RemRev

Distinguish substantive law from remedial law

Loan contract 500k payable within 1 yr

- Demand to pay, brgy certificate of non-conciliation if same brgy
- Rule 16, Sec 1(j) – condition precedent
- Complaint for sum of money

Complaint – court issue summons upon filing – summons important to acquire jd over the person and
order to answer within 15 days

What file during period to file an answer? (3)

Failed to file an answer – order to declare in default

- Lose all rights? NO.
- Remedy – motion to set aside order of default – 4 grounds: extrinsic fraud, accident, mistake,
excusable negligence
- If motion set aside denied – judgment by default; Remedy: MR – if denied, appeal order

MTC to RTC – 40
RTC to CA – 41
 40 and 41 if two courts involved
 Appellant files Appelant’s Brief and furnish copy to Appellee within 45/30 days civil or
criminal(?); Appellee files Appellee’s Brief within 45 days
CA to SC
 What filed if civil? Pure questions of law under Rule 45
 Except: To CA: Rule 42, Sec 2; Rule 43, Sec 3
 Rule 42 – appellate jd
 Rule 43 – quasi-jud; appeal from CTA already amended; CTA and CA
considered same level courts under RA???
 Ombudsman admin case to CA under 43
 Ombudsman criminal case to SC under 65
 If criminal? Depending on the penalty
 Appellant’s Brief if perpetua – ordinary appeal
 If lower than perpetua, file petition for review with SC under 45

MTC to RTC to CA – 42
 42 if three courts involved

Quasi-jud to CA - 43

First-level court
MTC, MeTC, MTCC (Cebu City, Davao City, Dipolog City), MCTC

How is jd over subject matter acquired? Jd over subject matter is acquired through Consti or statute
- BP 129 (Judiciary Reorganization Act of 1980), as amended by R.A. 7691 (expanding the jd of
MTC) effective on April 9, 1994
 Jd of MTC over real actions expanded; assessed value not exceed 20k outside
MM, or not exceed 50k within MM; motu proprio dismiss for lack of jd –
Remedy: refile;
  Case: must attach tax dec; no duty to refer

How is jd over the issues determined? Allegations in the complaint – dismissed if not alleged because
court cannot determine if properly filed; EXCEPTION: annex or attachment can cure defect

Accion interdictal – actual possession

Accion publiciana – right of possession
Accion reinvidicatoria – right of ownership

SC jd – comelec en banc; COA to SC under 64; Sandiganbayan to SC under 45 or ordinary appeal

depending on the penality (same as CA);

Complaint – Plaintiff, defendant, court issue summons requiring to submit answer within 15 days, if no
answer file motion to declare in default, cannot motu proprio declare in default

Petition – Petitioner, respondent, court issue order to file a comment within 10 days, if no comment effect
is that filing of comment is waived, no default in a petition and no answer

Payment of docket and other lawful fees is jurisdictional in the filing of a complaint and petition. The
clerk of court computes
- Docket fees required for permissive counterclaim only, NOT to compulsory counterclaim
- Albo vs Malapajo, January 13, 2016

Venue

Jd of real actions - depends on assessed value; not exceed 20k or 50k – MTC; exceeding RTC
Venue of real action – where the property is located

Jd of personal action – depends on amount of claim; not exceed 300k or 400k – MTC; exceeding RTC
Venue of personal action – where they reside at the option of plaintiff

Exceptions to Venue
Venue for Libel

Pleadings
Complaint – plaintiff
Answer – defendant
Reply – plaintiff
Rejoinder – pleading answering reply
Surrejoinder - pleading answering rejoinder; last say is plaintiff

Default
Do you file an answer in all kinds of cases? NO. In petition, file a comment within 10 days. In answer,
file within 15 days.

Can court declare default motu prorprio? No. there must be a motion

If motion to dismiss is filed, what will happen to the period to file an answer? Period to file an answer
will be interrupted. If the motion is denied, file answer within the balance but not less than 5 days in any
event
Effect of default? Does defendant loses all rights? No. Loses right to participate in the trial but the party is
still entitled to notice of subsequent proceedings
- Remedy of defendant? File a motion under oath to set aside the order of default under Rule 9, Sec
3; WHEN? At any time after notice and before judgment
- GROUNDS? FAME (extrinsic defense), and that he has a meritorious defense

If lifting denied, court render judgment by default

- Remedy against judgment by default (read Indiana case)
- BEFORE judgment final and exec – MR, MNT, appeal
- AFTER judgment becomes final and exec – relief from judgment, annulment of judgment

Appeal – reverse and set aside, and render own judgment

Certiorari – annul and set aside, and CANNOT render its own judgment

Partial default? YES. Where some defendant failed to file an answer, the court shall try the case against
all upon the answers thus filed and render judgment upon the evidence presented

Where no defaults allowed? Action for annulment, declaration of nullity of marriage, legal separation
- What should the court do? Order the prosecuting attorney to investigate whether or not collusion
exists between the husband and wife
- And if there is no collusion: to intervene for the State in order to see to it that the evidence
submitted is not fabricated; then the court can render judgment

Amended vs Supplemental Pleading

What happen to original when it is amended? Amended will supersede original, and original will be
abandoned; supplemental pleading will be taken together with the original

When amendment a matter of right?

When leave of court not necessary for amendment

- Formal amendments – what are they?

Amendment to conform to evidence (ruled drafted before JA Rules – took effect Jan 1, 2013; Justice
Abad Rule; study JA Rules)
- What if there is no order of the court and there is no amendment of the complaint, can the court
still consider the evidence presented which is not part of the complaint? Yes, if there is no
objection
- Can this rule apply notwithstanding JA Rule? Yes, but easier to object now

Importance of bill of particulars? Prepare responsive pleading

When is the 5-day rule to file an answer apply? Rule 12, Sec 5; Rule 16, Sec 4; Rule 62, Sec 4; Rule 64,
Sec 3; not apply to notice of appeal, in which case you only have the balance
- Under Rules 12, 16, 62, you have not less than 5 days to file answer; In Rule 64, you have not
less than 5 days to file petition
- Rule 64 – COA (no en banc in COA) and Comelec en banc
- Comelec has 3 divisions – go to en banc – go to SC under Rule 64 – under Rule 64, certiorari but
not 60 days, 30 days only
Question: you filed complaint. Filed MR on the last day to file appeal, but denied. How many days can
you still file an appeal? 15 days. Neypes vs CA, penned by Justice Corona.
- Is there fresh period before Neypes? YES. Under 42, 43 (petition for review), 45 (petition for
review on certiorari), 65, 122. But fresh period expanded to 40 and 41 (ordinary appeal) through
Neypes.
- Fresh period extendible? Yes. Under 42, 43, 45 only

Can jd over the person of the defendant be acquired without summons? YES, if through voluntary
appearance
- Example (?): file MTD raising lack of jurisdiction over the person of defendant due to defective
service of summons
- Manotoc vs CA – leading case for the four requirements for a valid service

Preferred way of summon? Personal service under Rule 14, Sec 6

- How? 1) handing a copy to the defendant in person, or 2) if he refuses to receive and sign, by
tendering it to him
- If cannot serve summons personally, follow Manotoc, which is mentioned in Macasaet

Compare service of summons in personam, in rem, in quasi in rem

Jd over a person abroad in case of in personam acquired by publication? NO. cannot acquire jd over the
person if abroad

How to convert in personam to quasi in rem? Attachment under Rule 57 (6 grounds); Rule 127 in crimpro
(4 grounds)
- What do you attach to convert into quasi in rem? Bank deposits; garnishment pursuant to a writ of
attachment
- Garnishment – 3 parties, no need to implead the bank provided writ of attachment/garnishment is
served on the bank
- Bank deposit will be under custodia legis

Instances where extraterritorial service is available

1. Personal status – marriage, annulment, legal separation
2. Subject matter is property in the Philippines
3. Excluding defendant from interest in the property located in the Philippines
4. Defendant’s property has been attached

Pro forma motion – motion not complying with requirements

Pro forma MR
- Will not toll the reglementary period of appeal, judgment or order becomes final
- 3 Remedies before lapse of period to appeal: MNT, MR, Appeal [modes of appeal – ordinary
appeal (40, 41), petition for review (42, 43, 45)]
- 3 Remedies after lapse of period to appeal: relief from judgment (38), annulment (47), certiorari
(65)
- Can still file relief from judgment or annulment? NO. In relief of judgment

Is Rule 44 a mode of appeal? No, it is procedure in the CA for ordinary appealed cases
- What is it? Brief making
- Appellant’s Brief – 45 days
- Appellee’s Brief – 45 days
 - Reply Brief – 20 days

Remedy if failed to file MTD? File answer raising as affirmative defenses the ground for MTD
- The court has discretion to conduct preliminary hearing on the affirmative defenses as if a MTD
had been filed
- EXCEPTION to hearing: Rule 16, Sec 1(g) – Aquino vs Quiazon

Rule 16 vs Rule 33
- Rule 16 – failure to state a cause of action
- Rule 33 – lack of cause of action

Dismissal of Actions

Dismissal upon instance of the plaintiff

Dismissal upon notice by plaintiff (Sec 1) vs dismissal upon motion of plaintiff (Sec 2)
- In Sec 2, there must be an answer

Dismissal upon notice by plaintiff

- Any time, before service of the answer or the motion for summary judgment

Dismissal upon motion of plaintiff

- AFTER service of the answer or the motion for summary judgment
- Effect of granting of motion – Dismissal is without prejudice to refiling unless otherwise
specified in the order (???? Sir said with prejudice na agad unless otherwise specified)
- How about counterclaim? File MTD with counterclaim??? NOOOOO. File Answer with
Counterclaim.
 With prayer to set preliminary hearing for the affirmative defenses
o EXCEPT for Rule 16, Sec 1 (g) – failure to state a cause of action – Quiazon
case
 If a counterclaim has been pleaded by a defendant prior to the service upon him of the
plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint.
 Without prejudice to the right of the defendant to prosecute his counterclaim in a separate
action
o Unless within 15 days from notice of the motion he manifests his preference to
have his counterclaim resolved in the same action

Dismissal due to the fault of the plaintiff (Sec 3)

- The complaint may be dismissed upon motion of the defendant OR upon the court’s own motion
- If for no justifiable cause, the plaintiff (5 grounds)
- What will happen to the counterclaim? Without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action
- With prejudice

Two-dismissal rule

Pre-trial (Before trial)

- What matters can the parties agree on in pre-trial?
 Stipulations or admissions of facts and docs
 Number of witnesses
- Effect of failure of the parties to appear in pre-trial
 Plaintiff – cause for dismissal of the action, dismissal will be with prejudice
  Defendant – cause to allow the plaintiff to present his evidence ex parte and the court to
render judgment on the basis thereof

Can lawyer appear on behalf of a party in pre-trial? YES, provided with SPA to AASA
 Enter into an amicable settlement
 Submit to alternative modes of dispute resolution
 Enter into stipulation or admissions of facts and of documents

When to file a pre-trial brief? At least 3 days before the date of pre-trial
- Failure to file a pre-trial brief? Shall have the same effect as failure to appear at the pre-trial, thus:
 Number of witnesses
- Effect of failure of the parties to appear in pre-trial
 Plaintiff – cause for dismissal of the action, dismissal will be with prejudice
 Defendant – cause to allow the plaintiff to present his evidence ex parte and the court to
render judgment on the basis thereof

Pre-trial mandatory in civil case? Yes. Mandatory for both civil and criminal cases

Who moves for pre-trial? Always plaintiff

- BPI vs Spouses Genuino – A.M. not remove plaintiff’s duty to promptly move ex parte that the
case be set for pre-trial; A.M. should be read together with Rule 17, Sec 3

Pre-trial in civil case vs pre-trial in criminal case

JA Rule?

Intervention

Different remedies if denied and granted

- If denied, movant-intervenor can file separate action, OR appeal the denial
- If granted, certiorari under 65

When filed?
- GR: Any time before the judgment is rendered by the trial court
- Exceptions: indispensable parties, Republic, necessary to protect interest

Modes – Praccourt recording

23 Deposition pending action – Sec 16: not to annoy, embarrass, oppress

24 Deposition before action or pending appeal
25 Interrogatories to parties
26 Admission by adverse party
27 Production or inspection of docs or things
28 Physical and mental examination of person
29 Refusal to comply with modes of discovery

Should depositions be written? Can be oral deposition or written interrogatory

- Deposition upon written interrogatories under Rule 23, Sec 25 shall be delivered to the deposition
officer
o Interrogatories to parties under Rule 25 is served to adverse parties
- Who conducts oral deposition? Deposition officers under Sec 10 and 11
Oral deposition
- Like a trial but the deposition officer conducts, not the judge
Written interrogatories
At what stage can deposition pending action be applied for?
- After jd has been acquired over the person of any defendant, or over property which is the subject
of the action, and before answer has been served, with leave of court
- After answer an answer has been served, no need for leave of court

Admission by adverse party

- Musjk=-ujht be served BOTH on the party and the counsel
- Failure to answer request for admission? Each of the matter of which admission is requested shall
be deemed impliedly admitted
- Effect of admission? For the pending action only

Refusal to comply with modes of discovery

- Plaintiff – complaint dismissed
- Defendant – as if in default

MR/MNT
Extension to file MR/MNT?
- No, in lower courts – Rule 40, Sec 2(2); Rule 41, Sec 3
- Exception: MR filed in connection with cases pending before the SC - Habaluyas Ent vs Japson

Execution, Satisfaction, and Effect of Judgments

Rule 39, Sec 1 – Execution as a matter of right

Rule 39, Sec 2 – Discretionary execution

Is hearing required? Yes, Rule 39, Sec 1 where execution is a matter of right. If execution is under Rule
39, Sec 2 which is discretionary, no hearing is required, but there must be notice to adverse party

Rule 71 –3 steps to stay execution of ejectment decision while the appeal is pending
1. Appeal
2. Supersedeas bond
3. Monthly deposit of rentals with RTC

Remedies of third –party claimants under the ROC: Rule 39, Sec 16; Rule 57, Sec 14; Rule 60, Sec 7
1. Terceria – countered by indemnity bond
2. Separate action
3. Motion for summary hearing

Who may redeem? Judgment obligor or redemptioner

- When? Within 1 yr from registration of certificate of sale

4 appeal periods in the ROC

- 48 hours – habeas corpus
- 5 working days – amparo, and habeas data, and appeal only to the SC
- 15 days – notice of appeal
- 30 days – record on appeal
Can you appeal from MTC directly to CA? NO. Must be step by step from Rule 40, then Rule 42

Most powerful provrem: Rule 57 Prelim Attachment – can be issued and enforced in different judicial
regions
Most important provrem: Rule 58 Prelim Injunction
2nd most powerful: Rule 60 Replevin – can be enforced anywhere in the Philippines

Preliminary Injunction
Preliminary injunction vs Permanent injunction

TRO first, before injunction

Effectivity of TRO
RTC – 20
CA – 60
SC – until further orders

Attachment issued ex parte? YES.

TRO? NO. exception 72 hr TRO

Purpose of TRO – maintain the status quo while the case is pending; LAPUS

4 Requirements
1. Right unmistakable
2. Invasion
3. Urgent
4. Irreparable injury

Is it allowed to restrain infrastructure projects? NO. except SC

Meaning of irreparable injury? Cannot be measured by money, otherwise, just damages

Period for the judge to decide main action – within 6 months from issuance of writ

Replevin – when do you file? Before answer

- Who will get the car? Sheriff
- Will the sheriff deliver the car immediately to the plaintiff? No. waiting period of 5 days under
Rule 60, Sec 6
- How does the bank protect its interest when there is a loan for a car? Chattel mortgage with the
car itself as security; then replevin

Interpleader

Cause of action in interpleader?

Interpleader vs Declaratory Relief

- In declaratory relief, person is interested

SCAs that can fall under MTC

- Rule 63, quieting of title
 - Rule 69
- Rule 71
- Rule 70 is under exclusive original jd

Is declaratory relief proper if there is already a breach? No.

- What if there is supervening breach? Rule 63, Sec 6, on conversion

Is the court duty-bound to render judgment under Rule 63? NO. Rule 63, Sec 5 provides that the court
motu proprio or on motion mat refuse to exercise the power

Issues not subject of declaratory relief

Want to question constitutionality? Prohibition

PPQ – Rule 42, 43, 45, 65

Conclusiveness of judgment vs bar by prior judgment – different cause of action in conclusiveness

Rule 40 – MTC to RTC