CIVIL PROCEDURE

RULE 4 up to end

Real Action

is an action affecting title to or possession of real property or interest therein. Any other action is a PERSONAL ACTION

Venue or Real actions

court which has jurisdiction over the are where the property is situated.

Venue of Personal actions

where the plaintiff resides or where the defendant resides at the election of P.

Venue of an action against non resident defendant not found in Phil.

1. affects property of D located in Phil. ; 2. personal status of plaintiff= where the palintiff resides.

Action in rem

a proceeding in rem is one which is not directed against a particular person but in the thing or res itself and which asks the court to make a declaration.

action in personam

directed against a particular person and seeks relief which would be binding only upon such particular person.

action quasi in rem

directed against particular person but seeks to reach and dispose of or deal with their property located in the Phil.

REM not forclosed

Personal Action= where the plaintiff resides or where def. is found

REM, there is already a foreclosure.

Real action= venue is where the property is situated.

Action for rescission of contract= incapable of pecuniary estimation, did not pray for recovery of possession.

Personal action.

Rule 4 on Venue of actions not applicable

1. where a specific rule or law provides;

2. the parties have validly agreed in writing before filing of the action on the exclusive venue.

complementary-contracts-construed-together doctrine

an accessory contract must be rean in its entirety and together with the principal agreement.

How may the ground of improper venue be raised by the Def.

As an affirmative defense in the answer. not in a motion to dismiss.

Pleading

are written statements of the respective claims and defenses of the parties submutted to the court for appropriate action.

Complaint

is the pleading alleging the plaintiff’s or alaiming party’s cause or COA.

Answer

is a pleading in which a defending party sets forth his defenses.

Kinds of Defenses

1. Negative defense- is the Specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or COA.

2. Affirmative Defense- is an allegationn of a new matter which, while hypothetically admitting the material allegations in the claimant’s pleading, would nevetheless prevent or bar recovery.

Counterclaim

is any claim which a defending party may have against an opposing party. (by common practice is pleaded or set up in an answer.)

Kinds of counterclaim

1. Compulsory- is one which arises out of or is connected with the transaction constituting the subject matter of the opposing party’s claim and complies with S6 R6;

2. Permissive- is one which is not a compulsory counterclaim.

Complusory vs. Permissive

1. As to Preclusion if not raised. C not set uo in an action shall be barred; wile P is not barred if not set up in the action;

2. As to payment of Filing fees. C it is suspended, while in P need to be paid with the RTC;

3. As for need to Answer. C need not be answered, while P should be answered otherwise the plaintiff could be declared in default.

4. As req or Cert against forum shopping. C need not be accompanied, while P must be accompanied.
   

Requirements to be considered Compulsory

1. cognizable by a regular court;

2. it arises or is connected with the transaction or occuremce constituting the SM of the opposing party’s claim;

3. it does not require for its adjudication the presence of the 3rd parties over whom the court cannot acquire jurisdiction;

4. it must be within the jurisdiction of the court both as to the AMOUNT and NATURE;

5. it must be existing at the time the defendant files his answer.

Action for deficiency of loan

Not a compulsory counterclaim; A compulsory counterclaim is one which must be existing at the time of filing the answer. An After acquired counterclaim is merely permissive.

Cross-claim

is any claim by one party against a co-party arising out of the transaction or occurence that is the SM either of the ORIGINAL action or of a COUNTERCLAIM. Such cross claim may cover ALL or PART of the original claim.

Is a cross-claim subject to payment of docket fees?

MTC- no; RTC- yes

Counterclaim vs Cross-claim

1. As to whom directed. Counter is directed against the opposing party; Cross is directed against a co-party;

2. As to connection with the main action. Counter nay or may not arise out of the transaction constituting the SM of the opposing party’s claim; cross always arises out of the transaction or occurence that is the SM of the original action or of a counterclaim therein;

3. As to compulsoriness. Counter may or may not be compulsory; cross is always compulsory;

4. As for need to answer. Counter need not be answered if the counterclaim need not be answered if the counterclaim is compulsory, Cross must be answered othwerwise the party against whom it is pleaded may be declared in default upon motion.

Reply

is a pleading, the function of which is to deny, or allege facts in denial or avoidance of new matters alleged in or relating to an actionable document attached to the answer.

• a plaintiff may file a reply ONLY if the defending party attaches an ACTIONABLE document to his answer.
  

Third-Party complaint

is a claim that the defendant may file against a person not a party to the action for contribution, indemnification, subrogation or any other relief, in respect of his opponent’s claim. Defendant must should obtain leave of court in order to file 3rd party complaint.

Third party complaint vs. third party claim

1. As to its Nature. third complaint is a pleading; 3rd claim is not a pleading but an affidavit or paper;

2. As to who files. 3rd complaint is filed by a party to a case; 3rd claim is filed by a stranger to the case;

3. As to purpose. 3rd complaint is for the defendant to bring in a stanger as a party to the case; 3rd claim is for the 3rd party to notify the sheriff of his right or claim over the property attached, levied, or seized by the sheriff.

Forum Shopping

the act of a party who as a result in an adverse opinion in one forum, seeks a favorable opinion other than by appeal or certiorari in another or who institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition.

Submission of false cert. of non forum shopping effect ground for dismissal with prejudice

No. there must be a motion and hearing.

Rule 8

Ultimate Facts

the facts essential to a claim or defense. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action or the defense insufficient.

Facts that may be averred generally in a pleading.

a. Performance and occurence of conditiond precedent;

b. Malice, intent, knowledge, or other condition of the mind of a person (MIKO ).

Facts that must be averred with particularity

a. In all avernments of FRAUD or MISTAKE

b. Facts showing the capacity of a party to sue or be sued or the authority of a party to sue;

c. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be suedd in a representative capacity, shall do so by a specific denial.

Actionable document

is a written instrument or document on which an action or defense is based upon.

Remedey if a party fails to set up counterclaim or crossclaim in the answer.

when a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires , he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment.

Bill of Particulars

is a definite statement of any matter which is not averred with sufficient definiteness or particularity in a pleading so as to enable the opposing party to properly prepare his responsive pleading

Filing and Service meaning

Filing is the act of submitting; Service is the act of providing a party with a copy of the pleading or any other court submission.

Motion vs Pleading

• Motion is an application for relief other than by a pleading (Rule 15, Sec. 1).

• It is a formal request submitted to the court for a specific order or ruling related to a pending action or proceeding.

• Pleading pleadings as the written statements of the respective claims and defenses of the parties submitted to the court for trial and judgment.

• to enable the court to know and understand the issues in a case and to help ensure that the parties are put on notice of the claims and defenses being raised.