Beruflich Dokumente
Kultur Dokumente
Supreme Court
Court of Appeals
Regional Trial Court REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT ___ Judicial Region Branch ______ (Venue)
Special Proceedings
(CAPTION)
In the Matter of ___________ Sp. Proc. No. ______
___________ Pleading)
X-------------------------------X
(Designation of the
Motion to Dismiss
Rule 16 Grounds:
Lack of jurisdiction over defendant Lack of subject matter jurisdiction Improper venue Lack of capacity to sue Lis pendens
Motion to Dismiss
(Caption and Title) Motion to Dismiss Defendant thru counsel, respectfully moves this Honorable Court to dismiss the plaintiffs complaint on the following grounds : 1. 2. The claim set forth in the plaintiffs complaint has been released; Said claim or demand is unenforceable under the provisions of the statute of frauds. ARGUMENTS A. THE CLAIM OR DEMAND SET FORTH IN THE PLAINTIFFS COMPLAINT HAS BEEN RELEASED.
(here state the reasons to support the first ground.) B. FRAUDS. THE SAID CLAIM OR DEMAND IS UNENFORCEABLE UNDER THE PROVISIONS OF THE STATUTE OF
(Here state the reasons to support the second ground.) PRAYER WHEREFORE, in view of the foregoing, defendant prays that plaintiffs complaint be dismissed, with costs against the plaintif f. (venue, date, signature)
1. That the undersigned has today received a copy of the notice of hearing in the above-entitled case, setting said hearing thereof on January 10, 2001 at 8:30 am; 2. That on the same date and hour, the undersigned will attend to the hearing of the case entitled Emilia Garcia vs. Teofisto Garcia annulment case set for January 10, 2001 at 8:30 A.M. before the Regional Trial Court of Malolos, Bulacan, Branch V; 3. That the hearing in the aforecited case was by agreement of the parties and entered into long prior to the receipt of the notice in the above-entitled case; 4. That, in view thereof, the undersigned regrets that he could not appear before this Honorable Court on aforementioned date and hour; 5. That it is believed that the hearing set on said date may be postponed to another date, preferably on the second or third week of February, 2001;
WHEREFORE, it is respectfully prayed that the hearing of the above-entitled case set for January 10, 2001 be postponed to another date, preferably on the second or third week of February 2001.
Mode of discovery
Deposition pending action Rule 23 Deposition before action or pending appeal Rule 24
May be in the form of a deposition upon oral examination Notice must be given
Petitioner, thru counsel, and unto this Honorable Court, respectfully avers:
1.
2. That the petitioner expects to be a party to an action in the court of _____________but due to ____________________ is presently unable to bring it or cause it to be brought; 3. That the subject matter of said expected action is _____________, of which the petitioner has an interest, as follows, to wit: 4. That the proposed testimony herein sought will establish the following facts:
5. That, ____________________, a resident of __________________ is the expected adverse party in the expected action: 6. That the following persons with their respective addresses will be examined, and that the substance of the testimony to be elicited from each, are as follows:
WHEREFORE, in order to prevent a failure of justice, it is respectfully prayed of this Honorable Court to issue and order authorizing the petitioner to take the deposition on oral examination of the above-named witnesses for the purposes of perpetuating their testimony.
(Notice of Hearing)
2. That the offended party, presently confined at ______________, alleged to have received physical injuries which would cause said offended party an illness for more than thirty (30) days, according to the medical report of Dr. __________________; 3. That the movant believes that the medical report on the extent and nature of the wounds received by the said offended party was exaggerated, and that the latter is feigning to be seriously ill in the hospital in order to magnify the crime alleged to have been committed by the movant; 4. That the real extend and nature of the offended partys wound is in controversy in this case;
5. That Dr. _____________ is a government physician, competent and impartial, who could make an unbiased physical examination of the person of the offended party for the purpose of determining the true extent and nature of such wounds; 6. That such physical examination could be made during business hours of the day on ______________ at the __________________; 7. WHEREFORE, it is respectfully prayed that in the interest of justice, an order for physical examination of the offended party be issued by this Honorable Court at the time, place and manner above indicated.
(Notice of Hearing)
May be asked when defendant does not answer complaint within the reglementary period, after which judgment may be rendered by default
1. That as attached Sheriffs Return of Manila, defendants Jose Locsin and Josefina Locsin were served with summons and copies of plaintiffs complaint on March 10, 1982; 2. That up to now defendants have not yet served plaintiff their answer and they are in default.
WHEREFORE, it is respectfully prayed that defendants be declared in default for failure to file answer to the complaint within the reglementary period of time and it is further prayed that plaintiff be allowed to present its evidence ex-parte before the Branch Clerk of Court to any other person appointed by this Honorable Court to receive the same.
NOTICE OF HEARING
Answer
Rule 6, Sec. 4 kinds of pleadings Where the defending party sets forth his defenses
Answer to a Complaint
(Caption and title) Answer
B. That (here state defendants claim for money or other relief which he may have against the plaintiff; such counterclaim need not diminish or defeat the recovery sought by the plaintiff, but may claim relief exceeding in amount or different in kind from that sought by the plaintiff, provided that the court has jurisdiction to entertain the claim);
Amended Answer
Rule 10 Adding or striking out of allegations or names of parties, or correcting mistakes, so that actual merits of controversy may be determined May be done once as a matter of rights before responsive pleading is served Made only by leave of court, when no longer a matter of right
1. That the defendant Verizon Corporation shall pay plaintiff in the total sum of PHP 13,000,000.00 and undertakes to do the same within thirty (30) days from date hereof; 2. That plaintiff agrees to the foregoing and hereby waives its claim of interest, costs and attorneys fees.
WHEREFORE, it is respectfully prayed that the foregoing compromise agreement be approved and that judgment be rendered in accordance therewith.
VERITIBLE INC.
By: Fernando Dizon
VERIZON CORPORATION
By: Antonio Fernando
NOTE: Considering that this is a joint motion, notice and hearing may not be necessary. However, in order to assure immediate action by the court, the parties may include a notice to the Branch Clerk of Court for the setting of the motion.
Motion for New Trial on the Ground of Fraud, Accident, Mistake or Excusable Negligence
(Copy Caption and Title) MOTION FOR NEW TRIAL COMES NOW, the defendant through the undersigned counsel and to this Honorable Court, respectfully alleges: (Allege facts constituting fraud, accident mistake or excusable negligence) Defendant has good and valid defenses to defeat plaintiffs claim, (State valid defenses.) In support of this motion, defendant attaches herewith as part hereof, his affidavit supporting the accident or mistake and his good and valid defenses to defeat plaintiffs claim, as Annex 2 WHEREFORE, defendant prays that the decision be reconsidered, that he be granted a new trial, that the case be set for pre-trial and trial on the merits, and thereafter a new judgment be rendered holding defendant free and harmless from any liability and dismissing the complaint Place and date. Signature of Counsel VERIFICATION NOTICE OF HEARING PROOF OF SERVICE EXPLANATION
COMES NOW, the defendant through the undersigned counsel and to this Honorable Court, respectfully alleges:
1. 2.
Judgment against defendant was served on defendant on _______. Since said date or receipt if the judgment and before the period to appeal therefrom has lapsed, defendant discovered and presented during trial. The newly discovered evidence consist of the following:
3.
The affidavit of ___(name of witness)__, by whom such newly discovered evidence is expected to be given, is attached hereto as Annex 1. Duly authenticated documents, which are proposed to be introduced in evidence, are attached hereto as Annexes 2 and 3. The above newly discovered evidence would probably alter the results of the case.
5.
WHEREFORE, defendant prays that the decision be reconsidered, the case re-opened for trial, defendant be allowed to present his newly discovered evidence thereat, and thereafter judgment be rendered in favor of defendant. Place and date. Signature of Counsel
COMES NOW the prosecution, by undersigned Asst. City Prosecutor and to this Honorable Court respectfully alleges:
1.
That the above-entitled cases are closely related to and inextricably interwoven with one another;
2. That these cases are founded on the same facts and/or forming part of a series of similar character which may be tried jointly by one branch of this Honorable Court pursuant to Section 22, Rule 119 of the Rules of Court on Criminal Procedure; and 3. That the prosecution will be presenting common evidence in these cases.
WHEREFORE, it is respectfully prayed that these cases be consolidated, raffled, and assigned to only one branch of this Court.
Writ of Possession
A writ of execution employed to enforce a judgment to recover the possession of land. It commands the sheriff to enter the land and give possession of it to the person entitled under the judgment." [Blacks Law Dictionary, 5th ed., p. 1444.]
Writ of Possession
A writ of possession may be issued under the following instances: 1. Land registration proceedings under Sec. 17 of Act 496 [Estipona v. Navarro, 69 SCRA 285, 291 (1976)] 2. Judicial foreclosure, provided the debtor is in possession of the mortgaged realty and no third person, not a party to the foreclosure suit, had intervened; [Ramos v. Manalac, 89 Phil. 270, 275 (1951); Rivera v. Court of First Instance, 61 Phil. 201 (1935)] 3. Extrajudicial foreclosure of a real estate mortgage under Sec. 7 of Act 3135 as amended by Act 4118.
Writ of Possession
Issuance is ministerial in character, as is its implementation As a rule, any question regarding the validity of the mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a writ of possession
Writ of Possession
"Sec. 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance of the province or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale was made without violating the mortgage or without complying with the requirements of this Act. Such petition shall be made under oath and filed in form of an ex parte motion in the registration or cadastral proceedings if the property is registered, or in special proceedings in the case of property registered under the Mortgage Law or under sec. 194 of the Administrative Code, or of any other real property encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any existing law, and in each case the clerk of court shall, upon the filing of such petition, collect the fees specified in par. 11 of sec 114 of Act No. 496, and the court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order immediately."
Writ of Possession
Petition for Issuance of Writ of Possession (caption)
PETITION PETITIONER, by undersigned counsel, to this Honorable Court respectfully states: 1. Petitioner is a domestic banking institution organized and existing under Philippine laws with principal office at _____________ and with legal capacity to sue and be sued; 2. That on June 12, 2004, Angel Locsin obtained a P2.5 million loan form petitioner and simultaneously executed a promissory note undertaking to repay the loan pursuant to the terms and conditions stipulated in the said promissory note, a copy of which is hereto attached as Annex A and made an integral part hereof; 3. That said Angel Locsin offered as collateral for her loan, by way of real estate mortgage, a parcel of land and the improvements thereon, situated in Makati City covered by TCT No. 2222 and more specifically described as follows:
Writ of Possession
TRANSFER CERTIFICATE OF TITLE NO. 2222 (description)
4. That said Angel Locsin defaulted in the settlement of her loan. As of October 12, 2005, her obligation to petitioner totaled P18,000,000 inclusive of accrued interests and other charges computed in the pertinent Settlement of Account, copy of which is hereto attached and marked as Annex D and made an integral part of this petition;
5. Demand for payment was made upon the above-named borrower by the same was ignored and disregarded. Copy of said demand letter is hereto attached as Annex E. 6. For her failure and disregard of the demand to pay, petitioner through counsel, addressed a letter petition to the Honorable Executive Judge of this Court, thorugh the Clerk of Court and Makati Notary Public Jericho Ocampo, to extrajudicially foreclose the mortgage of Angel Locsin pursuant to the terms of her REM and the provisions of Act No. 3135 as ameded. Copy of the letter petition for foreclosure is hereto attached as Annex F; 7. Notary Publuc Ocampo accordingly issued a Notice of Auction Sale by Notary Publuc over that property in Makati covered by TCT No. 2222 and complied with the posting and publication requirements of Act No. 3135 as ameded. Copies of the Notice, Certificate of Posting, Affidavit of Publication and pertinent issues and pages of the newspaper Abante wherein the Notice was actually printed are hereto attached and made integral parts hereof as Annexes __________; 8. That the auction sale was conducted by Notary Public Ocampo on February 12, 2006 as scheduled. Petitioner participated thereat by submitting the highest and winning bid. Thereafter, the Notary awarded the property to petitioner and executed in the latter s favor a Certificate of Sale noted by the Clerk of Court and approved by the Honorable Executive Judge. Copy of the Crtificate of Sale is hereto attached and made an integral part hereof as Annex K; 9. The Certificate of Sale was registered in the Registry of Deeds of Makati City on April 20, 2006. 10. Demand was made upon Angel Locsin to vacate subject premises and surrended to petitioner possession thereof but she failed and refused to comply, hence this Petition. 11. Pursuant to Section 7 of Act No. 3135 as amended which provides: -----------------------12. The property purchased by petitioner at public auction will fetch a rental of about P800,000 a year, if leased. Petitioner is willing and ready to post a bond equivalent to said amount. WHEREFORE, it is respectfully prayed that judgment be rendered directing the issuance of a writ of possession over the said property covered by TCT No. 2222 of the Registry of Deeds of Makati City placing petitioner in possession of the property that it covered, ordering Angel Locsin as well as all persons claiming rights under her, to vacate the same or be ejected therefrom, and granting such other reliefs and remedies just and equitable in the premises. Makati City, June 12, 2006.
(Signature of counsel)
Project of Partition
Sec. 1, Rule 90 Project of partition of net estate among heirs Filed by administrator
Project of Partition
(Caption and Title) PROJECT OF PARTITION
Administrator in the above-entitled case, through counsel, and unto this Honorable Court, respectfully submits for approval the following project of partition:
NET ESTATE OF DECEASED The net estate of the deceased, ______________, after the payment of all debts, funeral charges, and expenses of administration is as follows: (Here state the real and personal property subject to adjudication) Adjudication To: ________________, the following: To: ________________, the following: WHEREFORE, after due notice and hearing in accordance with law, it is respectfully prayed that the foregoing project of partition be approved.
Effect: an Order of Insolvency generally suspends all civil proceedings pending against the debtor.
All property of the insolvent not exempt by law from execution will be conveyed to an assignee-in-insolvency elected by the creditors. Property that is subject of a pledge or mortgage is not included in the debtors assets that are assigned to the assignee-ininsolvency for the satisfaction of the debtors general creditors. No discharge is granted to a corporation that is declared insolvent.
Rights of secured creditors: A creditor whose credit is secured by a mortgage or pledge is allowed, at its option, either (i) to foreclose the property subject of such security arrangement (notwithstanding the stay effected by the Order of Insolvency), or (ii) to pursue his/its claim in the insolvency proceeding together with other creditors, by releasing or surrendering to the assignee-in-insolvency the properties subject of the pledge or mortgage. If the secured creditor opts for foreclosure, such creditor cannot participate in the election of the assignee-in-insolvency. But the creditor may be admitted in the insolvency proceeding to recover the balance of the debt, after deducting the value of the property foreclosed. The creditor recovers the balance by participating in the pro-rata distribution of the debtors estate. If the creditor pursues his claim in the insolvency proceeding, he may recover his credit by participating in the pro-rata distribution of the debtors estate, but will have to relinquish his security and surrender the properties subject of the security to the assignee-in-
Preference of Credits
In an insolvency proceeding, certain types of credits enjoy preference with respect to specific movable or immovable properties (Special Preferred Credits). Among the Special Preferred Credits, taxes and assessments due upon the property to which the claims relate enjoy absolute preference. All the remaining classes of Special Preferred Credits with respect to specific movable or immovable property (e.g., credits secured by a pledge or mortgage) do not enjoy priority among themselves, but must be paid concurrently and pro rata, i.e., in proportion to the amount of the respective credits. Credits that do not enjoy any preference with respect to specific property are satisfied in the order established in Article 2244 of the Civil Code. Article 2244 provides for the preference of certain claims and credits which, without special privilege, appear in (i) a public instrument (i.e., the instrument is notarized) or (ii) a final judgment. These credits have preference among themselves in the order of priority of the dates of the instruments and of the judgments, respectively.
Clawback provisions
The assignee-in-insolvency may recover property given as security, or the value thereof, if the debtor, being insolvent, or in contemplation of insolvency, within 30 days before the filing of a petition to be declared insolvent by or against him, procures any of his property to be attached, sequestered, or seized on execution, or makes any pledge, mortgage, assignment, transfer, sale, or conveyance thereof to anyone with a view to: (i) giving a preference to any creditor or person having a claim against him; or (ii) preventing the property from being distributed ratably among his creditors; or (iii) defeating the object of, or in any way hindering, impeding, or delaying the operation of the provisions of the Insolvency Law. In such a case, the attachment, sequestration, seizure, pledge, mortgage, transfer, sale, assignment, or conveyance is considered void. Under the Insolvency Law, if the pledge, mortgage, conveyance, sale, assignment, or transfer of the property is not made in the usual and ordinary course of business of the debtor, or if such seizure is made under a judgment which the debtor has confessed or offered to allow, that fact is deemed as prima facie evidence of fraud.
Furthermore, any pledge, mortgage, conveyance, sale, assignment, or transfer of property made by the insolvent within one month before the filing of a petition in insolvency by or against him, except for a valuable pecuniary consideration made in good faith, is considered void.
2. That the debtor, _________________, is a resident of ___________________, province of ______________, within the jurisdiction of this court; 3. That none of the petitioning creditors of the said debtor in the aggregate sum of (not less than one thousand pesos), all of which accrued in the Philippines; 4. 5. That none of the petitioning creditors is a creditor by assignment within thirty days prior to the filing of this petition; That the debtor has committed the following acts of insolvency:
(Here state any of the acts of insolvency mentioned in Sec. 20, Act No. 1956)
6. That the petitioners are willing to put up a bond with sufficient sureties in such sum as this Honorable Court may fix, to answer for all costs, expenses, and damages occasioned by these proceedings, should this petition be found to be without merit.
WHEREFORE, petitioners pray that, upon the filing of a bond in such sum as this Honorable Court may fix, conditioned as required by the Insolvency Law, an order be issued: a. Requiring the above-named debtor to show cause at a time and place to be designated by this Honorable Court why he should not be adjudged an insolvent debtor; b. Forbidding the payment of any debts, and the delivery of any property belonging to such debtor to him or to any other person for his use or the transfer of any property by him; and
c.
That after notice and hearing, he be adjudged insolvent, and his property be administered for the benefit of his creditors, in accordance with the provisions of the Insolvency Law.
Rule 41, Sec. 2 (b), Rule 42 Mode of appeal to the CA of cases decided by RTCs in exercise of their appellate jurisdiction Rule 42, how filed:
Verified petition for review 15 days from notice of decision 7 legible copies, copies of appealed judgments or orders and pleadings Certification under oath against forum shopping
Petitioner, through counsel, and unto this Honorable Court of Appeals, respectfully asks for the review of the decision of the Secretary of Transportation and Communication rendered in the above-entitled case dated _________________ (and here state the nature of said decision).
Summary Statement of Issues A summary statement of the facts of this case and the issues involved are as follows: (Here, state briefly in chronological order the facts of the case, the legal questions involved and the decision rendered. No question may be raised which has not been raised before the Commission. Only questions of law, which must be distinctly set forth, may be raised in a petition for review of an order or decision rendered by the concerned agency.) Reasons relied upon for allowance of a review (Here, state the reasons or arguments on each of the issues or questions involved, briefly and clearly.) Prayer WHEREFORE, in view of all the foregoing, petitioner prays that this Honorable Court of Appeals grant this petition for review, and to order the Secretary of Transportation and Communication to elevate to this Court the transcript of records of this case, and all the evidence introduced thereat, documentary as well as testimonial, in order that the same may be reviewed in accordance with law; and that pending this review, the decision of the Commission sought herein to be reviewed be stayed. (Venue, date signature) (Verification and Certification)
Notice of Appeal
Sec. 2(a) and 5, Rule 41 Ordinary appeals of cases decided by RTC in exercise of original jurisdiction Record on appeal not required, except in special proceedings and cases of multiple or separate appeals, or when case not completely disposed of Filed with RTC that rendered decision 15 days from notice of judgment
Notice of Appeal
(Caption and Title)
NOTICE OF APPEAL
DEFENDANT (or plaintiff as the case may be) by the undersigned counsel hereby files a notice of appeal from the judgment of this Honorable Court in the aboveentitled case, dated ________________, a copy of which was received by counsel on _____________________, and appeals the same to the Court of Appeals.