Civpro Reviewer

WHAT IS JUDICIAL POWER? Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack of jurisdiction on the part of any branch or instrumentality of the government. WHAT ARE THE CLASSES OF COURTS? 1. General jurisdiction – competent to decide their own jurisdiction and take cognizance of all causes, civil or criminal, of a particular nature; Special jurisdiction – incapable of deciding their own jurisdiction and taking cognizance of only a few matters. 2. Original jurisdiction – where a cause arises; Appellate jurisdiction – where a cause is reviewed. 3. Courts of law – administer justice according to the law; Courts of equity - administer justice according to the principles of equity. 4. Courts or record; courts not of record. 5. Civil courts – determine controversies between private persons; criminal courts – adjudicate offenses committed against the state. 6. Superior courts – exercise original and supervisory jurisdiction; Inferior courts – have very limited jurisdiction and are subject to review. 7. Constitutional courts – owe their existence to the constitution; Statutory courts – owe their existence to statute, although they may have been mandated by the Constitution. DISTINGUISH BETWEEN COURTS AND JUDGES. Courts may exist without a judge. There may be a judge without a court. Disqualification of a judge does not destroy the court. Courts are first created and then judges are appointed to preside.

Differentiate between errors of judgment and errors of jurisdiction. An error of judgment is one which the court may commit in the exercise of its jurisdiction – they are reviewable on appeal. An error of jurisdiction renders an order or judgment void or voidable – they are reviewable on certiorari. WHAT ARE THE CLASSES OF JURISDICTION? (1) General – extends to all controversies which may be brought before a court Special – confined to particular causes (2) Original – inherent in a court of first instance Appellate – power of a superior court to rehear and determine causes which have been tried in inferior courts (3) Exclusive – possessed by a court to the exclusion of all others Concurrent – exercised by different courts at the same time over the same subject matter (4) Criminal – exists for the punishment of crimes Civil – exists when the matter is not criminal in nature (5) Territorial – power of the court with reference to the territory within which it is to be exercised (6) Jurisdiction over the subject matter – power to hear cases of the general class to which the proceedings in question belong (7) Jurisdiction over the person – power to render a personal judgment against a person (8) Jurisdiction over the res or property – obtained by a constructive service of process or seizure of the property under legal process HOW IS JURISDICTION OVER THE SUBJECT MATTER ACQUIRED? It is conferred by law and in the manner prescribed by law. HOW IS JURISDICTION OVER THE PERSON ACQUIRED? Plaintiff: by filing the complaint

WHAT IS JURISDICTION? It is the authority to hear and determine a cause or the right to act in a case. It does not depend on the regularity of the exercise of the power or the correctness of the decisions made.

Defendant: a.

by service of summons, either personal or substituted

b.

by voluntary appearance

An error committed in the exercise of jurisdiction does not deprive a court of jurisdiction. Civil Procedure Reviewer Cayo 2D

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•

appearance does not necessitate physical presence in the court; it includes the filing of pleadings

What are the elements of jurisdiction in civil cases? The court must have jurisdiction over the: a.

subject matter

b.

parties

c.

res, if jurisdiction over the person cannot be acquired and: 1.

the defendant does not reside and cannot be found in the Philippines, and: i. the action affects the personal status of the plaintiff, OR ii. the action relates to property in the Philippines in which the defendant has an interest, OR iii. the relief demanded in the action consists in excluding the defendant from any interest in property located in the Philippines, OR iv. the defendant’s property has been attached within the Philippines.

CAN THE PARTIES DEPRIVE A COURT OF ITS JURISDICTION BY AGREEING THAT ANY CONTROVERSIES ARISING FROM A CONTRACT WILL BE REFERRED TO ARBITRATION ALONE? No. Arbitration can be made a condition precedent to an action in court and it may be stipulated that the arbitrator’s award is final and valid but the award will always be subject to judicial review under the grounds provided for in the Civil Code and in the Arbitration Law. WHAT IS THE CONSTITUTIONAL LIMITATION ON THE POWER OF CONGRESS TO DETERMINE THE JURISDICTION OF COURTS? Congress can define, prescribe, and apportion the jurisdiction of various courts but:

c.

it can reorganize the judicial system provided it does NOT UNDERMINE THE SECURITY OF TENURE OF ITS MEMBERS

WHAT IS THE ORIGINAL JURISDICTION OF THE SC? Original – cases involving ambassadors, public ministers, consuls; Petitions for certiorari, mandamus, prohibition, quo warranto, habeas corpus Original and Exclusive – petitions for certiorari, mandamus, and prohibition against the CA, COMELEC, COA, Sandiganbayan Original and Concurrent with the CA – CPM against the NLRC, CSC, CBAA, CTA, QJ, RTC, lower courts Original and Concurrent with the CA and RTC – CPM against lower courts and bodies; Petitions for habeas corpus and quo warranto Original and Concurrent with the RTC – cases involving ambassadors, public ministers, consuls; WHAT IS THE APPELLATE JURISDICTION OF THE SC? A. Appeal by notice of appeal: Criminal cases from the RTC or the Sandiganbayan where the penalty imposed is reclusion perpetua or higher and other offenses, though not so punished, arose out of the same occurrence or were committed on the same occasion. Facts and law are reviewed. B. Automatic review: Criminal cases where the death penalty is imposed. C. Appeal by petition for review on certiorari: 1. Appeals from the CA 2. Appeals from the Sandiganbayan on questions of law, unless the penalty imposed is RP or higher 3. Appeals from the RTC exercising original jurisdiction in the following cases: a. If no question of fact is involved (if question of fact, appeal to CA): Constitutionality or validity of any treaty, PD, etc

a.

it cannot deprive the sc of its minimum appellate jurisdiction;

Legality of any tax, impost, toll, assessment, penalty imposed

b.

it can increase the appellate jurisdiction only with the ADVICE AND CONCURRENCE of the SC and;

Jurisdiction of lower court is in issue

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b. all cases where only questions of law are involved WHAT IS THE ORIGINAL JURISDICTION OF THE CA? Original and Exclusive – actions for annulment of the RTC on the grounds of extrinsic fraud and lack of jurisdiction Original and Concurrent with the SC - CPM against the NLRC, CSC, CBAA, CTA, QJ, RTC, lower courts Original and Concurrent with the SC and the RTC - CPM against lower courts and bodies; Petitions for habeas corpus and quo warranto

WHAT IS A CIVIL ACTION? One by which a party sues another for the enforcement of protection of a right or the prevention or redress of a wrong. It may either be ordinary or special. WHAT IS A CRIMINAL ACTION? One by which the state prosecutes a person for an act or omission punishable by law. WHAT IS A SPECIAL PROCEEDING? It is a proceeding to establish the status or right of a party, or a particular fact. DISTINGUISH A REAL ACTION FROM A PERSONAL ACTION. Real actions are actions affecting title to, or possession of real property, or interest therein, or forcible entry and detainer actions. Personal actions are founded on privity of contract or for the enforcement or resolution of a contract, or for recovery of personal property. DISTINGUISH BETWEEN ACTIONS IN PERSONAM, IN REM, AND QUASI IN REM. An action in personam is one whose technical object is to establish a claim against a person, with a judgment which generally binds his body, or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defense. Examples are actions to enforce specific performance or seek resolution. An action in rem is one whose object is to bar indifferently all who might be minded to make an objection of any sort against the right sought to be established, and where anyone in the world has a right to be heard on the matter. An example is a land registration proceeding. Civil Procedure Reviewer Cayo 2D

An action quasi in rem is one where an individual is named as a defendant and the purpose of the proveeding is to subject his interest in the property to the obligation or lien burdening it. Examples are actions for attachment, foreclosure, etc. WHEN IS AN ACTION COMMENCED? A civil action is commenced by the filing of the original complaint in court. WHAT MUST ACCOMPANY THE COMPLAINT? There must be concurrent payment of docket fees. Without payment of docket fees, the court does not acquire jurisdiction over the subject matter and no pleading is considered as filed. Hence, the prescriptive period continues to run. WHAT IS A CAUSE OF ACTION AND WHAT ARE ITS ELEMENTS? A cause of action is the act or omission by which a party violates the right of another. Its essential elements are: (1) The legal right of the plaintiff; (2) Correlative obligation of the defendant, and; (3) Act or omission of the defendant in violation of the plaintiff’s legal right. DIFFERENTIATE BETWEEN A CAUSE OF ACTION AND A RIGHT OF ACTION. A right of action is a remedial right belonging to a person which depends on substantive law. A cause of action is a formal statement of the operative facts that give rise to such remedial rights – it is governed by the laws on procedure. WHAT ARE THE RULES ON JOINDER OF CAUSES OF ACTION? (1) The rules on joinder of parties must be observed; (2) Special civil actions or actions governed by special rules are not covered; (3) In case of different venues or jurisdictions, the joinder may be made in the RTC provided it has jurisdiction over one of the causes of action and the venue lies therein; (4) When all the causes of action are for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. WHAT IS THE EFFECT OF A MISJOINDER OF CAUSES OF ACTION? Page 3 of 70

It is not a ground for dismissal but the causes of action may be severed and proceeded with separately, either upon motion or motu proprio. If there is no objection to the misjoinder, they may be adjudicated together.

WHO MAY BE PARTIES TO A CIVIL ACTION? Natural or juridical persons, or entities authorized by law (corporations by estoppel but only to be sued). WHEN MAY ASSOCIATIONS WITHOUT JURIDICAL PERSONALITY BE SUED WITHOUT MAKING ALL THE MEMBERS PARTIES TO THE SUIT? (1) When they are so numerous that it is impracticable to name them all; (2) When the suit is against a corporation by estoppel. WHEN MAY THE STATE BE SUED? (1) When it enters into a private contract; (2) When it enters into a business operation unless it does so as a necessary incident of its governmental function;

The requisites are: (1) Right to relief in respect to or arising out of the same transaction or series of transactions, and; (2) Common question of law or fact in the action. DISTINGUISH BETWEEN INDISPENSABLE AND NECESSARY PARTIES. Indispensable parties are parties in interest without whom no final determination of an action can be had. His interest in the subject matter and the relief sought are so inextricably intertwined with the other parties’ that his legal presence as a party to the proceeding is an absolute necessity. Failure to join an indispensable party will prevent the court from exercising judicial power. A necessary party is one whose interest in the controversy or subject matter is distinct and divisible from the interest to the other parties and will not necessarily be prejudiced by a judgment. He should be joined whenever possible because his presence would permit complete relief or a complete determination of the controversy. WHAT HAPPENS WHEN THE PLEADER FAILS TO JOIN A NECESSARY PARTY?

(3) When the state sues a private party, unless to resist a claim;

(1) The pleader must set forth the party’s name and the reason for the omission;

(4) When the state fails to abide by what the law or contract requires.

(2) The court may order the inclusion of the omitted party if it finds the reason to be unmeritorious provided jurisdiction over his person may be obtained;

WHEN IS A SUIT AGAINST THE STATE? (1) When the suit is against the Republic in name; (2) When the suit is against a government office or agency without juridical personality. WHO IS A REAL PARTY IN INTEREST? He is the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. As a general rule, every action must be prosecuted or defended in the name of the real party in interest. Ex. when an agent sues in behalf of the principal or is sued as a representative of the principal, the principal must be made a party to the suit.

(3) Failure to comply with the order of inclusion, without justifiable cause, shall be a waiver of the claim against such party; (4) The non-inclusion of the necessary party does not prevent the court from proceeding with the action, and the judgment rendered shall be without prejudice to the rights of the necessary party. WHAT IS THE REMEDY AGAINST AN UNWILLING CO-PLAINTIFF? He may be made a defendant and the reason therefor shall be stated in the complaint.

WHAT IS A PERMISSIVE JOINDER OF PARTIES AND WHEN MAY IT BE MADE?

WHAT IS THE EFFECT OF MISJOINDER OR NON-JOINDER OF PARTIES?

It is where a right to relief arising from the same transaction exists in the plaintiffs or against the defendants to be joined.

Neither is a ground for a dismissal of an action. The parties may be dropped or added by order of the court upon motion or motu proprio at any stage of the action and on terms that are just. A

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claim against a misjoined party may be severed and proceeded with separately. WHAT ARE THE REQUISITES OF A CLASS SUIT? (1) The subject matter of the controversy is one of common or general interest to many persons, and; (2) The interested person are so numerous that it is impracticable to bring them all before the court. WHAT ARE ALTERNATIVE DEFENDANTS? When the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other. Ex: An action against a principal and an agent in the alternative – if the agency is proved then the principal will be bound; if not, the agent will be bound. WHAT IS THE RULE WHEN THE NAME OR IDENTITY OF A DEFENDANT IS UNKNOWN? He may be sued as the unknown owner, heir, devisee, etc. and when his identity is discovered, the pleading must be amended.

(3) The court shall order the legal representatives to appear and be substituted within 30 days from notice; (4) If no legal representative appears, the adverse party may be ordered to procure the appointment of one and the court charges may be recovered as costs. WHEN DOES AN ACTION SURVIVE; WHEN IS IT EXTINGUISHED? If the wrong complained of affects primarily property and property rights and the injuries to the person are merely incidental, the action survives. If the injury complained of is the primary cause of action, then the action does not survive. OTHER RULES AS TO DEATH OF THE PARTY: •

If the court is informed of the death but no substitution is made and the proceeding continue, the resulting judgment is void because the court never acquired jurisdiction over the substitute.

•

If there is no notice of death and the court has no knowledge thereof, any subsequent judgment will be valid.

OTHERS: •

Public officer - When a public officer who was a party to an action in his official capacity ceases to hold office pending the action, the same may be continued against his successor if within 30 days after assumption of office, the court is satisfied that (1) there is substantial need for continuing the action and (2) that the successor adopts the action of his predecessor.

•

Incompetent – If a party becomes incompetent, the action may be continued by or against him assisted by his legal guardian.

•

Transfer of interest – In case of transfer of interest, the action may be continued by or against the original party unless the court, upon motion, directs the person to whom the interest has been transferred to be substituted.

•

Contractual money claims – When the action is for recovery of money arising from a contract and the defendant dies before final judgment the action shall not be dismissed but shall continue until entry of judgment. A favorable judgment shall be enforced against the estate of the deceased.

WHAT IS THE RULE WHEN AN ENTITY WITHOUT JURIDICAL PERSONALITY IS SUED? When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed. The service of summons may be effected upon all by serving upon any one or on the person in charge of the office maintained under such name. WHAT ARE THE RULES AND WHAT IS THE DUTY OF COUNSEL WHEN A PARTY DIES AND THE CLAIM IS NOT EXTINGUISHED? (1) Counsel must inform the court within 30 days after the death and give the name and addresses of his legal representative. Failure to do so is a ground for disciplinary action; (2) The heirs may be allowed to substitute for the deceased;

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If the defendant dies before the action was filed, the claim must be filed with a probate court. If the money claim arises not out of contract (quasi-delict), the claim may be filed against the executor. •

Indigent party – A party may be exempted from payment of docket fees, other fees, and stenographic notes, if the court is satisfied, upon his ex parte application, that he has no money or property sufficient for food, shelter, and basic necessities. The fees shall constitute a lien on any favorable judgment. The adverse party may contest the order granting the exemption and if it found that the person has sufficient property, the proper fees shall be imposed and he may even be sanctioned with dismissal of the complaint.

•

Notice to the SolGen – The court may require the appearance of the SolGen in any case involving the validity of any law, treaty, etc.

VENUE IN CIVIL CASES IS SUBJECT TO STIPULATION – the parties can validly agree in writing before the filing of the action on the exclusive venue thereof and it is only when there is no stipulation that the following rules will apply. Remember that stipulations as to venue must be clear and categorical as to the court with jurisdiction and not merely permissive. WHAT IS THE VENUE OF REAL ACTIONS? Actions affecting title to or possession of real property, or interest therein, shall be tried in the court which has jurisdiction over the area where the real property of a portion thereof is situated. In case of forcible entry or unlawful detainer actions, the action shall be tried in the municipal trial court. WHAT IS THE VENUE OF PERSONAL ACTIONS? Personal actions may be tried where the plaintiff or any of the principal plaintiff or the defendant or any of the principal defendants resides or in case of a non-resident defendant, where he may be found. The plaintiff has the right to choose from the above venues. IMPT: An action for the cancellation of a REM is a personal action. It is primarily to compel the Civil Procedure Reviewer Cayo 2D

mortgagee to accept payment of the debt. There is no issue as to the lots. WHAT IS THE VENUE OF ACTIONS AGAINST NON-RESIDENTS? If the defendant does not reside AND is not found in the Philippines, and the action affects the personal status of the plaintiff or any property of said defendant located in the Philippines, the action may be tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. This is not applicable to actions in personam, where jurisdiction over the person must be acquired. What are covered here are judgments against the res or the property or status of the non-resident who cannot be found.

WHAT ARE PLEADINGS AND WHAT ARE THE PLEADINGS ALLOWED? Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. The pleadings containing claims are complaints, counterclaims, cross-claims, third (fourth, etc.) party complaints, or complaints in intervention. The defenses are alleged in the answer, which in turn may be responded to by a reply. DEFINITIONS: COMPLAINT – pleading alleging the plaintiff’s cause or causes of action. The names and residences of the defendant must be stated in the complaint. •

The complaint must contain only ultimate facts and not evidentiary matters or conclusions of law.

•

Exhibits cannot take the place of the allegations.

•

The occurrence of a condition precedent must be alleged and proved.

•

The cause of action is determined not by the relief sought but by the relief available under the law.

ANSWER – pleading in which a defending party sets forth his defenses. WHAT ARE THE KINDS OF DEFENSES? Negative – specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. Page 6 of 70

Affirmative – allegation of a new matter, which hypothetically admits the allegations of the claimant but constitutes a bar to the claim. Examples are fraud, prescription, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, etc. HOW MUST A DENIAL OF THE ALLEGATIONS IN THE COMPLAINT BE MADE? Specifically - allegations not specifically denied, other than as to the amount of unliquidated damages are deemed admitted. Specific denials are made in the following manners: (1) The defendant must specify each material allegation he does not admit and set forth the matters to support his denial. (2) Where only part of an averment is to be denied, the defendant shall specify what is true and deny the remainder. (3) Where a defendant is without sufficient knowledge to form a belief as to the truth of an averment, he may state so and this shall be a specific denial.

COUNTERCLAIM – any claim which a defending party may have against an opposing party. ***A counterclaim is not an answer, nor is it part of the answer. It is a distinct cause of action which must be answered by the adverse party within 10 days from service.

COMPULSORY COUNTERCLAIM – one that is: (1) cognizable by the regular courts or justice (a labor claim cognizable by the NLRC cannot be the subject of a counterclaim) ; (2) arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim (if it does not, it is merely a permissive counterclaim); (3) does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. WHEN IS A COUNTERCLAIM COMPULSORY? When: (1) It is logically related to the claim being asserted by the opposing party and; (2) Separate trials of the claim and the counterclaim would involve a duplication Civil Procedure Reviewer Cayo 2D

of time and effort by the parties and the courts.

CROSS CLAIM – any claim by one party against a co-party which MUST arise out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein.

REPLY – it is filed in response to an answer to deny new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If no reply is filed, all the matters in the answer are deemed controverted. Remember, a reply is in response to an answer and not to a counterclaim or cross-claim.

THIRD (FOURTH, ETC.)-PARTY COMPLAINT – a claim that a defending party may, with leave of court, file against a person not a party to the action for relief in respect of his opponent’s claim.

BRINGING NEW PARTIES, WHAT AND HOW. When the presence of parties is required for granting of complete relief (necessary parties) in the determination of a counter-claim or cross claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained. This is different from a third-party complaint because in this case, one of the parties is already impleaded and another party is necessary, not for a new cause of action, but for a more thorough adjudication of the case.

WHAT ARE ALTERNATIVE CAUSES OF ACTION / DEFENSES? These are when a party has separate causes of action or defenses and such are set forth in the pleading alternatively. Ex: Alternative causes of action could asserted when the plaintiff does not know the complete facts and instead sets forth several scenarios, in the alternative, each giving him a different cause of action – Say Fact 1 is established; the plaintiff can couple it with Hypothesis 1 or 2 or 3, and in each case come up with a different cause of action. Alternative defenses would be that the defendant was induced to enter into the contract by fraud

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but even if the contract were perfectly valid, the action to enforce it had already prescribed. WHAT IS THE FIRST THING THAT A CORPORATION (OR ANY OTHER PARTY) MUST SET FORTH IN A PLEADING? That it has the capacity to sue or be sued. WHAT MAY A DEFENDANT DO IN CASE HE WISHES TO CONTEST THE PLAINTIFF’S CAPACITY TO SUE? File a motion to dismiss or set it up as an affirmative defense. HOW MUST FRAUD, MISTAKE, AND CONDITIONS OF THE MIND BE ALLEGED? Fraud and mistake must be alleged with particularity – the acts constituting such must be set forth. Malice, intent, and other conditions of the mind may be averred generally. HOW ARE ACTIONABLE DOCUMENTS PLEADED? (1) The substance of the document must be set forth in the pleading; (2) The original or a copy of the document shall be: a.

Attached to the pleading as an exhibit OR

b.

Said copy shall be set forth in the pleading

Actionable documents are those on which a cause of action (a PN) or a defense (a receipt acknowledging payment) may be based. HOW ARE ACTIONABLE DOCUMENTS CONTESTED? The genuineness (not fake) and due execution (executed with authority) of an actionable document properly pleaded is deemed admitted unless the adverse party: (1) Specifically denies them; and (2) Sets forth what he claims to be the facts; (3) Under oath. a.

The requirement of the oath does not apply when: i. The adverse party (against whom the instrument is being asserted) is not a party to the instrument OR ii. Compliance with an order for inspection of the original instrument is refused.

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WHAT IS THE EFFECT OF A FAILURE TO PLEAD DEFENSES AND OBJECTIONS? Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived except the following: (1) Lack of jurisdiction over the SM; (2) Prescription; (3) Lis pendens; (4) Res judicata. This waiver is revocable and may be corrected through an amendment of the answer with leave of court. WHAT IS THE EFFECT OF A FAILURE TO SET UP A COMPULSORY COUNTERCLAIM? It shall be barred. The rationale is that the counterclaim could have best been adjudicated during the proceedings and the courts will not permit subsequent filing of suit due to the party’s failure to set it up. WHAT IS THE EFFECT OF A FAILURE TO SET UP A CROSS-CLAIM? It shall be barred. Same rationale as the counterclaim. IMPT: A COUNTERCLAIM OR A CROSS-CLAIM THAT EXISTS AT THE TIME THE ANSWER IS FILED MUST BE CONTAINED THEREIN. OTHERWISE, IT SHALL BE BARRED. THIS IS A COMPULSORY COUNTERCLAIM. Unless, of course, the court allows the answer to be amended on the grounds of oversight, inadvertence, or excusable neglect (see page 9). WHAT IF THE COUNTERCLAIM OR CROSSCLAIM MATURES AFTER THE PLEADING OR OTHER ANSWER IS FILED? The pleader may file a supplemental pleading containing the counterclaim or cross-claim, with leave of court. This is not a compulsory pleading. WHEN IS AN AMENDED ANSWER PROPER; A SUPPLEMENTAL ANSWER? An amended answer is proper if at the time the original answer was filed, the counterclaim or cross-claim ALREADY EXISTED but was not set up due to oversight, inadvertence, or excusable negligence. A supplemental answer is proper if the counterclaim or cross-claim MATURES AFTER the answer is filed. This after acquired counterclaim is not compulsory. Page 8 of 70

In both cases, leave of court is necessary. LET’S TALK ABOUT DEFAULT. HOW IS AN ORDER OF DEFAULT MADE? (1) The defending party fails to answer within the time allowed; (2) The plaintiff files a motion to have the defendant declared in default; (3) The court renders judgment according to the complaint or requires the submission of evidence (may be to the clerk of court). WHAT IS THE EFFECT OF AN ORDER OF DEFAULT? The party in default is ENTITLED TO NOTICE but may not participate in the trial. HOW CAN RELIEF FROM AN ORDER OF DEFAULT BE OBTAINED?

(3) by correcting a mistake in the name of a party, or; (4) a mistaken or inadequate allegation or description (5) so that the actual merits of the case may be determined without regard to technicalities and in a speedy and cheap manner. WHEN IS AN AMENDMENT A MATTER OF RIGHT? An amendment is a matter of right: (1) only once; (2) at any time before a responsive pleading (i.e. an answer to a complaint; reply to an answer) is served a.

The party declared in default may: (1) after notice; (2) before judgment; (3) file a motion under oath to set aside the order upon showing that: a.

b.

his failure to answer was due to FAME (fraud, accident, mistake, excusable negligence) AND he has a meritorious defense.

WHAT IS THE EFFECT OF A PARTIAL DEFAULT? When there is a common cause of action against several defendants and only a number of them answer, such answers shall serve as such for those who failued to answer. What is the extent of relief to be awarded in a judgment by default? (1) It shall not exceed the amount or be different in kind from that prayed for. (2) It shall not award unliquidated damages (damages must be proved by evidence). WHEN CAN THERE BE NO JUDGMENT BY DEFAULT?

in case it is a reply that will be amended, within ten days after its service

IMPT: A motion to dismiss is not a responsive pleading. If the only reply to a complaint is a motion to dismiss, the plaintiff may still amend his complaint once as a matter of right (provided the complaint was not dismissed and the dismissal final). PROBLEM: A COMPLAINT IS PROPERLY AMENDED, ALLEGING NEW CAUSES OF ACTION. MUST SUMMONS BE SERVED AGAIN ON THE DEFENDANT? It depends. If the defendant has already appeared in court, it is sufficient that a copy of the amended complaint be served upon him. If the defendant has not yet appeared in court, another summons must be served with the amended complaint; otherwise, the court has no jurisdiction to render judgment on the new causes of action. WHAT IS THE RULE WITH REGARD TO SUBSTANTIAL AMENDMENTS? If the amendment is only the first one and is made before the responsive pleading is filed, it is a matter or right.

In actions for annulment and legal separation, to prevent collusion.

Otherwise, leave of court is necessary, as well as notice to the other party and opportunity to be heard.

HOW ARE PLEADINGS AMENDED?

HOW ABOUT FORMAL AMENDMENTS?

By adding or striking out:

Clerical and typographical errors may be:

(1) an allegation, or;

(1) Summarily corrected by the court;

(2) the name of any party, or; Civil Procedure Reviewer Cayo 2D

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(2) At any stage of the proceedings; (3) Provided no damage is caused to the adverse party. PROBLEM: SEVERAL ISSUES WERE NOT RAISED BY THE PLEADINGS BUT WERE TRIED WITH THE CONSENT OF THE PARTIES. WHAT SHALL BE DONE? Upon motion of any party, even after judgment, the pleadings may be amended to conform to the evidence by raising the issued. Failure to amend will not affect the result of the trial. So bakit pa?

(2) claims or defenses in the superseded pleading not incorporated in the amended pleading are deemed waived. So always make sure not to omit such claims or defenses.

PERIODS WITHIN WHICH TO FILE RESPONSIVE PLEADINGS: Answer to complaint

30 days from receipt of summons if foreign corp. and summons served on gov’t officer

PROBLEM: EVIDENCE IS PRESENTED AT THE TRIAL AND OBJECTED TO BECAUSE THE ISSUE IT SEEKS TO RESOLVE IS NOT WITHIN THOSE RAISED IN THE PLEADINGS. WHAT SHALL BE DONE? The court may allow amendment of the pleadings if the presentation of the evidence will serve the ends of substantial justice.

Answer to amended complaint

10 days from service of copy if matter of right 15 days from notice admitting if not matter of right

WHEN ARE SUPPLEMENTAL PLEADINGS PROPER? (1) Upon motion;

15 days from receipt of summons or

Answer to counterclaim or cross-claim

10 days from service of copy

Answer to third party complaint

Just like complaint (15/30)

Answer to supplementary complaint

10 days from notice of order admitting the same

Amended pleadings – ALLEGE FACTS WHICH OCCURRED PRIOR to the filing of the original pleading but which were not alleged because of oversight, inadvertence, or subsequent discovery.

Reply to answer

10 days from pleading responded to

Supplemental pleadings – ALLEGE FACTS WHICH OCCURRED AFTER the filing of the original pleading.

WHEN MUST THE ANSWER TO THE COMPLAINT BE FILED?

(2) With notice; (3) Upon just terms; (4) A party seeks to set forth occurrences which happened after the pleading sought to be supplemented. DISTINGUISH BETWEEN AMENDED AND SUPPLEMENTAL PLEADINGS.

WHAT DOES AN AMENDED PLEADING LOOK LIKE? The amended pleading must indicate the amendments by appropriate marks. This is to enable the court and the other party to know which are the amendments without having to search for them. WHAT IS THE EFFECT OF AN AMENDED PLEADING? It supersedes the pleading amended but: (1) admissions in superseded may be received in evidence against the pleader and; Civil Procedure Reviewer Cayo 2D

Generally, 15 days after service of summons unless otherwise provided by the court. In case the defendant is a foreign private juridical entity and the summons is served on: a.

the resident agent – 15 days

b.

the government official designated to receive the same – 30 days from receipt of home office (1) foreign corporations – SEC; foreign banks – BSP; foreign insurance companies – Insurance Commissioner

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WHEN MUST AN AMENDED COMPLAINT (COUNTERCLAIM, CROSS-CLAIM, ETC.) BE ANSWERED? (1) If it is filed as a matter of right (see page 9) – 15 days from service of copy; (2) If its filing is not a matter of right (see page 9) – 10 days from notice of order admitting the same (in this case, the amendment requires notice and hearing) WHEN MUST A COUNTERCLAIM OR CROSSCLAIM BE ANSWERED? 10 days from service. WHEN MUST A THIRD (FOURTH, ETC.)-PARTY COMPLAINT BE ANSWERED? Same as an answer to a regular complaint – 15 days from service of summons unless otherwise provided by the court (30 if foreign juridical person and summons served on gov’t officer). WHEN MUST A REPLY BE FILED? 10 days from service of the pleading responded to. WHEN MUST AN ANSWER TO A SUPPLEMENTAL COMPLAINT BE FILED? 10 days from notice of the order admitting the same, unless a different period is ordered by the court. If the original complaint has been answered and no answer to the supplemental complaint is filed, the original answer shall serve as the answer to the supplementary complaint. CAN THERE BE EXTENSIONS GIVEN TO THE PERIODS WITHIN WHICH TO FILE PLEADINGS? Yes. Upon motion and on such terms as may be just, the court may extend the time to plead or even allow a pleading to be filed after expiration. IMPT: ONE OF JUSTICE SABIO’S FAVORITES: The motion for extension must be filed before the expiration of the period. If it is filed after, there is nothing more to extend. Also, Justice Sabio stresses that counsel should always be prepared for a denial of the motion for extension, or any motion for that matter, and have the appropriate pleading on hand.

WHAT IS A MOTION FOR A BILL OF PARTICULARS? It is a motion requesting for a definite statement of any matter which is not averred with sufficient

Civil Procedure Reviewer Cayo 2D

particularity to enable him to properly prepare his responsive pleading. REMEMBER, A BILL OF PARTICULARS IS THE DOCUMENT CLARIFYING THE PLEADING WHICH WAS THE SUBJECT OF THE MOTION FOR A BILL OF PARTICULARS. Ex: A complaint was found to be vague. The defendant files a motion for a bill of particulars. If the court grants the motion, the claimant then submits the bill of particulars clarifying the indefinite points. AT WHAT POINT IN TIME SHOULD A MOTION FOR A BILL OF PARTICULARS BE FILED? It should be filed within the period allowed for the filing of the responsive pleading. WHAT HAPPENS AFTER THE COURT GRANTS THE MOTION FOR A BILL OF PARTICULARS? There must be compliance (submission of the bill) within 10 days from notice of the court’s order. WHAT IF THERE IS INSUFFICIENT OR NO COMPLIANCE TO THE ORDER FOR THE SUBMISSION OF THE BILL OF PARTICULARS? The court may order the striking out of the pleading or the specific vague portions or even dismiss the complaint. WHAT HAPPENS WHEN THE BILL OF PARTICULARS IS SERVED OR THE MOTION IS DENIED? After it is filed, and the bill is served or the motion is denied, the moving party may file his responsive pleading within the period to which he was entitled at the time the motion was filed. This period shall not be less than five days.

DISTINGUISH BETWEEN FILING AND SERVICE. Filing is the act of presenting the pleading or other paper to the clerk of court. Service is the act of providing a party with a copy of the pleading or paper concerned. Service may be made upon counsel or the party unless service upon the party is ordered by the court. One counsel representing several parties is entitled only to one copy served by the opposite side. WHEN CAN SERVICE UPON A PARTY HIMSELF BE ORDERED? (1) When counsel of record cannot be located;

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(2) When the party is ordered to show cause why he should not be punished for contempt.

c.

plainly addressed to the party or his counsel at his office or residence

WHAT IS THE MANNER OF FILING?

d.

with instructions to the postmaster to return to sender after 10 days if undelivered

(1) personally, by presenting original copies to the clerk of court •

the clerk shall indicate on the pleading the date and hour of filing

(2) by registered mail 1) the post office stamp shall be considered as the date of the filing – the envelope must be attached to the rollo. CAN THE FILER USE PRIVATE LETTER FORWARDERS SUCH AS DHL, FEDEX, ETC? Yes. However, the downside is that the pleadings are considered filed only when actually received by the clerk of court. SO WHAT DO YOU DO FIRST, FILE OR SERVE? It depends. Judgments, resolutions and orders of the courts must first be filed with the clerk of court before they are served upon the parties. Filing them with the clerk is promulgation unlike in criminal cases where the reading of the judgment serves as promulgation. (I suppose it’s the judge that files them.) Pleadings subsequent to the complaint (because you don’t serve the complaint on the defendant; rather, it is attached to the summons) and written motions must first be served upon the parties before they are filed in court.

(3) by ordinary mail if no registry service is available in the locality of the sender or addressee. WHAT IF PERSONAL OR SERVICE BY MAIL OF PLEADINGS AND PAPERS CANNOT BE MADE? If personal service or service by mail cannot be made, service may be made by: (1) delivering the copy to the clerk of court (2) with proof of failure of both personal service and service by mail The service shall be complete at the time of such delivery. HOW ARE JUDGMENTS, FINAL ORDERS, AND RESOLUTIONS SERVED? Either personally or be registered mail. But if a party summoned by publication fails to appear in the action, service may also be by publication. Only final orders are covered here. Interlocutory orders are served in the same manner as pleadings and papers. WHY IS ORDINARY MAIL NOT AVAILABLE AS A MODE OF SERVICE OF FINAL ORDERS OR JUDGMENTS?

HOW ARE PLEADINGS AND PAPERS SERVED?

These are appealable and it is necessary that the appeal period may be computed. Actual receipt must be known.

Service may either be:

WHEN IS SERVICE COMPLETE?

(1) personal

(1) Personal – upon actual delivery

a.

delivering the papers to the party or his counsel

b.

leaving it in his office with his clerk or with a person having charge thereof

c.

as a last resort, by leaving it at the party’s or counsel’s residence i. between 8am and 6pm ii. with a person of sufficient age and discretion RESIDING THEREIN

(2) by registered mail a.

depositing a copy in the post office

b.

in a sealed envelope

Civil Procedure Reviewer Cayo 2D

(2) Registered mail – a) upon actual receipt by the addressee as shown by the registry return card (a certification by the postmaster and the delivery book can be substituted) or b) after 5 days from the date he received the first notice of the postmaster, whichever is earlier. (3) Ordinary mail – upon the expiration of 10 days after mailing, unless otherwise provided by the court. BETWEEN THE DENIAL OF RECEIPT BY A LAWYER AND A CERTIFICATION BY THE POSTMASTER OF THE SENDING OF THE

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addressed to the court, with postage prepaid, and with instructions to return to sender

NOTICE, WHAT SHOULD BE GIVEN CREDENCE? The postmaster, of course. There is a presumption that an official duty was regularly performed.

(4) If by ordinary mail a.

WHAT IS THE PREFERRED MODE OF SERVICE? Personal service , whenever practicable shall be the mode. Except with respect to papers emanating from the court (judgments, orders, resolutions) a resort to other modes must be accompanied by a written explanation why service was not done personally. If there is no such explanation, the court may consider the paper or pleading as not filed. Distance from the court or from the adverse party is a good reason.

An affidavit of the mailer that there is no registry service available in either or both localities

DISCUSS THE RULE REGARDING A NOTICE OF LIS PENDENS. Where the action affects the title or the right of possession of real property, the plaintiff or the defendant may record in the register of deeds a notice of the pendency of the action. The notice shall contain: a.

the names of the parties;

HOW IS FILING PROVED?

b.

the object of the action or defense;

The filing of a pleading or a paper shall be proved by:

c.

a description of the property affected.

(1) its existence in the rollo; (2) If filed personally a.

by the written or stamped acknowledgement of its filing by the clerk on a copy;

The notice binds third parties only upon its filing. It may be cancelled upon order of the court if: a.

it was only for the purpose of molesting the adverse party or

b.

it is not necessary to protect the rights of the parties.

(3) if by registered mail a.

by the registry receipt AND

b.

an affidavit of the mailer containing i. a full statement of the date and place of the deposit in the post office in a sealed envelope, addressed to the court, with postage prepaid, and with instructions to return to sender

WHO ISSUES SUMMONS? WHEN? WHAT ARE ITS CONTENTS? The clerk of court issues summons upon: a.

the filing of the complaint, and;

b.

the payment of the requisite legal fees

The summons shall be: a.

directed to the defendant,

HOW IS SERVICE PROVED?

b.

signed by the clerk under seal,

(1) By a written admission of the party served;

c.

and contain:

(2) If personal service:

i. the name of the court

a.

By the official return of the server;

ii. the names of the parties to the action;

b.

By the affidavit of the server, containing a full statement of the date, place and manner of serving;

iii. a direction that the defendant answer within the proper period; iv. a notice if there is no answer, plaintiff will obtain judgment by default and may be granted the relief applied for

(3) If by registered mail: a.

by the registry receipt AND

b.

an affidavit of the mailer containing 1.

a full statement of the date and place of the deposit in the post office in a sealed envelope,

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d.

attached to the summons shall be: i. a copy of the complaint and;

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ii. an order for appointment of a guardian ad litem, if any.

a) the summons has been lost, or; b) a summons is returned without being served

WHAT IS THE IMPORTANCE OF SERVICE OF SUMMONS? It is the manner by which jurisdiction over the person of the defendant is acquired. A judgment rendered without service of summons is void unless jurisdiction has been acquired by voluntary appearance of the defendant.

1.

HOW IS SUMMONS SERVED? 1) As much as possible, by PERSONAL SERVICE, which means:

HOW IS JURISDICTION ACQUIRED OVER ADDITIONAL DEFENDANTS? Summons must be served upon the new party as if he were an original party defendant (see page 7 - Bringing New Parties). PROBLEM: A COMPLAINT IS PROPERLY AMENDED, ALLEGING NEW CAUSES OF ACTION. MUST SUMMONS BE SERVED AGAIN ON THE DEFENDANT?

in this case, the server shall, within 5 days, serve a copy on plaintiff’s counsel, stating the reasons for failure

a.

Actual delivery, or;

b.

Tender, in case the defendant refuses to receive the summons

2) SUBSTITUTED SERVICE, if for justifiable causes, the defendant cannot be served personally. How?: a.

Leaving copies of the summons at the defendant’s residence with:

It depends.

i.

If the defendant has already appeared in court, even if just to file a motion to dismiss, it is sufficient that a copy of the amended complaint be served upon him.

ii. and discretion

If the defendant has not yet appeared in court, another summons must be served with the amended complaint; otherwise, the court has no jurisdiction to render judgment on the new causes of action. WHO MUST SERVE THE SUMMONS? a.

The sheriff;

b.

His deputy;

c.

Any suitable person authorized by the court, for justifiable reasons.

iii. residing therein b.

leaving copies at the defendant’s office or regular place of business with: i. some competent person ii. in charge of the office

WHAT ARE THE REQUISITES OF SUBSTITUTED SERVICE? (1) The defendant cannot be served personally within a reasonable time; (2) The impossibility should be shown by stating the efforts made to serve the summons personally and that the efforts failed. This is shown in a proof of service.

Service by any other person is INVALID. WHAT IS A RETURN OF SUMMONS? WHAT IS ITS PURPOSE?

some person of suitable age

When service has been completed, the server shall, within 5 days:

HOW IS SUMMONS IN AN ACTION IN PERSONAM SERVED ON A RESIDENT TEMPORARILY OUTSIDE OF THE PHILIPPINES?

a.

serve a copy of the return personally or by registered mail to the plaintiff’s counsel and

1.

By substituted service, or;

2.

By extraterritorial service.

return the summons to the clerk who issued it, accompanied with proof of service.

Substituted service is the normal means; extraterritorial service is extraordinary.

b.

The return is important so the plaintiff may know when to file an motion to have the defendant declared in default. WHAT IS AN ALIAS SUMMONS?

HOW IS SERVICE OF SUMMONS MADE ON ENTITIES WITHOUT JURIDICAL PERSONALITY (CORPORATIONS BY ESTOPPEL)?

An alias summons is issued when:

All the persons can be served by: a.

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Serving upon any one of them or; Page 14 of 70

b.

Serving upon the person in charge of the office maintained in such name.

Philippines or must be engaged in business in the Philippines.

HOW IS SERVICE OF SUMMONS MADE ON PRISONERS?

SO THE RULES WITH REGARD TO FOREIGN CORPORATIONS ARE:

Summons shall be served by the officer managing the penal institution; he is deemed deputized as a special sheriff for the purpose.

Doing business with license – may sue, may be sued

HOW IS SERVICE OF SUMMONS MADE ON MINORS AND INCOMPETENTS?

Doing business without license – may not sue, may be sued

1.

By service on him personally, and;

Not doing business, with license – may sue, may be sued (I think)

2.

By service on his guardian or his guardian ad litem.

Not doing business, without license – may not sue, may not be sued

3.

In case of a minor, service may also be on one of his parents.

HOW IS SERVICE OF SUMMONS MADE ON PUBLIC CORPORATIONS?

HOW IS SERVICE OF SUMMONS MADE DOMESTIC PRIVATE JURIDICAL ENTITIES?

If the defendant is the Republic, upon the Solicitor General.

Service must be made on its:

If the defendant is a political subdivision, on its executive head or such other officers as the court may direct.

a.

President;

b.

Managing partner;

c.

General Manager;

d.

Corporate Secretary;

e.

Treasurer;

f.

In-house Counsel

Service on any other officer is invalid. HOW IS SERVICE OF SUMMONS MADE ON FOREIGN PRIVATE JURIDICAL ENTITIES WHICH HAVE TRANSACTED BUSINESS IN THE PHILIPPINES? Service must be made on: 1.

its resident agent, or;

2.

on any of its officers or agents within the Philippines, or;

3.

with the government officer designated by law.

HOW IS SERVICE OF SUMMONS MADE ON DEFENDANTS WHOSE IDENTITY OR WHEREABOUTS ARE UNKNOWN AND CANNOT BE ASCERTAINED WITH DILIGENT INQUIRY? In this case, service may, by leave of court, be effected by publication in a newspaper of general circulation. HOW IS SERVICE OF SUMMONS MADE ON DEFENDANTS WHO DO NOT RESIDE AND CANNOT BE FOUND IN THE PHILIPPINES or WHEN IS EXTRATERRITORIAL SERVICE PROPER? 1.

Service may be effected extraterritorially: a.

By personal service, or;

b.

By publication in a newspaper of general circulation •

WHAT DOES IT MEAN TO BE “DOING BUSINESS”? There must be a continuity of conduct and intention to establish a continuous business. PROBLEM: X CORPORATION, A FOREIGN JURIDICAL ENTITY, HAS NO LICENSE TO DO BUSINESS IN THE PHILIPPINES BUT ENTERS INTO ONE TRANSACTION IN THE PHILIPPINES. CAN X CORPORATION BE SUED? No. In order to be sued, the foreign corporation must either have a license to do business in the Civil Procedure Reviewer Cayo 2D

c.

In this case, a copy of the summons and the order for publication shall be sent to the last known address of the defendant

In any other manner which the court may deem sufficient.

2.

When the defendant does not reside AND is not found in the Philippines, and;

3.

The action is in rem or quasi in rem or in other words: Page 15 of 70

a.

Affects the personal status of the plaintiff, or;

b.

Relates to property: i. within the Philippines in which the defendant has an interest, OR; ii. in which the relief demanded consists in excluding the defendant from any interest therein, OR iii. belonging to the defendant within the Philippines, which has been attached

The defendant shall have at least 60 days after notice to answer. WHAT IS THE PRIMARY PURPOSE OF EXTRATERRITORIAL SERVICE OF SUMMONS? It is only for complying with the requirement of fair play. Jurisdiction over the person is not essential in actions in rem or quasi in rem. What constitutes proof of service of summons? Proof of service shall: (1) be in writing by the server; (2) set forth the manner, place, and date of service; (3) specify the name of the person who received the summons; (4) specify any papers which have been served with the process; (5) be sworn to when made by a person other than a sheriff or his deputy (because such duties are covered by their oath of office). But if the service was made by publication, proof shall constitute: 1.

the affidavit of the printer, editor, etc.;

2.

a copy of the publication;

3.

an affidavit showing the deposit in the post office of: • •

a copy of the summons and; order for publication

NOTE: As discussed under jurisdiction, voluntary appearance of the defendant can take the place of service of summons to vest the court with jurisdiction over his person.

motion to dismiss for any grounds is not considered as having voluntarily submitted himself to the court’s jurisdiction. WHAT IS A MOTION? WHAT IS ITS FORM? WHAT ARE ITS CONTENTS? A motion is an application for relief other than by a pleading. It must be in writing unless it is made in open court or in the course of a hearing or trial as such are made in the presence of the adverse party who has opportunity to object. It shall: (1) State the relief sought, and; (2) the grounds on which it is based, and; (3) if necessary, be accompanied by supporting affidavits and papers. WHEN ARE SUPPORTING AFFIDAVITS NECESSARY? (1) When so required by the rules; (2) If the facts alleged in the motion are not of judicial notice; (3) A motion to set aside a judgment of default must be accompanied by an affidavit of merit. WHEN ARE SUPPORTING AFFIDAVITS NOT NECESSARY? (1) If the ground on which the motion is based appears in the rollo; (2) A motion to set aside an order of default need not be accompanied by an affidavit of merit if the ground is interruption of the reglementary period by the filing of a motion to dismiss. WHEN SHOULD MOTIONS BE HEARD? Motion day is Friday, in the afternoon; and when Friday is a non-working day, in the afternoon of the next working day. Except for ex parte motions (which may be acted upon without hearing) all written motions shall be set for hearing. The hearing date shall be set by the movant and he shall give notice to the affected party in such a manner as to ensure receipt by the latter at least 3 days before the hearing date. DESCRIBE THE NOTICE. (1) It must be addressed to all parties concerned;

Appearance can be the filing of an answer, the filing of a motion for extension, but not the filing of a motion to dismiss. A defendant who files a Civil Procedure Reviewer Cayo 2D

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(2) Specify the time and date of the hearing, which must not be more than 10 days after the filing of the motion (to avoid delay). WHEN MUST NOTICE BE SERVED? At least three days before the hearing or Tuesday, at the latest: 1.

2.

if given by registered mail: a.

actually received by Tuesday or

b.

the first notice of the postmaster should be 5 days before Tuesday

if given by ordinary mail, mailed 10 days before Tuesday

WHEN CAN THE 3 DAY PERIOD NOT BE FOLLOWED? a.

b.

Urgent motions, such as a motion for postponement due to sudden illness of counsel can have shorter notice; A motion for summary judgment must be served 10 days before the hearing

(4) Res judicata. Ex: A motion to dismiss should include all grounds available at that time. OTHERS: •

A motion for leave to file a pleading or motion should be accompanied by the motion or pleading sought to be admitted.

WHEN MUST A MOTION TO DISMISS BE FILED AND WHAT ARE THE GROUNDS? An motion to dismiss must be filed within the time but before filing the answer to the complaint (counterclaim, etc.). The grounds are [JJVLPSNEUC]: (a) that the court has no jurisdiction over the person of the defendant; (b) that the court has no jurisdiction over the subject matter of the claim; (c) that venue is improperly laid; (d) that the plaintiff has no legal capacity to sue;

WHAT ARE SOME EX PARTE MOTIONS?

(e) that there is another action pending between the same parties for the same cause;

Motions for extension to file pleadings, applications for writs of preliminary attachment, restraining orders, etc.

(f) that the cause of action is barred by a prior judgment or by the statute of limitations;

WHAT IS THE EFFECT OF THE ABSENCE OF NOTICE OF HEARING TO THE ADVERSE PARTY AND PROOF OF SERVICE? The motion is a mere scrap of paper. SO THE STEPS IN SETTING A MOTION FOR HEARING ARE (AS FAR AS I CAN FIGURE OUT): (1) Serve on the affected parties a copy of the motion and notice of hearing (at least 3 days before the hearing date); (2) File the motion in court and set the hearing date – attaching to the motion proof of service of the motion and notice. IMPT: A motion attacking a pleading, order, or proceeding must include all motions available and objections not included shall be waived. The Rules discourage the filing of multiple motions. Objections excluded from this rule are: (1) Lack of jurisdiction over the SM; (2) Prescription; (3) Lis pendens; Civil Procedure Reviewer Cayo 2D

(g) that the pleading asserting the claim states no cause of action; (h) that there has been payment, waiver, abandonment, or other extinguishment of the obligation; (i) that the claim is unenforceable under the statute of frauds; (j) that a condition precedent for filing has not been complied with.

WHAT ARE THE REQUISITES OF LIS PENDENS? (1) the same parties, or at least such as represent the same interest; (2) the same rights asserted, and the same relief prayed for; (3) this relief must be founded on the same facts, and the title or essential basis for the relief sought must be the same; (4) the identity in these particulars should be such that a judgment in one would constitute res judicata. Page 17 of 70

How do you determine which of the two actions should be dismissed? The following are things to consider: (1) the date of filing, with the first action preferred; (2) whether the action sought to be dismissed was merely to preempt the later action or to anticipate its filing and lay the basis for its dismissal; and (3) whether the action is the appropriate vehicle for litigating the issues between the parties. WHAT ARE THE REQUISITES OF RES JUDICATA? (1) The former judgment or order must be final; (2) It must have been rendered by a court having jurisdiction over the subject matter and the parties; (3) It must have been based on the merits; (4) There must be identity of: a.

parties;

b.

subject matter, and;

c.

cause of action

WHAT IS THE TEST OF WHETHER THE COMPLAINT STATES A CAUSE OF ACTION? The test is whether, admitting the facts alleged, the court could render a valid judgment in accordance with the relief sought. WHAT ARE EXAMPLES OF CONDITIONS PRECEDENT TO THE FILING OF SUITS?

If the motion is denied – he shall be entitled to the time remaining when he served his motion but not less than 5 days. If the pleading is ordered amended, the periods in Rule 11 shall apply (15 days if amendment is a matter of right; 10 if not) WHAT IS THE EFFECT OF AN ORDER OF DISMISSAL? Res judicata if the grounds for dismissal are: (1) res judicata or prescription; (2) extinguishment of the obligation; (3) unenforceability; (4) lis pendens OTHERS: The grounds for a motion to dismiss may also be pleaded as affirmative defenses. The dismissal of a complaint upon a motion to dismiss does not prevent the adverse party from prosecuting a counterclaim.

How is an action dismissed by the plaintiff? (1) by filing a NOTICE of dismissal at any time before service of: a.

the answer, OR;

b.

a motion for summary judgment.

•

Upon filing of the notice, the court shall confirm the dismissal.

•

The dismissal is without prejudice except:

a.

failure to avail of barangay conciliation where the same is required

i. It is stated in the notice that dismissal is with prejudice;

b.

lack of earnest efforts to reach a compromise in suits between family members

ii. when the notice is filed by a plaintiff who has once dismissed an action based on the same claim.

WHAT ACTIONS IS THE COURT LIMITED TO AFTER HEARING A MOTION TO DISMISS? The court may: (1) dismiss the action; (2) deny the motion;

(2) By filing a MOTION to dismiss after the service of the answer •

Upon approval of the court and upon terms and conditions deemed proper.

•

Only the original complaint is dismissed – any counterclaims survive and may be resolved in the same action or in a separate action.

(3) order amendment of the pleading. WHAT SHOULD THE MOVANT DO IF THE MOTION TO DISMISS IS DENIED? IF AND AMENDMENT OF THE PLEADING IS ORDERED? Civil Procedure Reviewer Cayo 2D

When may an action dismissed due to the plaintiff’s fault? When: Page 18 of 70

(1) The plaintiff fails to appear without justifiable cause on the date of presentation of his evidence; (2) The plaintiff fails to prosecute his case for an unreasonable length of time; (3) The plaintiff fails to comply with a court order or the Rules. •

Dismissal is either upon motion of the defendant or motu proprio.

•

Dismissal constitutes res judicata unless the court orders otherwise.

WHAT IS THE EFFECT OF FAILURE TO APPEAR AT PRE-TRIAL? Failure of plaintiff – dismissal with prejudice, unless otherwise ordered. Failure of defendant – plaintiff may present evidence ex parte. WHEN SHOULD A PRE-TRIAL BRIEF BE FILED AND WHAT SHOULD IT CONTAIN? It should be filed in court and served on the adverse party at least three days before the pretrial. It shall contain:

WHEN IS PRE-TRIAL CONDUCTED? After the last pleading is served and filed, it is the duty of the plaintiff to move ex parte that the case be set for pre-trial. What is the nature and purpose of a pre-trial? Pre-trial is mandatory. The court shall consider: (a) the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; (b) the simplification of the issues; (c) the necessity or desirability of amending the pleadings; (d) the possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;

(a) a statement of willingness to enter into amicable settlement; (b) a summary of admitted facts; (c) the issues to be tried; (d) the documents to be presented; (e) a manifestation of intention to avail of discovery procedures or referral to commissioners; (f) the number and names of witnesses and the substance of their testimonies; (g) applicable laws and jurisprudence; (h) the available trial dates of counsel.

(e) the limitation of the number of witnesses; (f) the advisability of a preliminary reference of issues to a commissioner; (g) the propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (h) the advisability or necessity of suspending the proceedings; and (i) such other matters as may aid in the prompt disposition of the action. •

It is the duty of the parties and counsel to appear at the pre-trial. Non appearance of a party can be excused only if: o

A valid cause is shown; or

o

A representative appears on his behalf fully authorized in writing (special authority) to enter into an amicable settlement, enter into stipulations, etc.

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WHAT ARE THE REQUISITES FOR INTERVENTION?

WHO ISSUES A SUBPOENA?

The intervenor must:

(1) the court before whom the witness is required to attend;

(1) Have legal interest in the matter in controversy; or

(2) the court of the place where the deposition is to be taken;

(2) Have legal interest in the success of either of the parties;

(3) the officer or body authorized to do so in connection with an investigation;

(3) Have legal interest against both; or

(4) and Justice of the SC or CA in any case or investigation pending within the Philippines

(4) Be so situated as to be adversely affected by a disposition of property in the custody of the court; (5) Intervention will not unduly delay or prejudice the adjudication of rights of original parties; and (6) Intervenor’s rights may not be fully protected in a separate proceeding. WHAT KIND OF INTEREST MUST AN INTERVENOR HAVE? His interest must be actual, material, direct, and immediated, and not simply contingent and expectant. WHEN SHOULD THE MOTION TO INTERVENE BE FILED? At any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention should be attached.

WHAT ARE THE PREFERRED CASES? Habeas corpus cases, election cases, special civil actions, and others required by law. HOW ARE CASES ASSIGNED? By raffle, in open session, with sufficient notice so those interested may be present.

HOW IS A SUBPOENA QUASHED? Duces tecum – upon motion if: (1) it is unreasonable and oppressive; or (2) the relevancy of the books, documents, does not appear; or (3) if the person in whose behalf the subpoena is issued pails to advance the reasonable cost of the production thereof (4) Witness and kilometrage fees not tendered upon service Ad testificandum – (1) if the witness is n to bound thereby (2) Witness and kilometrage fees not tendered upon service WHAT IS THE RULE IN THE ISSUANCE OF SUBPOENAS FOR DEPOSITIONS? Though it is not necessary to serve a subpoena on a party for the purpose of taking his deposition – notice of the taking being enough – the court may issue a subpoena upon proof of service of notice to take the deposition. The issuance of a subpoena merely preps the court to exercise its power of contempt. Issuance of a subpoena duces tecum, however, necessitates a prior court order.

WHAT IS A SUBPOENA?

HOW IS A SUBPOENA SERVED?

It is a process directed to a person requiring him to attend and to testify at:

In the same manner as a personal or substituted service of summons.

(1) a hearing, trial, or

There must also be tender of fees for one day’s attendance (P20 in MTC, P50 in higher courts) and kilometrage.

(2) investigation, (3) or for the taking of his deposition. •

If he is required to produce books, documents, etc. it is a subpoena duces tecum

•

If both testimony and production of documents, etc., it is a subpoena duces tecum ad testificandum.

Civil Procedure Reviewer Cayo 2D

When the subpoena is issued on behalf of the Republic, tender of fees need not be made. If the subpoena is duces tecum, the cost of producting the things must also be tendered. HOW IS ATTENDANCE COMPELLED?

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Upon proof of service and failure to attend, a warrant may be issued for the witness’s arrest. This applies to subpoenas issued by fiscals and court-appointed commissioners. WHEN WILL THE SUBPOENAED WITNESS NOT BE COMPELLED TO ATTEND OR CITED FOR CONTEMPT FOR FAILING TO ATTEND? When such witness resides more than 100 km. from the place where he is to testify or to a detention prisoner if no permission of the court where his case was pending is obtained.

WHAT IS A DEPOSITION PENDING ACTION? WHEN MAY IT BE TAKEN? It is taken: (1) by: 1.

oral examination; OR

2.

written interrogatories

(2) with: 1.

HOW IS TIME COMPUTED? The day the period begins to run is excluded and the date of performance included. If the last day falls on a Saturday, Sunday or legal holiday, the time shall not run until the next working day.

leave of court •

after jurisdiction has been acquired over the defendant or property; or

•

person to be deposed is in prison

2.

without leave •

after an answer has been served

WHAT IS THE SCOPE OF EXAMINATION?

When a period is interrupted, the allowable period after the interruption begins on the day after notice of the cessation of the cause thereof. The day of the act that caused the interruption shall be excluded.

Any matter:

WHAT ARE THE MODES OF DISCOVERY?

Any part of a deposition may be used against any party who was represented at the taking or who had notice thereof, in accordance with the following:

(1) Depositions pending action; (2) Depositions before action or pending appeal; (3) Interrogatories to parties; (4) Admission by adverse party; (5) Production or inspection of documents or things; (6) Physical and mental examination of persons. WHAT ARE THE PURPOSES OF RULES OF DISCOVERY: (1) as a device to narrow down and clarify the basic issues between the parties

(1) not privileged; (2) relevant to the subject of the action HOW MAY DEPOSITIONS BE USED?

(1) may be used for contradicting or impeaching deponent as a witness; (2) deposition of one who was an officer of a corporation which is a party may be used for any purpose; (3) the deposition of a witness, whether or not a party, may be used for any purpose if the court finds: 1.

witness is dead;

2.

witness resides more than 100km from place of trial, or is out of the Philippines, unless absence procured by the party offering the deposition;

3.

witness unable to attend because of age, sickness, imprisonment;

4.

attendance of witness not successfully procured despite subpoena;

5.

other just circumstances.

(2) as a device for ascertaining the facts relative to the issues (3) to enable the parties to obtain the fullest possible knowledge of the issues and facts before civil trials to prevent trials carried on in the dark (4) to facilitate mutual knowledge of all the relevant facts gathered by both parties, to this end either party may compel the other to disgorge whatever facts he has (5) advances stage at which disclosure can be compelled in order to reduce possibility of surprise Civil Procedure Reviewer Cayo 2D

WHAT IS THE EFFECT OF TAKING A DEPOSITION? USING A DEPOSITION? By taking a deposition, a party is not deemed to make the person his witness. Page 21 of 70

By introducing the deposition in evidence, other than to contradict or impeach, the deponent becomes the witness of the party.

•

Judgment by default

•

Pay expenses

DEPOSITION BEFORE ACTION: •

In order to perpetuate testimony

INTERROGATORIES TO PARTIES •

To elicit material and relevant facts

•

Limited to one set per party interrogated

ADMISSION BY ADVERSE PARTY •

To seek admission of the genuineness of any document or the truth of any relevant matter.

•

Implied admission if not answered by adverse party within 15 days from service of request.

•

Admission is for the pending action only.

PRODUCTION OR INSPECTION OF THINGS (1) Production of tangibles for inspection, duplication, etc.

TRIAL ADJOURNMENTS OR POSTPONEMENTs •

Not for longer than one month at a time or three months in all, except when otherwise authorized

MOTION TO POSTPONE FOR ABSENCE OF EVIDENCE •

Affidavit that evidence is material and due diligence was used to procure it

•

Trial can go on if adverse party admits to facts to be proved by evidence even if right to object is reserved.

MOTION TO POSTPONE TRIAL FOR ILLNESS OF PARTY OR COUNSEL •

Affidavit that presence is indispensable and non-attendance is excusable

ORDER OF TRIAL:

(2) Permit entry into property for inspecting, surveying, etc.

(1) plaintiff – evidence in support of complaint

PHYSICAL AND MENTAL EXAMINATION

(2) defendant – evidence in support of defense, counterclaim, cross-claim, third party complaint

•

Where the physical or mental condition of a party is in controversy

REFUSAL TO COMPLY WITH MODES OF DISCOVERY Refusal to answer •

Adjourn or

•

Court may compel answer o

Continued failure ƒ

Contempt

ƒ

Facts deemed established

ƒ

Refusal to allow disobedient party to present evidence

ƒ

Strike out pleadings or judgment by default

ƒ

Arrest – except for refusal to submit to physical or mental examination

REFUSAL TO ATTEND •

Strike out pleadings;

•

Dismiss action

Civil Procedure Reviewer Cayo 2D

(3) third party defendant – evidence in support of defense, counterclaim, crossclaim, third party complaint (4) fourth party defendant – evidence is support of defense, counterclaim, crossclaim, third party complaint…and so on (5) Parties against whom counterclaim or cross-claim pleaded – adduce evidence in support of defense (6) Parties – rebutting evidence unless court permits evidence on original case ƒ

Newly discovered;

ƒ

Omitted through inadvertence or mistake;

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ƒ

Purpose is to correct evidence previously offered.

RECEPTION OF EVIDENCE •

By judge; or

•

By clerk of court who is member of bar if: (1) Ex parte hearing

If granted, case dismissed. But on appeal, no more right to present evidence.

Judgment on the pleadings When? Proper where: (1) answer:

(2) Parties agree in writing **Clerk can’t rule on admissibility

•

fails to tender an issue or

o

admits the material allegations of the adverse party’s pleading

(2) motion for judgment on the pleadings is filed

Consolidation •

o

Actions involving a common question of law or fact are pending before the same court To avoid unnecessary costs or delay

Severance •

Claim, counterclaim, cross-claim, third party complaint may be tried separately

•

For convenience or furtherance of justice

o

Not allowable in annulment or legal separation cases

o

A general denial is an admission which warrants judgment on the pleadings

Summary judgments o

For claimant; when: o

After answer

o

Claimant moves for summary judgment with supporting documents and affidavits

Trial by commissioner WHEN?

o

For defendant; when:

•

By consent of parties; OR

o

Any time

•

By order of the court, if:

o

Defendant moves for summary judgment with supporting documents and affidavits

o

Long examination of accounts

o

Taking of account necessary for judgment

o

Motion must be served 10 days before hearing of motion

o

Question of fact not in pleadings arises

o

Affidavits and documents served 3 days before hearing

o

Judgment rendered if:

Commissioner can proceed ex parte and punish for contempt for failure to appear A commissioner can issue subpoenas and rule on admissibility

Demurrer to evidence

o

No genuine issue as to any material fact, except unliquidated damages

o

Movant is entitled to judgment as a matter of law.

When? How? After presentation by plaintiff of evidence. Defendant may move for dismissal on the ground that the plaintiff has not established a right to relief. If denied, present evidence. Civil Procedure Reviewer Cayo 2D

DISTINGUISH BETWEEN JUDGMENT BY DEFAULT, JUDGMENT ON THE PLEADINGS, SUMMARY JUDGMENT, AND MOTION TO DISMISS. Judgment by default when there is failure to answer within the proper period. Page 23 of 70

Judgment on the pleadings when the answer fails to tender an issue. Summary judgment when the answer apparently raises an issue, but supporting documents show that there is no genuine issue as to any material fact. A motion to dismiss is filed before an answer if the complaint (not the answer) states no cause of action, among other grounds

FORM OF JUDGMENT: (1) in writing; (2) stating the facts and law on which it is based; (3) personally and directly prepared by the judge; (4) signed by him; (5) filed with the clerk (promulgation).

WHAT ARE THE GROUNDS OF NEW TRIAL OR RECONSIDERATION? New trial: (1) Fraud, accident, mistake, excusable negligence – unavoidable and rights impaired o

Only extrinsic fraud – committed outside the trial by the successful party

(2) Newly discovered evidence which couldn’t have been produced even with diligence AND would probably affect the outcome Reconsideration: (1) damages awarded are excessive; (2) evidence is insufficient to justify decision; (3) decision is contrary to law. RULE WITH REGARD TO SECOND MOTIONS FOR NEW TRIAL AND SECOND MOTIONS FOR RECONSIDERATION: New trial: A motion for new trial must include all grounds available at that time and those not included are barred. A second motion based on new grounds may be filed subject to the aforementioned rule. Recon: Not possible, except in the SC.

Civil Procedure Reviewer Cayo 2D

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RULE 39 EXECUTION WHEN DOES EXECUTION UPON JUDGMENTS OR FINAL ORDERS ISSUE AS A MATTER OF RIGHT? (1) On motion; (2) Upon a judgment or order that disposes of the action or proceeding; (3) Upon the expiration of the appeal period with no appeal taken. WHEN AND WHERE DOES EXECUTION ISSUE IF APPEAL HAS BEEN PERFECTED AND RESOLVED? (1) Applied for in the court of origin; (2) On motion; (3) With notice; (4) Submitting certified true copies of: a.

Judgment or final order; and

b.

The entry thereof.

*Records do not have to be transmitted to the court of origin, copies are sufficient. WHEN MAY THE APPELLATE COURT DIRECT THE COURT OF ORIGIN TO ISSUE THE WRIT OF EXECUTION, WITHOUT APPLICATION BEING MADE IN THE LATTER? (1) Upon motion; (2) When the interest of justice requires. DISTINGUISH FINAL JUDGMENTS FROM FINAL AND EXECUTORY JUDGMENTS. Final judgments finally dispose of, adjudicate, or determine the rights of the parties in the case. They are not yet executory (as a matter of right) in the sense that an appeal may still be perfected. Final and executory judgments become so by operation of law; upon the lapse of the appeal period if no appeal is perfected. ARE THERE JUDGMENTS AND FINAL ORDERS THAT MAY BE EXECUTED AS A MATTER OF RIGHT BEFORE THE EXPIRATION OF THE APPEAL PERIOD? Yes. (1) Forcible entry and unlawful detainer judgments by lower courts; (2) [SIRA] – Support, injunction, receivership, and accounting, unless otherwise ordered; Civil Procedure Reviewer Cayo 2D

(3) Quasi-judicial judgments, orders, or resolutions appealable to the CA. ARE THERE INTERLOCUTORY ORDERS THAT MAY BE SUBJECT OF EXECUTION? Yes, such as an order granting support pendente lite. ARE THE JUDGMENTS THAT ARE NOT APPEALABLE? [CSI] (1) Conditional judgments – contains no judgment; just a statement of action should a condition occur (2) Sin perjuicio judgments – judgment without a statement of facts to support – no prejudice (3) Incomplete judgments – leaves matters to be settled in a subsequent proceeding. AS A GENERAL RULE, TRIAL COURTS HAVE THE MINISTERIAL DUTY TO ORDER EXECUTION OF A FINAL AND EXECUTORY JUDGMENT. WHAT ARE THE EXCEPTIONS, IF ANY? [NU-VICE] (1) Not submitted - When it appears that the controversy has never been submitted to the judgment of the court; (2) Unclear - When the terms of the judgment are not clear and there remains room for interpretation; (3) Varies - When the writ of execution varies the judgment; (4) Improvident - When in appears that the writ of execution has been improvidently issued, defective in substance, against the wrong party, issued without authority, or that the debt has been paid or satisfied. (5) Change - When there has been a change in the situation of the parties which makes the execution inequitable or unjust; (6) Exempt - When execution is sought to be enforced against property exempt from execution; In the above cases, the other party may file a motion to quash the writ of execution. WHEN MAY EXECUTION OF FINAL AND EXECUTORY JUDGMENTS BE ENJOINED? (1) Upon the filing of a petition for relief from judgment; (2) When judgment is attacked for being void for lack of jurisdiction or obtained through fraud; Page 25 of 70

(3) On equitable grounds; (4) In cases falling under the exceptions to the ministerial duty of ordering execution [NU-VICE] CAN FINAL AND EXECUTORY JUDGMENTS BE AMENDED? ARE THERE ANY EXCEPTIONS TO THE RULE? Final and executory judgments cannot be amended except: (1) To correct clerical errors; (2) To clarify ambiguities; (3) To enter nunc pro tunc orders (now for then); (4) To modify judgments for support. WHAT IS THE TEST TO DETERMINE WHETHER AN ERROR IS CLERICAL OR NOT? It is a clerical error if there was a failure to preserve or correctly represent in the record the actual decision of the court. It is a judicial error if it relates to something the court did not consider or erroneously decided. HOW ARE RIGHTS WHICH MAY HAVE BEEN CREATED AFTER JUDGMENT HAS BECOME FINAL AND EXECUTORY BE ENFORCED? A new suit must be filed.

WHEN MAY DISCRETIONARY EXECUTION OR EXECUTION PENDING THE PERIOD TO APPEAL OR EXECUTION OF SEVERAL JUDGMENTS BE HAD? (1) On motion for execution by the prevailing party;

*In the book, the requisites are (1) motion with notice; (2) good reasons; (3) stated in a special order. EXECUTION PENDING APPEAL IS FILED IN THE TRIAL COURT WHEN: (1) The trial court still has jurisdiction over the case; (2) The trial court has lost jurisdiction but still has the records. EXECUTION PENDING APPEAL IS FILED IN THE APPELLATE COURT WHEN: The trial court has lost jurisdiction over the case and the records have been transmitted to the appellate court. WHAT ARE SEVERAL, SEPARATE, OR PARTIAL JUDGMENTS? Several judgment – rendered against one or more defendants, leaving the action to proceed against the others. Separate or partial judgments – rendered at any stage of an action disposing of a particular claim and leaving the action to proceed as to the remaining claims. WHAT ARE GOOD REASONS? (1) Appeal was made only for delay; (2) Education of the person to be supported would be unduly delayed; (3) Monthly allowances as necessary support; (4) Insolvency of the judgment debtor. WHAT ARE NOT GOOD REASONS? (1) Claim is not secured;

(2) With notice to the adverse party;

(2) Judge may still determine whether appeal is dilatory;

(3) Filed in either:

(3) Posting of a bond.

a.

The trial court while: i. It has jurisdiction over the case and (should this be OR?) ii. Is in possession of the original record or record on appeal

b.

The appellate court, if the trial court has lost jurisdiction

(4) After hearing;

*When discretionary execution is granted and there are no good reasons therefor, certiorari will lie even if the appeal has been filed or a supersedeas bond has been filed. OTHERS: •

Actual and compensatory damages (but not moral and exemplary damages) may be ordered executed pending appeal.

•

Execution pending appeal is not applicable in land registration proceedings.

(5) Upon good reasons to be stated in a special order. Civil Procedure Reviewer Cayo 2D

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HOW IS DISCRETIONARY EXECUTION STAYED? (1) Upon motion and of supersedeas bond; (2) Approved by the court; (3) Conditioned upon the performance of the judgment or order in case it is finally sustained in which case the judgment may be proceeded against on motion and notice to the surety. *This does not preclude the filing of certiorari to question discretionary execution ordered with GADALEJ

(4) If the creditor is the purchaser at the execution sale, he may be made liable for the property, at the option of the, debtor. (5) If the writ of execution is void, the subsequent sale is unenforceable (I think).

WHEN AND HOW MUST A FINAL AND EXECUTORY JUDGMENT OR ORDER BE EXECUTED? (1) Within 5 years from date of entry – on motion;

WHAT ARE THE JUDGMENTS NOT STAYED BY APPEAL?

(2) After 5 years but before 10 years from date of entry – by action (for revival).

Yes.

(3) The same periods apply to revived judgments.

(1) Forcible entry and unlawful detainer judgments by lower courts; (2) [SIRA] – Support, injunction, receivership, and accounting, unless otherwise ordered; (3) Quasi-judicial judgments, orders, or resolutions appealable to the CA. *So it seems the only way these may be stayed are by filing a supersedeas bond. OTHERS: •

Sureties are solidarily liable with the principal and the measure of the liability is the appealed decision.

WHAT HAPPENS WHEN AN EXECUTED JUDGMENT HAS BEEN REVERSED OR ANNULLED? Upon motion, the court may order restitution or reparation of damages as equity and justice may warrant. Reversal or annulment could by under petition for relief under Rule 38 or annulment under Rule 47. WHAT ARE SOME RULES WITH REGARD TO RESTITUTION? (1) Specific restitution is proper in case of complete reversal. (2) In case or partial reversal, only the excess is returned. (3) In case of properties sold to third parties at an execution sale, the sale remains valid but the judgment debtor is liable for the amount realized plus interests.

Civil Procedure Reviewer Cayo 2D

WHAT IS THE PERIOD WITH REGARD TO THE EXECUTION OF A JUDGMENT BY COMPROMISE? The period begins to run only after the expiration of the period within which payment should have been made. Ex: In a compromise to make the amount payable within six years from entry of judgment, the period begins to run only after the expiration of the six year period. WHEN ARE THE PERIODS SUSPENDED? (1) When the enforceability of the judgment is suspended by order or becomes conditional, prescription does not run. (2) By agreement of the parties to suspend enforcement. (3) When proceeding supplementary to execution are intitiated by the creditor (examination of debtor due to unsatisfied execution). (4) When the delay was due to the judgment debtor’s fault. (5) When an action to revive the judgment is filed. PERIODS ARE NOT SUSPENDED BY: (1) Injunction enjoining execution sale. (2) Written extrajudicial demand or acknowledgement of debt. DIFFERENTIATE JURISDICTION TO AMEND JUDGMENT FROM JURISDICTION TO EXECUTE JUDGMENT.

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Jurisdiction to amend terminates when the judgment becomes final and executory. Jurisdiction to execute continues even after the judgment becomes executory because it is necessary for the enforcement of the judgment. WHAT IS THE VENUE FOR THE ACTION TO ENFORCE JUDGMENT? The venue will depend on the character of the principal action (whether personal or real). WHAT ARE DEFENSES IN AN ACTION FOR ENFORCEMENT? Prescription, satisfaction of the judgment after entry, permissive counterclaims. OTHERS: •

A judgment rendered against several defendants, jointly and severally, can be revived against one of the only.

•

Only the execution must be had within the 5 year period; sale may occur after.

•

But sale must occur before the expiration of the 10 year period.

•

Judgment for support is a continuing obligation and does not prescribe; but unpaid installments more than 10 years old are uncollectible.

•

Periods are not applicable to special proceedings such as land registration cases.

HOW IS EXECUTION ENFORCED IN CASE OF THE DEATH OF A PARTY? (1) Death of judgment obligee - upon application of his executor, administrator, or successor in interest; (2) Death of the judgment obligor: a.

For recovery of real or personal property or the enforcement of a lien thereon – against his executor, administrator, or successor in interest; If it is judgment for money, such as in an action for damages, it shall be filed as a regular money claim.

b.

Death of judgment obligor after execution is actually levied upon his property – property may be sold to satisfy the judgment

Civil Procedure Reviewer Cayo 2D

WHAT IS THE FORM OF A WRIT OF EXECUTION? Probably won’t come out. WHAT ARE THE GROUNDS FOR QUASHING A WRIT OF EXECUTION? [NU-VICE] (1) Not submitted - When it appears that the controversy has never been submitted to the judgment of the court; (2) Unclear - When the terms of the judgment are not clear and there remains room for interpretation; (3) Varies - When the writ of execution varies the judgment; (4) Improvident - When in appears that the writ of execution has been improvidently issued, defective in substance, against the wrong party, issued without authority, or that the debt has been paid or satisfied. (5) Change - When there has been a change in the situation of the parties which makes the execution inequitable or unjust; (6) Exempt - When execution is sought to be enforced against property exempt from execution.

HOW IS EXECUTION ON JUDGMENTS FOR MONEY ENFORCED? EXPLAIN BRIEFLY. (a) Immediate payment on demand - of cash, certified check payable to the judgment obligee, any other form acceptable to the judgment obligee; (b) Satisfaction by levy – This occurs if immediate payment in (a) is not made. The obligor can choose which properties will be levied and sold. If no choice is made, personal property will be sold before real property. (c) Garnishment of debts and credits – Credits and debts due the judgment obligor and in the possession or control of third persons (garnishee) may be levied by serving notice upon such third persons. The amount garnished should be delivered directly to the obligee by the garnishee within 10 days from notice. HOW IS EXECUTION ON JUDGMENTS FOR SPECIFIC ACTS PERFORMED?

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(a) Judgment to perform acts to vest title (such as delivery of deeds) - The court may direct the act to be done at the cost of the disobedient party.

(2) Professional libraries and equipment of judges, lawyers, engineers, dentists, and other professionals; (3) The right to receive support;

(b) Sale of real or personal property - The court shall order the property to be sold and the proceeds to be applied to satisfy the judgment.

(4) Necessary clothing and personal effects, excluding jewelries! (5) Salaries or wages for personal services rendered within the 4 months preceding the levy and necessary for family support;

(c) Delivery or restitution of real property – The officer shall demand that the occupants vacate within 3 days and if they fail to do so, reasonable means may be employed. (d) Delivery or restitution of personal property – the officer will take possession and deliver the property to the judgment obligee. (e) Removal of improvements on property subject of execution – If the judgment obligor refuses to remove improvements, the officer can only demolish the improvements if there is a special order issued upon motion of the obligee and after due hearing. HOW ARE SPECIAL JUDGMENTS EXECUTED? A copy of the judgment and the writ of execution shall be served on the person required to perform the required act and such person may be punished for contempt until he performs such act. DIFFERENTIATE JUDGMENTS FOR SPECIFIC ACTS FROM SPECIAL JUDGMENTS. Judgments for specific acts are for payment, sale, or delivery of property. Upon refusal, the court can appoint an officer or other person to perform the act. Refusal is not generally punishable by contempt.

(6) Ordinary tools used in livelihood; (7) Three beasts of burden used in livelihood; (8) Etc. But if property mentioned above is mortgaged, it is not exempt from foreclosure.

WHAT HAPPENS IF PROPERTY LEVIED BY THE SHERIFF IS CLAIMED BY A THIRD PERSON? GR: If the third person claimant makes an affidavit of his claim and serves it on the sheriff and obligee, the sheriff shall not be bound to keep the property. Exception: The sheriff may keep the property if the obligee puts up a bond to indemnify the third party and the sheriff will not be liable for any damages to the third person if such bond is furnished. 9

The third person may vindicate his claim in a separate action.

9

The sheriff keeps or releases the property at his discretion – with or without a bond. If no bond is filed and the sheriff keeps the property, he can be liable for damages.

Special judgments are for acts which can only be performed by the obligor because of some qualification or circumstance. Only the obligor can perform the act and refusal is punishable by contempt.

HOW CAN THE JUDGMENT OBLIGOR PREVENT EXECUTION?

WHAT IS THE EFFECT OF LEVY ON EXECUTION AS TO THIRD PERSONS?

HOW PROPERTY IS SOLD ON EXECUTION.

The levy shall create a lien in favor of the judgment obligee subject to liens already existing.

WHAT ARE THE PROPERTIES EXEMPT FROM EXECUTION? GIVE AT LEAST 5.

By paying the amount required by the execution at any time before the sale.



The judge/officer involved cannot purchase



Inadequacy of price can be grounds for setting aside the sale ONLY IF it shocks the conscience and there can be a better price at a subsequent sale UNLESS there is right of redemption.

(1) Family home; Civil Procedure Reviewer Cayo 2D

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RULE 45 APPEAL BY CERTIORARI TO THE SC WHAT IS AT ISSUE IN ABC? GR: Only questions of law are entertained. E: In ABC from the RTC, when the SC believes there are factual issues, it may decide them or refer them to the CA. DISTINGUISH BETWEEN APPEAL BY CERTIORARI RULE 45 AND THE SPECIAL CIVIL ACTION OF CERTIORARI RULE 65.

WHAT IS REVIEWED?

PARTIES?

DECISION?

ABC 45

SCAC 65

Questions or errors of law decided by lower court

Acts of lower court, body or officer exercising judicial or quasijudicial functions when with or in excess of jurisdiction or with GADALEJ

Errors of judgment

Errors of jurisdiction

Same parties – appellant/petitioner : appellee/respondent

Inferior court, board or officer is the public respondent; appellee is private respondent

Affirming, reversing, or modifying the judgment

Annulling or modifying the act

When may the SC inquire into conclusions of fact made by the CA? GR: Conclusions of fact of the CA are binding on the SC. E: [CCNNMMPGSB] corny, walang vowels

(1) Conflicting findings of fact - When the findings of fact are conflicting; (2) Contrary to RTC findings - When the findings of fact of the CA are contrary to those of the trial court; (3) Not supported by evidence - When the findings of fact are conclusions without citation of specific evidence on which they are based; (4) Not disputed by respondent When the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondent; (5) Mistaken inference - When the inference is manifestly mistaken, absurd, or impossible; (6) Misapprehension of facts - When the judgment is based on a misapprehension of facts; (7) Premised on absence of evidence When the finding of fact of the CA is premised on the supposed absence of evidence and is contradicted by the evidence on record. (8) GADALEJ - When there is GADALEJ; (9) Speculation - When the conclusion is a finding grounded entirely on speculation, surmises, or conjectures; (10) Beyond issues - When the CA, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; HOW AND WHEN IS ABC COMMENCED? (1) By filing a verified petition raising only questions of law, accompanied by: a.

Docket and other lawful fees and deposit for costs

b.

AND proof of service on the lower court and the adverse party.

(2) Within 15 days from notice of: a.

final order

b.

OR denial of motion for new trial or reconsideration properly filed.

CAN THERE BE AN EXTENSION OF THE 15 DAY PERIOD? Yes, there can be a 30 day extension to file the petition:

Civil Procedure Reviewer Cayo 2D

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(1) upon motion duly filed and served; (2) with full payment of docket, and other lawful fees and deposit of costs; (3) before the expiration of the original 15 day period. WHAT ARE THE CONTENTS OF THE PETITION? (1) Names of the parties – petitioner and respondent;

Pleadings, briefs, memoranda, etc. may be required by the SC to help it determine whether to deny the petition. WHEN THE PETITION IS GIVEN DUE COURSE: (1) the SC may require the filing of pleadings, briefs, memoranda, etc. (2) the SC may require the elevation of the entire records of the case or parts thereof.

(2) Material dates – notice of judgment/denial of MR/MNT appealed from; (3) Statement of matters and arguments; (4) Certified true copy of the judgment, final order or resolution appealed from and pertinent portions of the record; (5) Certification of non-forum shopping. WHEN MAY THE PETITION BE DISMISSED OR DENIED?

RULE 46 ORIGINAL CASES TO WHAT ACTIONS IS RULE 46 APPLICABLE? Orignal actions for certiorari, prohibition, mandamus, and quo warranto. WHAT IS THE ORIGINAL JURISDICTION OF THE CA? (1) CPM under R65; (2) Quo warranto;

Dismissed: (1) failure to pay fees;

(3) Habeas corpus;

(2) no proof of service;

(4) Annulment of RTC judgments – EXCLUSIVE

(3) failure to comply with formal requirements (as to the contents of the petition) Denied:

WHAT ARE THE CONTENTS OF THE PETITION?

(1) without merit;

(1) names and addresses of the parties – petitioner/respondent;

(2) for delay;

(2) statement of facts and matters;

(3) raises unsubstantial questions.

(3) relief prayed for

IS ABC A MATTER OF RIGHT? WHEN WILL IT BE GRANTED?

(4) material dates – if R65

ABC is a matter of judicial discretion and will be granted only when there are special and important reasons therefor, such as but not limited to:

(6) certified true copy of the judgment, final order or resolution and material portions of the record

(1) When the lower court has decided a question of substance:

(5) proof of service;

(7) certification of non-forum shopping; (8) docket and lawful fees, deposit for costs.

a.

not previously decided by the SC

WHO ARE THE PARTIES?

b.

OR decided it not in accordance with jurisprudence

The parties are the petitioner and the respondent.

(2) When the lower court has departed from the accepted and usual course of judicial proceedings so as to call for an exercise by SC of its power or supervision. Documents:

Civil Procedure Reviewer Cayo 2D

HOW IS JURISDICTION OVER PARTIES ACQUIRED? Petitioner – by filing the petition Respondent – (1) by service of the initiatory action taken by the court resolving either to dismiss the

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petition of give due course thereto, requiring the submission of a comment (2) OR voluntary submission. WHAT DOES THE COURT DO AFTER RECEIVING THE PETITION? The court may either: (1) Dismiss the petition with specific reasons therefor; (2) OR require the respondent to comment (initiatory action). WHAT IF THE RESPONDENT FAILS TO COMMENT? The court may decide based on the record. HOW DOES THE COURT DETERMINE FACTUAL ISSUES? The court may: (1) conduct hearings; (2) OR delegate reception of evidence to: a.

A member of the court;

b.

OR an appropriate court (lower court), agency, or office.

RULE 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS WHEN IS THIS REMEDY AVAILABLE? The CA may annul: (a) judgments, final orders or resolutions of RTCs The RTC has jurisdiction over petitions for annulment of judgments, final orders or resolutions of the MTCs (b) for which the ordinary remedies of new trial, appeal petition for relief or other appropriate remedies are no longer available (if they are available, R47 cannot be resorted to). (c) through no fault of the petitioner

WHAT ARE THE GROUNDS FOR ANNULMENT? (1) Extrinsic Fraud – unless it was availed of OR could have been availed of in a motion for new trial or petition for relief (R37 & R38) Civil Procedure Reviewer Cayo 2D

Extrinsic fraud is fraud committed outside the trial by the successful party (2) Lack Of Jurisdiction

WHEN MUST THE ACTION BE FILED? If based on: (1) extrinsic fraud – within four years from discovery; (2) lack of jurisdiction – before it is barred by laches or estoppel.

WHAT ARE THE CONTENTS OF THE VERIFIED PETITION? (1) Statement of the facts and law justifying annulment as well as the petitioner’s cause of action or defense, as the case may be. (2) Certified copy of the JOFR (3) Affidavits of witnesses (4) Certification of non-forum shopping;

WHAT IS THE COURT’S ACTION ON THE PETITION? No merit – dismiss Prima facie merit – give due course and serve summons on the respondent.

WHAT IS THE PROCEDURE TO BE FOLLOWED? The procedure in ordinary civil cases. HOW IS EVIDENCE RECEIVED BY THE CA? The reception of evidence may be referred to: (a) a member of the CA; (b) an RTC judge.

IMPT: WHAT IS THE EFFECT OF THE JUDGMENT OF ANNULMENT? If based on lack of jurisdiction – the questioned judgment will be rendered null and void without prejudice to the original action being refiled in the proper court (with jurisdiction). If based on extrinsic fraud –

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(1) Plaintiff in the original action (the action that was annulled) is not guilty of extrinsic fraud – a.

b.

upon the plaintiff’s motion, the CA may order the RTC to try the case as if a timely motion for new trial had been granted therein OR the plaintiff may refile the case – the prescriptive period for refilling the original action is suspended from the filing of the original action until the judgment of annulment.

(2) Plaintiff in the original action (the action that was annulled) WAS GUILTY of extrinsic fraud – the plaintiff who was guilty of extrinsic fraud may refile the original action if his cause of action had not yet prescribed. Ex: If the plaintiff sued upon a contract and employed extrinsic fraud in procuring a favorable judgment, when the judgment is annulled, he may refile his claim provided that his right of action has not yet prescribed. In this case, provided ten years have not yet elapsed from the time the right of action accrued. There is no suspension of the prescriptive period by the filing of the action for annulment.

WHAT RELIEF IS AVAILABLE? (1) attorney’s fees (2) damages (3) restitution, if the judgment annulled had already been executed

RULE 48 PRELIMINARY CONFERENCE At any time during the pendency of the case, the court may call the parties and their counsel to a preliminary conference:

RULE 49 – ORAL ARGUMENT

RULE 50 DISMISSAL OF APPEAL WHAT ARE THE GROUNDS FOR DISCRETIONARY DISMISSAL OF AN APPEAL? Remember, these grounds are discretionary. The CA MAY dismiss an appeal, upon motion or motu proprio, on the following grounds: [MOSS-FUCkUP] (a) Material data rule - Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (b) Out of time - Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; (c) Service - Failure of the appellant to serve and file required brief or memoranda; (d) Specific assignment of errors Absence of specific assignment of errors in the appellant’s brief, or of page references to the record; (e) Fees - Failure of the appellant to pay the docket and other lawful fees; (f) Unauthorized alterations, omissions or additions in the approved record on appeal; (g) Correction/completion - Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; (h) Unappealable - The fact that the order or judgment appealed from is not appealable; (i) Preliminary conference - Failure of the appellant to appear at the preliminary conference or to comply with orders, circulars, or directives without justifiable cause.

(a) Amicable settlement - To consider the possibility of an amicable settlement unless the case is not subject to compromise;

OTHER CAUSES FOR DISMISSAL OF APPEAL NOT IN THE RULES:

(b) To define, simplify, and clarify the issues;

Also discretionary

(c) To formulate stipulations of fact, limit witnesses, etc.

(1) Moot causes; (2) Frivolous appeals a.

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Dilatory Page 33 of 70

b.

No justiciable question

c.

Patently without merit.

pleading or expiration of the period for its filing WHO RENDERS JUDGMENT?

WHAT ARE THE CAUSES FOR MANDATORY DISMISSAL OF APPEALS? Dismissal is mandatory in the following circumstances: (1) The appeal from the RTC decision raises only questions of law – SC has jurisdiction; (2) Appeal by notice of appeal instead of by petition for review. Notice of appeal - if RTC judgment is rendered in the exercise of original jurisdiction. Petition for review - if RTC judgment is rendered in the exercise of appellate jurisdiction.

WHEN IS WITHDRAWAL OF AN APPEAL A MATTER OF RIGHT? WHEN IS IT A MATTER OF DISCRETION? Matter of right – at any time before the filing of the appellee’s brief. Matter of discretion – after the appellee’s brief is filed. RULE 51 JUDGMENT WHEN IS A CASE DEEMED SUBMITTED FOR JUDGMENT? In ordinary appeals: (1) No hearing held – upon filing of last required pleading or expiration of the period for its filing; (2) Hearing held – upon termination of the hearing or upon filing of last required pleading or expiration of the period for its filing In original actions and petitions for review: (1) Where no comment is filed – upon expiration of the period to comment;

The members of the court who participated in the deliberation on the merits of the case before its assignment to a member for the writing of the decision. HOW IS VOTING DONE? 

All three members must participate and vote unanimously.



Should there be a dissent, the Presiding Justice of the CA will choose two additional Justices by raffle to form a special division of 5 Justices.



A decision will be rendered only with the participation of all five and a majority vote.

WHAT IS THE FORM OF A DECISION? It should state clearly and distinctly the facts and law on which it is based either contained in the decision itself or adopted from the decision appealed from. In case of adoption, the decision appealed from must be incorporated in the decision rendered; mere reference is not allowed.

IMPT: WHAT QUESTIONS MAY BE DECIDED BY THE COURT? No errors which does not affect the jurisdiction over the SM or the validity of the judgment appealed from will be considered unless: (1) stated in the assignment of errors; (2) OR closely related to or dependent on an assigned error and properly argued in the brief; (3) OR they are merely plain errors and clerical errors. WHEN IS JUDGMENT ENTERED IN THE BOOK OF ENTRIES OF JUDGMENTS? Judgment is entered by the clerk in the book of entries of judgments when it becomes final and executory - upon the expiration of the period to file an appeal or a motion for new trial.

(2) No hearing held – upon filing of last required pleading or expiration of the period for its filing;

Even if the judgment is physically entered after the expiration of the period, the date of entry is considered to be the date it became final and executory.

(3) Hearing held – upon termination of the hearing or upon filing of last required

WHEN AND HOW MAY JUDGMENT BE EXECUTED?

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GR: Upon the filing of a motion after the entry of the judgment (after it becomes final and executory). E: Unless it is ordered to be immediately executory.

the court below even with diligence AND would probably affect the outcome of the case. ACTION OF THE CA? (1) Grant or refuse a new trial in the lower court after considering the new evidence and the evidence produced at trial;

In original actions in the CA – the writ of execution will be accompanied by a copy of the judgment and addressed to a proper officer for enforcement In appealed cases, where a motion for execution pending appeal is granted and the CA is in possession of the original record or the record on appeal – the resolution granting the motion, a copy of the judgment to be executed, and an order to issue a writ of execution will be sent to the lower court.

(2) OR order the taking of additional testimony; (3) OR render judgment as it may deem just.

RULE 54 INTERNAL BUSINESS WHEN DOES THE CA SIT EN BANC? (1) Administrative; (2) Ceremonial;

RULE 52

(3) OR other non-adjudicatory functions.

MOTION FOR RECONSIDERATION WHEN? A MR should be filed within 15 days from notice of the judgment WITH PROOF OF SERVICE ON THE ADVERSE PARTY. Must be resolved within 90 days. 2ND? No second MR by the same party shall be entertained (except that the rules don’t apply to the SC – it may entertain a 2nd MR) STAY OF EXECUTION? A properly filed MR shall stay the execution of the judgment unless the court, for good reasons, shall otherwise direct. Required for appeal? The filing (and denial) of a MR is usually a prerequisite to the filing of an appeal or of a R65 remedy. WHAT IS ALLEGED IN THE MR (R37)? (1) Excessive damages; (2) Insufficient evidence; (3) Judgment contrary to law. IMPT: PRO FORMA MR? A MR is pro forma if it does not raise any new issues. It does not toll the running of the period to appeal and should be dismissed. RULE 53 NEW TRIAL

RULE 55 PUBLICATION OF JUDGMENTS AND FINAL RESOLUTIONS 

Published in the OG and in the Reports officially authorized by the court in the language officially written: o

SC Reports

o

CA Reports

RULE 56 PROCEDURE IN THE SC ORIGINAL CASES WHAT CASES MAY BE FILED ORIGINALLY IN THE SC? (1) CPM R65; (2) Quo warranto, (3) Habeas corpus; (4) Disciplinary matters against members of the judiciary and attorneys; (5) Cases involving ambassadors, public ministers and consuls

WHEN? At any time after perfection of the appeal and before the CA loses jurisdiction over the case. Must be resolved within 90 days.

APPEALED CASES

GROUND? Newly discovered evidence which couldn’t have been discovered prior to the trial in

GR: Only by petition for review on certiorari

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HOW IS APPEAL TO THE SC TAKEN?

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E: criminal cases where the penalty is death, RP or life imprisonment.

WHAT ARE THE GROUNDS FOR THE DISMISSAL OF AN APPEAL TO THE SC?

PROVISIONAL REMEDIES WHAT IS A PROVISIONAL REMEDY?

An appeal to the SC may be dismissed motu proprio or on motion on the following grounds:

It is a collateral proceeding, permitted only in connection with a regular action as one of its incidents. It is a remedy provided to meet a particular need or exigency.

[UM…COFFEe?]

The provisional remedies are:

(1) Unappealable - The fact that the case is not appealable to the SC; (2) Merit - Lack of merit in the petition; (3) CDO - Failure to comply with any circular, directive or order of the SC without justifiable cause; (4) Out of time - Failure to take the appeal within the reglementary period; (5) Formal requirements - Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition; (6) Fees - Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs; (7) Error in the choice or mode of appeal. 

Petition for review is the proper mode



An appeal by notice of appeal shall be dismissed unless the penalty imposed is death, RP or life imprisonment



An ABC from an RTC decision submitting questions of fact may be referred to the CA for appropriate action

What is the procedure when the SC en banc is unable to reach a decision? In cases to be decided en banc, where the court is divided or the required majority cannot be had: (1) The case shall be re-deliberated. (2) If there is still no decision:

(1) Preliminary attachment; (2) Preliminary injunction; (3) Receivership; (4) Replevin.

RULE 57 PRELIMINARY ATTACHMENT When: At the commencement of the action or at any time before entry of judgment If judgment has already been entered, a writ of execution and not a writ of attachment is proper. Purpose: To hold the property of the adverse party as security for the satisfaction of any judgment Cases when available: (1) In an action for recovery of specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi contract, delict, or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (2) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;

a.

The original case shall be dismissed

b.

The decision appealed from shall be affirmed

c.

The motion or petition on the incidental matter shall be denied

(3) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;

d.

The sentence of death shall be reduced to reclusion perpetua

(4) In an action against a party who has been guilty of fraud in contracting the debt or

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incurring the obligation upon which the action is brought, or in the performance thereof; (5) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; (6) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication.

DOES THE ISSUANCE OF A WRIT OF ATTACHMENT REQUIRE HEARING? No. Thus, it may be issued without jurisdiction over the adverse party having been acquired. However, the court may require prior hearing, in which case, summons must be served. But levy on attachment requires service of summons. MAY THE DEFENDANT OBTAIN A WRIT OF PRELIMINARY ATTACHMENT? Yes. In case he sets up a counterclaim. WHAT IS THE LIFETIME OF THE WRIT OF ATTACHMENT? There is no lifetime stated in the Rules but its character being interlocutory and ancillary, it is necessarily lifted when the case is dismissed. It is also terminated, of course, is when it is satisfied. CAN A WRIT OF ATTACHMENT BE ISSUED AGAINST A FOREIGN CORPORATION DULY LICENSED TO DO BUSINESS IN THE PHILIPPINES, WITHOUT ANY ALLEGATION OF FRAUD OR INTENT TO ABSCOND (IN OTHER WORDS, UNDER GROUND #6)?



Property of the deceased in the hands of a judicial administrator is also exempt because it is in custodia legis. The creditor’s remedy is to file a money claim against the estate. But the defendant’s interest in the property belonging to the estate of the deceased may be attached by serving the executor with a copy of the writ.

WHAT IS THE NATURE OF ATTACHMENT? Attachment is a proceeding in rem and the lien it creates over the property is enforceable against the world and only subject to liens already existing.

HOW IS PROPERTY ATTACHED? (1) The applicant must file an affidavit either by him or by another person with personal knowledge, showing that: (a) The case is one of those where attachment is available; (b) There is no other sufficient security; (c) The amount due to the applicant is as much as the amount for which the order is granted (2) The applicant must file a bond in the amount fixed by the court conditioned that he will pay all the costs and damages which may be adjudged to the adverse party should the court finally adjudge that the applicant was not entitled to the attachment (ex: if the case is dismissed). (3) The court issues an order of attachment a.

i. ex parte

No. First, the corporation necessarily has an agent in the country; it cannot be considered nonresident. Second, summons need not be served by publication as the same can be served upon the agent. Third, foreign corporations issue securities upon registration precisely to safeguard against their absconding. WHAT PROPERTIES ARE EXEMPT FROM ATTACHMENT? 

Properties exempt from execution are exempt from attachment (three horses, three cows …).



Property in custodia legis is exempt in attachment and execution because it is under the control of the court.

Civil Procedure Reviewer Cayo 2D

Upon motion

ii. OR with notice and hearing by

b.

1.

the court where the action is pending

2.

or the CA

3.

or the SC

Requiring the sheriff to attach the property of the party against whom it is issued, not exempt from execution, and sufficient to satisfy the demand.

(4) The sheriff attaches the property a. IMPT: Actual attachment must be accompanied or preceded by service of summons together with: Page 37 of 70

i. a copy of the complaint, ii. the application for attachment iii. the affidavit iv. the bond v. the order vi. the writ b.

Service of summons is not required where: i. summons could not be served personally or by substituted service despite diligent efforts ii. OR the defendant is a resident of the Philippines temporarily absent iii. OR the defendant is a nonresident; iv. Or the action is in rem or quasi in rem. An action in personam may be converted into an action quasi in rem by attaching property of the defendant, in which case, summons may be served by publication. The attachment will precede the service of summons.

HOW DOES THE ADVERSE PARTY PREVENT THE ATTACHMENT? He may file a counterbond or make a deposit equal to the amount in the order of attachment. The purpose of the deposit or the counterbond is to secure the payment of any judgment which the attaching party may recover in the action.

IN WHAT MANNER DOES THE SHERIFF ATTACH PROPERTY? (1) Real property – filing in the registry of deeds a copy of the order; (2) Personal property capable of manual delivery – taking and keeping it; (3) Stock or shares – by leaving with the president or managing agent a copy of the writ; (4) Bank deposits, debts, credits, and other personal property not capable of manual delivery (garnishment) – by leaving with the garnishee a copy of the writ; Civil Procedure Reviewer Cayo 2D

Only salary DUE may be attached, subject to the rule that wages earned for personal service in the four months preceding the attachment and necessary for support are exempt from execution/attachment. (5) The interest of the adverse party as an heir – by serving the executor/administrator with a copy of the writ (6) Property in custodia legis – by serving the court with a copy of the writ Property in custodia legis is supposed to be exempt from attachment. But I suppose if the court where the property is deposited agrees to the attachment, it can be done. Ex: Payment to a debtor/defendant consigned in court and attached by a creditor/complainant.

WHAT IS THE PROCEDURE IF THE GARNISHEE DENIES THE INDEBTEDNESS? Payment by the garnishee upon judicial order will extinguish his debt to his creditor. However, if he denies the indebtedness, he may be required to appear in court and be examined on oath regarding the same. CAN THE GARNISHEE BE COMPELLED TO PAY OR DELIVER THE PROPERTY IN THE EVENT HE DENIES THE DEBT? No; to do so would be to deprive him of property without due process. A separate action must be instituted.

WHEN MAY THE PROPERTY BE SOLD BEFORE ENTRY OF JUDGMENT? Upon notice and hearing… (1) When the property is perishable (2) OR when the sale would be beneficial to both parties. The proceeds will be deposited in court to be applied according to the judgment.

WHEN MAY ATTACHMENT BE DISCHARGED? (1) By the adverse party’s filing of a counterbond; (2) By the dismissal of the case; Page 38 of 70

(3) By the appointment of an assignee over the adverse party’s property under the Insolvency Law; (4) By filing a motion for the discharge of the attachment on the ground that: a.

It was improperly or irregularly issued such as in the following circumstances: i. The complaint states no cause of action; ii. The attaching creditor fails to prove the ground on which the attachment was based; iii. The plaintiff’s affidavit and bond are not in accordance with the Rules.

b.

OR that the bond is insufficient. i. The attachment will be reduced to correspond to the bond

WHAT ARE THE PROCEEDINGS WHEN THE PROPERTY IS CLAIMED BY A THIRD PERSON? The sheriff shall not be bound to keep the property under attachment if: (1) The property attached is claimed by a third person (2) The third person makes an affidavit of his right to the property (3) Serves the affidavit upon: a.

the sheriff

b.

AND the attaching party

(4) The sheriff demands a bond from the attaching party to indemnify the third person claimant (5) The attaching party fails to file the bond This is different from the bond filed to indemnify the adverse party

IN WHAT ORDER DOES THE SHERIFF SATISFY THE JUDGMENT OUT OF PROPERTY ATTACHED? (1) Cash (2) Sell property Civil Procedure Reviewer Cayo 2D

(3) Garnish

HOW ARE THE PROCEEDS OF THE ATTACHMENT APPLIED? (1) Costs of the proceedings; (2) Judgment debt; (3) Return to the judgment debtor any excess.

HOW IS THE COUNTERBOND/CASH DEPOSIT PROCEEDED AGAINST? Counterbond - When the judgment becomes executory, the sureties on the counterbond shall be bound to pay the judgment after NOTICE AND SUMMARY HEARING IN THE SAME ACTION. Deposit – paid to the judgment obligee

HOW AND WHEN IS A CLAIM FOR DAMAGES ON ACCOUNT OF IRREGULAR, IMPROPER OR EXCESSIVE ATTACHMENT MADE? An application for damages must be made (a) before trial – as a matter of right (b) before judgment becomes executory – as a matter of discretion (c) before appeal is perfected – probably also a matter of discretion because judgment is not yet executory … with due notice to the sureties The damages will be awarded only after hearing and will be included in the judgment on the main case. This applies even if judgment in the main case is against the adverse party. Just because the adverse party was truly liable doesn’t cure any defect in the attachment. WHAT IS THE PROCEDURE FOR THE RECOVERY OF DAMAGES AGAINST THE BOND FOR AN ILLEGAL ATTACHMENT? (1) There is a judgment in the main action – even if judgment is against the adverse party; (2) IMPT: The application for damages is filed in the SAME ACTION before trial, before appeal is perfected, or before judgment becomes executory; If damages are not claimed in the same action, they are barred, except: Page 39 of 70

(a) Where the principal action is dismissed for lack of jurisdiction over the SM; (b) In FEUD, where the amount of damages exceeds the jurisdiction of the MTC, it is necessary that the claim be filed in the RTC. (3) Notice is given to the attaching party and his sureties; (4) There is proper hearing regarding the damages and the award was included in the final judgment.

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WHAT IS PRELIMINARY INJUNCTION?

(b) that the commission, continuance or nonperformance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

SEC. 1. A preliminary injunction is an ORDER granted at ANY STAGE of the proceeding PRIOR TO THE JUDGMENT or final order, requiring a party or a court, agency or a person to REFRAIN from a particular act or acts. It may also REQUIRE THE PERFORMANCE of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction.

(c) that a party, court, agency or person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

RULE 58 PRELIMINARY INJUNCTION

WHAT ARE THE CLASSES OF PRELIMINARY INJUNCTION? (1) Preventive or Prohibitory a.

Its purpose is to require one to refrain from a particular act.

b.

The act to be enjoined is alleged to be illegal and has not yet been performed. It is enjoined because it would cause irreparable injury.

c.

The situation is preserved in status quo.

(2) Mandatory

Mandatory Mandatory injunction may be issued if the following requisites are present (concurrent): (1) the complainant has a clear legal right – the right must be clear and unmistakable because unlike in prohibitory injunction, mandatory injunction requires the performance of a particular act and does more than maintain the status quo; (2) his right has been violated and the invasion is material and substantial; and (3) there is an urgent and permanent necessity to prevent serious damage.

a.

Its purpose is to require the performance of an act.

HOW IS PRELIMINARY INJUNCTION DISTINGUISHED FROM FINAL INJUNCTION?

b.

The party in whose favor it is issued is placed in the same situation he was before the commission of the illegal act.

See definition of preliminary injunction (SEC. 1).

c.

The status quo to be restored is the last actual peaceable uncontested status (LAPUS) which preceded the pending controversy.

WHEN MAY PRELIMINARY INJUNCTION BE ISSUED? Preventive or Prohibitory When the plaintiff’s principal action is an ordinary action of injunction (to restrain the commission of an act perpetually or for a limited period) and the grounds in SEC. 3 are present: SEC. 3 – Grounds (alternative): (a) that the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;

Civil Procedure Reviewer Cayo 2D

Final injunction is a judgment rendered after trial which (1) perpetually restrains the party or person enjoined from the commission or continuance of the act or acts OR (2) confirms the preliminary mandatory injunction. HOW IS PROHIBITORY INJUNCTION DISTINGUISHED FROM PROHIBITION? Prohibitory injunction – order requiring a party to refrain from a particular act Prohibition – judgment commanding a tribunal, board, corporation, officer, or person, whether exercising judicial, quasi judicial, or ministerial functions, to desist from further proceeding in the action or matter because it is in excess of jurisdiction or because it acts with GADALEJ. HOW IS MANDATORY INJUNCTION DISTINGUISHED FROM MANDAMUS? Mandatory injunction – order requiring a party to perform a particular act in order to restore the last peaceable actual uncontested status (LAPUS) which preceded the pending controversy Mandamus – judgment commanding a tribunal, corporation, board, officer, or person either (1) Page 41 of 70

unlawfully neglecting the performance of an act required by law or (2) excluding another from the use and enjoyment of a right or office, to do such acts required to be done. DOES PRELIMINARY INJUNCTION APPLY TO CONSUMMATED ACTS? As a general rule, when defendants are required to merely abstain or desist from performing certain acts, they are under no duty to perform positive acts. The exception is when they are specifically ordered to perform positive acts such as the removal of the impediment complained of as being prejudicial to the plaintiff’s rights. Ex: The destruction of a dam built without necessary permits.

(E) A court cannot interfere by injunction with the JUDGMENT of a co-equal court. WHAT ARE SOME SPECIFIC CASES WHERE PRELIMINARY INJUNCTION LIES? (1) In petitions for relief from judgment entered through FAME. (2) In actions for annulment of judgments obtained through extrinsic fraud. (3) In petitions for CPM. (4) To restrain continued breach of valid negative obligations. (5) To restrain a city for abating a nuisance per accidens without a judicial order. (6) To restrain voting on disputed shares of stock.

The reconnection of an electrical line disconnected arbitrarily.

(7) To restrain sheriff from selling property on execution not belonging to the judgment obligor.

The restoration to possession of a party unlawfully deprived thereof by forcible entry.

(8) To restrain criminal prosecutions.

RULES ON JURISDICTION OF COURTS TO ISSUE PRELIMINARY INJUNCTION: (A) A judge in charge of a branch of a trial court has jurisdiction to issue a preliminary injunction in a case pending in that branch notwithstanding the fact that a similar injunction had been denied by another judge in another branch of the court. Ex: A case is pending in Branch 1 or the Makati RTC. Branch 2 of the same RTC denies a petition for preliminary injunction. Branch 1 may still issue the writ despite the denial by Branch 2. (B) The RTC has no authority to restrain or enjoin acts being perpetrated or to be perpetrated outside the territorial boundaries of its region. (C) Where the main action is the annulment of the respondent’s action and injunction is merely corollary, the trial court of the locality where the questioned act is to be implemented has jurisdiction. Ex: An order of dismissal issued by the LTO Commissioner in Manila but to be enforced by a subordinate officer in Dagupan may be enjoined by the Dagupan courts despite the fact that the original action for mandamus was filed in Manila. (D) In cases of corporations, the court with jurisdiction over the locality of principal office of the corporation has the authority to issue preliminary injunction, despite the fact that the act sought to be enjoined are to be performed elsewhere. Civil Procedure Reviewer Cayo 2D

WHAT ARE SOME SPECIFIC CASES WHERE PRELIMINARY INJUNCTION DOES NOT LIE? (1) To take property out of the possession of one party and place it into that of another whose title has not clearly been established by law. (2) Where an action for damages would adequately compensate the injuries caused – remember, there must be a probability of irreparable injury. (3) To prevent directors from discharging their offices and restoring former directors. (4) To restrain a criminal prosecution except to prevent oppression and to protect constitutional rights. HOW IS A PRELIMINARY INJUNCTION OR TEMPORARY RESTRAINING ORDER GRANTED? (a) Upon verified application showing facts entitling the applicant to the relief demanded; (b) AND filing of a bond to answer for damages which the party enjoined may sustain if the court should finally decide that the applicant was not entitled thereto. (c) With notice and hearing.

CAN PRELIMINARY INJUNCTION BE GRANTED WITHOUT NOTICE? Page 42 of 70

GR: No. The general procedure follows: (1) If appears from facts shown by the affidavits or by the verified application that (2) great or irreparable injury would result to the applicant before the matter can be heard on notice, (3) the court to which the application for preliminary injunction was made, may issue a temporary restraining order (4) to be effective only for a period of 20 days from service on the party or person sought to be enjoined. (5) Within the said 20 day period, the court must: a.

order said party or person to show cause why the injunction should not be granted,

b.

determine within the same period whether or not the preliminary injunction shall be granted,

c.

and accordingly issue the corresponding order.

(3) If its issuance would cause irreparable damage to the person enjoined while the applicant can be fully compensated for such damages as he may suffer AND the person to be enjoined files a bond that he will pay such damages; This is discretionary upon the court (4) It may be reduced if its extent is too great.

WHEN SHOULD DAMAGES UPON THE BOND BE CLAIMED? Just like in preliminary attachment, damages upon the bond should be claimed, heard and awarded in the principal action.

WHEN IS FINAL INJUNCTION GRANTED? If after trial it appears that the applicant is entitled to have the acts complained of permanently enjoined, the court shall grant a final injunction.

E: (1) If the matter is of extreme importance (2) and the applicant will suffer grave injustice and irreparable injury (3) the executive judge of a multiple-sala court or the presiding judge of a single sala court may issue an ex parte temporary restraining order (4) effective only 72 hours from issuance (5) Within the 72 hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. (6) In no case shall the total period of the temporary restraining order exceed 20 days including the original 72 hours.

WHAT ARE THE GROUNDS FOR OBJECTION TO OR DISSOLUTION OF A TEMPORARY RESTRAINING ORDER OR AN INJUNCTION? (1) Insufficiency; (2) Other grounds as shown in affidavits;

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RULE 59 RECEIVERSHIP Sec. 1 – UPON A VERIFIED APPLICATION, one or more receivers of the PROPERTY SUBJECT OF THE ACTION OR PROCEEDING may be appointed by the COURT WHERE THE ACTION IS PENDING, or by the CA, or by the SC, or a member thereof, in the following cases:

decided by the court of origin and the receiver appointed to be subject to the control of said court.

WHAT IS A RECEIVER? •

A receiver is an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the court that either party should hold it.

•

He is an officer of the court, exercising his function in the interest of neither party litigant but for the common benefit of all parties in interest.

(a) WHEN IT APPEARS FROM THE VERIFIED APPLICATION, and such other proof as the court may require, that: 1.

the PARTY APPLYING for the appointment if a receiver has AN INTEREST IN THE PROPERTY or fund which is the subject of the action or proceeding,

2.

AND that such property is in DANGER OF BEING LOST, removed, or materially injured UNLESS A RECEIVER BE APPOINTED to administer and preserve it.

(b) WHEN IT APPEARS IN AN ACTION BY THE MORTGAGEE FOR THE FORECLOSURE OF A MORTGAGE that: 1.

2.

THE PROPERTY IS IN DANGER OF BEING WASTED or dissipated or materially injured, AND that its VALUE IS PROBABLY INSUFFICIENT to discharge the mortgage debt, OR that the PARTIES HAVE SO STIPULATED in the contract of mortgage.

(c) AFTER JUDGMENT,

o

Since he is an officer of the court, property held by him is considered as being in custodia legis for the benefit of whoever may establish title thereto.

WHO MAY APPOINT A RECEIVER? (1) MTCs (2) RTCs (3) CA (4) SC, or a member thereof. DOES A PARTY HAVE A VESTED RIGHT TO HAVE A RECEIVER APPOINTED BY THE COURT? No, it is DISCRETIONARY on the court where the application is made, just like the grant of preliminary injunction.

3.

to PRESERVE the property DURING THE PENDENCY OF AN APPEAL,

This is true even if there is a stipulation for receivership.

4.

OR to DISPOSE of it ACCORDING TO THE JUDGMENT,

WHAT IS THE REMEDY FOR A DENIED APPLICATION FOR RECEIVERSHIP?

5.

OR to AID EXECUTION when the execution has been returned UNSATISFIED or the JUDGMENT OBLIGOR REFUSES to apply his property in satisfaction of the judgment,

Since it is interlocutory, CERTIORARI, not appeal is the proper remedy.

6.

OR OTHERWISE to carry the judgment into effect.

(d) WHENEVER IN OTHER CASES IT APPEARS THAT THE APPOINTMENT of a receiver IS THE MOST CONVENIENT AND FEASIBLE MEANS OF PRESERVING, ADMINISTERING, OR DISPOSING OF THE PROPERTY in litigation. During the pendency of an appeal, the appellate court may allow an application for the appointment if a receiver to be filed in and Civil Procedure Reviewer Cayo 2D

WHAT IS THE NATURE OF THE POWER TO APPOINT A RECEIVER; HOW SHOULD IT BE EXERCISED? The power should be exercised with great caution because receivership is THE MOST DRASTIC AND FAR-REACHING OF THE EXTRAORDINARY REMEDIES.

CASES WHEN RECEIVER MAY BE APPOINTED: (a) WHEN IT APPEARS FROM THE VERIFIED APPLICATION, and such other proof as the court may require, that: Page 44 of 70

•

•

•

1.

the PARTY APPLYING for the appointment if a receiver has AN INTEREST IN THE PROPERTY or fund which is the subject of the action or proceeding,

2.

AND that such property is in DANGER OF BEING LOST, removed, or materially injured UNLESS A RECEIVER BE APPOINTED to administer and preserve it.

them. It was the court that ordered their placement under receivership – it did not relinquish control over the property.

(c) AFTER JUDGMENT,

Receivership is NOT PROPER IN ACTIONS INVOLVING TITLE TO REAL ESTATE where the effect of the appointment is to take the property out of the possession of the defendant before a final adjudication of the rights of the parties can be made EXCEPT IN EXTREME CASES AND ON A CLEAR SHOWING OF NECESSITY TO SAVE THE PLAINTIFF FROM GRAVE AND IRREMEDIABLE LOSS or damage. Receivership IS PROPER TO REMEDY MALADMINISTRATION of property owned in common and differences among co-owners. PARTY APPLYING for receivership SHOULD HAVE ACTUAL, EXISTING INTEREST in the property in litigation. o

Where the land has no improvements that produce income and only standing crops, the appointment of a receiver was not proper because the possible damage was coverable by a bond. The standing crops belong to he who planted them.

(b) WHEN IT APPEARS IN AN ACTION BY THE MORTGAGEE FOR THE FORECLOSURE OF A MORTGAGE that: 1.

THE PROPERTY IS IN DANGER OF BEING WASTED or dissipated or materially injured, AND that its VALUE IS PROBABLY INSUFFICIENT to discharge the mortgage debt,

2.

OR that the PARTIES HAVE SO STIPULATED in the contract of mortgage.

IF THE PARTIES HAVE STIPULATED FOR RECEIVERSHIP IN THE CONTRACT, IS IT A MATTER OF RIGHT? No, it is still within the court’s discretion despite the existence of a stipulation. CAN THE COURT ORDER THE SALE OF THE MORTGAGED PROPERTIES DESPITE THEIR STILL BEING UNDER RECEIVERSHIP? Yes, the properties are considered to be under custodia legis and the court has control over Civil Procedure Reviewer Cayo 2D

1.

to PRESERVE the property DURING THE PENDENCY OF AN APPEAL,

2.

OR to DISPOSE of it ACCORDING TO THE JUDGMENT,

3.

OR to AID EXECUTION when the execution has been returned UNSATISFIED or the JUDGMENT OBLIGOR REFUSES to apply his property in satisfaction of the judgment,

4.

OR OTHERWISE to carry the judgment into effect.

Appeal from the judgment of the RTC has been perfected – does it still have jurisdiction to appoint a receiver? Yes; although the perfection of the appeal deprives the RTC of jurisdiction over the case, it still retains jurisdiction over the preservation of the property under litigation and involved un the appeal. In such a case, the action may be regarded as yet pending for the appointment of a receiver because such appointment is merely to preserve the property and thus effectuate the court’s decree. May a receiver be appointed when execution of a judgment remains unsatisfied? Yes; Rule 39 Section 41 provides for the appointment of a receiver of the property of the judgment obligor. Ex: Where execution of judgment was suspended for one year from its affirmation by the SC, the RTC should have appointed a receiver to insure that the judgment obligee’s rights to the property would be protected.

(e) WHENEVER IN OTHER CASES IT APPEARS THAT THE APPOINTMENT of a receiver IS THE MOST CONVENIENT AND FEASIBLE MEANS OF PRESERVING, ADMINISTERING, OR DISPOSING OF THE PROPERTY in litigation.

•

Where A purchased and took possession of the property from X in an unregistered sale and B also purchased the property in a foreclosure sale where B was the mortgagee, the appointment of a receiver over the property was proper as the best way to Page 45 of 70

conserve and administer the property pending the action. Is a stipulation authorizing a mortgagee to take possession of the mortgaged property upon foreclosure valid? Yes; such stipulation is a convenient and feasible means of preserving and administering the property under litigation.

WHAT MUST THE COURT DO BEFORE ISSUING THE ORDER APPOINTING A RECEIVER? SEC. 2 – Before issuing the order appointing a receiver, the court shall: (a) require the applicant to file a bond executed to the party against whom the application is presented, •

in an amount to be fixed by the court,

•

to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause;

(b) and the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages. MAY AN ORDER FOR RECEIVERSHIP BE ISSUED EX PARTE? No; a hearing is necessary and a bond is required from the applicant. Who should be made parties to the suit for the appointment of a receiver? Interested parties should be included (indispensable and necessary parties). WHO SHOULD BE APPOINTED AS THE RECEIVER; CAN IT BE THE PLAINTIFF? An impartial person should be appointed as the receiver. However, the plaintiff can be appointed as the receiver under special circumstances. In such a case, he receives no compensation but is entitled to be reimbursed for expenses incurred in caring for the property. WHAT IS A COMMON-LAW RECEIVER AND WHAT IS HIS LIABILITY? Not sure but… One who assumes the receivership without judicial appointment and is bound to account for the Civil Procedure Reviewer Cayo 2D

properties under his care. Though he cannot be compelled to furnish a bond, if he does so and the properties under his care are later dissipated, destroyed, etc. the bond may be executed upon.

On what grounds may the application for receivership be denied? Other than for reasons that it is not among the cases in SEC. 1, an application may be denied when the adverse party files a bond executed to the applicant, in an amount fixed by the court, to cover all damages that may be suffered by reason of the acts, omissions, or other matters specified in the application as ground for the appointment. On what grounds may the receiver be discharged? He may be discharged if it is shown that his appointment was obtained without sufficient cause.

WHAT MUST THE RECEIVER DO BEFORE HE ENTERS UPON HIS DUTIES? He must: (1) SWEAR to perform them faithfully (2) AND file a BOND •

executed to such person and in such sum as the court may direct,

•

to the effect that he will faithfully discharge his duties and obey the orders of the court.

DIFFERENTIATE BETWEEN THE BOND FILED BY THE APPLICANT AND THE BOND FILED BY THE RECEIVER. Applicant’s bond – answers for all damages that the adverse party may sustain by reason of the appointment of the receiver in case the appointment was procured without sufficient cause Receiver’s bond – answers for damages suffered by reason of the failure of the receiver to discharge his duties faithfully or to obey the orders of the court

WHAT MUST THE APPLICANT AND THE RECEIVER DO WITH REGARD TO THEIR RESPECTIVE BONDS? The person filing a bond must serve a copy thereof on each interested party, who may except to its sufficiency or of the surety or sureties thereon. Page 46 of 70

Applicant’s / surety’s bond - If the bond is found to be insufficient or the surety or sureties fail to justify, and such failure is not rectified, the bond shall be denied or the receiver discharged, as the case may be.

A RECEIVER is a special officer appointed in relation to and within a certain case or action, and whose duties are limited to his sphere of action, and do not extend further than the case in which he was appointed.

Adverse party’s bond - If the bond is found to be insufficient or the surety or sureties fail to justify, and such failure is not rectified, the receiver shall be appointed or reappointed, as the case may be.

A SHERIFF is a court officer of a general character who is not appointed for a certain judicial case. He exercises his functions within the limits of his jurisdiction.

WHAT ARE THE GENERAL POWERS OF THE RECEIVER?

FUNDS IN THE RECEIVER’S CUSTODY are not within the reach of processes coming from other judicial proceedings. Those with claims must appear in the same proceedings and assert their claims.

Subject to the control of the court where the action is pending, the receiver shall have the following powers: (a) To bring and defend, in such capacity (as receiver), actions in his own name; (b) To take and keep possession of the property in controversy; (c) To receive rents; (d) To collect debts due to himself as receiver of the fund, property, estate, person, or corporation of which he is the receiver; (e) To compound for and compromise the same; (f) To make transfers; (g) To pay outstanding debts; (h) To divide the money and other property that shall remain among the persons legally entitled to receive the same; (i) And generally, to do such acts respecting the property as the court may authorize. MAY THE RECEIVER INVEST THE FUNDS IN HIS HANDS? Funds in the hands of the receiver may be invested only by order of the court upon the written consent of all parties to the action. HOW IS AN ACTION BROUGHT AGAINST THE RECEIVER? No action may be filed by or against a receiver without leave of court which appointed him. This applies only when the receivership is pending. MAY THE RECEIVER ENTER INTO A CONTRACT WITH RESPECT TO THE PROPERTY HELD BY HIM? Yes, but only with court approval. Unauthorized contracts are the receiver’s personal obligations.

FUNDS IN THE SHERIFF’S CUSTODY may be within the reach of processes coming from other judicial proceedings. NOTE: Authorization of court is not necessary in mortgage foreclosure suit when mortgage was constituted before appointment of receiver. WHAT IS THE PROCEDURE IN PRESENTATION OF CLAIMS AGAINST RECEIVERSHIP? (1) By motion or petition in the same proceeding in which the receiver discharges his duties. (2) By filing complaints-in-intervention in accordance with section 1 of Rule 19. (3) Notice must be given to all the parties in interest.

WHAT IS THE LIABILITY FOR REFUSAL OR NEGLECT TO DELIVER PROPERTY TO THE RECEIVER? Such person may be punished for contempt and shall be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered, together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect.

HOW IS THE RECEIVERSHIP TERMINATED? It is terminated when the court, motu proprio or on motion of either party: (1) determines that the necessity for a receiver no longer exists, after due notice and hearing to all interested parties, (2) settles the accounts of the receiver, and

DISTINGUISH THE FUNCTIONS OF A RECEIVER FROM THOSE OF A SHERIFF. Civil Procedure Reviewer Cayo 2D

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(3) directs the delivery of funds and other property in his possession to the person adjudged to be entitled to receive them, and (4) orders the discharge of the receiver as such. WHEN SHOULD A RECEIVER BE REMOVED? When he asserts ownership over the property in his hands as a receiver and refuses to submit an accounting of the financial status of the property. WHEN SHOULD OBJECTIONS TO THE ACCOUNTS OF THE RECEIVER BE MADE? They should be made timely. They cannot be made when no objection was interposed prior to the court’s approval and after receipt of benefits.

NOTE: The judgment should include recovery against the sureties. Damages not claimed in the same action are barred.

Civil Procedure Reviewer Cayo 2D

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RULE 60 REPLEVIN by Shak Q: When may an application for replevin be had? A: At the commencement of the action or at anytime before the answer. Q: What is the purpose for such? A: For the recovery of possession of personal property. Q: Who has jurisdiction to issue writ of replevin? A: IF the value of the personal property sought to be recovered is more than 200K, and in Metro Manila 400K, the RTC has jurisdiction. If the value is less than above, then the MTC has jurisdiction. Q: Where may the writ of replevin be enforced? A: Anywhere in the Philippines. Q: What is replevin? A: Delivery of personal property as a provisional remedy consists in the delivery, by order of the court, of a personal property by the defendant to the plaintiff, who shall give a bond to assure the return thereof of the payment of damages to the defendant if the plaintiff’s action to recover possession of the same property fails, in order to protect the plaintiff’s right of possession of said property, or prevent the defendant from damaging, destroying or disposing of the same during the pendency of the suit. Q: What is the main difference between Replevin from Preliminary attachment? A: If the purpose of the action is for the recovery of possession of personal property belonging to the plaintiff = replevin. If the property belongs to the defendant and is sought to be attached by the plaintiff to secure the satisfaction of any judgment that he may recover form the defendant = Preliminary attachment.

A: The order of the court authorizing the plaintiff corporation to take possession of the personal property in litigation upon the filing of a bond sufficient to secure the conservation or value of the same, does not constitute a delivery of the personal property, but only a deposit of the property in litigation applied for by said plaintiff corp. which became a receiver by authority of the court, it being the party most interested in the conservation and care of said property. Q: How should preliminary attachment be construed in case of doubt? A: If the subject matter is personal property, then it should be treated as replevin in case there is conflict or doubt. Q: If the mortgagor refuses to surrender property, what should the mortgagee do? A: He should institute an action either to effect a judicial foreclosure directly or to secure possession as a preliminary to the sale by a writ of replevin. He should implead the mortgagor in the complaint for the recovery of the encumbered property. He cannot lawfully take the property by force against the will of the mortgagor. Q: What if the possession is held by a 3rd party, who should be impleaded? A: The indispensable parties in action to recover possession as a preliminary to sale on foreclosure are the 3rd party and the chattel mortgagor. Q: What is the basis for jurisdiction in an action by chattel mortgage? A: The value of the money claim and the value of the personal property combined. Q: If a mortgagee in installment sales of personal property chooses the remedy of specific performance is he entitled to deficiency judgment? A: Yes, it is only when the vendor-mortgagee chooses the remedy of foreclosure of chattel mortgage that the mortgagor is not liable for any deficiency. Q: What are expenses of suit that not taken out of the proceeds of the foreclosure sale but directly recoverable from the mortgagor?

Q: What is the man difference between replevin and receivership? Civil Procedure Reviewer Cayo 2D

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A: Repayment for the premium on the replevin bond it filed, the sheriff’s fees, costs of suit, and a reasonable sum as atty’s fees. Q: Who may file an application for a writ of replevin? A: The applicant-plaintiff or some other person who personally knows the facts.

A: Upon filing of the affidavit and bond, the court shall issue such writ, describing the personal property alleged to be wrongfully detained and requiring the sheriff to take such property in his custody. Q: What is the duty of the sheriff upon receipt of such order?

Q: What should the application for a writ of replevin contain?

A: He must serve a copy on the adverse party of the affidavit and bond and must take the property if it be in the possession of the adverse party, or his agent, and retain it in his custody

A: 1.) That the applicant is the owner of the property claimed or is entitled to the possession thereof. 1.1) particularly describing it,

Q: What if the property is concealed in a building or enclosure?

2.) That the property is wrongfully detained by the adverse party. 2.1) Alleging the cause of detention according to the best of his knowledge, information, and belief.

A: The sheriff must demand its delivery, and if it is still refused, he must cause the building or enclosure to be broken open and take the property into his possession. Q: Whats next?

3.) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law 3.1) or seized under a writ of execution or preliminary attachment, 3.2) or otherwise placed under custodia legis 3.3) if so seized that it is exempt from such seizure or custody

A: The sheriff must keep such property in a secure place and shal be responsible for its delivery to the party entitled after receiving his fees and necessary expenses for taking and keeping the same.

4.) The actual market value of the property.

A: No, they do not have jurisdiction to order the delivery of personal property to the applicant if the property is under attachment, it being in custodia legis.

5.) A bond must be given, executed to the adverse party in double the value of the property. Q: Why should it be double the value of the property? A: Depreciation? Q: Is the writ of replevin limited as a remedy to the plaintiff? A: No, the defendant may obtain such in a counterclaim for foreclosure of chattel mortgage. Q: Why is that? A: Because in a counterclaim, the defendant is actually the plaintiff seeking this provisional remedy. Q: What does the order of the writ of replevin contain and when is it issued? Civil Procedure Reviewer Cayo 2D

Q: Can the courts order the sheriff to deliver personal property when such is under attachment?

Q: What if the property is subject of a search warrant, can it be the subject of a writ of replevin? A: No, if it is in the custody of another public officer by virtue of a search warrant, then it cannot be subjected to a writ of replevin. Only the court that issued the warrant may order its release. Q: What if the adverse party objects to the sufficiency of the bond of the applicant? A: The adverse party cannot immediately require the return of the property. Q: What if he does not object thereto? A: He may at anytime before the delivery of the property to the applicant require the return Page 50 of 70

thereof, by filing with the same court a bond executed to the applicant, in double the value of the property as stated in the applicant’s affidavit. Q: What is the purpose of the bond? A: To enable the defendant to retain possession of the property. Q: Within what time must the sheriff return the property to the applicant-plaintiff?

A: It must be claimed in an action for such within 120 days from the date of the filing of the bond. But if the claim is spurious or patently frivolous then nothing herein shall prevent such claimant from claiming damages. Q: Will the sheriff be liable for the claim of the 3rd person?

A: Within 5 days after the taking of the property.

A: No, if a bond was filed. If no bond is filed by the applicant to secure the claim of a 3rd party intervenor, then he would be liable.

Q: When may the adverse party require the re-delivery of the property to him upon payment of the bond?

Q: What if the sheriff is sued for damages when the writ is issued in favor of the Republic of the P.I.?

A: At any time before the delivery of the property, or within 5 days after the taking of the property of the sheriff provided that it was not yet delivered.

A: The filing of the bond is not required because the State repleived it. The sheriff shall be represented by the Sol Gen, and if held liable therefore, the actual damages adjudged by the court shall be paid by the National Treasurer.

Q: What does the defendant-adverse party have to do if he wants the property returned to him?

Q: How may a 3rd party vindicate his claim?

A: 1.) Put up a counter-bond in double the amount of the chattel, and 2.) furnish the plaintiff with a copy of the counter-bond within 5 days from the date the sheriff took possession of the property. Both these requirements are mandatory.

A: By filing of a complaint in intervention, because he has a legal interest in the matter in litigation.

Q: When does the furnishing of a copy of the counter-bond have to be accomplished?

A: The sheriff must file the order, with his proceedings indorsed with the court within 10 days.

A: It has to be accomplished within the prescribed period if the plaintiff is to have an opportunity to contest the redelivery of the property sought by the defendant. Q: What if the judge approves a counterbond beyond the 5 day period? A: The act would be GADALEJ. Certiorari will lie. Q: If the property taken is claimed by any person other than the defendant-adverse party what happens? A: The sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the 3rd party claimant in a sum not less than the value of the property under replevin. Q: When may a claim for damages be made against the bond? Civil Procedure Reviewer Cayo 2D

Q: After the taking of the property by the sheriff, what should he do?

Q: What does the judgment in these contemplated situation state? A: After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove. Q: What does the re-delivery bond cover? A: Although a replevin re-delivery bond does not in terms require the property to be returned in substantially good condition as when taken, such an obligation is always implied by law. In other words, the bond covers the deterioration or depreciation of such personal property. Q: When may the prevailing party refuse to take the litigated property?

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A: When judgment is rendered for the articles or their value and they cannot be returned in substantially the same condition, it is settled that the prevailing party may: 1.) Refuse to take them and instead sue on the redelivery bond, or 2.) Execute on the judgment for value.

A: Damages must result from the refusal or inability of the plaintiff to redeliver the property in pursuance of a judgment. Unless there is an adjudication, there is no duty to return the personal property in question, and there being no duty to return it, there can be no damages for non-restitution.

Q: Is this right confined at the time of judgment? A: No, if the prevailing party has this right after judgment, it is at once obvious that he must also have the same right when, asking for the delivery pendente lite of the same property, he afterwards finds them in a substantially depreciated condition. Q: How is this right to reject assured? A: By the provision that the judgment in a suit for replevin must be in the alternative so as to afford a measure of relief where the property cannot be returned. Q: Can the premiums paid to the surety for the counter bond be claimed as damages by the adverse party? A: No, it constitutes an expense purely voluntary due to his desire to retain possession of the chattel pending the suit and his refusal to rely on the replevin bond for indemnity. Q: What should the judgment include? A: It should include the claim for damages against the applicant or adverse party, as the case may be and the surety thereon. The rule stands that damages must be claimed in the same action otherwise it is barred. Q: May a party claim damages against a surety prior to the delivery of the property pursuant to the writ of replevin? A: No, a replevin bond is simply to indemnify the defendant against any loss that he may suffer by being compelled to surrender the possession of the property pending trial, he can not recover on the bond as for a reconversion when he has failed to have judgment entered for the return of the property. Q: Why is the order to return property a condition precedent to recover damages from surety?

Civil Procedure Reviewer Cayo 2D

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RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS CERTIORARI

PROHIBITION

MANDAMUS Mandamus is a COMMAND issuing from a court of law of competent jurisdiction, in the name of the state or sovereign, directed to some inferior court, etc. requiring the performance of a particular duty which duty results from the official station of the party to whom the writ is directed.

DEFINITION

Certiorari is a writ issued by a superior court to an interior court, board or officer exercising judicial or quasi-judicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law.

Prohibition is a legal remedy, prerogative in character, to prevent courts, etc. from usurping or exercising jurisdiction with which they have not been vested by law.

WHO?

Tribunal, board or officer

Tribunal, corporation, board, officer or person

WHAT FUNCTIONS?

Judicial or quasi-judicial

Judicial, quasi-judicial or ministerial

n.a.

DOES WHAT?

has acted without or in excess of its jurisdiction or with GADALEJ

Conducts proceedings without or in excess of its jurisdiction or with GADALEJ

Unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station OR Unlawfully excludes another form the use and enjoyment of a right or office to which such other is entitled

WHAT ELSE?

and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law

WHO FILES WHAT?

A person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty

PRAYING…?

That judgment be rendered annulling or modifying the proceedings and granting such incidental reliefs as law and justice may require

Civil Procedure Reviewer Cayo 2D

That judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require

That judgment be rendered commanding the respondent to do the act required to be done to protect the rights of the petitioner and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent

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WHAT IS A WRIT OF CERTIORARI? It is a prerogative writ (takes precedence over other civil cases), never demandable as a matter of right, never issued except in the exercise of judicial discretion. DISTINGUISH BETWEEN APPEAL BY CERTIORARI RULE 45 AND THE SPECIAL CIVIL ACTION OF CERTIORARI RULE 65.

WHAT IS REVIEWED ?

PARTIES?

DECISION?

ABC 45

SCAC 65

Questions or errors of law decided by lower court

Acts of lower court, body or officer exercising judicial or quasijudicial functions when with or in excess of jurisdiction or with GADALEJ

Errors of judgment

Errors of jurisdiction

Same parties – appellant/petitioner : appellee/responden t

Inferior court, board or officer is the public respondent ; appellee is private respondent

Affirming, reversing, or modifying the judgment

Annulling or modifying the act

WHAT ARE THE REQUISITES FOR CERTIORARI? (1) Tribunal, board, or officer exercises judicial or quasi-judicial functions; (2) Acted without or in excess of jurisdiction or with GADALEJ; (3) There is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. WHEN MAY CERTIORARI BE INVOKED (IN RELATION TO APPEAL)? Civil Procedure Reviewer Cayo 2D

(1) When appeal is not available – ex. NLRC decisions are not appealable but may be taken to the CA under Rule 65. (2) When the right to appeal has been lost with or without the petitioner’s negligence and the decision appealed from is void for lack or excess of jurisdiction. (3) When appeal is available but the order complained of is a patent nullity. ♥

Even if appeal is available, certiorari can still lie if appeal is not equally speedy, adequate, etc.

♥

Even if appeal has already been perfected, certiorari can still be availed of if the latter proves to be the adequate remedy and its filing will not be construed as an abandonment of the appeal.

IS A PREVIOUS MOTION FOR RECONSIDERATION NECESSARY BEFORE FILING A PETITION FOR CERTIORARI? General rule: Yes. Exceptions: [PiPlPnQU] (1) where the issue is purely legal; (2) where public interest is involved; (3) in case of urgency; (4) where the question of jurisdiction was sqarely raised, submitted to and met and decided by the lower court; (5) where the order is a patent nullity.

DISTINGUISH PROHIBITION FROM INJUNCTION. Prohibition is directed to the court itself, commanding it to cease from the exercise of a jurisdiction to which it has no legal claim. Injunction is directed only to parties litigant, without interfering with the court. WHAT ARE SOME LIMITATIONS ON THE SCOPE OF PROHIBITION? (1) It does not apply to political functions; (2) It applies only to threatened and not consummated acts; (3) It does not apply to errors and irregularities in procedure where the proper remedy is probably certiorari. 54

TO WHAT ACTS/DUTIES DOES MANDAMUS APPLY? Ministerial acts – to compel performance of the act required by law. Discretionary acts – to compel the exercise of discretion. DO YOU MEAN TO SAY THAT MANDAMUS CAN BE USED TO COMPEL THE PERFORMANCE OF DISCRETIONARY ACTS? Yes; what is compelled is action on the part of the respondent in using his discretion. A good example is a petition for mandamus to compel a judge to render judgment on a case he has been sitting on beyond the period allowed by law. The court issuing the writ of mandamus will command him to decide but will not decide for him. WHAT RIGHT MUST THE PETITIONER HAVE FOR MANDAMUS TO LIE? He must have clear and certain legal rights to the action being compelled. Mandamus will not issue in doubtful cases. DISTINGUISH MANDAMUS FROM INJUNCTION. Mandamus is remedial; injunction is preventive. Mandamus is employed to redress grievances; injunction is used to prevent injury. Mandamus is to set in motion; injunction is to restrain motion. CAN MANDAMUS ISSUE WHEN ADMINISTRATIVE REMEDIES ARE STILL AVAILABLE? General rule – No. Exception – Mandamus will issue even if administrative remedies are available if: (1) The respondent is in estoppel – if by his conduct, he led the other party to believe that immediate judicial recourse is available. (2) Pure questions of law are raised – since these questions cannot be decided by an administrative officer with finality. DISTINGUISH THE SECOND GROUND FOR MANDAMUS FROM QUO WARRANTO. Mandamus is proper if the respondent excludes the petitioner from an office to which the latter is entitled without claiming such office for himself. Civil Procedure Reviewer Cayo 2D

Quo warranto is proper if the respondent usurps the office. ♥

They may be combined if one respondent unlawfully excludes without usurping while the other usurps.

DISTINGUISH CERTIORARI FROM PROHIBITION. Certiorari is a CORRECTIVE remedy used to reexamine the action of a lower body directed at the proceedings in such body. Prohibition is a PREVENTIVE remedy issued to restrain future action, and is directed to the court itself. DISTINGUISH PROHIBITION FROM MANDAMUS. Prohibition has for its object that of preventing an inferior tribunal from executing an act in excess of its jurisdiction. Mandamus has for its object to compel an inferior tribunal to comply with a function which the law specially prescribes as a duty resulting from its office.

WHEN SHOULD THE PETITION BE FILED? Not later than 60 days from notice of the judgment or notice of denial of the MR, whether such MR is required or not. ARE THERE EXTENSIONS OF TIME TO FILE THE PETITION? Yes, but only for compelling reasons and in no case exceeding 15 days. WHERE SHOULD THE PETITION BE FILED? (1) Supreme Court; (2) RTC with territorial jurisdiction over the area (3) CA – whether or not in aid of its appellate jurisdiction (4) Sandiganbayan – if in aid of its appellate jurisdiction ♥

If it involves the acts or omission of a quasi-judicial agency, the general rule is that the CA has exclusive jurisdiction.

WHAT IS THE DUTY OF PRIVATE RESPONDENTS IN DEFENDING AGAINST A PETITION? 55

The private respondents must appear and defend, both himself and the public respondent. Costs awarded are for the account of the private respondent alone. ♥ ♥

The public respondent should not intervene in the case. The joinder of the private respondent interested in sustaining the action complained of is MANDATORY.

WHAT IS THE PROCEDURE?

(d) Without merit from allegations in the complaint. After comment: (1) Manifestly without merit; (2) Intended merely for delay; (3) Unsubstantial questions that don’t require consideration.

WHAT RELIEF IS THE PETITIONER ENTITLED TO?

(1) Petition is filed;

Certiorari:

(2) If petition is sufficient, order requiring respondents to comment shall be issued;

(1) A judgment annulling or modifying the proceedings of the tribunal, board, or officer taken without or in excess of jurisdiction or with GADALEJ.

♥

This order is equivalent to a summons.

(3) Respondent must file comment within 10 days from receipt of such order. ♥

In petitions for certiorari before the SC and the CA, before giving due course to the petition, respondents may be required to comment.

(4) After the comment is filed or the period for filing it expires, the court may hear the case or require submission of memoranda. (5) The court can the render judgment as is appropriate.

(2) Costs. Prohibition: (1) A judgment commanding the defendant to desist from further proceeding in the action or matter where the proceedings were without or in excess of jurisdiction or with GADALEJ. (2) Costs. Mandamus: (1) Judgment commanding the respondent to do the act required to be done. (2) Costs (probably).

DOES FILING THE PETITION INTERRUPT THE RUNNING OF THE APPEAL PERIOD? General rule: No. Under Sec. 7 of Rule 65, the petition shall not interrupt the course of the principal case … Exception: … unless a TRO or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case.

(3) Exemplary damages. Why are damages not awarded in certiorari and prohibition? The question of damages can only be determined in an adjudication of the merits of the case. In certiorari and prohibition, all that is determined is whether there is lack or excess of jurisdiction.

WHEN CAN A PETITION BE DISMISSED? Before comment: (1) Defective in form and substance; (a) Non-joinder of private respondents; (b) No proof of service; (c) No certificate of non-forum shopping;

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RULE 66 QUO WARRANTO WHAT IS QUO WARRANTO? It is Latin for “by what authority”. It is a demand made by the state upon an individual or corporation to show by what right they exercise some franchise or privilege appertaining to the state which, according to the Constitution and the laws, they cannot legally exercise except by virtue of a grant or authority from the state.

HOW IS QUO WARRANTO AGAINST DE FACTO ELECTIVE OFFICERS BROUGHT UNDER THE OMNIBUS ELECTION CODE? It is brought by any voter via a sworn petition, TEN DAYS after the proclamation of the results of the election, on the ground of ineligibility or disloyalty to the Republic of the Philippines. The body with jurisdiction is: (a) The COMELEC. if it is against a member of congress or a regional, provincial, or city officer; (b) The RTC or MTC, if it is against a municipal or barangay officer.

Section 1. – An action for the usurpation of a public officer, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

DISTINGUISH BETWEEN QUO WARRANTO PROCEEDING REFERRING TO OFFICES FILLED BY ELECTION AND THOSE FILLED BY APPOINTMENT.

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or

Election – what is determined is the eligibility of the elected candidate; the court cannot declare that the second placer has been elected since the law only authorizes declaration of election in favor of a candidate who has received the most votes

(c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

Appointment – what is determined is the legality of the appointment; the court determines who has been appointed and should declare who is entitled to occupy the office

IN WHOSE NAME AND AGAINST WHOM IS AN ACTION FOR QUO WARRANTO BROUGHT? It is brought in the name of the Republic of the Philippines. It is brought against: (a) Persons who usurp, intrude into or unlawfully hold a public office, position or franchise; (b) Public officers who forfeit their office; and (c) Associations which act as corporations without legally being incorporated or authorized. DISTINGUISH QUO WARRANTO FROM THE SECOND GROUND FOR MANDAMUS. Quo warranto is proper if the respondent usurps, intrudes, or unlawfully holds the office. Mandamus is proper if the respondent unlawfully excludes – without usurping - the petitioner from an office to which the latter is entitled.

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NOTE: ACCEPTANCE OF INCOMPATIBLE OFFICE AND ITS EFFECTS ON THE QUO WARRANTO PETITION Where the petitioner subsequently accepts an office incompatible to the one he alleges to have been usurped from him, the petition should be dismissed because he is considered to have abandoned it. However, where abnormal conditions were present and the incompatible office was only temporarily accepted, the petition should not be dismissed. NOTE: REMOVAL AND REPLACEMENT OF OFFICER Where the petitioner was legally dismissed and his replacement was qualified and duly appointed, removal can only be done in the regular way and the petition should be dismissed. Where removal was illegal, the appointment of another person, even if apparently regular, was invalid because the position is not considered vacant.

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DOES PUBLIC OFFICE INCLUDE LEGISLATIVE OFFICE?

(2) With the court’s permission (where it is to be commenced);

Yes. In Avelino v. Cuenco, the SC assumed jurisdiction over the political question of who was the duly elected senate president and held that there was a quorum when Cuenco was elected. The petition for quo warranto was dismissed.

(3) Provided that the SolGen/prosecutor MAY require the person requesting and relating to provide an indemnity for the expenses and costs of the action approved by and deposited in the court.

CAN QUO WARRANTO BE BROUGHT AGAINST CORPORATIONS BY ESTOPPEL? No, because they are not really corporations and are merely treated as such for purposes of being sued. Quo warranto is brought against de facto corporations or associations which act as corporations without authority such as those whose certificate of registration was improperly issued.

WHAT ARE THE INSTANCES WHEN AN ACTION FOR QUO WARRANTO IS BROUGHT (AS TO WHO BRINGS THE ACTION)? (1) The SolGen or a public prosecutor MUST (Sec. 2) or MAY (Sec. 3) bring the action;

IN CASES WHERE THE SOLGEN MAY FILE THE PETITION, WHAT IS THE PROCEDURE? (1) The request is made to the SolGen, indemnity may be required; (2) Permission is applied for in court; (3) The court will direct notice to be given to the respondent who may oppose the application; (4) If permission is granted, an order granting such permission shall be issued and copies served on the interested parties; (5) The petition for quo warranto will be filed within the period ordered by the court. WHO IS THE RELATOR? The relator is the one at whose request the SolGen or a public prosecutor brings the action with the permission of the court.

(2) An individual may bring the action (Sec. 4). WHEN MAY AN INDIVIDUAL COMMENCE THE ACTION? WHEN MUST THE SOLGEN OR A PUBLIC PROSECUTOR COMMENCE THE ACTION (SEC. 2)? (1) When directed by the President; OR

When the individual claims to be entitled to a public office or position usurped or unlawfully held or exercised by another, an action may be brought in his own name.

(2) When he has good reason to believe that the cases in section 1 can be established by proof.

IMPORTANT: WHAT MUST THE INDIVIDUAL PETITIONER PROVE IN ORDER FOR THE PETITION TO BE GRANTED?

IS THE SOLGEN’S DUTY MANDATORY OR DISCRETIONARY?

He must show that he is entitled or that he has a clear right to the office being contested. It is not sufficient that he has preferential right to be appointed to the office in question.

The book says that the SolGen exercises discretion in the determination of the sufficiency of proof – “when he has good reason to believe”. However, if he is directed by the President, who has control and supervision over him, I think that he MUST file the petition.

WHEN MAY THE SOLGEN OR A PUBLIC PROSECUTOR COMMENCE THE ACTION (SEC. 3)? (1) At the request and upon the relation of another person;

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The doctrine is: No individual can bring a civil action relating to usurpation of a public office without averring that he has a right to the same; and at any stage of the proceedings, if it be shown that such individual has no right, the action may be dismissed because there is no legal ground upon which it may proceed when the fundamental basis of such action is destroyed. May an individual bring an action for quo warranto against two or more persons? In general, an individual cannot bring an action for quo warranto against two or more persons 58

illegally holding separate offices unless he is entitled to them all. WHAT ARE THE CONTENTS OF THE QUO WARRANTO PETITION AGAINST USURPATION? (1) The parties: a.

Petitioner - he person/s claiming to be entitled to the position (Under Sec. 1, it is brought in the name of RP but under Sec. 5, it can be brought in the individual’s own name).

b.

Respondent – the party alleged to be unlawfully holding the position

(2) An averment of the petitioner’s right to the office (3) An averment of the respondent’s unlawful possession of the office

WHERE SHOULD THE ACTION FOR QUO WARRANTO BE BROUGHT? In general (original and concurrent): (a) SC (b) CA (c) RTC with jurisdiction over the territorial area where the respondent or any of the respondents reside Where the SolGen commences the action (original and concurrent): (a) SC (b) CA (c) RTC Manila NOTE: Though the SC has original jurisdiction concurrently with the RTC, unless there are compelling reasons, the action will be left to the RTC because of the factual issues involved.

proceedings in order to secure the most expeditious determination of the matters involved therein consistent with the rights of the parties. The action MAY be given precedence over any other CIVIL matter pending in the court.

WHAT SHOULD THE JUDGMENT CONTAIN? Where the respondent is found to be guilty of usurping, unlawfully holding, or exercising a public office or franchise, judgment shall be rendered: (a) that such respondent be OUSTED and altogether excluded from the office; (b) that the petitioner or relator, as the case may be, recover his COSTS; (c) a determination of the respective rights of the parties to the office/franchise MAY also made as justice requires.

IMPORTANT: DISTINCTION BETWEEN THE COURT’S ACTION WHEN THE ACTION IS BROUGHT BY THE SOLGEN OR A PUBLIC PROSECUTOR AND AN INDIVIDUAL Brought by SolGen / public prosecutor – the court may decide against defendant and order his ouster even if there is no one adjudged to be entitled to the office Brought by individual –if the individual fails to prove that he is entitled to the office, there will be no judgment against the defendant

WHAT ARE THE RIGHTS OF THE PERSON ADJUDGED TO BE ENTITLED TO THE OFFICE (SEC. 10)? After taking the oath and executing the bond required by law, if any, the person adjudged to be entitled may: (a) take upon himself the execution of the office (perform the functions);

NOTE: The Sandiganbayan has original jurisdiction over quo warranto proceedings in aid of its appellate jurisdiction. This is concurrent with the SC.

(b) demand from the respondent all the books and papers in the latter’s custody appertaining to the office, refusal of which is punishable by contempt;

NOTE: AS TO PERIODS FOR FILILNG PLEADINGS / OTHER PROCEEDINGS

(c) bring an action for damages (back salaries and other damages) sustained by reason of the usurpation.

The court MAY reduce the periods provided in the Rules for filing pleadings and for all other Civil Procedure Reviewer Cayo 2D

NOTE: DAMAGES UNDER THE OMNIBUS ELECTION CODE 59

Actual or compensatory damages by be granted in election contests and quo warranto proceedings.

assured of reinstatement by the administrative authorities.

WHAT ARE THE LIMITATIONS ON AN ACTION FOR QUO WARRANTO (SEC. 11)?

The petition for quo warranto must be filed with the COMELEC, RTC, or MTC, as the case may be, within ten days after the proclamation of the results of the election.

(1) The action itself must be commenced: a.

One year from ouster; or

b.

One year from the time the right of the petitioner to the office arose

(2) An action for damages by reason of the usurpation must be commenced within one year after the ENTRY of the judgment establishing the petitioner’s right to the office in question. In (1), both criteria must be met. Ex: If the petitioner’s right to hold the office has existed for more than one year, the petition will be dismissed although the usurper had been occupying the office for less than a year.

NOTE: LIMITATIONS UNDER THE OMNIBUS ELECTION CODE

However, the filing with the Commission to annul or suspend proclamation shall suspend the running of the prescriptive period.

WHAT ELSE MUST THE JUDGMENT CONTAIN (SEC. 12)? The court may render judgment for costs against either the petitioner, the relator, or the respondent, or the person or persons claiming to be a corporation, or may apportion the costs, as justice requires.

In (2), the claim for back salaries and damages is INCIDENTAL to the principal action and must be brought within one year. WHAT IS THE REASON FOR REQUIRING THE QUO WARRANTO ACTION TO BE FILED WITHIN ONE YEAR? Persons ousted from an office should take immediate steps to recover the office and a delay of more than one year is considered as a loss of the right to the office due to abandonment thereof. Public policy and convenience demand stability in government. IS THERE AN EXCEPTION TO THE ONE YEAR PRESCRIPTIVE PERIOD WITHIN WHICH TO FILE THE QUO WARRANTO ACTION? Yes. In Cristobal v. Melchor, where the petitioner was constantly promised and assured reinstatement, he was held not to have lost his right to file an action for quo warranto despite the lapse of one year. Laches could not apply because there was no inaction in view of the representations of the government. DOES THE RESORT TO ADMINISTRATIVE REMEDIES ABATE THE ONE YEAR PERIOD TO FILE QUO WARRANTO PROCEEDINGS? No. The rule of exhaustion does not apply here. Read this with the exception to the prescriptive period where the petitioner was repeatedly Civil Procedure Reviewer Cayo 2D

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RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE By Shak Q: How do you commence a Foreclosure of Real Estate Mortgage? A: By filing of a complaint which shall set forth the date and due execution of the mortgage, it’s assignments, if any, the names and residences of the mortgagor and the mortgagee; a description of the mortgaged property; a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage; the amount to be claimed to be unpaid thereon and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants.

Q: What is pactum commissorium ? A: The prohibition against the occurrence by which a mortgagee-creditor appropriates the thing mortgaged automatically upon default of the mortgagor-debtor in paying the principal obligation, or disposes of it without resorting to the process of foreclosure, whether judicial or extra-judicial. Any stipulation to the contrary is void.

Q: What are the modes of foreclosure of real estate mortgage? A: It may be either judicial or extra-judicial.

Q: What are the provisional remedies available to the mortgagee in case of foreclosure? A: 1. Preliminary attachment of properties of the debtor not covered by the mortgage. 2. Receivership of mortgaged property.

Q: What are the remedies of the mortgage creditor against the estate of the deceased? A: He may abandon the security and prosecute his claim, and share the general distribution of the assets of the estates; or he may foreclose his mortgage or realized upon his security, by action in court, making the executor or administrator a party defendant, and if there is a Civil Procedure Reviewer Cayo 2D

judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceeding to realize upon the security, he may claim his deficiency judgment in the manner provided in the preceding section, or he may rely upon his mortgage or other security alone, and foreclose the same at any time within the period of the statute of limitations, and in that event he shall not be admitted as creditor, and shall receive no share in the distribution of the other assets of the estate.

Q: Is extra-judicial foreclosure allowed after the death of the mortgagor? A: The general rule is that the power of sale given in a mortgage is a power coupled with an interest which survives the death of the grantor. However, the proper way, in congruence with the law, is to suspend temporarily the power to sell so as not to interfere with the orderly administration of the estate of a decedent. In this light, extra-judicial foreclosure is not allowed after the death of the mortgagor. Q: What are the remedies of the mortgage creditor against an insolvent debtor? A: In the insolvency as well as in the testamentary and intestate proceedings, the mortgage creditor is not obliged to take part in said proceedings for the recovery of his debt against the insolvent or the decedent’s estate, he may institute, maintain and prosecute a separate suit against the insolvent debtor, or against the executor or administrator for the recovery of his secured credit until he obtains a final judgment and he may enforce this judgment against the property mortgaged to him in the manner established by law. However, after the mortgage debtor has been declared insolvent and the insolvency court has acquired control of his estate, no separate foreclosure the mortgage without the knowledge and previous consent of the insolvency court.

Q: What is the rule when a personal action for the recovery of the debt is instituted instead of foreclosure? A: He may pursue either of the 2 remedies but not both. By such election his cause of action can by no means be impaired, for each of the 2 remedies is complete in itself. Thus, an election to bring a personal action will leave open to him 61

all the properties of the debtor for attachment and execution, even including the mortgaged property itself.

Q: Where is the venue of foreclosure of real estate mortgage? A: Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated.

Q: Who are the parties in a foreclosure complaint? A: Indispensable parties:

Q: May the first mortgagee be joined as party defendant in foreclosure action by the second mortgagee? A: Yes, in such a situation, the 2nd mortgagee has to wait until after the debtor’s obligation to the 1st mortgagee has been fully settled. The court ordered the property given as security to be sold, the proceeds to be paid to the first mortgagee and the excess, if any, to the 2nd mortgagee.

Q: What can he do once he is not joined? A: He may file a complaint in intervention. Even if the 1st mortgagee is not joined or does not intervene, his rights are protected inasmuch as the mortgaged property remains subject to his lien.

1.

The mortgage debtor

2.

The mortgagor or owner of the mortgaged property, if not the debtor, or

Q: What is the effect of an accelerating clause?

3.

The executor or administrator of the deceased mortgagor.

4.

The executor or administrator of the property mortgaged with the approval of the court.

5.

The heir to whom the mortgaged property has been adjudicated.

A: The failure of the mortgagor to comply with this stipulation has the effect of accelerating the time for the payment of the mortgage debt, and rendering the mortgage subject to foreclosure and sale under Act. 3135. When the mortgage is rendered foreclosurable for such noncompliance, the bringing of the action of foreclosure may be justified.

Q: What is the effect of the failure to join the second mortgagee, junior encumbrancer, subordinate lienholder, or subsequent purchaser? A: While a second mortgagee is a proper and a necessary party to a proceeding to foreclose a 1st mortgage on real property, he is not an indispensable party, because a valid decree may be made, as between the mortgagor and 1st mortgagee, without regard to the second mortgage, but the consequence of a failure to make the 2nd mortgagee a party to such proceeding is that the lien of the 2nd mortgagee on the equity of redemption is not affected by the decree of foreclosure. The effect of the failure to implead a subordinate lienholder or subsequent purchaser or both is to render the foreclosure ineffective as against them, with the result that there remains in their favor the “unforeclosed equity of redemption.” But the foreclosure is valid as between the parties to the suit.

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Q: What is the effect of a prohibition against a second mortgage, sale or donation? A: Although the civil code states that a stipulation forbidding the owner form alienating the immovable mortgaged shall be void, a way to get around it is to provide for a stipulation wherein such act or acts must be made with the consent of the mortgagee as a condition.

Q: What happens when the court finds that in the action for foreclosure, the facts set forth in the complaint is true? A: It shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than 90 days nor more than 120 days (equity in redemption) from the entry of judgment, and that in default of such payment 62

the property shall be sold at public auction to satisfy the judgment.

Q: What is the manner of enforcing a judgment of foreclosure after 5 years? A: 1. A judgment of foreclosing a mortgage which has lost executory force by the lapse of 5 years, may be revived by filing a complaint based thereon. 2. A 2nd mortgagee who was not a party either in the original complaint or in the judgment entered by virtue thereof, may not be included as party defendant in an action commenced by a complaint for the purpose of reviving the said judgment which has already lapsed 3. The mortgagee who forecloses a part of the mortgaged properties only and does not foreclose the remainder until after the expiration of 5 years to recover the balance of the mortgage indebtedness, is not entitled to charge interest on said balance for the period of the delay.

Q: What is the effect of the sale of mortgaged property? A: Upon the failure of the defendant to pay the amount of the judgment within the specified period, the plaintiff shall file a motion for execution foreclosing the mortgage. After the sale on foreclosure of the mortgaged property, the plaintiff or the purchaser shall file a motion for confirmation of the sale with notice to all the parties to the action. Without notice and hearing, an order of confirmation is void and may be set aside anytime. The confirmation of the sale of the mortgaged real property in judicial foreclosure proceedings cuts off all interest of the mortgagor in the property sold and vest them in the purchaser. Such confirmation retroacts to the date of the sale. The order of confirmation is a final order which is appealable. Before the finality of the order of confirmation, the mortgage debtor, the 2nd mortgagee, the subsequent attaching creditor or purchaser may exercise what is known as the “equity of redemption in judicial foreclosure of real estate mortgage except when allowed by law.

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Q: What is the right of redemption? A: The mortgagor or debtor shall have the right to redeem the property by paying the amount due under the mortgage deed, with interest thereon at the rate specified in the mortgage, and all the costs and expenses incurred by the bank or institution from the sale and custody of said property less the income derived therefrom. The period of one year after the sale has been construed as one year from the registration of the sale of registered land.

Q: When in a foreclosure suit, there is no 3rd person intervenor, what should the purchaser do in order to gain possession thereof or attain title thereto? A: He should obtain a writ of possession to put an end to the litigation. As regards the title to such property, it shall vest upon the purchaser upon finality of the order of confirmation of the sale.

Q: Differentiate right of redemption and equity in redemption. A: The right of redemption is the right of the mortgagor to redeem the mortgaged property within a certain period (in most cases, within 1 year) after the sale of the property in satisfaction of the mortgage debt. It is available to the mortgagor only when the mortgage is foreclosed extrajudicially. It is not available in judicial foreclosures, except when the mortgagee foreclosing is a bank. On the other hand, equity of redemption is the right of the mortgagor in a judicial foreclosure to pay the amount of his obligation before the confirmation of the sale (usually 90 to 120 days) of the mortgaged property.

Q: In order to that a sale may be validly confirmed, what should the court do? A: It is necessary that a hearing be given the interested parties, at which they may have an opportunity to show cause why the sale should not be confirmed, and to inform them of the time when their right of redemption is cut off. Lack of notice and hearing of motion for confirmation renders the order null and void.

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Q: To enjoin a foreclosure proceeding instituted by a bank, what should the petitioner do? A: He may file a bond in the amount fixed by the court that he will pay all the damages which the bank may suffer.

Q: Can the property be judicially sold substantially less than its actual value? A: Yes, mere inadequacy of the price is not a ground for setting aside the sale, unless it is unconscionable or iniquitous.

Q: What happens to the proceeds of the sale? A: After deducting the costs of the sale, the amount realized shall be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to person entitled to it.

Q: How should the sale proceed in case the debt is not all due? A: If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment, as soon as a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate, and afterwards, as often as more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be sold. But if the property cannot be sold in portion without prejudice to the parties, the whole shall be ordered to be sold in the 1st instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is proper.

Q: If the payment of the secured debt is made by installment, what is the rule? A: Default in the payment of any installment gives the mortgagee a right to foreclose as to such installments without waiting for the maturity of the whole debt. As often as more of the debt becomes due for principal or interest, Civil Procedure Reviewer Cayo 2D

the court, may on motion order more property to be sold. It lies within the power of the plaintiff to present the matter by motion to the trial court.

Q: What happens when there is a deficiency in the amount realized by the judicial sale? A: The court upon motion shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of the rendition of the judgment, otherwise, the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment.

Q: What are the cases wherein a deficiency judgment cannot be decreed? A: 1. One who mortgages his property to secure the debt of another without expressly assuming personal liability for such debt cannot be compelled to pay the deficiency remaining due after the mortgage is foreclosed. 2. In an action to foreclose a mortgage against a nonresident defendant not found in the Philippines who fails to submit himself to the jurisdiction of the court, no personal judgment for the deficiency can be rendered.

Q: If it be for a judicial foreclosure of a chattel mortgage, can the deficiency be claimed in the same action? A: No, an independent action may be instituted for the recovery of the deficiency.

Q: What is the prescriptive period to file an action for deficiency in extrajudicial foreclosure of real estate mortgage? A: The right to claim payment of deficiency after foreclosure of real mortgage prescribes in 10 years.

Q: What happens after confirmation of the judicial sale? A: If shall be registered in the registry of deeds. If no right of redemption exists, the certificate of title in the name of the mortgagor shall be 64

cancelled, and a new one issued in the name of the purchaser.

Q: What if a right of redemption exists, such as when the mortgagee is a bank? A: The certificate of title in the name of the mortgagor shall not be cancelled, but the certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by the registrar of deeds upon the certificate of title.

Q: What if the property is redeemed? A: The deed of redemption shall be registered with the registry of deeds, and a brief memorandum thereof shall be made by the registrar of deeds on said certificate of title.

Q: What if the property is not redeemed? A: The final deed of sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the registry of deeds, whereupon the certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the purchaser.

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RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER By Sheryl DISTINGUISH BETWEEN FORCIBLE ENTRY AND UNLAWFUL DETAINER FORCIBLE ENTRY Based on entry effected by force, intimidation, threat, strategy, or stealth (FISTS)

The action is to recover possession founded upon illegal possession from the beginning.

UNLAWFUL DETAINER Based on unlawful detention by a person who has acquired possession rightfully, but who detains the property after the right to keep possession is ended. The possession is legal at the start but becomes illegal after the right to keep it has ended

WHERE SHOULD THE ACTION BE FILED? The action should be filed in the MTC where the property is located. WHEN SHOULD THE ACTION BE FILED? The action should be filed within 1 year after the unlawful deprivation or withholding of possession. WHO MAY FILE THE ACTION? For Forcible Entry: Anyone deprived of the possession of any land or building by FISTS; For Unlawful Detainer: 1.

2.

Any landlord, vendor, or vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or determination of the right to hold possession, by virtue of any contract, express or implied; and The legal representatives or assigns of any such landlord, vendor, vendee, or any other person.

WHAT IS THE NATURE OF THE ACTION? Civil Procedure Reviewer Cayo 2D

Cases of forcible entry and detainer are summary in nature. This means that technicalities or details of procedure which may cause unnecessary delays should carefully be avoided. WHAT ARE THE KINDS OF ACTION TO RECOVER POSSESSION OF REAL PROPERTY? 1. Forcible entry and detainer – an action which could be brought in the MTC within 1 year from the unlawful deprivation or withholding of possession. The object is the recovery of physical possession (possession de facto). 2. Accion Publiciana – a plenary action for possession which should be filed in the RTC within 10 years from the date of dispossession. The object is recovery of the better right to possession (possession de jure). 3. Accion Reivindicatoria – an action to recover ownership and possession, which may be brought in the RTC within 10 years, if possession is in good faith, and 30 years if possession is in bad faith. So if A is dispossessed of his property through FISTS, the he should file an action for forcible entry in the MTC. He should file within one year from the date of dispossession. If after the expiration of one year, he does not file an action for forcible entry, the proper action is accion publiciana, which should be filed in the RTC within 10 years from dispossession. FROM WHAT DATE IS THE ONE-YEAR PERIOD COUNTED? In forcible entry: from the date of entry or taking of possession by force, intimidation, threat, or strategy. If entry is by means of stealth, count from the date of discovery. In illegal detainer: 1.

from the date of the last demand to vacate in case of non-payment of rent or non-compliance with the conditions of the lease.

2.

from the date of the notice to quit, in case of a tacit renewal of the lease; 66

3.

from the date of the revocation of the permit in case of occupancy on mere tolerance or under a temporary permit.

IN AN ACTION FOR ILLEGAL DETAINER, IS IT NECESSARY TO ESTABLISH PRIOR PHYSICAL POSSESSION? No. In an action for illegal detainer, an allegation of prior physical possession is not required. This is because in illegal detainer, the defendant actually has prior possession. The possession of the defendant is lawful at first and becomes unlawful only after the right to keep it has ended. WHAT MUST THE PLAINTIFF ALLEGE IN AN ACTION FOR FORCIBLE ENTRY? The plaintiff must allege: 1.

prior physical possession;

2.

and that he was deprived thereof by means of FISTS. (If the dispossession did not take place by any of these means, the RTC has jurisdiction, even if the action is filed within one year from dispossession)

IF THE AMOUNT OF DAMAGES AND RENTS CLAIMED BY THE PLAINTIFF IN AN ACTION FOR UNLAWFUL DETAINER OR FORCIBLE ENTRY EXCEEDS THE JURISDICTIONAL AMOUNT OF THE MTC, DOES THE MTC STILL HAVE JURISDICTION? Yes. The amount of damages in FE or UD is not jurisdictional because it is only incidental to the main action. BEFORE COMMENCING THE ACTION FOR UNLAWFUL DETAINER, WHAT MUST THE LESSOR DO? The lessor must first make a demand upon the lessee: 1.

to pay or to comply with the conditions of the lease; and

2.

to vacate the premises.

If the lessee fails to comply with these demands within 15 days in case of land or 5 days in case of buildings, the lessor may file the action for unlawful detainer.

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The complaint must state that the two demands mentioned above were made in order to confer jurisdiction upon the MTC. WHEN IS A DEMAND NOT NECESSARY? A demand is not necessary when the action is to terminate the lease because of the expiration of the term. It is only necessary when the action is for failure to pay rent due or to comply with the conditions of the lease. But remember that the demand is necessary only in unlawful detainer cases. It is not necessary in forcible entry cases because the possession is illegal from the beginning. WHAT PLEADINGS ARE ALLOWED IN AN ACTION FOR FE OR UD? The only pleadings allowed are: 1. 2. 3. 4.

complaint compulsory counterclaim cross claim answers thereto

WHAT ACTION WILL THE COURT TAKE ON THE COMPLAINT? The court may either: 1.

dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent thereon; or

2.

issue summons, if no ground for dismissal is found.

WHAT IS THE EFFECT OF THE FAILURE OF THE DEFENDANT TO ANSWER THE COMPLAINT WITHIN THE PERIOD REQUIRED? The court, motu propio or upon motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. The court may reduce the amount of damages and attorney’s fees prayed for if excessive or unconscionable. AFTER THE ANSWER IS FILED, WHAT HAPPENS? Not later than 30 days after the last answer is filed, a preliminary conference shall be held.

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WHAT HAPPENS IF THE PLAINTIFF DOES NOT APPEAR AT THE PRELIMINARY CONFERENCE? The failure of the plaintiff to appear in the preliminary conference shall be cause for dismissal of the complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim based on the pleadings. All crossclaims shall be dismissed. WHAT HAPPENS IF THE DEFENDANT DOES NOT APPEAR AT THE PRELIMINARY CONFERENCE? If the sole defendant fails to appear, the plaintiff shall likewise be entitled to judgment on the pleadings. But if two or more defendants sued under a common cause of action had pleaded a common defense, and at least one of them appears at the preliminary conference, the plaintiff shall not be entitled to judgment on the pleadings. CAN THE PRELIMINARY CONFERENCE BE POSTPONED?

Within 10 days from receipt of the order, the parties shall submit: 1.

affidavits of their witnesses and other evidence on the factual issues; and

2.

position papers setting forth the law and the facts relied upon by them.

The affidavits must state only facts of direct personal knowledge of the affiants and shall show their competence to testify to the matters stated therein. WITHIN WHAT PERIOD MUST THE COURT RENDER JUDGMENT? Within 30 days after receipt of the affidavits and position papers or the expiration of the period for filing them, the court shall render judgment. But if the court finds it necessary to clarify certain material facts, it may issue an order specifying the matters to be clarified and require the parties to submit affidavits or other evidence within 10 days. Judgment shall be rendered within 15 days after receipt of the last affidavit. WHAT ARE PROHIBITED PLEADINGS?

Generally, no. It can only be postponed for highly meritorious grounds.

1.

Motion to dismiss, except on the ground of lack of jurisdiction over the subject matter, or failure to refer the matter for conciliation when required

2.

Motion for bill of particulars;

3.

Motion for new trial, reconsideration, or reopening of trial;

4.

Petition for relief from judgment;

5.

Motion for extension of time to file pleadings, affidavits, or any other paper;

6.

Memoranda;

7.

Certiorari, mandamus, prohibition against any interlocutory order;

8.

Motion to declare defendant in default;

9.

Dilatory motions for postponement;

WHAT ARE THE CONTENTS OF THE RECORD OF PRELIMINARY CONFERENCE? Within 5 days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to: 1.

whether the parties have arrived at an amicable settlement;

2.

the stipulations or admissions entered into by the parties;

3.

whether judgment may be rendered without the need of further proceedings;

4. 5.

a clear specification of material facts which remain controverted; other matters intended to expedite the disposition of the case.

10. Reply; WHAT HAPPENS AFTER THE ISSUANCE OF THE ORDER OF THE PRELIMINARY CONFERENCE? Civil Procedure Reviewer Cayo 2D

11. Third-party complaints; 68

12. Interventions. MAY THE COURT GRANT PRELIMINARY INJUNCTION DURING THE PENDENCY OF THE CASE? Yes. The plaintiff may, within 5 days after filing the complaint, file a motion for the issuance of a writ of preliminary mandatory injunction to restore him in his possession or preliminary prohibitory injunction to prevent the defendant from committing further acts of dispossession against the plaintiff. WHAT SHOULD THE MTC DO IF THE DEFENDANT RAISES THE DEFENSE OF OWNERSHIP IN HIS PLEADINGS? If the question of possession cannot be resolved without deciding the issue of ownership, the MTC should resolve the issue of ownership but only to determine the issue of possession. GUIDELINES: 1.

2.

3.

The principal issue must be possession. Ownership must merely be ancillary thereto. The plaintiff must really and primarily seek the restoration of possession. If the reliefs sought establish a case for recovery of ownership, the action should be dismissed. The inferior court cannot adjudicate the issue of ownership if the relationship of lessor-lessee has been sufficiently established, unless the has been a subsequent change in or termination of that relationship between the parties.

4.

In forcible entry case, but not in unlawful detainer, the party who can prove prior possession can recover such possession even against the owner himself.

5.

If the question of possession hinges on the question of ownership, the inferior court may resolve the issue of ownership provisionally. Such determination is binding only with respect to possession and not to title. It does not bar a subsequent action between the same parties involving title to the land.

WHAT RELIEFS MAY BE AWARDED BY THE JUDGMENT IN FE OR UD? Civil Procedure Reviewer Cayo 2D

If the allegations of the complaint are found to be true, the court shall render judgment in favor of the plaintiff: 1.

for the restitution of the premises;

2.

for rentals in arrears or for reasonable compensation for the use and occupation of the property;

3.

attorney’s fees;

4.

costs.

If the allegations are not true, the defendant may recover costs from the plaintiff. IS A JUDGMENT IN FE OR UD CONCUSIVE AS TO OWNERSHIP? Nye, siempre hindi. The judgment shall only be conclusive as to possession. It shall not bind the title or affect the ownership of the property. It shall not bar an action between the same parties with respect to title to the property. WHERE SHOULD THE DECISION OF THE MTC BE APPEALED? The judgment is appealable to the appropriate RTC. AGAINST WHOM IS THE JUDGMENT BINDING? The judgment is binding against: 1. 2. 3. 4. 5. 6. 7. 8.

the defendant; all members of his family; servants; employees; sublessees; guest; agent; successor-in-interest.

DOES AN EJECTMENT CASE SURVIVE THE DEATH OF A PARTY? An ejectment case survives the death of a party. This is because it involves possession of real property. The decision may be enforced against the successors-in-interest if one of the parties dies. IS A JUDGMENT AGAINST THE DEFENDANT IMMEDIATELY EXECUTORY? 69

Yes, the judgment against the defendant in FE or UD is immediately executory. WHAT MUST THE DEFENDANT DO TO STAY EXECUTION OF THE JUDGMENT? The defendant must: 1. 2. 3.

perfect an appeal to the RTC; file a supersedeas bond to pay accrued rent, damages, and costs; and deposit rents in the RTC during the pendency of the appeal, on the tenth day of each succeeding month or period.

Upon failure of the defendant to file the bond or to make the deposits, the RTC may, upon motion, order execution of the judgment of the MTC, without prejudice to the continuation of the appeal of the decision. CAN THE COURT EXTEND THE TIME FOR MAKING THE DEPOSIT? No, the court cannot extend the period for making the deposit. It must be made on the tenth day of each succeeding month or period. WHEN CAN THE MOTION FOR IMMEDIATE EXECUTION BE DENIED? If because of: 1.

fraud, accident, mistake, or excusable negligence (FAME), or

2.

the occurrence of supervening events which brought about a material change in the situation of the parties and which would make execution inequitable,

CAN THE PLAINTIFF WITHDRAW THE RENTALS DEPOSITED IN COURT? Yes, if the defendant does not object. WHILE THE JUDGMENT IS ON APPEAL TO THE RTC, CAN THE RTC ISSUE AN INJUNCTION? Yes. Within 10 days from the perfection of the appeal to the RTC, the plaintiff may file a motion for the issuance of a writ of preliminary mandatory injunction to restore him in possession if the court is satisfied that: 1.

the defendant’s appeal is frivolous or dilatory; or

2.

the appeal of the plaintiff is prima facie meritorious.

IS THE JUDGMENT OF THE RTC ON APPEAL OF THE MTC DECISION IMMEDIATELY EXECUTORY? Yes. The judgment of the RTC against the defendant is immediately executory. There is no way of staying execution (unlike the MTC decision). This is without prejudice to a further appeal that may be taken from the RTC decision.

the defendant failed to post the supersedeas bond or to make the periodic deposits, he may file a petition for relief under Rule 38. The motion for immediate execution should be denied. WHEN IS A SUPERSEDEAS BOND NOT REQUIRED? 1.

If the defendant deposits in court the amount of back rentals fixed in the judgment;

2.

If there are not rents and damages in arrears;

3.

Or there is no judgment rendered for rents and damages.

Civil Procedure Reviewer Cayo 2D

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