriage Cases: Provisional support granted to a spouse or child in cases involving the annulment of marriage.

Answer 126

Examples of special civil actions: Certiorari: A remedy seeking the review and annulment of judgments or final orders of quasi-judicial agencies, boards, or officers. Prohibition: A legal action aimed at preventing the commission or continuance of an act that is about to be done. Mandamus: A remedy compelling the performance of an act required by law. Quo Warranto: An action to determine the right to hold a public office and oust an ineligible or unauthorized person from the position. Expropriation: A legal process for the government or a private entity to acquire private property for public use. Foreclosure of Real Estate Mortgage: Involves the judicial sale of mortgaged property to satisfy a debt. Partition: Concerns the division and distribution of co-owned properties among co-owners. Injunction: A remedy that prohibits a party from doing a particular act. Interpleader: Allows a person holding property claimed by multiple parties to compel them to litigate their claims among themselves. Declaratory Relief: A remedy seeking a judicial declaration of the parties' rights or duties in a justiciable controversy.

Answer 127

Special proceedings include: Probate Proceedings: Pertaining to the settlement of the estate of a deceased person. Guardianship Proceedings: Involving the appointment of a legal guardian for minors or incapacitated persons. Adoption Proceedings: Governing the adoption of children. Rescission and Revocation of Adoption: Covering the annulment or revocation of adoption. Habeas Corpus Proceedings: Concerning the writ of habeas corpus to protect a person's liberty. Change of Name: Involving the change of name of a person. Voluntary Dissolution of Corporations: Regarding the dissolution of corporations. Settlement of Estate in Extrajudicial Proceedings: Pertaining to the extrajudicial settlement of estates. Notarial Proceedings: Governing the rules for notaries public. Rehabilitation of Insolvent Debtors: Concerning the rehabilitation of individuals facing insolvency.

Answer 128

Substituted service of pleadings with the clerk of court and substituted service of summons are both mechanisms in the Philippine legal system for ensuring that parties are notified of legal actions. Here are three key differences and similarities, including how each is executed: ### Key Differences 1. **Purpose**: - **Substituted Service of Summons**: This is specifically designed to notify a defendant of the initiation of a lawsuit, establishing the court's jurisdiction over the defendant. It is crucial for ensuring that the defendant is aware of the legal action against them. - **Substituted Service of Pleadings**: This pertains to serving documents related to ongoing proceedings (like motions or complaints) when the party cannot be reached directly. It ensures that parties are informed of developments in the case but does not establish jurisdiction. 2. **Execution Process**: - **Substituted Service of Summons**: If personal service fails after at least three attempts on different days, service can be executed by leaving copies of the summons at the defendant's residence with a person of suitable age and discretion or at their office with a competent person in charge (Rule 14, Section 8). Alternatively, it can be served electronically if permitted by the court. - **Substituted Service of Pleadings**: If personal service is not possible, a copy of the pleading can be left with the clerk of court, along with proof of the failure of both personal service and service by mail (Rule 13, Section 6). This service is complete upon delivery to the clerk. 3. **Legal Consequences**: - **Substituted Service of Summons**: Improper execution may lead to the court lacking jurisdiction over the defendant, potentially rendering subsequent proceedings void. - **Substituted Service of Pleadings**: While improper service may delay proceedings, it does not typically affect the court's jurisdiction over the parties involved. ### Similarities 1. **Mechanism for Notification**: Both substitute services aim to ensure that parties are adequately notified of legal actions or developments, thereby upholding the principles of due process. 2. **Use of Competent Persons**: Both services allow for leaving documents with a competent person at the defendant's residence or office when the primary party cannot be reached. This ensures that someone responsible can receive the documents on behalf of the party. 3. **Electronic Service**: Both substitute service of summons and pleadings can include electronic means of service, contingent upon court approval. This modern approach facilitates quicker communication and acknowledgment of documents. ### Examples - **Substituted Service of Summons**: If a defendant cannot be served personally after three attempts, the process server may leave the summons with a family member at the defendant's residence or with a competent employee at their office. This allows the court to proceed with the case against the defendant. - **Substituted Service of Pleadings**: If a plaintiff needs to serve a motion but cannot reach the defendant directly, they may leave a copy of the motion with the clerk of court, along with proof of the failed attempts at personal service. This action ensures that the court has a record of the attempt to serve the motion. These distinctions and similarities highlight the procedural nuances in the Philippine legal system regarding the service of legal documents.