Rem Civil Procedure R6 - R35 Flashcards

Question 1

Q

Define Pleadings

Ws of c/d

Answer

A

Pleadings are the Written StatementS of the respective CLAIMS and DEFENSES of the parties

SUBMITTED

to the court for appropriate JudgmeNt.

These are the Written ALLEGATIONS of what is affirmed from one side or denied on the other side (Rogers v Dick 1963)

Question 2

Q

Which pleadings will a party assert his claims?

5
Com coun cr 3/4 cii

Answer

A

Claims of a party are asserted in
1. Complaint or
2. Counterclaim
3. Cross-claim
4. 3rd 4th-party complaint or in a
5. Complaint-in-intervention

Question 3

Q

When is Reply necessary?

What is the purpose of a Reply?

When is a Reply NOT Needed?

Founded
Denying

Answer

A

Reply is only required when the Answer is Founded on an ACTIONABLE Document.

Reply is for the purpose of DENYING the (1) due execution and (2)authenticity of the document under oath.

If Actionable Document is admitted, there is NO NEED to file a Reply.

Question 4

Q

What is an Actionable Document? How may it be pleaded?

-actionable documents refer to written instruments that can be the basis of claims or defenses in a legal proceeding.

Eg. Invoices, contracts, police report, medicals

Answer

A

An actionable document is a Written Instrument or Document on which an action or defense is FOUNDED.

It may be pleaded in either of two ways:
A. by setting forth the SUBSTANCE of such document in the pleading and attaching the document thereto as an ANNEX
or
B. by setting forth said document VERBATIM in the pleading.

Question 5

Q

Under Pleadings, what is the Answer document?
Does it require a response?

The D of a P
Pleading SF his D

Answer

A

The DEFENSES of a party are Alleged in the Answer to the Pleading asserting a claim against him or her.
An answer is a pleading in which a DP Defending Party SETS FORTH his or her defenses.

An answer may be responded to by a Reply ONLY IF
the defending party attaches an Actionable Document to the Answer.

By express provision of the law, the actionable document should be attached to the answer.

Question 6

Q

What is a complaint?
What needs to be stated in it?

Allgng Coa

Answer

A

The complaint is the pleading alleging the (1) Plaintiff’s or (2) Claiming party’s cause or causes of action COA.

The Names and Residences
of the plaintiff and defendant must be stated in the complaint.

Question 7

Q

Can a Plaintiff file an Answer (type of pleading)? explain

Answer

A

A plaintiff may file an answer because the will be a defending party to the defendant’s Permissive COUNTERclaim.

Question 8

Q

What are the 2 categories of Defenses? Define.

ND - denial of mf Essntl
AD - Allgtn of NM hypo Prevnt

Answer

A

Defenses may either be Negative or Affirmative

A. A negative defense is the specific DENIAL of the material FACTS Alleged in the pleading of the claimant essential to his or her COA cause of action.

B. An affirmative defense is an ALLEGATION of a NEW MatteR which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless PREVENT or BAR recovery from him or her.
Affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance.

Affirmative defenses may also include GROUNDS for the DISMISSAL of a complaint, specifically:
1. that the court has NO Jurisdiction over the Subject Matter
2. that there is another Pending action between the SAME parties for the same cause, or
3. that the action is BARRED by a prior judgment.

Question 9

Q

What is a Counterclaim?
Why are they allowed? (Purpose) Exception to the rule.
Conditions

Answer

A

A counterclaim is Any CLAIM which a DP defending party may have AGAINST an opposing party.

They are generally allowed in order to AVOID a MULTIPLICITY of Suits and to FACILITATE the Disposition of the Whole controversy in a Single action (such that the defendant’s demand may be adjudged by a counterclaim rather than by an independent suit.

The only limitations to this principle are (1) that the court should have jurisdiction over the subject matter of the counterclaim and (2) that it could acquire jurisdiction over thirds parties whose presence is essential to its adjudication (Lafarge Cement vs Continental cement 2004)

Question 10

Q

When is Compulsory counterclaim be barred?

Answer

A

A compulsory counterclaim NOT RAISED in the SAME ActiON is BarreD, unless otherwise provided by the Rules.

Question 11

Q

What is a compulsory counterclaim?

Answer

A

A compulsory counterclaim is one which,
being cognizable by the regular courts of justice,
(1) arises out of or is CONNECTED with the transaction or occurrence
constituting the SUBJECT MATTER of the opposing party’s claim
and (2) does NOT REQUIRE for its adjudication
the PRESENCE of 3RD parties of whom the court CANNOT acquire JurisdictiON.

Such a counterclaim must be within the jurisdiction of the court both as to
(1) the amount and
(2) nature thereof, except that in
an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount.

Question 12

Q

What are the 2 types of counterclaim? Define. Differentiate.

2reqs for Cc

Answer

A

A counterclaim may either be Permissive or Compulsory.

It is Permissive if it did NOT arise out or is not necessarily connected with the subject matter of the opposing party’s claim. A permissive counterclaim is essentially an INDEPENDENT CLAIM that may be filed Separately in another case.

A CC is a ctrCLm w/c arises out of or is necessarily connected with the STO same transaction or occurrence w/c is the subject matter of the opposing party claim and (2) does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

IMPT: Unlike permissive counterclaims, compulsory counterclaims should be SET up in the SAME action; otherwise they would be barred forever.

Question 13

Q

What are the 4 indicators that a counterclaim is Compulsory?

Answer

A

The criteria to determine whether the counterclaim is compulsory or permissive are as follows:
(1) Are issues of facts and law raised by the Claim and Counterclaim largely the Same?
(2) Would res judicata bar a subsequent suit on defendant’s claim, absent the compulsory rule?
(3) Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim?
(4) Are there any logical relations between the claim and the counterclaim?
A positive answer to all these questions would indicate that the counterclaim is compulsory. (Bungcayao vs Fort Ilocandia 2010)

Question 14

Q

Certificate of Non-Forum Shopping - relation to counterclaim?

Answer

A

A compulsory counterclaim does NOT require a certificate of non-forum shopping because a compulsory counterclaim is not an initiatory pleading.

Question 15

Q

Docket fees - relation to permsv counterclaim?

Answer

A

The rule in Permissive counterclaim is that for the trial court to ACQUIRE JURISDICTION, the counterclaimant is bound to PAY the prescribed DOCKET fees. Since petitioner FAILED to Pay the docket fees, the RTD did NOT acquire jurisdiction over tis permissive counterclaim.

Question 16

Q

What is a X crossclaim?

Answer

A

Any claim by
one party against a CO PARTY
arising out of the
SAME Transaction or occurrence

that is the subject matter either of the original action or a counterclaim therein.

Such crossclaim may cover All or Part of the original claim.

Question 17

Q

Explain
1. counter-counterclaims
2. counter-crossclaims

Answer

A

A counterclaim may be asserted against an original counterclaimant.

A crossclaim may also be filed against an original cross-claimant.

Question 18

Q

What are the principles to note for a Reply (by the plaintiff)?

GR Not reqrd coz ANM in the A are D D
Exc

Answer

A

As a rule, there is no need to file a reply since ALL new matters raised in the Answer are DEEMED Denied or refuted.

It is only when there is a NEED to DENY the a. due execution and b. authenticity of an actionabe document that a filing of a reply becomes imperative.

Failure to file a reply will give rise to a TECHNICAL ADMISSION as to the Due Execution and Authenticity of the document.

If the Plaintiff wishes to interpose any claims arising out of the new matters alleged in the Answer, then the Plaintiff shall ALLEGE these in an AMENDED OR SUPPLEMENTAL complaint.

Question 19

Q

When there are new matters alleged in the Answer (from the defendant) and the plaintiff wishes to interpose any claims from those new matters - what should P do?

Answer

A

Plaintiff must allege those claims (arising out from the new matters in the Answer of defendant) in an Amended or Supplemental COMPLAINT.

Question 20

Q

What is a third-party complaint?

Not a party for CISO

Answer

A

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 3rd party defendant,
for CISO contribution, indemnity, subrogation or any other relief,
in respect of his opponent’s claim.

Question 21

Q

What are the grounds for the court to deny the filing of a third-party complaint?

Answer

A

The third-party complaint shall be denied admission, and the court shall require the defendant to institute a separate action where;
a. the 3rd party Defendant can NOT be LOCATED within 30 calendar days from the grant; or
b. matters OUTSIDE the issue in the principal case were raised; or
c. the effect would be to introduce a NEW and separate CONTROVERSY into the action.

Question 22

Q

What are the requirements for the filing of a THIRD-PARTY action?

Answer

A

Party to be impleaded was NOT YET a party to the action;
Claim against the 3rd party Defendant must BELONG to the Original Defendant;
Claim of the Original Defendant AGAINST the 3rd party Defendant must be BASED upon the Plaintif’s Claim against the Original Defendant; and
Defendant is attempting to TRANSFER to the 3rd party Defendant the liability asserted against him by the original Plaintiff;

Question 23

Q

State the rule on Bringing new parties to the case

For comp rel in 1 actn
&
Prev mult of S

Answer

A

The prerogative of bringing in new parties to the action At Any Stage BEFORE JUDGMENT is intended to (1) BRiNG COMPLETE RELIEF to all of them in a Single action and (2) to PREVENT multiplicity of suits.

Question 24

Q

Parts and Contents of a Pleading
What is the caption?

NTD

CapTIBRA A

Answer

A

The caption sets forth -
a. the Name of the court
b. the Title of the action
c. and the Docket Number if assigned.

The office of the caption is to declare the purpose of the acts, and if the matter mentioned in the caption is not contained in the body of the act, it is merely surplusage, and does not affect the matters set forth in the act.
Captions are purely formal and may be amended.

Question 25

Q

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

What is the Paragraph?

What is the Heading?

Answer

A

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.

Question 26

Q

How do you determine whether an action is one the subject matter of which is INCAPABLE OF PECUNIARY ESTIMATION?

Nat
Rel

Answer

A

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 <OTHER> the Right to Recover A SUM OF MONEY, where the <Money> to, or a CONSEQUENCE of the Principal Relief sought, such action belongs to the jurisdiction of the RTC.</Money></OTHER>

Question 27

Q

SIGNATURE

Every pleading & other written submission to the court must be SIGNED by the party (or his counsel).

When a lawyer affixes his signature - what does the lawyer guarantees (5)?

read
BeKi - purp, w byL, evidSup

Answer

A

That the lawyer has READ the pleading and document.
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

Question 28

Q

SIGNATURE

If the court determines that the rule on the 5 guarantees of the lawyers signature has been violated, what are the consequences?

Answer

A

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.

Question 29

Q

VERIFICATION

When is a pleading considered as Verified = A read & TC?

What is the purpose of verification of pleadings?

What happens if the verification is defective?

Affiant is the person making the signed statement.

Verif - Affiant
Read Trucor notF faes

Answer

A

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.

Question 30

Q

CERTIFICATION AGAINST FORUM SHOPPING

What is Forum Shopping? 3 ways of committing Forum shopping?
What should be attached to the Pleading?

Days mean calendar days which include Saturday, Sunday, and Holidays.
GR All plaintiffs must sign the CAFS except if All share a Common COA/Defense. An example is a Husband who signed on behalf of his wife - this is valid.

Answer

A

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.

Question 31

Q

CERTIFICATION AGAINST FORUM SHOPPING

Who can sign the 1) Verification and 2) CAFS without need of a board resolution?

Answer

A

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

Question 32

Q

CONTENTS

What are Ultimate Facts? State the rule on UA.

Vs evidtry facts

EsF in COA

Answer

A

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.

Question 33

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING

State the Rule on Ultimate Facts.
State the rule if the COA/Defense is based on law.

ML form

Answer

A

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.

Question 34

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING
Conditions Precedent

In any pleading, the conditions precedent must be alleged. Explain.

Answer

A

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…

Question 35

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING

Conciliation - Precondition to Filing of Complaint in Court

Answer

A

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

Question 36

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING
Capacity

Lack of LEGAL Capacity to sue vs Lack of < > Capacity to sue

Eg. Disability to Sue
Specfc to the case vs GenDis

Answer

A

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.

Question 37

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING
Fraud, Mistake, condition of the mind

Which allegations must be alleged with particularity?

Which must be alleged Generally?

CaFraMis
ConJuMaCokwL

Answer

A

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

Question 38

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING
Judgment

When pleading a
a) judgement
b) decision of a court (foreign or local), tribunal, or of a board
… how to declare these decisions in the pleading?

Answer

A

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.

Question 39

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING
Judgment

What are deemed public documents?

Public documents are those that are issued by a public officer in the performance of their official duties
or and
those notarized or require pub record

PubDoc more evid weight

Answer

A

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

Question 40

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING
CoA or Defense based on Document

What is the rule when an Action or Defense is Based upon a Written Instrument or Document?

Howtoallege
& DUO

Answer

A

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.

Question 41

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING
CoA or Defense based on Document

What is the effect when there is an ADMISSION of the Genuineness & Due Execution of a Document?

Removes ANY Defense against DE & A
VolSig
Form… are Waived

Answer

A

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.

Question 42

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING
How to contest the document which is the basis of an Action or Defense?

Note that the failure to deny the DE & Authenticity of an Actionable Document would result to the admission thereof.

Answer

A

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.

Question 43

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING

Official document or Official Act
How p?

Rule

Answer

A

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

Question 44

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING
Specific Denial (by defendant)

State the rule

Id the All not Admtd & provide sup

Answer

A

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.

Question 45

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING
Allegations not specifically denied deemed admitted

Rule

Answer

A

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

Question 46

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING

Affirmative Defenses - state rule
What else includes affirmative defenses? R6 R8

What is confession of judgment?

Answer

A

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.

Question 47

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING

When Affirmative Defense is RAISED by DEFENDANT - what will be the action of the court?

Res 30
If G ia… SumHear 15d

Answer

A

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

Question 48

Q

R8 MANNER OF MAKING ALLEGATIONS IN PLEADING

Striking out of Pleading or striking out a matter contained therein
Basis?

Answer

A

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

Question 49

Q

R9 EFFECT OF FAILURE TO PLEAD
Defenses & Objections NOT PLEADED

Even after an Answer, what instances can a defendant file a Motion to Dismiss?

Answer

A

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

Question 50

Q

R9 EFFECT OF FAILURE TO PLEAD
Compulsory Counterclaim or Cross-Claim, if Not SET UP is BARRED

Effects?

Answer

A

WAIVED if Not Raised

Question 51

Q

R9 EFFECT OF FAILURE TO PLEAD
Declaration of Default

Answer

A

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

Question 52

Q

R9 EFFECT OF FAILURE TO PLEAD
Declaration of Default

What is a Default Judgement?

F2A

Answer

A

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

Question 53

Q

R9 EFFECT OF FAILURE TO PLEAD
Declaration of Default

What is the Effect to the Defendant?
Motion to set aside Default Order - rule

Answer

A

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.

Question 54

Q

R9 EFFECT OF FAILURE TO PLEAD
Declaration of Default

Defendant declared by court in Default - what are the remedies?

Answer

A

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

Question 55

Q

R9 EFFECT OF FAILURE TO PLEAD

Declaration of Default -

Extent of relief to be Awarded

When delayed filing of answer causes NO PREJUDICE to the Plaintiff, Default judgment MUST be Avoided

The Answer filed by A Defendant is AVAILABLE to the Benefit of ALL the Defendants, defaulted or not AND they all share a common fate in the action. This is a safeguard to the Defendant’s RIGHT TO DUE PROCESS

Answer

A

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

Question 56

Q

R10 AMENDED & SUPPLEMENTAL PLEADINGS
Amendments in general

How are pleadings amended?

Answer

A

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.

Question 57

Q

R10 AMENDED & SUPPLEMENTAL PLEADINGS

Amendment as a matter of Right
Amendments by Leave of Court
State the rule

The policy is that amendments to pleadings are ALLOWED in the interests of substantial justice.

Answer

A

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.

Question 58

Q

R10 AMENDED & SUPPLEMENTAL PLEADINGS

What are the grounds to Deny a Motion to AMEND?

Answer

A

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

Question 59

Q

R10 AMENDED & SUPPLEMENTAL PLEADINGS

Can an Amendment to confer Jurisdiction on the court or in order for the complaint to State a Cause of Action ALLOWED?

What is the remedy if the motion to amend is Denied?

Answer

A

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

Question 60

Q

R10 AMENDED & SUPPLEMENTAL PLEADINGS

What are FORMAL amendments?

Answer

A

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 #

Question 61

Q

R10 AMENDED & SUPPLEMENTAL PLEADINGS

What is the effect if ISSUES NOT RAISED by the pleadings ARE TRIED with CONSENT of the parties?

Answer

A

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.

Question 62

Q

R10 AMENDED & SUPPLEMENTAL PLEADINGS
Supplemental Pleadings

Filing of Amended Pleadings
Allowed?

Answer

A

Court may allow supplemental pleadings for

Transactions, Occurrences, or Events

which have happened since date of pleading.

Question 63

Q

R10 AMENDED & SUPPLEMENTAL PLEADINGS
What happens when a pleading is amended?

What is the effect of the amendment to the old pleading? to the admissions in the superseded pleading?

Answer

A

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.

Question 64

Q

R11 WHEN TO FILE RESPONSIVE PLEADINGS

Summary of Periods for Filing Responsive pleadings

Answer

A

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 65

A

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 66

A

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 67

A

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 68

A

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 69

A

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 70

A

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 71

A

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 72

A

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 73

A

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 74

A

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
Substituted service can be RESORTED to AFTER;
a) Failure to personally serve the pleading; AND
b) Failure to serve by Mail.
The service is complete at the time of such delivery - see #2
Clearly, there is no need to resort to these 2 modes BEFORE One can RESORT to SUBSTITUTE SERVICE of pleadings.

Answer 75

A

The parties must agree to have pleadings served either through facsimile or through electronic means
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.
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 76

A

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 77

A

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 78

A

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 79

A

Modes of service of JFOR

Personal service
Registered mail
Publication, if summons was served through publication; and
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 80

A

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

Answer 81

A

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 82

A

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:

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
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.
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
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 83

A

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 84

A

Yes the court may electronically serve ORDERS

BUT Service of Judgments & Final Orders shall be under Rule 13 section 13.

Answer 85

A

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 86

A

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 87

A

Under R8 S12 a, This ground should be RAISED as Affirmative defense in the Answer
Under R8 S12 b, the court shall RESOLVE MOTU PROPIO the aforementioned Affirmative defense Within 30 calendar days FROM Filing of the Answer
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 88

A

Name of the Court and Parties
If allowed by court, Authorization to the Plaintiff to serve the Summons to the Defendant
An order that the Defendant ANSWER within the time allowed
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 89

A

Case DISMISSED WITH Prejudice
Proceedings will be NULLIFIED
Court will issue appropriate penalty to Plaintiff

Answer 90

A

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

Answer 91

A

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 92

A

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 93

A

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

Answer 94

A

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 95

A

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 96

A

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

Answer 97

A

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 98

A

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

Answer 99

A

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 100

A

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 101

A

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 102

A

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 103

A

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 104

A

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

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
By facsimile
By electronic means with prescribed proof of service
By other means the court may order.

Answer 105

A

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 106

A

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 107

A

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 108

A

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 109

A

Service of Publication may be authorized with Prior Leave of Court in the following instances:

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.
Service upon defendants whose identity or whereabouts are UNKNOWN
Extra-territorial service of summons; and
Service upon residents temporarily OUTSIDE the Philippines.

Answer 110

A

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 111

A

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 112

A

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 113

A

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 114

A

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 115

A

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 116

A

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

Answer 117

A

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 118

A

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 119

A

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 120

A

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 121

A

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 122

A

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 123

A

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 124

A

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 125

A

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 126

A

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 127

A

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 128

A

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 129

A

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 130

A

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

Answer 131

A

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 132

A

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 133

A

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 134

A

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 135

A

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 136

A

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 137

A

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 138

A

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 139

A

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
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 140

A

AdTest
- compels att Testimony
- no reqs on relevancy

DucesTecum
-compels Prodctn of Document
-documnt must be relevant

Answer 141

A

Judge or Clerk Court

Answer 142

A

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 143

A

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 144

A

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 145

A

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 146

A

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 147

A

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 148

A

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 149

A

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 150

A

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 151

A

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 152

A

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:

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.
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.
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.

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.
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.
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.

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.

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Rem Civil Procedure R6 - R35 Flashcards

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