Professional Documents
Culture Documents
Filing Fees
Computation includes:
1. Interest
2. Penalties
3. Surcharges
4. Damages of whatever kind
5. Attorneys fees
6. Court Expenses
Exceptions to rule that docket fees must be paid when you file the
complaint
1. Damages arose after filing (will serve as lien on judgment)
2. Complaint is amended and new damages are alleged (pay
additional within prescriptive period or reglementary period)
3. Clerk makes a wrong assessment (pay full amount within
period)
Jurisdiction
How it is acquired:
1. Over the case complaint + pay filing fees
2. Over the subject matter conferred by law, power to try and
decide a case
3. Over the person arrest or voluntary surrender
MTC
1. Opposite of RTC
2. Ejectment/unlawful detainer (Rule 70)
RTC
1. Amount incapable of pecuniary estimation
2. Civil actions involving real property or interest therein where
assessed value of the property involved:
a. If in Metro Manila exceeds P50,000
b. Elsewhere exceeds P20,000
c. Except (jurisdiction conferred to MTC):
i. Actions for forcible entry
ii. Unlawful detainer
d. Assessed value = worth or value of property
established by taxing authorities on basis of which
tax rate is applied
3. Admiralty and maritime jurisdiction where claim:
a. If in Manila exceeds P400,000
b. Elsewhere exceed P300,000
4. Probate, both testate and intestate where gross value of
estate:
a. Manila exceeds P400,000
b. Elsewhere exceeds P300,000
5. Involving contract of marriage and marital relations
6. All cases not within exclusive jurisdiction of any court,
tribunal, person or body exercising jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial
functions (general jurisdiction)
7. Other cases which demand:
a. Manila exceeds P400,000
b. Elsewhere exceeds P300,000
c. Exclusive of
i. Interest,
ii. Damages of whatever kind,
iii. Attorneys fees,
iv. Litigation expenses and
v. Cost or value of property in controversy
d. Those under the Securities Regulation Code
Extrinsic fraud, or
Lack of jurisdiction
o
Concurrent with SC issuance of writs of certiorari,
prohibition and madamus against:
NLRC
CSC
RTC
o
Concurrent with RTC and SC (remember rule on
hierarchy of courts)
Habeas Corpus
Habeas Data
Writ of Amparo
Quo warranto
Certiorari
Mandamus
Quasi-judicial agencies
CA
COMELEC
CoA
SB
CTA
NLRC
CSC
RTC
o
Concurrent with RTC and CA
Habeas Corpus
Habeas Data
Writ of Amparo
Quo warranto
Certiorari
Mandamus
RTC, original
CA
SB
CTA en banc
CoA
Comelec
Small Claims
Sales D. A2016
RULE 1
Motion to dismiss, or
Grounds:
Res Judicata, or
Litis Pendencia
o
Cant consolidate one or both will be dismissed for
forum shopping
Motu propio, or
Representatives as parties
o
Beneficiary should be included in the title of case and
deemed to be the real party in interest
Sales D. A2016
Requisites
1. Claim arises from same or series of transactions
2. Common questions of law or fact in action
3. Read with joinder of causes of action
Indispensible party party in interest without whom no final
determination can be had. Without them, there will be no
resolution, void judgment
Necessary party party in interest who is not indispensible but
who ought to be joined:
o
If complete relief is to be accorded as to those already
parties, or
o
For a complete determination or settlement of the claim
subject of the action
Effect of failure to implead
o
If necessary party
Action survives
o
Who should be the substitute
Legal heir
Administrator
Executor
Guardian
o
Rule of substitution is not a manner of jurisdiction but
due process
Incompetency or incapacity
o
Court, upon motion with notice
o
Ask court to continue and for client to be assisted
by guardian
Defendant dies
o
No substitution
o
Once final judgment entered, enforced as claim
without need to prove
Indigent party
o
Under Rule 141 Sec 9 (if fits, mandatory!)
Food
Shelter
Basic necessities
Exception: stipulation
o
Real action those affecting title to or possession of
real property, or interest therein
Sales D. A2016
Either in the place where, at the election of plaintiff:
1.
Prohibited Pleadings
Defenses:
o
Affirmative defense allegation of a new matter, which,
while hypothetically admitting the material averment in
the pleading, would prevent or bar recovery
Sales D. A2016
Deny, or
Body
1. Designation
2. Allegations divided into paragraphs so numbered
3. Relief prayed for
4. Date of pleading at the bottom, include place of filing
5. Headings
Verification
Under oath
o
Party must sign the pleading, not lawyer
Parties
Reliefs sought
o
Party himself must sign.
o
Required in every initiatory pleading, not in a motion
o
Contents:
1. Certify that he has not filed a similar complaint
involving same issue in another court, tribunal,
quasi-judicial agency
2. If there is any pending claim, provide status
3. If learns about similar action, report fact within 5
days from knowledge
o
Absence of certificate
Sales D. A2016
Kinds of default
1. In actions in rem general order of default
2. Failure to attend pre-trial as in default allows plaintiff to
present evidence ex parte
3. Failure to file an answer declaration of default
Action by court:
o
Deny or grant outright, or
o
Allow parties opportunity to be heard
Effect of noncompliance
o
Court may order striking out of pleading or portions
thereof
o
Dismiss case based on non-compliance with a court
order
Sales D. A2016
Under Rule 22 Sec 1, dont include day that caused
interruption. If filed on Feb. 1, last day to file is on Feb.
16. If filed on Feb. 6, still has 11 days to file if denied
Bill becomes part of pleading
1.
Manner of filing
o
Two ways of filing
1. Personally handing to the clerk of court
a. Clerk endorses in the pleading the date
and hour of filing
b. Stamped, dated and signed by clerk
c. Proof: if pleading is found in records, if
not, present the received copy with
written or stamped acknowledgment of
its filing by clerk
2. By registered mail
a. Date of mailing, as shown by post office
stamp on envelope or registry receipt,
considered date of filing
b. Proof:
i. Registry receipt
ii. Affidavit of person mailing,
containing full statement of
important details
iii. Return card (file in court)
o
Papers required to be filed and served
1. Judgment
2. Resolution
3. Order
4. Pleading subsequent to complaint
5. Written motion
6. Notice
7. Appearance
8. Demand
9. Offer of judgment
10. Similar papers
Modes of service
1. Personally
a. Delivering personally a copy to the party or his
counsel
b. Leaving in his office with his clerk, with person
having charge
c. If no person found in the office, or if office not
known, leaving a copy between 8am-6pm at the
party/counsels residence, if known, with a person
of sufficient age and discretion residing therein
d. Proof:
i. Written admission of party served,
ii. Or affidavit of person serving (when
other party refused to accept)
iii. Official return of server (when served by
the court) containing full statement of
date, place and manner of service
2. Registered mail
a. Deposit copy in post office
b. In sealed envelope
c. Plainly addressed to the party or his counsel at his
office, or otherwise at his residence
d. With postage fully prepaid, and
e. With instructions to postmaster to return mail to
sender after 10 days if undelivered
f.
Proof:
i. Registry receipt (even if defendant does
not actually claim), must indicate that
mail is a copy of the pleading
ii. Affidavit of person mailing, containing
full statement of date, place and manner
of service
iii. Return card
3.
Ordinary mail
a. If no registry service is available in locality of either
sender or addressee
b. Proof: by affidavit of person mailing of facts
showing compliance with rules
4. Publication or substituted service (depends where papers
came from)
a. If all else fails, substituted service to clerk of court,
with proof of failure of both personal and service
by mail.
b. No substituted service for judgments, final orders
or resolutions
Service of judgments, final orders or resolutions
1. Personally
2. Registered mail
3. Publication (if summoned by publication)
a. No substituted service and by ordinary mail
When service completed:
1. Personal = upon actual delivery
2. Ordinary mail = expiration of 10 days after mailing, unless
court otherwise provides
3. Registered mail =
a. Actual receipt by addressee as seen in return
card, or
b. After 5 days from date he received first notice of
postmaster, whichever is earlier
In both filing and service, priority is Personal Service
o
Exceptions:
RULE 16 Summons
Sales D. A2016
2.
3.
4.
Deputy sheriff
Other proper court officer, or
For justifiable reasons, by any suitable person authorized by
court
Exclusive enumeration
Court should issue summons within 1 day from receipt of
complaint
Return when service has been completed, server shall:
o
Serve a copy of return to plaintiffs counsel
Within 5 days
o
Return summons to clerk who issued it
b.
ii.
iii.
iv.
v.
vi.
If GOCC:
i.
ii.
Managing partner
General Manager
Corporate secretary
Treasurer
In-house counsel
If created by law = see charter
If through Corp Code = same as in
domestic private corporations
2.
Foreign private
a. Transacted business in the Philippines =
i. On resident agent designated in
accordance with law for that purpose, or
ii. If none, on government official
designated by law to that effect, or
iii. Any of its officers or agents within the
Philippines
b. Not registered or have no resident agents
i. Personally through appropriate court in
foreign country with assistance of DFA
ii. Publication once in newspaper in
country where defendant may be found,
and by serving a copy and the court
order by registered mail at the last
known address
iii. By fax, or by any recognized electronic
means
iv. Other means ordered by the court
3. Public Corporations
a. If defendant is the Republic = Sol Gen
b. If province, city or municipality or like public
corporations = executive head or such other
officers as the law or the court may direct
Defendants identity or whereabouts unknown and cant be
ascertained by diligent inquiry
o
May be summoned by publication in newspaper of
general circulation and in such places and for such time
as the court orders,
o
With leave of court
o
No need to send summons to last known address since
not known
Extraterritorial Service
o
When it can be made:
1. Defendant doesnt reside and is not found in the
Philippines, and
2. Action affects:
a. Personal status of plaintiff, or
b. Any property of defendant located in the
Philippines
3. Applies only to actions in rem and quasi-in-rem
4. With leave of court
o
How to serve:
1. Personal service outside the country, with leave of
court, or
2. Publication in newspaper of general circulation in
such places and for such time as the court may
order, and a copy of summons and the court order
by registered mail to the last known address, or
3. In any other manner that the court may deem
sufficient
o
No substituted service to a non-resident
Sales D. A2016
Leave of court
1. By motion in writing
2. Supported by affidavit of plaintiff or some person on his
behalf
3. Set forth grounds for application
Proof of service
o
Personal
1. In writing by the server
2. Set forth manner, place and date of service
3. Specify any paper which has been served and
name of person who received
4. Shall be sworn to if made by a person other than
sheriff or his deputy
RULE 15 Motions
Hearing of Motion
o
What must be done
1. All litigated hearings set by applicant, and
2. Served together with notice of hearing in such
manner as to insure receipt (or actually receive it)
at least 3 days before date of hearing though 3day notice rule is not absolute, must be liberally
construed
3. You need notice of hearing, and proof of service
a. Serve to party, but also
b. To clerk of court who schedules the
hearing
o
Motions that can be acted upon without hearing
1. Ex Parte motions
2. Court can act upon without prejudicing rights of
adverse party
3. Court concludes if motion is litigious or not
o
Notice not required in appellate courts
o
How to attack:
Omnibus Motion
o
Motion attacking a pleading, order, judgment or
proceeding shall include all objections then available
o
All objections not included shall be deemed waived
Motion for Leave accompanied by pleading motion sought to be
admitted
Form rules on pleadings apply to written motions
o
No need for certificate of NFS
o
When motion is pro forma, theres failure to
1. Serve copy to other party
2. Include notice of hearing
3. Conform with 3-day notice rule
4. Conform with 10-day rule
Grounds
1. No jurisdiction over defendant
2. No jurisdiction over subject matter
3. Improper venue
4. Plaintiff no legal capacity to sue
a. Natural person age of majority
b. Corporation duly organized and existing in the
laws of country where it was organized
c. Attorney-in-fact scope of authority
5. Litis Pendentia: requisites
a. Same parties
b. Same interest
c. Same rights asserted
d. Same relief prayed for
6. Res Judicata
a. Same requisites as (5) but there must be a final
judgment in one case
7. Prescription
8. Pleading asserting claim states no cause of action
a. Ask: hypothetically admitting facts alleged, can
court render a valid judgment in accordance with
relief prayed for?
b. Difference between no cause of action and PACSCOA
i. Former, use in answer as a defense or
demurrer filed after plaintiff has rested
its case
1. Ground for demurrer:
insufficiency of evidence
ii. Latter, for Motion to Dismiss
1. Waived if not raised in MTD or
answer
9. Claim has been paid, waived, abandoned, extinguished
10. Unenforceable under statute of frauds
11. Condition precedent not complied with
Hearing of motion
o
Parties submit arguments of questions of law and
evidence on questions of fact available
o
Evidence presented during hearing automatically part of
evidence
Resolution
o
Action of court in resolving a motion,
1. Grant the motion (dismiss action)
2. Deny the motion
3. Order amendment of the pleading
o
Remedies if denied
Sales D. A2016
1.
2.
3.
Time to plead
o
If motion denied, file answer within balance period
prescribed to which he was entitled at the time of
serving his motion but not less than 5 days in any
event, computed from receipt of notice of denial
o
If ordered to amend (new period)
RULE 18 Pre-Trial
Purpose:
1. Amicable settlement
2. Expedite Proceedings
If newly discovered
Notice of pre-trial
o
Notice is served
On counsel
Appearance of parties
o
Who has to go to pre-trial?
Parties, and
Their counsel
o
Representative can go but needs a written SPA
authorizing him to:
1. Enter into an amicable settlement
2. Submit to alternative modes of dispute resolution
3. Enter into stipulations or admissions of facts and
documents
Pre-trial brief
o
Parties file with court and serve on adverse party,
ensure receipt at least 3 days before date of pre-trial,
their respective pre-trial briefs
o
Shall contain:
Issues to be resolves
Record of pre-trial
o
After pre-trial, court issues order which shall recite all
matters taken up in pre-trial
o
Pre-trial order is the bible of the trial. It:
1. Binds parties
2. Limits trial to matters not disposed of
3. Controls course of action during trial
Sales D. A2016
Judge issues pre-trial order within 10 days from end of
pre-trial, or
a.
b.
c.
d.
Issued by:
1. Court where witness must attend
2. Court where deposition taken
3. Officer/body authorized by law in connection with
investigations conducted by said body
4. SC/CA justice in any case or investigation pending within the
Philippines
5. Clerk of court in certain instances
a. Ad testificandum yes if pending case
b. Decus tecum if within pending case and if
ordered by the court
4 Modes of Discovery
1. Depositions pending action (Rule 23)
2. Request for admission by adverse party (Rule 26)
3. Motion for production of documents or inspection of things
(Rule 27)
4. Physical and Mental Examination of Persons
RULE 23 Depositions Pending Actions
2 Kinds
1. Oral Examination/Depositions
2. Written Interrogatories
Uses of Depositions
1. Impeach testimony of a witness
2. Used against adverse party for any purpose
3. In lieu of oral testimony of a witness if the deponent:
a. Is dead (necessary that he was cross-examined)
b. Lives more than 100km from place of trial, or is
out of the Philippines
i. Unless absence was procured by party
offering deposition
c. Unable to testify or attend due to:
i. Age
ii. Sickness
iii. Imprisonment
d. Couldnt be compelled to attend through subpoena
e. Exceptional cases
Sales D. A2016
ii.
Perpetuation of Testimony
Contents
1. Petitioner expects to be a party to an action in court but is
presently unable to bring it
2. Subject matter and his interest therein
3. Facts he desires to establish by proposed testimony and
reasons for desire to perpetuate
4. Names or description and addresses of expected adverse
parties
5. Names and addresses of persons to be examined
To parties only
Periods to file:
1. Answer: within 15 days after service
2. Objections: within 10 days after service of interrogatories,
with notice
Documents should
1. Not be privileged
2. Contain or constitute evidence material to any matter
involved in the action
3. Documents are in possession, custody or control of the other
party
RULE 28 Physical and Mental Examination of Persons
Court can issue motu propio (only mode where court can do so)
or on motion
Contempt (direct)
o
Refusal to be sworn, or
o
Refusal to answer a question after being ordered to do
so by the court
May adjourn but in no case shall be for a longer period than one
month for each adjournment nor more than 3 months in all
o
Exception: authorized in writing by Court Administrator
of the SC
Sales D. A2016
b. Could not be produced despite due diligence
Illness of a party/counsel
a. Presence of either is indispensible at trial
b. Character of illness renders non-attendance
excusable (appear in an affidavit or sworn
certification)
Order of Trial (can be reversed if there is an affirmative defense)
1. Plaintiff adduces evidence
2. Defendant adduce evidence in support of defense,
rd
counterclaim, cross-claim and 3 party complaint
rd
3. 3 party defendant adduce evidence
th
4. 4 party, and so forth adduce evidence
5. Parties against whom any counterclaim/cross-claim has
been pleased adduces evidence
6. Parties respectively adduce rebutting evidence only
a. Unless court for good reasons permits to adduce
evidence on original case
7. Admission of evidence, deemed submitted for decision
a. Unless court directs parties to argue or submit
respective memoranda/pleadings
Judge personally receives evidence. Instances when clerk can
receive:
1. In default proceedings
2. Ex parte hearing (unless imbued with public interest like
adoption)
3. Parties agree in writing (no power to rule of objections)
Relevant periods:
o
First meeting with commissioner: within 10 days after
date of order of reference
o
Object to commissioners report: within 10 days after
notice of findings
When to apply:
o
Civil cases after plaintiff has completely presented his
evidence/after formal offer of object of evidence
o
Criminal cases after prosecution rests its case
Ground: upon facts and law, plaintiff has shown no right to relief
Effect of MTD:
o
If denied defendant can present evidence
2.
When to file:
o
If plaintiff after answer
o
If defendant on counterclaim any time
RULE 35 Summary Judgments
When to file:
o
Claimant: after answer has been served
o
Defendant: any time
Material dates:
o
Time to serve motion: at least 10 days before time
specified for hearing
o
Time for adverse party to serve opposing affidavits: at
least 3 days before hearing
Requisites of judgment
1. In writing
2. Personally and directly prepared by judge
3. Stating clearly and distinctly facts and law as basis
4. Signed by judge
5. Filed with clerk of court
Sales D. A2016
o
No second MR allowed
Grounds for Motion for New Trial (MNT)
1. Fraud (extrinsic) if ground is FAME, affidavit of merit
(under oath) is necessary
2. Accident
3. Mistake
4. Excusable Negligence
5. Newly discovered evidence
a. Couldnt have been discovered and produced at
trial with reasonable and negligence
b. If presented, would probably alter result
Grounds for Motion for Reconsideration (MR)
1. Damages awarded are excessive
2. Evidence insufficient to justify decision or final order
3. Decision or final order is contrary to law
Requirements of a valid motion
1. Relief
2. Grounds
3. Supporting affidavits
4. Notice of hearing
MNT in appellate courts
o
CA yes, with different rules.
Effect of resolution
o
If petition for relief from judgment
2 kinds of execution
1. As a matter of right when judgment is final and executor
2. Discretionary judgment final but not yet executor
a. Pending appeal, or
b. A several/partial judgment
Sales D. A2016
o
Libraries or professionals not more than 300k
o
Family furniture not more than 100k
o
Provisions only up to 4 months
o
Jewelry not exempt
o
Tombstones exempt but not mausoleums
3.
Overview of Remedies
Where to appeal: file notice and record of appeal with the court
that rendered decision
Procedure in RTC
1. Upon receipt of complete record or record on appeal, clerk
shall notify parties
2. File appellants memorandum within 15 days from notice
3. File appellees memorandum within 15 days from receipt
4. Case considered submitted for decision
Sales D. A2016
RULE 41 Appeal from RTC
Subject of appeal:
1. Judgment or final order that completely disposes of the case,
or
2. Particular matter when declared by Rules to be appealable.
Material dates
o
Original record or record on appeal within 30 days
after perfection of appeal
o
Appellant files approved record within 10 days from
receipt of notice of docketing of case
o
Appellants brief file within 45 days from receipt of
notice that all evidence are attached to record
7 copies
File verified petition with the CA, pay docket fees and P500 for
costs within 15 days from notice of decision
o
Can be extended for an additional 15 days
nd
o
No 2 extension except of the most compelling reasons
and shouldnt exceed 15 days
Content of Petition
1. Full names of parties (dont implead original court)
2. Specific material dates
3. Statement of matters involved and arguments
4. Clearly legible duplicate originals or true copies of judgment
of lower court (certified)
5. Certificate of non-forum shopping
6. Proof of payment of docket fees
7. Serve copy of petition to adverse party and original court
8. File in 7 copies
9. If filing/service is not personal, include explanation
Material dates:
1. Respondent file a comment (not a MTD) within 10 days
2. Clerk elevates original record if deemed necessary within
15 days from notice
3. Submit memoranda when required 15 days
Perfection of appeal
1. Upon timely filing of petition
2. Payment of corresponding fees
Petition shall stay the judgment appealed unless CA, the law or
rules provide otherwise and in cases decided under Rule on
Summary Procedure (immediately executory)
RULE 43 Appeals from CTA and Quasi-Judicial Agencies to the
CA
No longer applies to CTA since now same rank as CA. File with
the SC
Material dates:
o
Period of appeal: within 15 days from notice of
judgment or date of its publication if required by law for
its effectivity
Contents of petition
1. Full names of parties without impleading court of origin
2. Statement of facts, issues involved and grounds
3. Clearly legible duplicate original or certified true copy of the
judgment
4. Sworn certificate of non-forum shopping
Contents of Comment
1. Point out insufficiencies or inaccuracies in statement of facts
and issues
2. State reasons why petition should be denies or dismissed
3. Clearly legible certified true copies of material portions of
record with supporting papers
Sales D. A2016
Material dates
o
File petition within 15 days from notice or denial of
MR or MNT
Any time during pendency of case, court may call for PC to:
1. Consider possibility of amicable settlement except when
prohibited by law to compromise
2. Define, simplify and clarify issues
3. Formulate stipulations of facts
4. Other matters to aid court in prompt disposition
When allowed:
1. At own instance or
2. Upon motion of a party
o
o
Withdrawal of appeal
o
As a matter of right before filing of appellees brief
o
Discretionary after filing of appellees brief
RULE 51 Judgment
Quorum
o
Division: 3 justices
Execution of judgment
o
Original action: writ accompanied by certified true copy
of decision and addressed to officer for enforcement
o
Appealed case: where motion for execution pending
appeal is filed in CA, resolution granting it shall be
transmitted to lower court with directive for such court to
issue writ for enforcement
RULE 52 Motion for Reconsideration
Material dates
o
For filing within 15 days
No second MR allowed
o
For resolution within 90 days from date when court
declares it submitted for resolution
Grounds:
1. Damages awarded are excessive
2. Evidence insufficient to justify decision
3. Decision contrary to law
Sales D. A2016
RULE 53 New Trial
Period for filing: any time after appeal from lower court has been
perfected and before CA loses jurisdiction over the case
Publish in:
1. Official Gazette and
2. Court of Appeals Reports
a. Each volume shall not be less than 700 pages
RULE 56-A Original Cases in the SC
Limitations
o
No MNT unless based on its equity jurisdiction
o
Cant annul judgment of CA
RULE 56-B Appealed Cases in the SC
Annulment by:
o
CA over RTC, or
o
RTC over MTC
o
No similar provision for SC
PROVISIONAL REMEDIES
3 stages of attachment
1. Court issues order of grant
2. Writ of attachment issues
3. Implementation of writ (only stage where jurisdiction over
defendant is acquired)
Contents of affidavit
1. Cause of action
2. Grounds mentioned
3. No other sufficient security for claim sought to be enforced
by action
4. Amount due to applicant
5. Post bond
Sales D. A2016
RULE 58 Preliminary Injunction
Types:
1. Preliminary injunction to prohibit: maintain status quo
2. Preliminary mandatory injunction: requires something to be
done to maintain status quo
3. Restraining Order issued to preserve status quo until
hearing on application for PI
Requisites for PI
1. Clear and unmistakable right
2. Right violated and invasion is material and substantial
3. Urgent and permanent necessity for writ to prevent great or
irreparable injury
Grounds
1. Applicant entitled to relief
2. Commission, continuance or non-performance will work
injustice to applicant
3. Someone is violating the rights of applicant and it tends to
render judgment of main case ineffectual
Requirements:
1. Verified application
2. File a bond
2 Kinds of TRO
1. 72-hour TRO
a. Ground: matter of extreme urgency and applicant
will suffer grave injustice and irreparable injury
b. Issued by executive judge (multi-sala court) or
presiding judge (single sale)
c. Without hearing
d. Automatically expires but can be extended after
hearing
2. 20-day TRO
a. Ground: great or irreparable injury
b. Issued by regular court judge after raffle
c. Following service of complaint and summons
d. Also without notice and hearing
e. Cannot be extended, automatically expires
Requires 2 bonds
1. Applicants bonds
2. Receivers bond can agree to dispense with
Grounds:
1. Proper in danger of being lost
2. Property mortgaged in danger of being wasted and security
in mortgage no enough to cover value
3. Stipulation in mortgage contract
4. Preserve property during appeal or to aid execution
5. Other reasons for most convenient and feasible means
RULE 60 Replevin
Material dates:
o
File comment by Adverse party within 5 days
o
Set hearing not more than 3 days after
Material dates
o
Motion to dismiss, shall toll period to file answer,
remaining period shall not be less than 5 days
o
Claimant file answer: within 15 days from service of
summons
2 scenarios:
1. Declaratory Relief file with RTC
2. Other Similar remedies file depending on which court has
jurisdiction
a. Reformation
b. Quieting of title
c. Removal of cloud
d. Consolidate ownership
Purpose:
1. Declare rights/duties
2. Interpretation/construction
3. Determination of validity
Notice
o
If Statute, EO or regulation notify OSG
o
If local ordinance:
Sales D. A2016
Concurrent jurisdiction
o
If decision of MTC RTC, CA and SC
o
If decision of RTC CA and SC
o
Ordinarily filed with lower courts first, and then SC
Generally, no damages
o
Requisites:
1. GADALEJ
2. No plain, speedy, ordinary remedy available
Generally no damages
o
Requisites
1. GADALEJ
2. No plain, speedy, ordinary remedy available
With damages
o
Requisite: no plain, speedy, ordinary remedy available
Certiorari
Prohibition
Mandamus
Against who
tribunal, board,
tribunal,
tribunal, board,
officer
board, officer,
officer,
corporation,
corporation,
person
person
Questioning
judicial or
judicial, quasiministerial
what
quasi-judicial
judicial or
function or
function
ministerial
exclusion of
functions
another from use
and enjoyment of
a right or office to
which the other is
entitled
Damages
No
No
Yes
Relief sought
desist from
desist from
command to do
further
further
the act required
proceedings
proceedings
Requisites
1. GADALEJ
1. GADALE
No plain, speedy,
2. No plain,
J
ordinary remedy
speedy,
2. No plain,
available
ordinary
remedy
available
speedy,
ordinary
remedy
available
Petition does not interrupt the proceedings in the principal case
unless a TRO or PI has been issued
Dismissal of petition (motu propio or on motion)
o
If patently without merit, or made for delay, or too
unsubstantial
o
Treble costs can be awarded against petitioner and
counsel
o
May impose disciplinary sanction based on re ipsa
loquitur
Why file:
1. Usurpation of public office, position or franchise
2. Public officer does an act which constitutes ground for
forfeiture of office
3. Association not duly or legally incorporated, or without lawful
authority to act
Where to file:
1. RTC where respondent resides
2. CA
3. SC
4. If OSG commences action, may be filed in the RTC of Manila
What to allege:
1. Right and purpose of expropriation
2. Description of property
3. Names of persons:
a. Owning or claiming to own
b. Possessing it, or
c. Having interest over it
4. Petition verified
2 stages:
1. Validity of expropriation
2. Determination of just compensation (judicial function)
Sales D. A2016
c.
2 Kinds of foreclosure
1. Judicial
o
No Right of redemption, only equity of redemption
o
Pay after court order to pay: period of not less than 90
days nor more than 120 days from entry of judgment
o
Mortgagor continues to be in possession of property
2. Extrajudicial (Act 3135)
o
Right of Redemption: 1 year from registration of
confirmation of sale
o
Obligor continues to be in possession
2 Kinds of partition
1. Judicial
a. All persons interested must be impleaded as
indispensible parties
b. Covers both real and personal property
c. Any co-owner can institute
d. Bond not necessary
2. Extrajudicial
a. Usually co-owners created by death of an
ascendant
b. Requisites:
i. No will
ii. No debt
iii. If there are minors, appointment of
guardians
iv. Contested within 2 years
Summary procedure
Forcible Entry:
o
Possession by reason of Force, Intimidation, strategy,
threats or stealth (FISTS)
o
Prior physical possession when it was deprived
o
Period to file: within 1 year from discovery of entry
Unlawful Detainer
o
Previous lawful possession but by violation of contract
or expiration of period, became unlawful
o
Demand letter necessary:
Prohibited pleadings:
1. MTD, except:
a. Ground of lack of jurisdiction over subject matter,
or
b. Failure to comply with requirement of referral for
conciliation
2. Bill of particulars
3. MNT, MR, or reopening of trial
4. Relief from judgment
5. Extension of time to file pleadings
6. Memoranda
7. Certiorari, mandamus or prohibition against interlocutory
orders issued
8. Declare defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third-party complaints
12. Interventions
Material dates
o
File answer within 10 days from service of summons
Sales D. A2016
3.
o
RULE 71 Contempt
1. Direct punished summarily
a. An act of disrespect in the presence or so near the
court
b. As to obstruct or interrupt proceedings before the same
c. Penalty:
i. RTC & up:
1. Fine: not exceeding P2,000 and/or
2. Imprisonment: not exceeding 10
days
ii. MTC
1. Fine: Not exceeding P200 and/or
2. Imprisonment: not exceeding 1
days
d. Remedy:
i. No appeal.
ii. File certiorari/prohibition (Rule 65)
iii. Stay execution by filing bond
2. Indirect requires notice and hearing
a. Violation of an order or lawful process of court
b. How charged:
i. Motu propio formal charge of judge against
whom contempt was committed
ii. Verified complaint filed and docketed
separately; if incident to case, with option to
consolidate with main
c. Where to file:
i. If against RTC: file in RTC
ii. Against MTC: file in RTC, or MTC(subject to
appeal to RTC)
d. Maybe released from custody upon filing a bond in
amount fixed by court
i. Maybe released if it appears that public
interest will not be prejudiced
e. Penalty:
i. RTC & up:
1. Fine: not exceeding P30,000
and/or
2. Imprisonment: not exceeding 6
months
ii. MTC
1. Fine: Not exceeding P5,000
and/or
2. Imprisonment: not exceeding 1
month
iii. If contempt consists in refusal to do an act
which he is capable of performing, may be
imprisoned until performance
f.
Remedy:
i. Appeal
ii. But judgment stayed only with a bond is
posted
Sales D. A2016