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REMEDIAL LAW REVIEW Dean Virgilo Jara Recitation Notes (2012) November 12, 2012 Explain the procedure

in barangay courts. (compare with ordinary civil procedure) - How commenced? - Summons? - Are docket fees also required? In the form of filing fees. - Will there be a trial? - If barangay court dismisses the complaint, what happens? - Can any of the parties back out from their agreement to submit to brgy. Court? Yes. o How is this done? Repudiation within what period? - what powers do the parties agree to give to the brgy. Court? It is akin to that of alternative dispute resolution (ADR) - If the parties fail to settle amicably, what is left for the brgy. Court to do? - (brgy. Court becomes an arbitrator) As an arbitrator, it mayt issue an arbitration award. If the award is not favorable can the parties appeal? Where do they appeal? Does the aggrieved party have a remedy? **Dean Jara: when the parties agree to submit to arbitration before the brgy. Court, the latter becomes a quasi-judicial body and therefore an adjudicatory body. In arbitration, appeal is not a remedy. In domestic arbitration, what is the remedy of the losing party? how does the losing party challenge? File a petition to vacate the award before the RTC. In brgy. Court, can the losing party also file the same petition to vacate the award? NO. because not governed by domestic arbitration act. It is governed by the LGC. (Dean Jara) - what is the remedy of the losing party? Sec. 416 LGC petition to nullify award before the inferior court - to what court does the inferior court refer to? SC: MTC. Although repugnant to BP129. This is one instance where annulment of judgment and award is cognizable by an inferior court. (Dean Jara) - if this annulment resolved is still against the losing party, what is the remedy? Ordinary appeal. Explain how a compromise agreement or arbitral award of the brgy. Court is executed. - in rule 39 execution within a period of 5 years from entry of judgment (dean jara) - in brgy. Court? Within 6 months. What if the 6 months lapses, what happens? Enforced by an action before the MTC. - What properties may be executed/levied upon? Personal properties. - Why are real properties not included? Judgment of the brgy. Court limited to money claims

and if debtors refuse to pay, levy is resorted to. Why is real property excluded? Brgy. Court has no means to ascertain ownership of the real property (dean jara) Is there a ceiling in the LGC as to civil actions that can be brought before the brgy. Court? (as to the amount) What if there are no personal properties to be levied upon? File a petition to enforce award before the MTC. Even brgy. Courts can evict tenants. Even real actions can be subject before the brgy. Courts (dean jara) What is a good reason why real properties cannot be levied upon by the brgy. Court? What are the nuances of execution of real property under rule 39? REDEMPTION OF PROPERTY (there is no redemption of personal property)

What instance requires a reply? When an actionable document is the basis of an answer/included in an answer. What is an actionable document? - How is this pleaded? - What is the duty of the adverse party? deny the same under oath. - Exception of denial under oath? (i) defendant not a party, (ii) order of inspection of document refused. What if the plaintiff fails to file a reply and the same is not denied under oath? - what is admitted in case of failure? Genuineness and due execution of the document i.e. signature on receipt is his genuine signature. - What matters are foreclosed with the failure to file a reply? How is a negative defense manifested? - How is the denial carried out? Specific Denial - State the reasons for the denial - State lack of knowledge sufficient to form a belief as to the truth or falsity of allegations. - Partial denial Ex. I have no knowledge of the allegations in nos. 4, 5, 6 Is that a specific denial? What else must be included in the answer? Is an answer required only when there is a complaint? No. Answer can also be filed in case of a counter claim, cross claim, 3rd party complaint. Do we need an answer as to the other claim pleadings? - will failure to answer the foregoing resul to default?

What are pleadings allowed in ordinary civil procedure? What is a reply? There is a reply when a new matter is set up in the answer. (dean jara) What is an answer? What are the defenses set up? Affirmative and negative defenses. - In a negative defense, there is only a specific denial and no new matter is presented. There is nothing wrong when the defendant sets up an affirmative defense. (dean jara) What are affirmative defenses under rule 6? - sec. 5(b)- not exclusive, substantive law provides for other affirmative defenses. (dean jara)

Failure to answer a counter claim will it result in default? It depends on the kind of counterclaim. If compulsoryno default. If permissive- with default.

Jara Notes: No default in compulsory counterclaim, default in cross claim subject to discretion of the court. How about a cross claim? Is there a need to answer? - what is a cross claim? - There is no cross claim between plaintiffs in a complaint, but there can be a cross claim in case of a counterclaim, because plaintiffs are now defendants in a counterclaim. What is a counterclaim? - what is a permissive counterclaim? Does not arise of nor necessarily connected to the subject matter of the suit. - If an unlawful detainer is pleaded as a counterclaim, can this be heard by the MTC where a complaint for sum of money (300k) is pending? o MTC can hear separately. It can order the case to be heard separately. Both are within the jurisdiction of the court. (Dean Jara) - if collection of sum of money is 800k and there is a counterclaim for unlawful detainer, can it be heard by the RTC? Can there be a dismissal of the counterclaim only? What is a party complaint? - filed with leave of court, must be related to the subject matter of the case. 3rd -

Why? It is for contribution, indemnity, subrogation or any other relief. Can the court allow a 3rd party complaint for acion reinvindicatoria in an action for sum of money of 800k? It depends. If there is no relation, it cannot be allowed, if a relation is shown, it can be allwed. What is the remedy of the 3rd party if his complaint is denied? File a separate complaint.

Signature in a pleading - if lawyer signs, what is the significance? What does he tell the court? He certifies that he has read the pleading, there is a ground, not interposed for delay. - Are there pleadings where the signature of the parties are required? Complaint for nullity of marriage, legal separation, annulment of marriage. What is contained in the certificate against non-forum shopping? What are the risks assumed by a party for giving a certificate against nonforum shopping which is untrue? - there could be dismissal with or without prejudice - when is dismissal with prejudice? When forum shopping was deliberately sought. - What are other sanctions? Indirect contempt, administrative action. If there are 4 plaintiffs and only one sign the certificate against non-forum shopping, is that a violation of the rule? Yes. This is a procedural defect

which cannot be cured by amendment (dean jara) - can the court order its dismissal? It cannot because one plaintif signed (dean jara) - what should the court do? What should the party do? Other plaintiffs can be dropped and proceed with the case as to the plaintiff who signed. As to partial default? one of the defendants answer, the others do not. - is this possible in summary procedure? There is no partial default in summary proceeding (dean jara) motion to declare defendant in default is prohibited in summary proceeding. - In ordinary civil procedure (OCP) the non-answering defendant is declared in default. does this mean that he has already lost? NO. - In partial default, the nonanswering defendant is declared in default, will a judgment in default follow? No. o What is the remedy of the defaulted party? Motion to lift oder of default with affidavit of merit, showing a meritorious defense. What will the court do in summary procedure if one of the defendants do not answer? Rule on default in rule 9 applicable as to partial default. In ordinary civil procedure (OCP), if non-defaulting defendant wins, what is the effect? Defaulted defendant also wins. In civil actions, court may only render one judgment in one case regardless of no. of the causes and no. of defendants.

**Dean Jara: in summary procedure, there is an all embracing provision that the rules of court (ocp) applies suppletorily. Partial default can therefore apply. Complaint for recovery of 800k, defendant declared in default. can the court render judgment right away? Court has 2 options: 1. judgment 2. 2. Require plaintiff to present evidence. Plaintiff presents evidence that he is not only entitled to only 800k but 2M, can the court award 2M? No. Sec. 3(d) Rule 9. Court limited to the amount prayed for. Court can award less than the amount prayed for. (dean jara) But what about under rule 10: amendment to conform to evidence. Can the court award more than what is prayed for when supported by evidence? November 19, 2012 What are the non-waivable defenses? - whar are the non-waivable defenses in criminal procedure? o information does not constitute an offense o lack of jurisdiction over the subject matter o double jeopardy (equivalent to res judicata) o prescription what is the equivalent of the first ground above? Under Rule 16, failure to state cause of action. o Is this a non-waivable defense? NO. WHY? ** Dean Jara: look at it in the point of view of amendment.

What is the rule on amendment that applies distinctively to a civil case and is limited in a criminal case? AMENDMENT TO CONFORM TO EVIDENCE. How is amendment to conform to evidence done? Rule 10 Sec. 5 - Is amendment to conform applicable in a criminal case? NO. - Information for serious physical injuries. At the trial, prosecution presents evidence that crime is frustrated homicide. Can the court convict of frustrated homicide although the crime is proven beyond reasonable doubt?