Rule 1 Section 6

When may lapses in the literal observance in the Rules of Court be

excused?
When they do not involve public policy
When they arose from an honest mistake or unforeseen accident
When they have not prejudiced the adverse party
When they have not deprived the court of its authority
Rule 2 Section 1
What are the elements of cause of action?
There must be right pertaining to the plaintiff
There is a correlative obligation of the defendant
There is a violation of plaintiffs right by the defendant
There is damage suffered by the plaintiff.
(absence of 1 element will not constitute a cause of action, hence, maybe
dismissible under Rule 16)
Rule 3 Section 2
XPN: Under the law on obligations, where there is a stipulation in the
contract in favor of a 3rd person (stipulation pour atrui). That is the only
exception.
Section 4.
XPN: Suit of one against the other; one Based on a criminal act/delict;
Judicial separation of property; Abandonment; Exclusive property of
spouses; and Suits involving the practice of ones profession.

Rule 3 Section 7
Examples:Co-owners of a promissory note in an action for its collection Solidarily liable, either is indispensable, and the other is not even
necessary because
complete relief may be obtained from either.Jointly liable, either is
indispensable, and the other is necessary to accord complete relief.
Problem
Action fro recovery of title and possession. X holds title, Y has
possession. The action is solely for recovery of title. Can you sue X? Yes,
hes the proper party.
o Can you sue Y for recovery of title without suing X? No, Y mere
possessor. X is holder of title, hes the indispensable one.
Effect of failure to implead (important!)
If necessary party. GR: failure to implead is non-prejudicial
No waiver of right to implead. There is no waiver UNLESS there is an order
to implead from the court, and you still did not implead.
If indispensable party. The court should ORDER that the indispensable
party be impleaded. .If despite the order, you still did not comply, the case
will be dismissed. On what ground? Failure to comply with an order of the
court. .If court did not notice the non-joinder (and thus did not order to
implead the indispensable party), and renders a decision what happens?
The judgment is null and void. The absence of an indispensable party
renders all subsequent actions of the court null and void for want of
authority to act, not only as to the absent parties but even to those present.
Rule 3 Section 11
The non-joinder of an indispensable or a necessary party is not ipso facto
a ground for the dismissal.
The court should order the joinder of such party and non-compliance with
the said order would be a ground for the dismissal of the action. (its the
non-compliance with the order, not the misjoinder itself) NB: The absence
of an indispensable party renders all subsequent actions of the court null
and void for want of authority to act, not only as to the absent parties but
even as to those present.
Rule 3 Section 12
Differentiate derivative suit from a class suit in the context of corporations.
Derivative suits are those instituted by an individual stockholder on behalf
of the corporation in order to protect or vindicate corporate rights. Usually
filed when there is an allegation of mismanagement or wrongful acts
committed by the directors or trustees. The wrong here is done to the
corporation itself. In Class suits are those instituted when the wrong is
done to a group of stockholders. An example would be a violation of the
rights of preferred stockholders. The wrong here is done to the certain
group or class.

Rule 3 Section 16
Whats the test to determine whether the action survives or not?
. If the wrong complained of affects primarily and principally property or
property rights, the action will survive, the injuries to the person being
merely incidental. E.g Money claims
.If the injury complained of is to the person and the injuries to the property
are incidental, then the action will not survive. e.g. Annulment of marriage,
legal separation even if it involves changes in the property relations.
It will not invalidate the proceedings and the judgment rendered thereon
even if there is no valid substitution. Mere failure to substitute a deceased
party is NOT sufficient ground to nullify a courts decision. The rule on
substitution of heirs is not a matter of jurisdiction, but a REQUIREMENT OF
DUE PROCESS. Hence, formal substitution by heirs is not necessary when
they themselves voluntarily appear, participate in the case, and present
evidence in the defense of the deceased. (Napere v Barbarona, 2008)
Rule 3 Section 20
What happens if the defendant dies in a case involving a money claim? No
substitution (law does not mandate any substitution). It just continues.
Once a final judgment is entered against the estate of the deceased, it shall
be enforced as a claim without need of proving the same. If based on a
contract, file money claim in probate court. If based on tort or delict, file
against the executor or administrator.
RULE 4. In determining the proper venue for an action, you must consider
two things. First: Is it a real or personal action? Use Section 1 and 2. Is it
covered by a special law or by stipulation? Use Section 4. NB: if venue is
determined by special law or by a particular rule in the ROC, you cant
stipulate on venue. The law takes precedence over the stipulation.
Rule 4 Section 1
Venue for ejectment cases; the MTC where the property or a portion
thereof is situated. XPN, if theres a stipulation. Can the venue for
ejectment cases be stipulated? Yes! The rule governing ejectment cases
(Rule 70, Sec 1) merely states that it should be filed in the MTC, but it
doesnt say which MTC. (Other words, jurisdiction is indicated, but the
venue isnt.)

RULE 5 Section 1
Three steps in summary procedure: FIRST: Filing of the complaint. Upon filing,
the court can either dismiss the case outright or Issue summons. Here, the
responsive pleading will be ANSWERED within 10 days (not the usual 15
days).Cant file a MTD because its a prohibited pleading. Plaintiff can NOT file a
reply either since its a prohibited pleading too. If no answer, two things can
happen: Court can render judgment 1) motu propio or 2) on motion of the
plaintiff. No motion to declare the defendant in default since its prohibited too.
The allowed pleadings under summery proceedings are Complaints, Compulsory
counterclaims and cross-claims pleaded in the answer, and the answers thereto.
SECOND: Preliminary conference.Court sets this within 30 days after the last
answer is filed. In the PC, the parties are asked to compromise, identify issues,
etc. If plaintiff is absent in the PC, the case will be dismissed. If the defendant
appears and the plaintiff is absent, the court can rule on the counterclaim. All
cross-claims shall be dismissed. If the sole defendant is absent, the plaintiff shall
be entitled to judgment. Wont apply if there are two or more defendants who are
sued under a common cause of action, and one of them appears in the PC. If
there is no judgment yet in step 1 and 2, we move on to the submission of
judicial affidavits and position papers. THIRD: Submission of judicial affidavits
and position papers. There are NO hearings or trials. (Read Summary
Proceedings [page 661])

Rule 6 Section 5
Defenses of lack of knowledge for lack of privity or inability to recall
because it happened a long time ago are insufficient defenses. (Republic v
Sandiganbayan, ) What is a negative pregnant? Its a form of negative
expression which carries with it an affirmation or at least an implication of
some kind favorable to the adverse party

Rule 9 Section 3
When are defaults not allowed? Action for legal separation and Action for
annulment or declaration of nullity of marriage. In these 2 cases, the court
shall order the prosecuting attorney to investigate whether or not collusion
between the parties exists, and if there is none, to intervene for the State in
order to see to it that the evidence submitted is not fabricated.

Rule 7 Section 5
What is forum-shopping? The filing of multiple suits in different courts,
either simultaneously or successively which involves the same parties to
ask the courts to rule on the same or related causes, and/or grant the same
or substantially same reliefs.

How do you set aside an order of as in default (allowance for plaintiff to

present evidence ex
parte)File an MR or motion to set aside order of default, also on the ground
of FAME. (Saguid v
CA). No need to add that you have a meritorious defense, since youre
already in pre-trial.
Rule 10 Section 2
When should you file your response to an amended complaint? If it was
done as a matter of right, 15 days after being served with a copy thereof. If
it was not done as a matter of right, 10 days from notice of the order
admitting the same. An answer earlier filed may serve as the answer to the
amended complaint if no new answer is filed. However, new material
allegations in the amended complaint which are not specificallydenied are
deemed admitted.

Rule 9 Section 2
What should you do if you still want to set up a compulsory counterclaim
after failing to implead it? A compulsory counterclaim or a cross-claim may
still be set up via an amended answer, provided that the counterclaim or
cross-claim already existed at the time the original answer was filed, but
due to oversight, inadvertence or excusable neglect, it was not set up and
thru a supplemental answer, if the counterclaim or cross-claim matures or
is acquired after the original answer is filed. In both cases, they must be
filed with leave of court before judgment.
Can a compulsory counterclaim cure jurisdictional defects in the complaint?
Yes. Although the original claim involves less than the jurisdictional amount,
jurisdiction can be sustained if the compulsory counterclaim, based upon
the damages allegedly suffered by the defendant in consequence of the
filing of the complaint, falls within the jurisdictional amount.

Rule 11 Section 1
Ordinary service of summons - Within 15 days
Extraterritorial service - At least 60 days after notice
Summons by publication - At least 60 days after date of the last publication
Rule 12 Section 1
A motion for bill of particulars becomes moot and academic where, prior to
its filing, the defendant has already filed his answer and several other
pleadings. (Baritua v Mercader)
Section 5
The filing of a motion of a bill of particulars suspends the running of the
period to file an answer or a motion to dismiss. It is resumed upon the
amended complaint being filed in compliance with the courts order granting
the motion for a bill of particulars or when the movant is notified of the bills
denial. If the party fails to file an answer in the time remaining, he will be
declared in default.
Rule 13 Section 3 NB: No filing by ordinary mail because there is no way
the court can find out when you filed it; but there can be service by ordinary
mail.

Rule 9 Section 3
Relief from an order of default:May, at any time, after notice thereof and
before judgment, file a motion UNDER OATH to set aside the order of
default; must properly show that his failure to answer was due
to:Fraud(extrinsic), Accident, Mistake, Excusable negligence (FAME!)
(Martinez v Republic,2006):If judgment already rendered when the
defendant discovered the default, but before the same has become final
and executor, file a motion for NEW TRIAL (grounds: FAME) under Sec 1,
Rule 37.
If defendant discovered the default after the judgment has become final
and executor, file
a PETITION FOR RELIEF under Sec 2, Rule 38. Appeal from the judgment
as contrary to evidence or to law, even if no petition to set aside the order
of default ahs been presented by him. (Sec 2, Rule 41)
Grounds: Plaintiff failed to prove the material allegations of the complaint,
or Decision is contrary to law; Certiorari (Rule 65)
Whats the effect of partial default? When a pleading asserting a claim
states a common cause of action against several defending parties, some
of whom answer and the others fail to do so, the court shall try the case
against all upon the answers thus filed and render judgment upon the
evidence presented. This doesnt apply when the defenses interposed by
those present are personal.

Rule 13 Section5
How do you serve pleadings, motions, notices, orders, judgments and other
papers? Personally, by registered mail, by ordinary mail, or by publication
or substitute service (but depends if papers by parties or papers emanating
from the court)
How is this different from service of summons? Service of summon is
necessary in order that the court may acquire jurisdiction over the person of
the defendant. Once the court has acquired such jurisdiction either by
service of summons or voluntary appearance, the defendant may be served
copies of the pleadings, either personally or by mail.

Rule 13 Section14
GR: the only instances where a notice of lis pendens may be availed of are
as follows:
1. Action to recover possession of real estate
2.
An action for judicial partition
3.
An action to remove clouds thereon
4.
An action to quiet title
5.
Any other court proceedings that directly affect the title to the land
or the building thereon or the use or the occupation thereof
6.
Establish a right to, or an equitable estate or interest in, a specific
real property
7.
To enforce a lien, a charge or an encumbrance against it (Atlantic
Erectors v Herbal Cove,2003 and Heirs of Lopez v Enriquez)
Lis pendens has NO application in the following cases:
1.
Preliminary attachments
2.
Proceedings for the probate of wills
3.
Levies on execution
4.
Proceedings for administration of estate of deceased persons, and
5.
Proceedings in which the only object is the recovery of a money
judgment (Heirs of Lopez)

Rule 13 Section14
The real property must be DIRECTLY affected, not merely incidental. A
notice of lis pendens is NOT a lien on the property subject of the notice.
No need for court approval to effect a notice of lis pendens. All you need
to send is a memorandum or letter, attaching the complaint, to the RD.
The trial court has the inherent power to cancel a notice of lis pendens.
NB: notice of lis pendens only applies to judicial cases, not quasi-judical
cases. (Heirs of
Lopez)
Rule 14 Section 2
When should service of new summons be done with an amended
complaint? If a new cause of action is alleged in an amended complaint
before the defendant has appeared in court, another summons must be
served on him with the amended complaint. o If the defendant is in default
as to the original complaint, and an amended complaint is filed while such
default exists, a new summons (with regard to the amended complaint)
must be filed. Basically, when the defendant has yet to appear in court, a
new summons must be filed with an amended complaint. In quasi-judicial
agencies, the rules on service of summons is NOT strictly construed.
Substantial compliance is enough.

Rule 14 Section 7
Requirements to effect a valid substituted service (Pascual v Pascual, ):
1.
Impossibility of prompt personal service. What do you mean by
reasonable time? For the sheriff, he has to serve the summons
15-30 days. After the 30th day, the court will require the sheriff to
submit the return. How many times should the attempted personal
service been done? At least 3 times, on at least 2 different dates
(Pascual v Pascual, 2009)
2.
Specific details in the return. In Manotoc, the return merely said
that on many occasions several attempts were made to serve the
summons. Court held that this was deficient. Details must be
specific!
3.
If in the residence, to a person of suitable age and discretion.
Service is made at the residence of the defendant, but he was
abroad, valid? Yes. Residence refers to the place where the
person named in the summons is living at the time when the
service is made, even though he may be temporarily out of the
country at the time.
4.
If in the defendants office or regular place of business, to a
competent person in charge. Must be the one managing the office
or business of the defendant (like the president or the manager),

Rule 6 section 4