REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 1 of 17

TAKE NOTE: The answers are merely suggested answers. When in doubt, always check your own
reference.

REMEDIAL LAW
Giancarlo Cardino | Freyritz Cayaban| Jerico Angelo Galvez
Kaye Lambino | Camhella Sandoval
Prepared by: Kaye Lambino
1. If the trial court desires to stop temporarily the implementation of the process issued by it should
the trial court upon motion
A) revoke its order.
B) issue pi suspending its own writ.
C) Advise parties to get injuctive relief from higher court.
D)None of the above.
Answer: A. Revoke its order. (ata)
Sec. 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order.
The application for injunction or restraining order may be denied, upon a showing of its
insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on
other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also
by affidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing that
although the applicant is entitled to the injunction or restraining order, the issuance or continuance
thereof, as thecase may be, would cause irreparable damage to the party or person enjoined while the
applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an
amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the
denial or the dissolution of the injunction or restraining order. If it appears that the extent of the
preliminary injunction or restraining order granted is too great, it may be modified.
2 if the period for redemtion arising from an execution sale has expired but the winning bidder is
unable to acquire physical possession of the property because the occupant refuses to vacate should
the bidder,
a) ask for writ of possession from the court.
b) commence an action for unlawful detainer against the occupant
c) Move for revival of judgement under rule 39 sec 34 ,
d) None of the above
Answer: A. Writ of possession
The issuance of the writ is ministerial and complmentary duyt of the court to put an end to the
litigation provided that the statute of limitation and the right of the third persons have not intervened in
the meantime.
3. After the entry of judgement and issuance of the writ of execution in a complaint to recover A
defaulted loan summons was published right away with leave of court should the defendant
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 2 of 17

A) move for the trial court to quash the said writ.

B) appeal the order granting the same.
C) Seek relief from judgment
D) File with ca a petition to annul the judgment and the writ.
E) None of the above?
(Ndi ko talaga alam.)
4. After plaintiff rested his case, defendant was convinced that the farmers evidence was insufficient
but a law was enacted in the meantime depriving of the court of jurisdiction should the defendant.
A) file for demurrer
B) move for dismissal on lack of jur.
C) both a and b. Present defenses then appeal if he deserves it,
D. None of the above.
Answer: A demurrer
Because he is convinced that the farmers evid was insufficient. But please take note of the
consequences of demurrer, if plaintiff appeals and loses defendant cant psent evidence anymore, so siguro
present evid nalang. . Cant file md on lack of jurisdiction because once jurisdiction is attached , the court
retains it until termination of the case - doctrine of adherence exception when expressly stated to apply to
pending casesand curstive in nature.
II
Rule 39 sec 47 and 48
Effect of judgment or final orders
Sec. 47. Effect of judgments or final orders.
The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to
pronounce the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in respect to the personal, political, or legal condition
or status of a particular person or his relationship to another, the judgment or final order is conclusive
upon the title to the thing, the will or administration, or the condition, status or relationship of the person;
however, the probate of a will or granting of letters of administration shall only be prima facie evidence of
the death of the testator or intestate;
(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any
other matter that could have been raised in relation thereto, conclusive between the parties and their
successors in interest by title subsequent to the commencement of the action or special proceeding,
litigating for the same thing and under the same title and in the same capacity; and
(c) In any other litigation between the same parties or their successors in interest, that only is deemed to
have been adjudged in a former judgment or final order which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein or necessary thereto.
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 3 of 17

Sec. 48. Effect of foreign judgments or final orders.

The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the
judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive
upon the title to the thing; and
(b) In case of a judgment or final order against a person, the judgment or final order is presumptive
evidence of a right as between the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact.
2 omnibus motion - motion attacking a pleading order judgment or proceeding shall invlude all
objections then available. Objections not included shall be deemed waived except for sec 1 rule 9.
Pro forma motions - motions that dont comply with the req are mere scrap of papers and doesnt toll
prescription
Give 5 distinction of pa, pi, receivership, replevin, support pendente lite
A immediately execury eept for pa and replevin
B. subject matter : personal or real or money except for pi -particular acts
C. Hearing - required except for pa and replevin exparte.
D. Bond. -required for all except for support
E. discharge of remedy - no counter bond for support
Prepared by: Gian Cardino
I. In a child abuse case, the victim confided to her classmate that the accused molested and abused
her inside the accused store. The classmate in turn reported the matter to their classroom teacher.
The prosecutor offered the testimonies of the classmate and the teacher to prove the guilt of the
accused. Resolve with reasons.
The testimonies of the classmate and the teacher to prove the guilt of the accused are hearsay. A
witness may testify only to those facts which he knows of his personal knowledge; that is which
are derived from his own perception except as otherwise provided in the rules. The classmate and
the teacher do not have personal knowledge. As provided under sec. 28 of the Rule on
Examination of a Child Witness (AM NO. 004-07-SC), a statement made by a child describing
any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-criminal proceeding. Therefore, the testimony of the
classmate although hearsay is admissible since it is a statement made by a child describing any
act or attempted act of child abuse. The testimony of the teacher does not fall under the
exceptions to the hearsay rule.
II. Explain laying the basis, laying the predicate, offer of evidence and offer of proof. In one and the
same case, illustrate the application of the above principles.
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 4 of 17

Laying the predicate refers to the impeachment of a witness through prior inconsistent statements.
Offer of evidence refers either to the offer of testimony of a witness prior to the latters testimony,
or the offer of documentary and object evidence after a party has presented his testimonial
evidence.
Offer of proof is the process by which a proponent of an excluded evidence tenders the same. If
what has been excluded is testimonial evidence, the tender is made by stating for the record the
name and other personal circumstances of the proposed witness and the substance of his proposed
testimony. If the evidence excluded is documentary or of things, the offer of proof is made by
having the same attached to or made a part of the record.
III. In a prosecution for robbery, the prosecutor offered in evidence the extrajudicial confession of
the accused which satisfies legal requirements. Without the accused objections, the court admitted
the same. Thereafter, the prosecution rested.
(1) If you were the defense counsel, will you move for demurrer to evidence? Why?
(2) Give the differences, if any, between demurrer in civil and criminal cases.
I will move for the demurrer to evidence with leave of court since the evidence of the prosecution
is not sufficient to convict my client. Extrajudicial confession is not sufficient for conviction. The
rule requires that the confession be corroborated by evidence of corpus delicti. In the instant case,
the extrajudicial confession was not corroborated by evidence of corpus delicti. Although the
confession satisfies legal requirements, it only means that the extrajudicial confession was made
in writing and signed by the accused in the presence of his counsel or in the latters absence upon
a valid waiver and in the presence of any of the parents, elder, brothers and sisters, his spouse, the
municipal mayor, the municipal judge, district school supervisor, or priest or minister of the
gospel as chosen by him.
In civil cases, the defendant need not ask for leave of court. If the court finds plaintiffs evidence
insufficient, it will grant the demurrer by dismissing the complaint. The judgement of dismissal is
appealable. If plaintiff appeals and judgement is reversed by the appellate court, it will decide the
case on the basis of the plaintiffs evidence with the consequence that the defendant already loses
his right to present evidence; there is no res judicata in dismissal due to demurrer. The plaintiff
files a motion to deny motion to demurrer to evidence. If court denies the demurrer, defendant
will present his evidence.
In criminal cases, it may be filed with or without leave of court. Leave of court is necessary so
that the accused could present his evidence if the demurrer is denied. If the court finds the
prosecutions evidence insufficient, it will grant the demurrer by rendering judgment acquitting
the accused. Judgement of acquittal is not appealable; double jeopardy sets in. The court may
motu propio deny the motion. If court denies the demurrer with leave, accused may present his
evidence. If court denies the demurrer without leave, accused can no longer present his evidence
and submits the case for decision based on the prosecutions evidence.
IV.
1. What is impeachment of judicial record? How is it carried out?
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 5 of 17
A judicial record may be impeached by evidence of want of jurisdiction in the court or judicial
officer, collusion between the parties, or fraud in the party offering the record, in respect to the
proceedings. A judicial record does not only include official entries or files or the official acts of a
judicial officer but also the judgment of the court. If the judgment is not final, the impeachment
can be carried out through appeal. If the judgment is final, it can still be impeached although
conclusive through petition for relief from judgment and annulment of judgment.
2. Give 5 evidentiary rules, if any. Which apply to a criminal case.
Proof beyond reasonable doubt, sweetheart theory, rape shield rule, chain of custody, immunity
statutes, admissions by co-conspirator, prosecution cannot compel the accused to testify in court,
stipulation of fact must be in writing and signed by the accused and his counsel to be admissible
against the accused in criminal cases.
Prepared by: JericoGalvez
1. Is there equiponderance of evidence in criminal, civil and specpro?
Ang sagot ay nasa page 325 ng JARA notes
Equiponderance- the evidence submitted by one party is equal to the evidence submitted by the
adverse party.
a. In criminal cases, if there is equiponderance of evidence, the accused will be acquitted.
b. in civil cases, the party who will lose is the party who has the burden of proof.
c. in specpro,
2. in 2002, there was an order of closure in the settlement proceedings of the estate of Juan. Pedro
issued a 2M promissory note payable to Juan only. When Pedro filed an action for the recovery of
the loan, Jose (debtor of Juan) filed a counterclaim against Pedro and the estate of Juan, saying he
was not a real party in interest plus a claim of 3M against the estate of Juan, an old loan. Will the
rule on actionable document and dead man's statute apply?
*mejo hinde ko gets ang pagkakareconstruct ng tanong na ito.
a. actionable document
b. dead man's
according to Sec 23 rule 130,
3. An adverse party and a third party files an action to recover a property, can they be cited for
contempt through:
a. writ of replevin
b. Pre attachment
c. Pre Injunction
d. counterbond
e. writ of possession
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 6 of 17
*magulo uli ang tanong.
Answer: a.
4. in a motion for recon, new trial and reopening, is an unsworn statement of a witness after
presentation of evidence by both sides, considered a newly discovered evidence?
5.
A) a victim filed an affidavit of recantation in a case for abduction. There was a formal withdrawal
of the complaint. Can the prosecution still file an information?
--- no. since abduction is a private crime, the participation of the offended party is necessary for the
institution of the said crime.
B) can the affidavit of recantation be admitted as evidence in new trial, reconsideration or
reopening?
6.
Can there be an instance where a court convicts an accused, and another court releases him while
releases him while he is serving sentence?
A. the lease expires. Lessor demands 60k from 25k rental, as an increase. Lessee refuses. Lessor
sued for unlawful detainer. The court issues judgment to vacate and pay 180 back rental. Lessee
appeals. Can the court upon motion execute the judgement?
Answer: yes, in forcible entry, when the judgment is favorable to the plaintiff it is immediately
excutory.
B. if lessor appeals, can execution be rendered, upon lessor' motion
7. Define
a. Confession relicta verificatione after pleading and before trial, the defendant both confessed the
plaintiff's cause of action and withdrew or abandoned his plea and other allegations, whereupon
judgment was entered against him without proceeding to trial
b. auter action pendant- similar to conclusiveness of judgment, the issues actually and resolved in a
former suit cannot again be raised in any future case between the same parties involving a different
cause of action
c.

ratione cessat ipsa lex when the reason for the law ceases, the law ceases to apply.
d. ouster of jurisdiction- similar to the exclusionary principle, the court first acquiring jurisdiction
excludes all others.

2012 - CLASS 4C SAMPLEX COLLECTION

TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 7 of 17
e. Habeas data a remedy available to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, storing or collecting of data and information regarding
the person, family, home and correspondence of the aggrieved party.
f. Past memory recollected a witness may also testify from such writing or record, though he
retains no recollection of particular facts, if he is able to swear that the writing or record correctly
stated in transaction when made, but such evidence must be received with caution.
g. court referred mediation a mediation ordered by a court to be conducted in accordance with the
agreement of the parties when an action is prematurely commenced in violation of such agreement.
h. residual jurisdiction residual power of the court after losing the jurisdiction but prior to the
transmittal of the record or record on appeal.
i. double jeopardy- when a person is charged with an offense and the case is terminated either by
acquittal or conviction or be dismissed without the consent of the accused, the latter cannot again
charged with the same or identical offense.
j. independent relevant statement ayon sa memaid, it is an out of court declaration which while
having certain characteristics of hearsay, it is not actually hearsay but is original evidence. These are
statements which are relavant independently, whether true or not.
8.
a. there is a judgment of foreclosure of mortgage worth 4M. You advised to attach the property first
before publication, so you can get the deficiency, since the amount of loan is 6M. Is that proper?
b. a case for recovery of an unpaid loan worth 120k. RTC dismissed the case based on lack of
jurisdiction. Is that proper? Yes, rule 9 sec 1. moto proprio

9.
A filed a motion to dismiss a criminal case against him, without hearing and without notice to the
prosecutor. It did not toll appeal. Is pro forma motion applicable in criminal case. --- no, the court
can
b. is A entitled to bail in this instance?
10.
a. you are the prosecutor in a criminal case as well as counsel in a civil case (which are unrelated)
you presented evidence in chief, but they were not admitted by court. Can rule 65, TPO or PI be
availed? What are the essential requirements?
Prepared by: Frey Cayaban and Eco Galvez
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 8 of 17
Remedial Law Midterms 2004-2005
1. X engages your legal services to file suit against Y to recover a parcel of land in Manila from
which X was forcibly dispossessed.
a. What will be the proper action that you should file?
i. If the dispossession was for less than a year and it is recovery of physical
possession the action is accion interdictal (forcible entry)
ii. If it was for more than a year and it is recovery of physical possession the action
is accion publiciana
iii. If it is recovery of ownership, the action will be accion reinvindicatoria
b. Before which court will you file such action?
i. For accion interdictal, MTC
ii. For publiciana or reinvindicatoria, MTC or RTC depending on the value of the
property or any interest therein
2. On the second year of a 5-year lease, lessor Q unilaterally terminated the lease, forcibly
ousted lessee R from and took over possession of the leased premises. Forthwith, R filed suit
in the RTC to eject Q from and to recover possession of said premises for the rest of the
lease. Q contends that the RTC has no jurisdiction over the ejectment case. Resolve with
reasons.
Qs contention is correct. The RTC has no jurisdiction over the ejectment case because
pursuant to BP129, MTC shall exercise exclusive original jurisdiction over cases of
forcible entry and unlawful detainer.
3. Upon a joint money obligation of A, B, and C, complainant D filed a suit for collection
without impleading C as defendant. Upon motion of A and B, the court ordered D to amend
the complaint to include C as a defendant but for failure of D to amend without justifiable
ground, the case was dismissed for non-compliance with orders of the court. Is the dismissal
correct?
NO, the dismissal was NOT correct. Under Rule 3, Sec 9 par 2, it states that the failure
to comply with the order for his inclusion without justifiable case, shall be deemed a
waiver of the claim against such party. The sanction for such non-compliance was a bar
to recover the claim and not to dismiss the case. This is the exception to the rule provided
in Rule 17 Sec 3 where non-compliance to the orders of the court warrants the dismissal
of the case.
4. In May 1998, R sued S before the RTC to recover P200,000 but before S could answer, filed
a notice of dismissal of the case. In May 1999, R refiled the same case before MTC but since
S promised to pay, R once again filed a notice of dismissal. Both dismissals were confirmed
by court order. Because S failed to comply with his promise, R again refiled the case MTC.
S moved to dismiss on the ground of res judicata but R opposed claiming that there is as yet
no prior judgment on the merits. Resolve.
Rule in favor of S. Rule 17 Sec 1 provides that, the dismissal is without prejudice,
except that a notice operates as an adjudication upon the merits when filed by a plaintiff
who ahs once dismissed in a competent court an action based on or including the same
claim. In the case, despite the fact that the plaintiff has filed a notice of dismissal twice,
the initial action (with the RTC) was not filed before a competent court. Technically,
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 9 of 17
there is only one dismissal with the competent court (with the MTC). Hence, res judicata
did not attach.
5. A promissory note of J payable to the order of K was indorsed by K to L. When the note
was not paid when due, L sued to collect, reproducing the note in, but did not annex a copy
thereof to the complaint. In his answer, J did not deny under oath the genuineness and due
execution of the note. At the trial, J sought to prove that the indorsement of the note to L
was forged but L claimed that the genuineness and due execution of the note was impliedly
admitted. Resolve with reason.
Rule in favor of L. Under Rule 8 Sec 7, an action based on document or upon written
instrument may be pleaded, (a) by the substance of such instrument set forth in the
pleading and the original copy thereof attached to the pleading, or (b) copy of the
instrument set forth in the pleading (meaning copying the whole verbatim). L reproduced
the note in the complaint (complying with letter (b)), hence, properly pleaded. Under the
same Rule 8 Sec 8, such document the genuineness and due execution of the instrument
shall be deemed admitted unless the adverse party, under oath, specifically denies them,
and sets forth what he claims to be the facts. In the case, J did not deny under oath the
genuineness and due execution of the note, hence, they are impliedly admitted.
6. Summons in a suit against a corporation was at the office of its President upon his secretary
who failed to refer it to the former. Failing to answer, the corporation was declared in
default but timely filed an unverified motion to lift default.
a. Is the default order proper?
NO. The default order was not proper as there was no proper service of
summons. Under Rule 14 Sec 11, when a defendant is a corporation, service may
be made on the president, managing partner, general manager, corporate
secretary, treasurer or in-house counsel. In the case the summons were served
before the presidents secretary, a person not included in the enumeration. The
enumeration is exclusive.
b. If it is, is the motion to lift sufficient? n/a
c. If the motion to lift is denied and a move to reconsider is also denied, is a second
motion to reconsider allowable?
YES. Under Rule 37 Sec 5 par 2, no party shall be allowed a second motion for
reconsideration of a judgment or final order. A denial of motion to lift an order of
default is interlocutory, hence, a second MR may be allowed. However, it is more
proper if the corporation file a petition for certiorari under Rule 65 after the first
denial of MR.
7. In an action by Q against R, material witness W who nursed a grudge against Q refused to
testify to spite Q and decision was rendered against Q. later, W took pity on Q and agreed to
testify after all. So, Q seasonably moved for a new trial to present Ws testimony as newly
discovered evidence.
a. May a new trial be granted?
NO. New trial based on newly discovered evidence requires that (1) must have
been discovered after trial; (2) could not have been discovered and produced at
the trial despite reasonable diligence, and (3) if presented, would probably alter
the result of the action. In the case, the testimony of W was available during the
trial and not after the trial.
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 10 of 17
b. If the motion is denied, what remedy is available to Q?
The remedy of Q is to appeal from the judgment and not from the order denying
the motion for new trial. Rule 37 Sec 9 provides that an order denying a motion
for new trial or reconsideration is not appealable, the remedy being an appeal
from the judgment or final order. Further Rule 41 provides that no appeal may
be taken form an order denying a motion for new trial.
8. A judgment awarding actual, moral, and exemplary damages having been rendered against
M, N, and O as solidary obligors, judgment obligee P timely files a motion for discretionary
execution upon a good reason.
a. May the motion be granted?
YES. Even before judgment has become executor and before appeal was
perfected, the court, in its discretion may order execution upon good reasons to
be stated in a special order.
b. Would the insolvency of M be a good reason for execution pending appeal?
Although one of the good reasons that may authorize discretionary execution of
judgment is judgment debtors imminent danger of insolvency or is actually
insolvent, in this case, the insolvency of M will NOT be a good reason because
M is a solidary debtor and under the law on obligations, insolvency of one of the
solidary debtors will not extinguish the obligation because the creditor can claim
to the other debtors. Here, P may still claim from N and/or O the whole amount.
c. If exec pending appeal is effected but the decision is reversed on appeal, how will
said execution effected?
Under Rule 39 Sec 5, the trial may, on motion, issue such orders of restitution or
reparation of damages as equity and justice may warrant under the circumstances.
9. Third party Fs property was levied upon on execution of a judgment in favor of G.
a. To protect his interest in the property, may F intervene in the case?
Yes, F may intervene by making an affidavit of his title thereto or right to
possession as provided by the rules (terceria). Also, under the same Rule 39 Sec
16, it provides that nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property in a separate action.
b. If instead F files a terceria and just the same the property is sold at public auction to
the highest bidder H but later F vindicates his title thereto, what remedies, if any
could F pursue to obtain relief from H
Notwithstanding the sale, F may recover the property against H. under Rule 39
Sec 26, when a property sold by virtue of a writ of exectution has been claimed
by a third person, the certificate of sale to be issued by the sheriff shall make
express mention of the existence of such third-party claim. Hence, the principle
of caveat emptor applies and that the title of H is subject to a condition that upon
Fs vindication of his title over the property, H loses whatever he acquired in the
sale at public auction.
10. Defendant D dies pending trial of a collection case.
a. How will the case be effected?
Under Rule 3 Sec 20, when the action is for recovery of money arising from
contract, express or implied, and the defendant dies after final judgment in the
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 11 of 17
court in which the action was pending at the time of such death, it shall not be
dismissed but shall instead by allowed to continue until entry of final judgment.
b. How about if D dies after final judgment is entered?
Under the Rules, the judgment will be executed by filing a claim against the
estate of defendant D pursuant to Rule 86.
c. If execution by motion is proper and a writ is issued but is not enforced before the
judgment becomes dormant, may said writ be enforced thereafter?
NO. If no levy was made within the 5-year period, the writ of execution may no
longer be enforced even if it was issued within the 5-year period. Also under Rule 39 Sec
14, such writ shall continue in effect during the period within which the judgment may be
enforced by motion. After the 5-year period has lapsed, enforcement may be made by
independent action for revival of judgment.
Remedial Law Midterms 2000-2001
1. Before the Manila MTC, X sued to compel Y to complete a house he contracted to construct
praying for indemnity amounting to P300,000 in case he fails to do so. Y moved to dismiss
on the ground of lack of jurisdiction claiming that the subject of the action is incapable of
pecuniary estimation and, hence, the RTC is the competent court. Resolve.
Rule in favor of Y, case should not be dismissed. An action to compel the obligor o
complete the construction of the house is incapable of pecuniary estimation hence RTC
has jurisdiction. HOWEVER, where the complain contains an alternative prayer for the
payment to the obligee of a sum of money not exceeding the jurisdictional amount of
inferior courts, jurisdiction is in the inferior courst as such alternative prayer makes the
action for sum of money. In the case, the complaint contained an alternative prayer for
the payment of sum of money of P300,000, an amount within the jurisdictional limit of
the MTC.
2. Due to the failure of the subdivision developer A to provide adequate protective measures, a
landslide in a hill adjoining the subdivision destroyed the houses of numerous owners. You
are consulted by the victims as to whether they can file a class suit or join together in any
other manner of action against A for reparation of damages. Advise them.
They cannot file a class suit. The requisites of a class suit are: (1) subject matter of the
controversy is one of common interest to many persons, (2) the parties affected are so
numerous that it is impracticable to bring them all before the court; and (3) the parties
bringing the suit are sufficiently numerous or representative of the class and can fully
protect the interest of all concerned. Although they are numerous there is no common
interest to many persons, their interest pertains only to their respective houses which
were destroyed by the landslide. They may however join as partner plaintiff in one suit
because the requisites of joinder of parties are present in the case.
3. In Davao, Atty. S sent a telegraphic motion for postponement of a case in Manila through
the Telefast accomplishing a standard telegram form with provision laying venue in Manila,
which he signed. Because the telegram was negligently misdelivered, his case was dismiseed.
Disregarding the provision for venue as a contract of adhesion, S filed a damage suit in
Davao against Telefast who set up improper venue as a defense in its answer, is that correct?
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 12 of 17
NO, venue was not improperly laid. A stipulation as to the venue of a prospective action
does not preclude the filing of the suit in the residence of a the plaintiff or that of the
defendant, in the absence of qualifying or restrictive words in the agreement that would
indicate that the venue cannot be any place other than that agreed upon by the parties. To
be binding, the parties must have agreed on the exclusive nature of the venue of any
prospective action between them. To avoid the general rules on venue, the agreement of
the parties therein must be restrictive and not permissive.
4. X sued Y before the RTC for damages upon a quasi-delict. Claiming improper service of
summons, Y entered a special appearance and moved to dismiss solely on that ground.
When his motion was denied, he filed a second motion to dismiss upon the ground that the
action is barred by the statute of limitations. X opposed on the claim that said ground is
barred by failure to invoke the same in the first motion. Resolve.
NO, the ground invoked in the second motion to dismiss is not barred. Rule 9 Sec 1
provides that defenses and objections not pleaded either in a motion to dismiss or in the
answer are deemed waived. However, when it appears from the pleadings or evidence of
record that the action is barred by the statute of limitations, the court shall dismiss the
claim. In the case, the second motion to dismiss is grounded on bar by statute of
limitations, hence, not barred.
5. F sued G for a sum of money. On the last day of filing his answer, G moved for a bill of
particulars which was granted and the bill was seasonably served upon him. On the fifth
day after the receipt of the bill, G moved to dismiss the complaint but the motion was
denied and G was served notice of said denial on January 15, 2001. When is the last date for
G to file his answer?
The last date for G to file his answer is on January 20, 2001. When G filed for a motion
for bill of particulars on the last day for filing his answer, he has 5 days from service of
bill of particular to file his responsive pleading pursuant to Rule 12 Sec 5.
6. Under a contract to sell goods to O, P made partial deliveries which remained unpaid.
Because P stopped delivery, O sued for specific performance while P set up the defense of
nullity of the contract but did not file for counterclaim for the value of the goods already
delivered. Eventually, the court upheld the validity of the contract and ordered
performance thereof by P. Later, P sued O to collect the value of the unpaid deliveries but O
contended that the action is barred because the claim should have been interposed as a
counterclaim in the first case.
The action of P is barred. The sum being collected is a compulsory counterclaim because
it is necessarily connected with the transaction, which should have been brought in the
previous case and according to Rule 11 Sec 8, such should be contracted at the time the
defendant files his answer.
7. A issued a promissory note in favor of B and constituted a real estate mortgage as security
for it. Because of misunderstanding, A sued B for the annulment of the mortgage. While the
case is pending, the note matured and B, in turn filed suit for collection of the same against
A, who moved to dismiss the case on the ground of litis pendencia. Resolve.
NO litis pendencia. The requisite in litis is, among others, that the result of the first action
is determinative of the second in any event. In the case, the annulment of mortgage is
independent of the collection suit because even if the annulment of mortgage was
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 13 of 17
granted, there still exists the principal obligation of A to pay his loan evidenced by the
promissory note.
Civil Procedure 2004-2005
I. Discuss with reasons the accuracy of the ff statements:
1. Interlocutory orders cannot be the subject of a writ of execution
As a general rule, only final judgments or orders are subject of a writ of execution.
Interlocutory orders of the court are automatic and immediately executory, hence, a writ
of execution is not necessary for its enforcement. HOWEVER, in enforcing the
provisional remedy of Support pendent lite under Rule 61, the Rules provide that under
Sec 5, Par 2 of the same rule, when the person ordered to give support pendente lite
refuses or fails to do so, any third person who furnished that support to the applicant may,
after due notice and hearing in the same case, obtain a writ of execution to enforce his
right of reimbursement against the person ordered to provide such support.
2. A real action, personal action, action in rem, action in personam and action quasi in rem
cannot be joined properly
FALSE, they may be joined. The classification of real and personal actions on one hand
and in rem, in personam, and quasi in rem actions on the other hand differ as to the
CAUSE and as to the OBJECT, respectively. The former is significant in determining the
VENUE of the action, while the latter is important in determining whether or not
jurisdiction over the person of the defendant is required and the persons upon whom the
judgment is binding. An action could be real as to cause and in personam as to object (eg.
Action to recover a parcel of land). An action could also be personal as to cause and in
rem as to object (eg. Action for annulment of marriage).
3. Law of the case provides that once a judgment has become final and executory the same
could not be altered
FALSE, that is conclusiveness of judgment. The law of the case provides that whatever is
once irrevocably established as the controlling legal rule or decision between the same
parties in the case continues to be the law of the case wther correct on general principles
or not, so long as the facts on which such decision was predicated continue to be the facts
of the case before the court.
4. In summary procedure, judgment by default and summary judgment are prohibited
FALSE. While a motion to declare the defendant in default is prohibited by the summary
procedure (basis: prohibited pleadings), summary judgment may be had when if it is clear
that there exists no genuine issue or controversy as to any material fact, except as to the
amount of damages.
5. Hierarchy of courts proscribes an appeal taken from a decision of an inferior court direct to
the Supreme Court
FALSE. An appeal to the SC can be taken from a judgment or final order or resolution of
the RTC, an inferior court, under Rule 45 raising only questions of LAW which must be
distinctly set forth.
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 14 of 17
6. An individual may become a party litigant, in a pending action even without his knowledge
TRUE. In any case (in rem, in personam, quasi in rem) where defendants identity or
whereabouts are unknown and cannot be ascertained by diligent inquiry, summons by
way of publication (with leave of court) may be availed of. In such a case, even if the
defendant was not served with summon
II.
Before the RTC-Manila Juan filed an unverified complaint against Jose and Pedro to recover
P1million including interest, damages and attorneys fees based on a promissory note signed by
brothers Jose, Pedro and Carlos as solidary makers. On the note, Carlos handwrote a firm
commitment to pay solely the whole indebtedness. Juan also alleged that the post-dated check for
P500k drawn by Jose as payment was dishonored for insufficiency of funds. Accordingly, Juan
applied for the issuance, ex parte, or a writ of preliminary attachment which the court granted,
over the strong opposition of Jose who learned about it, against a bond of P1million. Thereupon, the
sheriff attached a Bulacan-house and lot owned in common by the 3 brothers worth P6million. A
week after the attachment, sheriff went to Joses house and met Carlos with whom he left Copies of
the complaint and summons addressed to Jose and Pedro.
1. Did the court acquire jurisdiction over the defendants
NO. Service of summons must be served personally to the defendant by handing a copy
of summons to him or if he refuses to receive it, by tendering it to him. Its only upon the
impossibility of the personal service of summons within reasonable time after efforts
have been exerted may substituted service be had. In the case at bar, the circumstances do
not merit the availment of the substituted service of summons.
2. Did Carlos become a forced intervenor
Hindi ko alam dear saket sa bangs
3. After the attachment the defendants sold their share in the house and lot to Carlos who filed
a motion to quash the writ for improper and improvident issuance and wrongful
implementation, citing the unverified complaint and the value of said property
a. Decide with reasons
A complaint need not be verified unless provided by the rules. With respect to the
value of the property which exceeds the amount of indebtedness, the said value is
immaterial to the action because should in case the property was subsequently
sold at public auction, the sheriff will only pay to the creditor-obligee the amount
equivalent to the debt and excess can be handed over to the debtor-owner after
payment of cost and expenses of the sale.
b. Before the court could resolve Carlos motion to quash, Carlos filed a complaint for
injunction and damages with prayer for mandatory injunction against the sheriff
and Juan before RTC Bulacan to enjoin them from attaching the property and to
compel the discharge of the writ. Was Carlos guilty of forum-shopping?
4. Jose filed an undated and verified answer signed by him and not his lawyer where he
specifically denied the material allegations contained in the complaint, challenged the
courts jurisdiction over the action and at the same time asked the court to dismiss the
action for non-joinder of Carlos, an indispensable party. Juan moved for judgment on the
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 15 of 17
pleadings citing Joses defective answer. Resolve with reasons the merit of Joses stand and
Juans motion.
Jose:

On date: the rules provide that it must be dated. But the date is not a fatal defect
in the pleading except when the date is material to the accrual of the cause of
action
On verified by defendant: The pleading may be signed either by the lawyer, or
by his client, or by both of them. Hence, if it is signed by the defendant only, it is
valid.
On jurisdiction: RTC has jurisdiction over the case since this is an action
involving a collection of money amounting to P1million, which is well within
the jurisdiction of the RTC
On non-joinder: Carlos is not an indispensable party. In a suit brought by a
creditor against one or two solidary debtors, the other solidary debtor not
impleaded is neither indispensable nor a necessary party. Hence, joinder of
parties is not required.

Juans motion for judgment on the pleadings: CANNOT be granted. Because such motion
can be granted only when the answer fails to tender an issue and not just because the
answer was undated and unsigned by lawyer. The Rules say that such deficiency does not
constitute a fatal defect.
III.
1. After a judgment directing two defendants to pay a sum of money, without indicating
whether they are joint or solidary, became executory, the plaintiff timely filed a petition for
relief based on the grounds enumerated in Rule 38. None of the defendants filed an
opposition or comment. Convinced that the defendants were indeed solidary debtors, the
court rendered a clarificatory judgment to this effect.
a. Did the court act properly?
NO it did not. Rule 38 Sec 6 provide that if it finds that the allegations to be
true, it shall SET ASIDE the judgment, final order or other proceeding
complained of upon such terms as may be just. In a clarificatory judgment, the
court does not set aside its own judgment but merely clarifies ambiguities in the
judgment.
b. Can the defendants appeal from the new decision? File a petition to annul the same?
From the new decision, YES. Because after the court has granted the petition, it
shall proceed to hear and determine the case as if a timely motion for new trial or
reconsideration had been granted by it. From this judgment, the party may assail
the case through an ordinary appeal.
Annulment of judgment? Yes. As long as the groundsextrinsic fraud, lack of
jurisdiction over the subj matter and over the personfor annulment is present
and is timely filed.
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 16 of 17
c. What are the grounds for dismissal of a cross-claim? Third-party complaint?
Appeal?
On cross-claim and third party: grounds stated in Rule 16; failure to satisfy the
requisites of cross-claim and third party complaint
On appeal: failure to satisfy the requisites of each kind of appeal
2. When the president of Lions Club learned that his son was sued by the bank for
nonpayment of a loan, the club president, unaware that his son had set up in his answer
sound defenses and a counterclaim, approached the plaintiff-bank and signed together with
the bank an undertaking to pay the loan upon, approval by the Court. The undertaking was
submitted by the Bank to the Court with prayer for its approval and dismissal of the
complaint. The defendant (son) moved that the complaint and his counterclaim be tried. In
a motion filed by the club president, who asked the court to annul the undertaking on the
ground of fraud and of jurisdiction over his person
a. Resolve with reason the motions of the plaintiff, defendant and the club president
Plaintiffs prayer for approval of undertaking: Cannot be granted. Compromise
agreements must be entered into by the parties of the case.
Plaintiffs motion to dismiss complaint: Court may grant the motion to dismiss of
the bank on the exercise of its sound discretion (Rule 17 Sec 2). However, since a
counterclaim has been pleaded by the defendant prior to the service upon him of
the plaintiffs motion for dismissal, the dismissal is limited to the complaint.
Defendants counterclaim: May be tried by the court. Defendant may:
Prosecute his counterclaim in a separate action; OR
To have the same resolved in the same action.
Presidents motion to annul the undertaking: Cannot be granted. No locus standi,
he is not a party to the action, nor is he entitled to intervene in the case.
b. Assume the Court approved the undertaking, was new trial, re-opening proper?
YES new trial or reopening may be granted by the court provided there is
sufficient ground to avail of such remedies.
IV. Compare and Contrast fully
1. The provisional remedies as regards bond, period for issuance, scope and recovery of
damages by adverse party
Preliminary
Preliminary Receivership
Replevin
Support
Attachment
injunction
pendente lite
Bond
Amount fixed by the court
Double
the NO bond
value of the
property
Period of Commencemen At any stage At any time At
the At
the
issuance
t of the action prior to the prior to the commencemen commencemen
or any time judgment of satisfaction
t of the action t of the action
2012 - CLASS 4C SAMPLEX COLLECTION
TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan

REMEDIAL LAW SAMPLEX

2012 CLASS 4C | Page 17 of 17
prior to
entry
judgment

the
of

final order

of judgment

but
before
answer is filed

Personal
property
capable
of
manual
delivery
May recover

Scope

Personal
and
real property

Particular
act/acts

Personal and
real property

Recovery
of
damages
by
adverse
party

May recover

May recover

May recover

2. Pleadings and motions

Pleading
Purpose: to submit a claim or defense for
appropriate judgment
May be initiatory
Always filed before judgment
Only 9 kinds of pleading are allowed by the rules
Must be written

or at any time
prior to the
judgment
or
final order
Money or other
forms
of
support

Order recipient
to return the
amounts
already
received

Motion
To apply for an order not included in the judgment
Cannot be initiatory as they are always made in a
case already filed in court
May be filed even after judgment
Any application for relief not by a pleading is a
motion
May be oral when made in open court or in the
course of a hearing or trial

2012 - CLASS 4C SAMPLEX COLLECTION

TAXATION LAW Antonio, Payumo, Quilates, Santos, Zulueta | COMMERCIAL LAW :Calingasan, Calvan, Madridijo,
Panganiban, Quinto, Sta. Ana | REMEDIAL LAW: Cardino, Cayaban, Galvez, Lambino, Sandoval | CIVIL LAW:
Cachapero, Rosalejos, Tan