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RECOLETOS NOTES

CENTRALIZED BAR OPERATIONS 2006

Remedial Law
CIVIL PROCEDURE Jurisdiction- is the authority to hear and determine a cause or the right to act in a case. STAGES IN CIVIL PROCEDURE Stage 1: Referral to the Barangay Conciliation Proceedings pursuant to RA 7160 General Rule: all cases must be referred to the lupon Exceptions: 1. one party does not reside in the barangay 2. subject real property is located in another barangay 3. one party is a public officer Stage 2: COMPLAINT 1. Jurisdiction The power and authority of a court to hear, try and decide cases. Elements of a Valid Jurisdiction: a. Jurisdiction over the subject matter of the case b. Jurisdiction over the parties c. Jurisdiction over the res if jurisdiction over the defendant cannot be acquired d. Jurisdiction over the issue of the case e. Payment of docket fees Lack of jurisdiction over the person of the defendant maybe waived if not raised in a motion to dismiss or in an answer. Jurisdiction over the subject matter may not be waived. General Rule: Jurisdiction over the subject matter or nature may be alleged in any stage of the proceedings Exception: Estoppel Principle of Primary Jurisdiction if the case is such that its determination requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in the administrative proceedings before a remedy will be supplied by the courts even though the
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REMEDIAL LAW COMMITTEE


CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza, Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax Maliwat, Vladimir Villacorta

RECOLETOS DE MANILA SCHOOL OF LAW

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
matter is within the proper jurisdiction of a court. (Industrial Enterprises, Inc. v. CA, 184 SCRA 426, 1990) What determines jurisdiction in civil cases: a. complaint or petition b. of the filing of the complaint
c.

Allegations

of

the

Law applicable at the time

In money claims, the totality of the claims in joinder of claims or causes of action (Totality Rule)
2.

Parties (Rule 3)

Parties in Civil Actions 1. Plaintiff the claiming party, the counter-claimant, third-party plaintiff Defendant original defending party, the defendant in a counterclaim, the cross-defendant, or the third-party defendant
2.

Party Plaintiff or Defendant 1. Natural Persons a. Must be with legal age and capacity to act b. Husband and wife shall sue and be sued jointly, except as provided by law. (Sec. 4, Rule 3) c. Minor or incompetent with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem (Sec. 5) d. Non resident may sue if he files a complaint in the Philippine courts or may be sued only if it involves the personal status of the plaintiff or the properties of the defendant found in the Philippines 2. Juridical Persons a. State and its political subdivisions b. Other corporations and institutions and entities for public interest and purpose, created by law c. Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality General rule: Mere association of persons not possessing juridical personality cannot sue and be sued Exceptions:
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2006 BAR OPS EXECUTIVE COMMITTEE


OVER-ALL CHAIRMAN: Abbon Loong; OVER-ALL VICE-CHAIRMAN: Tristan Babiera, Edgar Martho; VCSECRETARIAT: Sasquia Rabara; VC-ACADEMICS: Leamay Orencio; VC-EXTERNAL: Rheme Jabido; VC-WAYS & MEANS: Gian Palad; JURISPRUDENCE ANALYSTS: Jiggs Domingo, Catherine Camposano; POLITICAL Lady Jay Gutierrez; LABOR - Crystal Embido; CIVIL John Tiamson; TAXATION - Noel Ortega; COMMERCIAL - Edgar Malapote; CRIMINAL Cynthia Corpuz; REMEDIAL Jeniffer Felipe; LEPE - Frela Pancho

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
Entity without juridical capacity- when two or more persons enter into transaction, they may be sued under the name by which they are generally or commonly known. (Sec. 15) 2. In a class suit (Sec. 12)
1.

Foreign private juridical entity can be sued. (Sec. 12, Rule 14) 1. If regularly doing business in the Philippines but did not get a license to do business in the Philippines, IT CANNOT SUE. 2. If it conducts an isolated business/transaction, not regular, it needs no license and it CAN sue.
d.

3. Entities authorized by law 3. Venue (Rule 4) The place where the action is to be commenced/instituted and tried. It refers to the place or geographical location on which an action or proceeding should be brought. 1. Real actions Court which has jurisdiction over the area where the property is located or a portion thereof is located

2. Personal actions Court of the place where the plaintiff resides or where the defendant resides or in case of a non- resident defendant where he may be found at the election of the plaintiff 3. When rules not applicable 1. Specific rule of law provides otherwise 2. Stipulation of parties before the action is commenced a. Mandatory when there are restrictive or qualifying words in the agreement indicating that venue cannot be laid in any place other than that agreed upon by the parties b. Permissive No qualifying or restrictive words in the agreement or when the agreement is couched by the words may c. Unenforceable- when the agreement on venue is against public policy STAGE 3: FILING THE COMPLAINT WITH THE CLERK OF COURT Non - payment of docket fees is a ground for dismissal of the complaint STAGE 4: SUMMONS (Rule 14)
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REMEDIAL LAW COMMITTEE


CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza, Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax Maliwat, Vladimir Villacorta

RECOLETOS DE MANILA SCHOOL OF LAW

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
Modes of service 1. Service in person or if he refuses to receive and sign for it, by tendering it to him
2.

Substituted service 2.1 by leaving copies of the summons at the defendants residence with some person of sufficient age and discretion then residing therein 2.2 by leaving copies at defendants office or regular place of business with some person in charge thereon extraterritorial service defendant is a non- resident and is not found in the Philippines action affects: a.) personal status of the plaintiff b.) subject is property within the Philippines in which the defendant has or claims a lien or interest c.) relief demanded consists in excluding defendant from any interest in the property d.) property of defendant has been attached within the Philippines

3.

by leave of court by personal service or by publication, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any matter the court deem convenient purpose: to acquire jurisdiction over the person of the defendant form: summons shall be directed to the defendant, signed by the clerk of court under seal and shall contain: a.) the name of the court and the names of the parties to the action b.) a direction that the defendant answer within the time fixed by the Rules c.) a notice that unless the defendant answers, plaintiff will take judgment by default and may granted the relief applied for

2006 BAR OPS EXECUTIVE COMMITTEE


OVER-ALL CHAIRMAN: Abbon Loong; OVER-ALL VICE-CHAIRMAN: Tristan Babiera, Edgar Martho; VCSECRETARIAT: Sasquia Rabara; VC-ACADEMICS: Leamay Orencio; VC-EXTERNAL: Rheme Jabido; VC-WAYS & MEANS: Gian Palad; JURISPRUDENCE ANALYSTS: Jiggs Domingo, Catherine Camposano; POLITICAL Lady Jay Gutierrez; LABOR - Crystal Embido; CIVIL John Tiamson; TAXATION - Noel Ortega; COMMERCIAL - Edgar Malapote; CRIMINAL Cynthia Corpuz; REMEDIAL Jeniffer Felipe; LEPE - Frela Pancho

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
STAGE 5: UPON RECEIPT OF SUMMONS Defendant may opt to file any of the following: Motion to Dismiss Filed within the time for but before filing the answer to the complaint asserting a claim Grounds: 1. lack of jurisdiction over the defendant 2. lack of jurisdiction over the subject matter 3. that venue is improperly laid 4. plaintiff has no legal capacity to sue 5. litis pendencia 6. res judicata 7. failure to state a cause of action 8. claim has been paid, waived, abandoned or otherwise extinguished 9. claim on which the action is based is unenforceable under the statute of frauds 10. condition precedent for filing the claim has not been complied with 2. Motion for Bill of Particulars filed before filing any responsive pleading move for a definite statement of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading if the pleading is a reply, the motion must be filed within ten days from service thereof 1.

3. Motion for Extension to File Responsive Pleading 4. Motion for Summary Judgment subject to the 10- day notice rule filed if the pleading, supporting affidavits, depositions, and admissions on file, show that, except as to the award of the damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law STAGE 6: DECLARATION OF DEFAULT defendant fails to answer within the time allowed upon motion of the plaintiff Judgment by default - the court shall proceed to render judgment granting the relief as the pleading warrants unless the court requires the claimant to submit evidence.
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REMEDIAL LAW COMMITTEE


CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza, Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax Maliwat, Vladimir Villacorta

RECOLETOS DE MANILA SCHOOL OF LAW

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial relief from order of default what to file - Motion to Lift Order of Default when filed - anytime after notice but before judgment grounds: 1. failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense Stage 7: Amendment of Pleadings amendments in general: 1. adding or striking out an allegation or the name of any party 2. correcting a mistake in the name of a party 3. correcting a mistaken or inadequate allegation or description period to amend 1. as a matter of right - before a responsive pleading is filed 2. with leave of court - after answer - upon motion filed in court and with notice and hearing Stage 8: Withdrawal of Complaint plaintiff must file notice of withdrawal of complaint at any time before service of the answer or of a motion for summary judgment unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim (two dismissal rule) if counterclaims pleaded by defendant prior to the service upon him of the plaintiffs motion for dismissal, the dismissal is limited to the complaint dismissal due to fault of plaintiff - complaint may be dismissed upon motion of defendant or upon courts own motion if for no justifiable cause the plaintiff o fails to appear on the date of the presentation of his evidence in chief on the complaint o fails to prosecute his action for an unreasonable length of time o fails to comply with the Rules of Court or any order of the court Stage 9: Answer period to plead
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2006 BAR OPS EXECUTIVE COMMITTEE


OVER-ALL CHAIRMAN: Abbon Loong; OVER-ALL VICE-CHAIRMAN: Tristan Babiera, Edgar Martho; VCSECRETARIAT: Sasquia Rabara; VC-ACADEMICS: Leamay Orencio; VC-EXTERNAL: Rheme Jabido; VC-WAYS & MEANS: Gian Palad; JURISPRUDENCE ANALYSTS: Jiggs Domingo, Catherine Camposano; POLITICAL Lady Jay Gutierrez; LABOR - Crystal Embido; CIVIL John Tiamson; TAXATION - Noel Ortega; COMMERCIAL - Edgar Malapote; CRIMINAL Cynthia Corpuz; REMEDIAL Jeniffer Felipe; LEPE - Frela Pancho

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
- within fifteen days from receipt of summons answer may be with counterclaim or cross claim - crossclaim o any claim by one party against a co- party arising out of the transaction or occurrence that is the subject matter of either the original action or of a counterclaim therein. counterclaim 1.) compulsory counterclaim - arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing partys claim - does not require for its adjudication the presence of third parties - must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount 2.) permissive counterclaim - does not arise out of or is not connected with the transaction or occurrence constituting the subject matter of the opposing partys claim - does not require for its adjudication the presence of third parties defenses set forth in the answer 1) negative defense - is the specific denial of the material fact alleged in the pleading of the claimant essential to his cause or causes of action - negative pregnant- fact is alleged with some qualifying or modifying language and only the qualification or modification is denied, while the fact itself is admitted 2) affirmative defense - is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. Stage 10: Judgment on the Pleadings file motion for judgment on the pleading when filed: - after receipt of an answer grounds:
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REMEDIAL LAW COMMITTEE


CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza, Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax Maliwat, Vladimir Villacorta

RECOLETOS DE MANILA SCHOOL OF LAW

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
1. answer fails to tender an issue 2. answer admits the material allegations of the adverse partys pleading Stage 11: Third/Fourth Party Complaint with leave of court filed by defending party filed against a person not a party to the action ( third/fourth party defendant) for contribution, indemnity, subrogation, or any other relief, in respect of his opponents claim Stage 12: Reply a reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of 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 new matters alleged in the answer are deemed controverted filed within 10 days from service of the pleading responded to Stage 13: Pre- trial when conducted: - after the last responsive pleading has been served and filed, it shall be duty of the plaintiff to promptly move ex parte that the case be set for hearing nature and purpose: - Pre- trial is mandatory. The court shall consider the following: 1. simplification of the issues 2. the necessity or desirability of amendments to the pleadings 3. possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof 4. limitation of the number of witnesses 5. advisability of a preliminary reference of issues to the commissioner 6. propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground be found to exist 7. the advisability or necessity of suspending the proceedings 8. such other matters as may aid in the prompt disposition of the action non- appearance of a party at pre- trial - on the part of plaintiff o case shall be dismissed without prejudice
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2006 BAR OPS EXECUTIVE COMMITTEE


OVER-ALL CHAIRMAN: Abbon Loong; OVER-ALL VICE-CHAIRMAN: Tristan Babiera, Edgar Martho; VCSECRETARIAT: Sasquia Rabara; VC-ACADEMICS: Leamay Orencio; VC-EXTERNAL: Rheme Jabido; VC-WAYS & MEANS: Gian Palad; JURISPRUDENCE ANALYSTS: Jiggs Domingo, Catherine Camposano; POLITICAL Lady Jay Gutierrez; LABOR - Crystal Embido; CIVIL John Tiamson; TAXATION - Noel Ortega; COMMERCIAL - Edgar Malapote; CRIMINAL Cynthia Corpuz; REMEDIAL Jeniffer Felipe; LEPE - Frela Pancho

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
on the part of the defendant o allow plaintiff to present evidence ex parte and the court to render judgment on the basis thereof excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing 1. to enter into an amicable settlement 2. to submit to alternative modes of dispute resolution 3. to enter into stipulations or admissions of facts and documents pre- trial brief o filed and served, in such a manner as shall ensure their receipt at least 3 days before the date of pre- trial. - contents: (a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; (b) A summary of admitted facts and proposed stipulation of facts; (c) The issue to be tried of resolved; (d) The document or exhibits to be presented, stating the purpose thereof; (e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and (f) The number and names of the witnesses, and the substance of their respective testimonies. Stage 14: Order of Trial presentation of plaintiffs evidence in chief trial shall be limited to the issues stated in the pre- trial order and shall proceed as follows: 1.) the plaintiff shall produce evidence in support of his complaint 2.) defendant shall produce evidence in support of his defense, counterclaim, cross-claim, and third- party complaint 3.) third party defendant, if any, shall then adduce evidence in his behalf 4.) fourth party and so forth, if any, shall then adduce evidence of the material facts pleaded by them.

REMEDIAL LAW COMMITTEE


CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza, Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax Maliwat, Vladimir Villacorta

RECOLETOS DE MANILA SCHOOL OF LAW

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
5.) parties against whom a counterclaim or cross- claim has been pleaded shall then adduce evidence in support of their defense 6.) parties shall then present their rebutting evidence only, unless the court allows them to adduce additional evidence upon the original case 7.) upon submission of evidence, case submitted for decision, unless court orders them to argue on or submit their respective memoranda motion to postpone trial for absence of evidence - granted only upon an affidavit showing: (1) the materiality of such evidence and (2) that due diligence has been used to procure it. - if adverse party admits the facts to be given in evidence, even if he objects or reserves the right to object to their admissibility, the trial shall not be postponed motion to postpone trial for illness of party or counsel - only upon an affidavit or sworn certification stating (1) that the presence of the party or counsel at the trial is indispensable and (2) the character of the illness is such as to render his nonattendance excusable Stage 15: Demurrer to Evidence defendant to file motion for demurrer to evidence with leave of court when filed: - after the plaintiff has completed the presentation of his evidence on what ground o upon the facts and the law the plaintiff has shown no right to relief effect: o if motion granted: case is dismissed o if motion denied: defendant loses his right to present evidence o if motion granted but reversed on appeal defendant deemed to have waived his right to present evidence

Stage 16: Intervention who may intervene: 1. person who has a legal interest in the matter in litigation
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2006 BAR OPS EXECUTIVE COMMITTEE


OVER-ALL CHAIRMAN: Abbon Loong; OVER-ALL VICE-CHAIRMAN: Tristan Babiera, Edgar Martho; VCSECRETARIAT: Sasquia Rabara; VC-ACADEMICS: Leamay Orencio; VC-EXTERNAL: Rheme Jabido; VC-WAYS & MEANS: Gian Palad; JURISPRUDENCE ANALYSTS: Jiggs Domingo, Catherine Camposano; POLITICAL Lady Jay Gutierrez; LABOR - Crystal Embido; CIVIL John Tiamson; TAXATION - Noel Ortega; COMMERCIAL - Edgar Malapote; CRIMINAL Cynthia Corpuz; REMEDIAL Jeniffer Felipe; LEPE - Frela Pancho

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
2. person who has a legal interest in the success of either party or against both 3. person who is so situated as to be adversely affected by the distribution or other disposition of property in the custody of the court or of an officer thereof when to file - filed anytime before rendition of judgment what to file 1. complaint- in- intervention - if he asserts a claim against either or all of the original parties 2. answer- in- intervention - if he unites with the defending party in resisting a claim against the latter Stage 17: Decision requisites for a valid judgment; 1. determination on the merits 2. in writing 3. personally and directly prepared by the judge 4. states clearly and distinctly the facts and the law on which it is based 5. signed by the judge 6. filed with the clerk of court entry of judgment - no appeal, motion for new trial or reconsideration is filed within the time provided, the judgment shall be entered by the clerk of court in the book of entries of judgments. - the date of finality of the judgment shall be deemed to be the date of its entry Stage 18: Remedies before Finality of Judgment Appeal A. No appeal may be taken from: 1. an order denying a motion for new trial or reconsideration 2. an order denying a petition for relief or any similar motion seeking relief from judgment 3. an interlocutory order 4. an order disallowing or dismissing an appeal 5. an order denying a motion to set aside a judgment by consent, confession, or compromise on the ground of
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REMEDIAL LAW COMMITTEE


CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza, Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax Maliwat, Vladimir Villacorta

RECOLETOS DE MANILA SCHOOL OF LAW

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
fraud, mistake, duress, or any other ground vitiating consent 6. an order of execution 7. a judgment for or against one or more of several parties or in separate claims, counterclaims, cross- claims, and third- party complaints, while the main case is pending, unless the court allows an appeal therefrom 8. an order dismissing an action without prejudice B. Grounds for dismissal of appeal 1. failure of the record on appeal to show on its face that the appeal was taken within the period fixed by the Rules 2. failure to file the notice of appeal or the record on appeal within the period prescribed 3. failure of appellant to pay the docket and other lawful fees 4. unauthorized alterations, omissions or additions in the approved record on appeal 5. failure of appellant to serve and file the required number of copies of his brief or memorandum within the time prescribed 6. absence of specific assignment of errors in the appellants brief or of page reference to the record as required 7. 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 8. failure of the appellant to appear at the preliminary conference or to comply with orders, circulars or directives of the court without justifiable cause 9. the fact that the judgment appealed from is not appealable 10. appeal from RTC to CA on pure questions of law 11. appeal by notice of appeal instead of by petition for review from the appellate judgment of RTC 12. appeal erroneously taken to the CA C. Modes of Appeal 1. from MTC to RTC - file notice of appeal - filed within 15 days from receipt of notice of the judgment - filed with the court that rendered the judgment appealed from - deemed perfected upon the filing of the notice of appeal
12

2006 BAR OPS EXECUTIVE COMMITTEE


OVER-ALL CHAIRMAN: Abbon Loong; OVER-ALL VICE-CHAIRMAN: Tristan Babiera, Edgar Martho; VCSECRETARIAT: Sasquia Rabara; VC-ACADEMICS: Leamay Orencio; VC-EXTERNAL: Rheme Jabido; VC-WAYS & MEANS: Gian Palad; JURISPRUDENCE ANALYSTS: Jiggs Domingo, Catherine Camposano; POLITICAL Lady Jay Gutierrez; LABOR - Crystal Embido; CIVIL John Tiamson; TAXATION - Noel Ortega; COMMERCIAL - Edgar Malapote; CRIMINAL Cynthia Corpuz; REMEDIAL Jeniffer Felipe; LEPE - Frela Pancho

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
court loses jurisdiction over the case upon the perfection of the appeal filed in due time and the expiration of the time to appeal

2. from RTC to CA - notice of appeal o in cases decided by the RTC in the exercise of its original jurisdiction o filed with the court that rendered the judgment appealed from o filed within 15 days from notice of the judgment appealed from o deemed perfected upon the filing of the notice of appeal petition for review o in cases decided by the RTC in the exercise of its appellate jurisdiction o filed within 15 days from notice of judgment sought to be reviewed or of the denial of petitioners motion for new trial or reconsideration o deemed perfected upon the filing of the petition and payment of the corresponding docket and other lawful fees o RTC loses jurisdiction over the case upon the perfection of appeal filed in due time and the expiration of the time to appeal of other parties

3. from RTC to SC - petition for review on certiorari o on pure questions of law o filed within 15 days from notice of judgment sought to be reviewed or of the denial of petitioners motion for new trial or reconsideration o SC may extend the time for filing but only for justifiable reasons and for 30 days only o dismissal of the petition petitioner fails to comply with any of the requirements regarding the payment of docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition - denial of the petition o appeal is without merit
13

REMEDIAL LAW COMMITTEE


CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza, Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax Maliwat, Vladimir Villacorta

RECOLETOS DE MANILA SCHOOL OF LAW

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
o appeal is prosecuted manifestly for delay o the questions raised are too unsubstantial to require consideration o review discretionary the following may be considered by the SC: 1. when the court a quo has decided a question of substance, not theretofore determined by the SC, or has decided it in a way probably not in accord with the law or with the applicable decisions of the SC 2. when the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision 4. from CTA and other quasi- judicial agencies to CA - what is involved o question of fact or law or both - how taken o by filing a verified petition for review - where filed o with the CA - when filed o filed within fifteen days from notice of the judgment, or from the date of the last publication of the judgment, if publication is required by law for its effectivity from the denial of petitioners motion for new trial or reconsideration 5. from CA - petition o o to SC for review on certiorari only on pure questions of law filed within fifteen days from notice of the judgment, or from the date of the last publication of the judgment, if publication is required by law for its effectivity from the denial of petitioners motion for new trial or reconsideration
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2006 BAR OPS EXECUTIVE COMMITTEE


OVER-ALL CHAIRMAN: Abbon Loong; OVER-ALL VICE-CHAIRMAN: Tristan Babiera, Edgar Martho; VCSECRETARIAT: Sasquia Rabara; VC-ACADEMICS: Leamay Orencio; VC-EXTERNAL: Rheme Jabido; VC-WAYS & MEANS: Gian Palad; JURISPRUDENCE ANALYSTS: Jiggs Domingo, Catherine Camposano; POLITICAL Lady Jay Gutierrez; LABOR - Crystal Embido; CIVIL John Tiamson; TAXATION - Noel Ortega; COMMERCIAL - Edgar Malapote; CRIMINAL Cynthia Corpuz; REMEDIAL Jeniffer Felipe; LEPE - Frela Pancho

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
Motion for New Trial - grounds: 1. fraud, accident, mistake or excusable negligence o which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights o with affidavit of merit 2. newly discovered evidence o which could not , even with reasonable diligence, have been discovered and produced at the trial, and which if presented would probably alter the result o with affidavit of witness filed within the time for filing an appeal if granted, the original judgment is vacate and the action stands trial de novo if denied, file an appeal from the judgment

Motion for Reconsideration o grounds: 1. damages awarded are excessive 2. evidence is insufficient to justify the decision 3. decision is contrary to law o filed within the time for filing an appeal Petition for Certiorari - what to file o verified petition for certiorari ground: o tribunal, board, or officer exercising judicial or quasijudicial functions has acted without or in excess of its or his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, and appeal not available when filed: a.)within 60 days from notice of judgment b.)within 60 days from denial of the motion for new trial or reconsideration where filed: a.) in the SC b.) in the RTC
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REMEDIAL LAW COMMITTEE


CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza, Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax Maliwat, Vladimir Villacorta

RECOLETOS DE MANILA SCHOOL OF LAW

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
- if petition relates to the acts or omissions of a lower court or of a corporation, board, officer or person c.) in the CA - whether or not the same is in aid of its appellate jurisdiction - if it involves the acts or omissions of a quasijudicial agency, unless otherwise provided by law or the Rules d.) in the Sandiganbayan - if in aid of its appellate jurisdiction Stage 19: Remedies after Finality of Judgments 1. Petition for Relief from Judgments - when available: a.) when a judgment is entered or proceeding taken against a party thru FAME - ask that judgment be set aside b.) when a judgment is rendered and a party thereto is prevented by FAME from taking an appeal - ask that the appeal be given due course when filed: o within 60 days from the time petitioner learns of the judgment and not more than 6 months from entry of the judgment or proceeding taken

2. Annulment of Judgment - when available o when the remedies of new trial, reconsideration, appeal, relief from judgment or other appropriate remedies are no longer available through no fault of the petitioner grounds: a. extrinsic fraud o must be filed within four years from its discovery o cannot be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief o if granted, court will try the case as if a motion for new trial is granted b. lack of jurisdiction must be filed before it is barred by laches or estoppel o if granted, court will set aside the judgment, and the case may be refiled 3.) Petition for Certiorari
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2006 BAR OPS EXECUTIVE COMMITTEE


OVER-ALL CHAIRMAN: Abbon Loong; OVER-ALL VICE-CHAIRMAN: Tristan Babiera, Edgar Martho; VCSECRETARIAT: Sasquia Rabara; VC-ACADEMICS: Leamay Orencio; VC-EXTERNAL: Rheme Jabido; VC-WAYS & MEANS: Gian Palad; JURISPRUDENCE ANALYSTS: Jiggs Domingo, Catherine Camposano; POLITICAL Lady Jay Gutierrez; LABOR - Crystal Embido; CIVIL John Tiamson; TAXATION - Noel Ortega; COMMERCIAL - Edgar Malapote; CRIMINAL Cynthia Corpuz; REMEDIAL Jeniffer Felipe; LEPE - Frela Pancho

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
what to file o verified petition for certiorari ground: o tribunal, board, or officer exercising judicial or quasi- judicial functions has acted without or in excess of its or his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, and appeal not available when filed: a.) within 60 days from notice of judgment b.) within 60 days from denial of the motion for new trial or reconsideration

a.)

- where filed: in the SC in the RTC o if petition relates to the acts or omissions of a lower court or of a corporation, board, officer or person c.) in the CA o whether or not the same is in aid of its appellate jurisdiction o if it involves the acts or omissions of a quasi- judicial agency, unless otherwise provided by law or the Rules d.) in the Sandiganbayan o if in aid of its appellate jurisdiction Stage 20: Execution of Judgment execution as a matter of right - on motion - judgment that disposes of the action o upon the expiration of the period to appeal and no appeal is perfected discretionary execution o on motion of the prevailing party o with notice to the adverse party o filed with the court that rendered the judgment and before it loses jurisdiction over the case o before expiration of the period to appeal

b.)

a final judgment or order may be executed on motion within 5 years from the date of its entry
17

REMEDIAL LAW COMMITTEE


CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza, Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax Maliwat, Vladimir Villacorta

RECOLETOS DE MANILA SCHOOL OF LAW

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
after the lapse of five years and before it is barred by the statute of limitations, the judgment may be enforced by action the revived judgment may also be enforced by motion within 5 years from the date of its entry and thereafter by action before it is barred by the statute of limitations

Provisional Remedies -is a collateral proceeding, permitted only in connection with a regular action, and as one of its incidents; one which is provided for present need, or for the occasion, that is, one adapted to meet a particular exigency. Kinds of provisional remedies: 1. preliminary attachment o filed at the commencement of the action or at any time before entry of judgment o when available: 1. in an action is for the recovery of a specified amount of money or damages where the defendant is about to depart from the Philippines with intent to defraud the creditors 2. in an action for money or property embezzled, fraudulently misapplied by the defendant or converted to his own use 3. in an action to recover property unjustly or fraudulently taken by the defendant or property that is detained, converted, removed or disposed of to prevent its being found or taken by the plaintiff 4. in an action against a defendant guilty of fraud in either contracting or performing an obligation 5. in an action against a person who has removed or disposed of his property to defraud creditors 6. in an action against a defendant who is a non- resident and is not found in the Philippines requisites for the issuance of the writ of preliminary attachment: 1. case must be one of those where preliminary attachment is proper 2. thru a motion 3. applicant must show thru an affidavit that there is no sufficient security for the claim sought to be enforced 4. attachment bond is filed 2. preliminary injunction
18

2006 BAR OPS EXECUTIVE COMMITTEE


OVER-ALL CHAIRMAN: Abbon Loong; OVER-ALL VICE-CHAIRMAN: Tristan Babiera, Edgar Martho; VCSECRETARIAT: Sasquia Rabara; VC-ACADEMICS: Leamay Orencio; VC-EXTERNAL: Rheme Jabido; VC-WAYS & MEANS: Gian Palad; JURISPRUDENCE ANALYSTS: Jiggs Domingo, Catherine Camposano; POLITICAL Lady Jay Gutierrez; LABOR - Crystal Embido; CIVIL John Tiamson; TAXATION - Noel Ortega; COMMERCIAL - Edgar Malapote; CRIMINAL Cynthia Corpuz; REMEDIAL Jeniffer Felipe; LEPE - Frela Pancho

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
o preliminary injunction is an order requiring a person, a party or even a court or tribunal either to refrain (prohibitory) from or to perform (mandatory) particular acts during the pendency of an action o grounds: 1. that the applicant is entitled to 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, either for a limited period or perpetually 2. that the commission, continuance or non- performance of the act complained of during the litigation would probably work injustice to the applicant 3. that a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act probably in violation of the rights of the applicant respecting the subject of the action and tending to render the judgment ineffectual 3. receivership o its purpose is to protect and preserve the rights of the parties during the pendency of the main action o when available: 1. when it appears from the verified petition that the applicant has an interest in the property or fund which is the subject of the action and that such property or fund is in danger of being lost, removed or materially injured unless a receiver be appointed to administer and preserve it 2. when it appears that the property subject to a mortgage 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 3. after judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, 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, or otherwise to carry the judgment into effect 4. 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 4.replevin
19

REMEDIAL LAW COMMITTEE


CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza, Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax Maliwat, Vladimir Villacorta

RECOLETOS DE MANILA SCHOOL OF LAW

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
o a party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him o the application for replevin must be by affidavit on his ownership of the property and the actual value thereof o bond, double the value of the property, must be posted 5. support pende lite o support pende lite is an amount of support provisionally fixed by the court in favor of the person entitled thereto during the pendency of an action for support Special Civil Actions 1. Interpleader - filed whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves 2. declaratory relief - filed by whom o a person interested under a deed, will, contractor other written instrument, or whose rights are affected by a statute, executive order, ordinance, or any other governmental regulation - when filed o before breach or violation of such deed, will, contract or statute or ordinance - where filed o with the RTC - purpose: o to determine any question of construction or validity arising and for a declaration of rights or duties 3. review of judgments of COMELEC and COAudit - file petition for certiorari with the SC within 30 days from notice of judgment or if a motion for new trial or reconsideration is
20

2006 BAR OPS EXECUTIVE COMMITTEE


OVER-ALL CHAIRMAN: Abbon Loong; OVER-ALL VICE-CHAIRMAN: Tristan Babiera, Edgar Martho; VCSECRETARIAT: Sasquia Rabara; VC-ACADEMICS: Leamay Orencio; VC-EXTERNAL: Rheme Jabido; VC-WAYS & MEANS: Gian Palad; JURISPRUDENCE ANALYSTS: Jiggs Domingo, Catherine Camposano; POLITICAL Lady Jay Gutierrez; LABOR - Crystal Embido; CIVIL John Tiamson; TAXATION - Noel Ortega; COMMERCIAL - Edgar Malapote; CRIMINAL Cynthia Corpuz; REMEDIAL Jeniffer Felipe; LEPE - Frela Pancho

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
filed, within the time remaining, but in no case less than 5 days from the notice of the denial of the motion 4.Certiorari, Prohibition, and Mandamus - certiorari o filed when a tribunal, board, or officer exercising judicial or quasi- judicial functions has acted without or in excess of its or his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, and appeal not available - prohibition o thru a verified petition and praying that the tribunal, corporation, board, officer or person whether exercising judicial, quasi- judicial or ministerial functions be ordered to desist from further proceeding in the action or matter specified therein or otherwise granting such incidental reliefs as law and justice requires mandamus o thru a verified petition o against a tribunal, corporation, board, officer or person: i. who unlawfully neglects the performance of an act which the law specifically enjoins as a duty ii. who unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled o praying that a judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay damages sustained by the petitioner by reason of the wrongful acts of the petitioner

5. quo warranto - an action for the usurpation of a public office, position, or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: 1. a person who usurps, intrudes into, or unlawfully holds or exercise a public office, position or franchise 2. a public officer who does or suffers an act which, by the provision of law, constitutes a ground fro the forfeiture of his office 3. an association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act
21

REMEDIAL LAW COMMITTEE


CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza, Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax Maliwat, Vladimir Villacorta

RECOLETOS DE MANILA SCHOOL OF LAW

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
6. expropriation - the right of eminent domain may be exercise by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying any part or interest therein 7. foreclosure of real estate mortgage - thru an action for foreclosure of a mortgage - if court shall find the facts set forth in the complaint as true, it shall render judgment for the payment of the debt due, which debt must be paid not less than 90 days nor more than 120 days from entry of judgment - if obligor defaulted in payment, the property shall be sold at public auction - the proceeds of the sale shall be applied to the debt and if there is a residue, the same shall be paid to junior encumbrancers 8. partition - a person having a right to compel the partition of real estate may do so by setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded - join as defendants all other persons interested in the property - may be thru an order of the court or by agreement of the parties 9. forcible entry and unlawful detainer - filed by whom 1. by a person deprived of possession of any land or building by force, intimidation, threat, strategy or stealth 2. by a lessor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract filed within 1 year from the unlawful deprivation or withholding of possession with the MTC of the place where the property is located

10. Contempt direct contempt o a person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities to others, or refusal to be sworn or to answer as
22

2006 BAR OPS EXECUTIVE COMMITTEE


OVER-ALL CHAIRMAN: Abbon Loong; OVER-ALL VICE-CHAIRMAN: Tristan Babiera, Edgar Martho; VCSECRETARIAT: Sasquia Rabara; VC-ACADEMICS: Leamay Orencio; VC-EXTERNAL: Rheme Jabido; VC-WAYS & MEANS: Gian Palad; JURISPRUDENCE ANALYSTS: Jiggs Domingo, Catherine Camposano; POLITICAL Lady Jay Gutierrez; LABOR - Crystal Embido; CIVIL John Tiamson; TAXATION - Noel Ortega; COMMERCIAL - Edgar Malapote; CRIMINAL Cynthia Corpuz; REMEDIAL Jeniffer Felipe; LEPE - Frela Pancho

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
a witness, or to subscribe an affidavit or deposition when lawfully required to do so o indirect contempt charge in writing against a person who is guilty of: 1. misbehavior as an officer of a court in the performance of his official duties or in his official transactions 2. disobedience to a lawful order, writ or process of the court 3. any abuse of any unlawful interference with the processes or proceeding of the court not constituting direct contempt 4. any improper conduct tending to impede or degrade or obstruct the administration of justice 5. assuming to be an attorney or an officer of the court, and acting as such without authority 6. failure to obey a subpoena 7. rescue, or attempted rescue, of a person or property in custody of an officer by virtue of an order or process of a court held by him

23

REMEDIAL LAW COMMITTEE


CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza, Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax Maliwat, Vladimir Villacorta

RECOLETOS DE MANILA SCHOOL OF LAW