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civpro > [CODAL-FINAL] Rule 11,13-16 > Flashcards

[CODAL-FINAL] Rule 11,13-16 Flashcards

1
Q

Payment of docket fees - purpose and rules

A
  • W/o payment of correct docket fee, no OG complaint or similar pleading is considered file
  • vests a trial court w jurisdiction over subject matter + nature of action
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2
Q

Filing of Pleadings v. Service of Pleadings

A
  • Act of submitting the pleading or other paper to the clerk of court (Rule 13, Sec 2)
  • Act of providing a party with a copy of the pleading or any other court submission
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3
Q

Manner of filing pleadings

A
  • Submitting personally the original thereof, plainly indicating such
  • Sending them by registered mail or accredited courier
  • Transmitting them by email or other e-means as may be authorized by the Court in placed where the court is electronically equipped
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4
Q

Sending them by registered mail or accredited courier - when is it deemed filed?

A

Date of mailing = date of filing

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5
Q

email or other e-means as may be authorized by the Court - when is it deemed filed?

A

Date of electronic transmission shall be considered the date of filing.

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6
Q

Modes of Service of Pleadings

A
  • Personal
  • Registered
  • Substituted
  • E-means and fax
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7
Q

Personal service. — Service of the papers may be made by:

A
  • Delivering personally a copy to the party or his counsel, or
  • By leaving it in his office with his clerk or with a person having charge thereof.
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8
Q

What if no person is found at the office or no office or office not known in personally servicing a pleading?

A

Then by leaving the copy, between the hours of eight in the morning and six in the evening,** at the party’s or counsel’s residence,** if known, with a person of sufficient age and discretion then residing therein

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9
Q

Service by mail

A

made by depositing the copy in the post office in a sealed envelope to a party or his counsel if known, otherwise at his residence, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered.

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10
Q

What if no registry service is available in the locality of either the senders or the addressee?

A

service may be done by ordinary mail.

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11
Q

Substituted service

A

If service cannot be made personally or through registered mail, the office and place of residence of the party or his counsel being unknown, service may be made by delivering **the copy to the clerk of court, **

with roof of failure of both personal service and service by mail

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12
Q

When can Electronic means and facsimile transmissions be made to serve a pleading?

A

if the party concerned consents

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13
Q

The ff may not be served or filed electronically, unless express permission is granted by the [c]ourt

A

(a) Initiatory pleadings and initial responsive pleadings, such as an answer:

(b) Subpoena, protection orders, and writs:

(c) Appendices and exhibits to motions, or other documents that are not readily amenable to electronic scanning

(d) Sealed and confidential documents or records.

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14
Q

When service is deemed completed - personal

A

Upon actual delivery

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15
Q

When service is deemed completed - ordinary mail

A

Upon expiration of 10 days after mailing

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16
Q

When service is deemed completed REGISTERED MAIL

A
  • Upon actual receipt by addressee or
  • 5 days from the date he received first notice from postmaster
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17
Q

When service is deemed completed - ACCREDITED COURIER

A
  • Upon actual receipt by the addressee OR
  • After at least two attempts to deliver by the courier service OR
  • Upon the expiration of five calendar days after the first attempt to deliver, WHICHEVER IS EARLIER.
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18
Q

When service is deemed completed - ELECTRONIC SERVICE

A
  • At the time of the e-transmission of the document OR
  • when available, at the time that the e-notification of service of the document is sent.
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19
Q

When service is deemed completed - fax

A

Upon receipt by the other party, as indicated in the facsimile transmission printout.

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20
Q

When service is deemed completed - SUBSTITUTED SERVICE

A

At the time of the delivery of the copy to the clerk of court.

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21
Q

Summons

A

A writ by which the defendant is notified of the action brought against him

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22
Q

When does the court acquire jurisdiction over the defendant?

A

Service of summons

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23
Q

Consequence of non-service or irregular service of summons

A

May be ground for dismissal for lack of jurisdiction over the defending party

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24
Q

Effect of lack of summons:

A
  • Trial court does not acquire jurisdiction over the person of the defendant
  • Thus, renders null and void all subsequent proceedings/issuance in the actions
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25
Q

May lack of summons be waived? How?

A

Yes, when the defendant fails to make any seasonable objection to the court’s lack of jurisdiction over the person of the defendant

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26
Q

Summons in - In rem or quasi in rem proceedings

A
  • Not to acquire jurisdiction over the person of the defendant
  • Mainly to satisfy the constitutional requirement of due process
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27
Q

When will the counsel serve summons on his client?

A

When the summons is improperly served and the counsel makes a special appearance on behalf of the defendant. He cannot refuse.

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28
Q

Return of Summons

A

?

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29
Q

Effect of defendant’s voluntary appearance. What is the XPN?

A

The defendant’s voluntary appearance in the action shall be equivalent to service of summons.

XPN: A party who makes a special appearance to challenge, among others, the courts jurisdiction over his person → not considered to have submitted to the courts authority

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30
Q

Who can serve summons?

A
  • Sheriff
  • Sheriff’s deputy
  • Other proper court officer or
  • In case of failure of service of summons, the court may authorize the plaintiff to serve summons w/ the sheriff
  • In case where summons is to be served outside the judicial region of the court, the court may authorize the plaintiff to serve such summons
31
Q

Alias summons

A
  • Issued by the clerk of court on demand of the plaintiff
  • When the original summons was returned w/o being served on any or all defendants OR in the case of loss/destruction of summons
  • Supersedes the first summons
32
Q

MODES OF SERVICE OF SUMMONS

A
  • PERSONAL SERVICE
  • SUBSTITUTED SERVICE
  • CONSTRUCTIVE SERVICE
  • EXTRATERRITORIAL SERVICE (ETS)
33
Q

When does substituted service happen? (Based on experience of sherrifs)

A

Based on actual experiences of sheriffs and process serverswho are refused entry into gated subdivisions or condos.

34
Q

T or F: In substituted service, it is immaterial that the defendant does not in fact receive ACTUAL NOTICE.

A

T

35
Q

For substituted service to be justified, the ff must be clearly established:

A
  • Personal service of summons within a reasonable time is impossible
  • Efforts were exerted to locate the party
  • Summons was served upon a person at least 18 years of age and of sufficient discretion residing at the party’s residence or upon a competent person in charge of the party’s office or place of business
36
Q

For substitute service to be available, how many attempts?

A

Several attempts means 3 tries, preferably on at least two different dates

37
Q

T or F: Summons served through security guard of a subdivision after two attempts to serve it on defendant

A

T

38
Q

CONSTRUCTIVE SERVICE

A

Service upon defendant whose identity or whereabouts are unknown if he cannot be located/ascertained within 90 days – service via publication in a newsplaper.

39
Q

When the defendant is a resident may service of summons by publication is allowed in any action?

A

Yes

40
Q

Can there be summons by mail?

A

Summons cannot be served by mail but it can be done as a complementary to service of summons by publication.

41
Q

EXTRATERRITORIAL SERVICE (ETS)

A

Allowed where the action is against a non-resident defendant who is not found in the PH and the action:

  • Affects the personal status of the plaintiffs
  • Relates to or subject of which is property in the PH in which the defendant has claim, lien or interest, actual or contingent or
  • In which relief demands consists wholly or in party, in excluding the defendant from any interest therein or
  • Property of defendant has been attached within the PH
42
Q

To be effective, ETS must be w/ leave of court and only thru the ff means:

A
  • Personal service
  • As provided for in international conventions
  • By publication (and copy of the summons/order of the court must be sent by registered mail to the last known address)
  • Any other manner that the court may deem sufficient
43
Q

When is ETS summons applicable?

A

ETS of summons is proper only in actions in rem or quasi in rem.

44
Q

When the defendant is a prisoner confined in a jail or institution

A

service shall be effected upon him or her by the officer having the management of such jail or institution who is deemed as a special sheriff for said purpose.

45
Q

When the defendant is a minor, insane or otherwise an incompetent person

A

service of summons shall be made upon him or her personally and on his or her legal guardian if he or she has one, or if none, upon his or her guardian ad litem whose appointment shall be applied for by the plaintiff.

46
Q

Service upon spouses

A

When spouses are sued jointly. service of summons should be made to each spouse individually

47
Q

Service upon domestic private juridical entity

A
  • Service may be made on the
  • President
  • Managing partner
  • General manager
  • Corporate secretary
  • Treasurer or
  • In-house counsel or on
  • Their secretaries in their absence or unavailability or
  • Person who customarily receives correspondence for the defendant at its princi;a office, if such service cannot be made upon any of the above persons
  • Receiver or liquidator
48
Q

When can e-means be resorted to for service upon domestic private juridical entity?

A

Should there be a refusal on the part of the persons above-mentioned to receive summons despite at least three (3) attempts on two (2) different dates. service may be made electronically.

49
Q

Service of summons upon foreign private juridical entit[ies]

A

Service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers, agents, directors or trustees within the Philippines.

50
Q

If the foreign private juridical entity is not registered in the Philippines, or has no resident agent – how shall summons be served?

A

Outside the PH, w/ leave of court

  • Personal
  • Publication AND registered mail
  • Fax
  • E-means
  • Others

Allowed if there are allegations of having done business in the PH.

51
Q

How is proof of service of summons made?

A

(Sec 21) In writing

52
Q

Motion defined

A

A motion is an application for relief other than by a pleading

52
Q

Form of Motions w/ XPN.

A

All motions shall be in writing except those made in open court or in the course of a hearing or trial.

53
Q

When should a motion made in open court or in the course of a hearing or trial be resolved?

A

Immediately after the adverse party is given the opportunity to argue his or her opposition thereto.

54
Q

A motion shall state:

A
  • The relief sought
  • Grounds upon which it is based
  • Affidavit and other papers (If required)
55
Q

Non-litigious motions - defined

A

Motions which the court may act upon without prejudicing the rights of adverse parties.

56
Q

Non-litigious motions include

A
  • Motion for the issuance of an alias summons;
  • Motion for extension to file an answer;
  • Motion for postponement
  • Motion for the issuance of a writ of execution;
  • Motion of the issuance of an alias writ of execution;
  • Motion for the issuance of a writ of possession;
  • Motion for the issuance of an order directing the sheriff to execute the final certificate of sale; and
  • Other similar motions
57
Q

Litigious motions include:

A
  • Motion for bill of particulars;
  • Motion to dismiss
  • Motion for new trial;
  • Motion for reconsideration;
  • Motion for execution pending appeal;
  • Motion to amend after responsive pleading has been filed;;
  • Motion to cancel statutory lien;
  • Motion for an order to break in or for a writ of demolition;
  • Motion for intervention;
  • Motion for judgment on the pleadings;
  • Motion for summary judgment;
  • Demurrer to evidence;
  • Motion to declare defendant in default; and
  • Other similar motions
58
Q

How should litigous motions be served?

A
  • Personal service
  • Accredited private courier
  • Registered mail
  • E-means
    *
59
Q

Does the court need to set a hearing for motions?

A

No but yes if deemed necessary

60
Q

Is proof of service necessary for litigous motions?

A

Yes

61
Q

Omnibus Motion Rule

A

All available grounds for objection in attacking a pleading, order, judgment, or proceeding [POJP] should be invoked at one time; otherwise, they shall be deemed waived.

XPN: LLRP

62
Q

GR: The filing of an answer precludes a motion to dismiss. What is the XPN?

A
  • LLRP
  • A ground which only became known subsequent to the filing of an answer,
  • When the grounds were already pleaded in the Answer
63
Q

RPES - talk about this

A
  • Prior Judgment (Res judicata)
  • Statute of Limitations (Prescription)
  • Extinction of Claims
  • Statute of frauds

An order granting a motion to dismiss or an affirmative defense that the cause of action is on RPES shall bar the refiling of the same action or claim subject to the right of appeal.

64
Q

Remedies of the plaintiff when the complaint is dismissed due to a motion to dismiss for an affirmative defense raised by defendant:

A
  • Appeal the order granting the motion to dismiss
  • Refile the complaint, except where grounds for dismissal are [RPES]:
65
Q

Additional Affirmative Defenses

A
  • [FIEES]
  • [LILFF]
66
Q

Difference of FIEES and LILFF

A
  • FIEES - court may conduct summary hearing within 15 calendar days from the filing of the answer.
  • LILFF - the court shall motu proprio resolve the following affirmative defenses within 30 calendar days from the filing of the answer.
67
Q

Remedy if Affirmative defenses are GRANTED or DENIED

A
  • If affirmative defenses are GRANTED - The complaint shall be dismissed -(Plaintiff’s remedy is ordinary appeal)
  • If affirmative defenses are DENIED - Shall not be the subject of a motion for reconsideration or petition for certiorari, prohibition or mandamus (but may be among the matters to be raised on appeal after a judgment on the merits)
68
Q

Four general types of motion to dismiss under the Rules

A
  • Motion to dismiss before answer (Rule 15, Sec. 12
  • Motion to dismiss by plaintiff
  • Motion to dismiss on demurrer to evidence after plaintiff has rested his case
  • Motion to dismiss appeal either in RTC
69
Q

When may a court motu proprio dismiss a case?

A
  • LLRP present.
  • Unreasonable failure to appear on presentation of evidence, to prosecute, or to comply with the court order.
  • Apparent grounds for dismissal.
70
Q

Remedies of defendant when his motion to dismiss is denied

A
  • File his ANSWER (within the balance of the 15-day period to which he was entitled at the time of serving the motion).
  • If the decision is adverse, APPEAL therefrom.
71
Q

Can a denial of a motion to dismiss be questioned by certiorari? XPN?

A

No, without or in excess of jurisdiction or with grave abuse of discretion (derecho na)

interlocutory

72
Q

DEMURRER TO EVIDENCE V. MOTION TO DISMISS

A
  • Can be availed of only after the presentation of plaintiff’s evidence
  • Instituted before a responsive pleading is filed.

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