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Suggested Answers To 2016 Remedial Law Bar Exam

 

I

 

State at least five (5) civil cases that fall under the exclusive original jurisdiction of the Regional Trial Courts (RTCs). (5%)

 

SUGGESTED ANSWER:

 

The following civil cases fall under the exclusive original jurisdiction  of the RTCs:

 

       1. Actions where the demand or the value of the property in controversy exceeds P300,000, or, in Metro Manila, P400,000, exclusive of damages, attorney’s fees, litigation expenses, interests, and costs.  

       2. Real actions where the assessed value of the real property involved exceeds P20,000, or in Metro Manila, P50,000. 

       3. Actions whose subject matter is incapable of pecuniary estimation. 

       4. Probate cases where the gross value of the estate exceeds P300,000, or in Metro Manila, P400,000. 

       5. Actions not falling within the exclusive jurisdiction of any other court, tribunal, body, or person, exercising judicial or quasi-judicial functions.    

 

II

 

[a] Briefly explain the procedure on "Interrogatories to Parties" under Rule 25 and state the effect of failure to serve written interrogatories. (2.5%)

 

[b] Briefly explain the procedure on "Admission by Adverse Party" under Rule 26 and the effect of failure to file and serve the request. (2.5%)

 

SUGGESTED ANSWER: 

(a)

 

The procedure on “Interrogatories to Parties” under Rule 25 is briefly explained as follows:

 

       1. A party desiring to elicit material and relevant facts from an adverse party shall file and serve upon the latter written interrogatories to be answered by the latter. 

       2. The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them.  The interrogatories shall be answered within 15 days from service thereof.  The answers may be used for the same purposes provided for in Section 4 of Rule 23 on depositions.  

       3. Objections to any interrogatories may be made within 10 days after service thereof. 

 

The effect of the failure to serve written interrogatories is that unless allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. 

 

(b)

 

The procedure on “Admission by Adverse Party” under Rule 25 is briefly explained as follows:

 

       1. At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document or the truth of any material and relevant matter of fact. 

       2. Each of the matters of which an admission is requested shall be deemed admitted unless, within the period designated in the request, which shall not be less than 15 days after service thereof, the party to whom the request is directed files and serves upon the requesting party a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail why he cannot truthfully either admit or deny those matter. 

       3. Objections to any request for admission shall be submitted to the court within the period for and prior to the filing of his sworn statement.

 

The effect of the failure to file and serve request for admission is that, unless allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be allowed to present evidence on such facts.

 

III

 

What are the contents of a judicial affidavit? (5%)

 

SUGGESTED ANSWER:

 

The contents of a judicial affidavit are as follows:

 

(a) The name, age, residence or business address, and occupation of the witness;

(b) The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held;

(c) A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury; 

(d) Questions asked of the witness and his corresponding answers, consecutively numbered, that:

 

       1. Show the circumstances under which the witness acquired the facts upon which he testifies; 

       2. Elicit from him those facts which are relevant to the issues that the case presents; and 

       3. Identify the attached documentary and object evidence and establish their authenticity in accordance with the Rules of Court;

 

(e) The signature of the witness over his printed name; and 

(f) A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same.

 

IV

 

Eduardo, a resident of the City of Manila, filed before the Regional Trial Court (RTC) of Manila a complaint for the annulment of a Deed of Real Estate Mortgage he signed in favor of Galaxy Bank (Galaxy), and the consequent· foreclosure and auction sale of his mortgaged Makati property. Galaxy filed a Motion to Dismiss on the ground of improper venue alleging that the complaint should be filed with the RTC of Makati since the complaint involves the ownership and possession of Eduardo's lot. Resolve the motion with reasons. (5%)

 

SUGGESTED ANSWER:

 

The motion to dismiss on the ground of improper venue should be granted.

 

Under the Rules of Civil Procedure, the venue of real actions shall be with the proper court having jurisdiction over the area where the real property involved is situated.  An action for annulment of mortgage is a real action if there has already been a foreclosure sale.  (See Chua v. Total Office Products and Services, 30 September 2005).

 

Here there was already a foreclosure sale.  Hence the action for annulment of mortgage is a real action which should have been filed in Makati where the real property is situated.  

 

V

 

[a] What is the "most important witness" rule pursuant to the 2004 Guidelines of Pretrial and Use of Deposition-Discovery Measures? Explain. (2.5%)

[b] What is the "one day examination of witness" rule pursuant to the said 2004 Guidelines? Explain. (2.5%)

 

SUGGESTED ANSWER:

 

(a) 

The “most important witness” rule pursuant to the 2004 Guidelines of Pretrial and Use of Deposition-Discovery Measures provides that the judge shall, during the pretrial conference, determine the most important witnesses to be heard and limit the number of witnesses.

 

(b) 

The “one-day examination of a witness” rule pursuant to the 2004 Guidelines of Pretrial and Use of Deposition-Discovery Measures provides that a witness has to be fully examined in one day only, subject to the court’s discretion to extend the direct and/or cross-examination for justifiable reasons. 

 

VI

 

Pedro and Juan are residents of Barangay Ifurug, Municipality of Dupac, Mountain Province. Pedro owes Juan the amount of P50,000.00. Due to nonpayment, Juan brought his complaint to the Council of Elders of said barangay which implements the bodong justice system. Both appeared before the council where they verbally agreed that Pedro will pay in installments on specific due dates. Pedro reneged on his promise. Juan filed a complaint for sum of money before the Municipal Trial Court (MTC). Pedro filed a Motion to Dismiss on the ground that the case did not pass through the barangay conciliation under R.A. No. 7160 and that the RTC, not the MTC, has jurisdiction. In his opposition, Juan argued that the intervention of the Council of Elders is substantial compliance with the requirement of R.A. No. 7160 and the claim of P50,000.00 is clearly within the jurisdiction of the MTC. As MTC judge, rule on the motion and explain. (5%)

 

SUGGESTED ANSWER:

 

As MTC judge, I would deny the motion to dismiss. 

Under the Rules of Procedure for Small Claims Cases, a motion to dismiss on whatever ground is a prohibited motion. 

Here the complaint falls under the coverage of the Rules of Procedure for Small Claims Cases since the claim for sum of money did not exceed P100,000.  Hence the motion to dismiss filed by Pedro is a prohibited motion and should thus be denied.    [Note:  Threshold amount was subsequently increased to P200,000]

 

VII

 

Spouses Marlon and Edith have three (3) children ages 15, 12 and 7, who are studying at public schools. They have a combined gross monthly income of P30,000.00 and they stay in an apartment in Manila with a monthly rent of P5,000.00. The monthly minimum wage per employee in Metro Manila does not exceed P13,000.00. They do not own any real property. The spouses want to collect a loan of P25,000.00 from Jojo but do not have the money to pay the filing fees.

[a] Would the spouses qualify as indigent litigants under Section 19, Rule 141 on Legal Fees? (2.5%)

[b] If the spouses do not qualify under Rule 141, what other remedy can they avail of under the rules to exempt them from paying the filing fees? (2.5%)

 

SUGGESTED ANSWER: 

(a) 

No, the spouses would not qualify as indigent litigants under Section 19, Rule 141 since their combined gross monthly income of P30,000 exceeds P26,000, the amount double the monthly minimum wage.

 

(b) 

The other remedy the spouses can avail of under the rules to exempt them from paying the filing fees is to apply for exemption pursuant to the “indigency test” under Section 21, Rule 3 of the Rules of Court if they can prove that they have “no money or property sufficient and available for food, shelter and basic necessities for [themselves] and their family.”  (Sps. Algura v. City of Naga, 30 October 2006).   

 

 

VIII

 

Juan sued Roberto for specific performance. Roberto knew that Juan was going to file the case so he went out of town and temporarily stayed in another city to avoid service of summons. Juan engaged the services of Sheriff Matinik to serve the summons but when the latter went to the residence of Roberto, he was told by the caretaker thereof that his employer no longer resides at the house. The caretaker is a high school graduate and is the godson of Roberto. Believing the caretaker's story to be true, Sheriff Matinik left a copy of the summons and complaint with the caretaker. Was there a valid substituted service of summons? Discuss the requirements for a valid service of summons. (5%)

 

SUGGESTED ANSWER:

 

Yes, there was a valid service of summons. 

In a case involving similar facts, the Supreme Court held that there was a valid substituted service of summons since the defendant was engaged in deception to thwart the orderly administration of justice.   

Here the defendant was also engaged in deception since he temporarily stayed in another city to avoid service of summons and his caretaker falsely said he no longer resides in the house.  (Sagana v. Francisco, 2 Oct 2009). 

 

The requirements for a valid substituted service of summons are:

 

       1. The defendant, for justifiable reasons, cannot be personally served with summons within a reasonable time.

       2. Copies of the summons shall be left at the defendant’s residence with some person of suitable age and discretion residing therein, or by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof.  [Note:  The call should be read as referring only to a valid substituted service of summons; otherwise the answer would be kilometric as there are several ways to serve summons under Rule 14]

 

 

IX

 

[a] Is the buyer in the auction sale arising from an extra-judicial foreclosure entitled to a writ of possession even before the expiration of the redemption period? If so, what is the action to be taken? (1%) 

[b] After the period of redemption has lapsed and the title to the lot is consolidated in the name of the auction buyer, is he entitled to the writ of possession as a matter of right? If so, what is the action to be taken? (2%) 

[c] Suppose that after the title to the lot has been consolidated in the name of the auction buyer, said buyer sold the lot to a third party without first getting a writ of possession. Can the transferee exercise the right of the auction buyer and claim that it is a ministerial duty of the court to issue a writ of possession in his favor? Briefly explain. (2%)

 

SUGGESTED ANSWER: 

(a) 

Yes, under Section 7 of Act No. 3135, the buyer in such auction sale is entitled to a writ of possession even before the expiration of the redemption period.  The action to be taken is to file an ex parte petition for a writ of possession with the RTC furnishing a bond to the debtor.  Upon approval of the bond, the buyer would be entitled to the issuance of a writ of possession.

 

Also under Section 47 of the General Banking Law, the purchaser at a judicial or extrajudicial foreclosure sale where the mortgagee is a bank shall have the right to enter and take possession of the property immediately after the date of the confirmation of the auction sale.       

 

(b) 

Yes, the buyer is entitled to the writ of possession as a matter of right.  After consolidation of ownership, a writ of possession will issue as a matter of course, without the filing and approval of a bond.  The action to be taken is to file an ex parte petition for issuance of writ of possession with the RTC pursuant to Section 7 of Act No. 3135.  (Navarra v. CA, 204 SCRA 850). 

 

(c) 

Yes.   The Supreme Court has held that a transferee of the purchaser or winning bidder may file an ex parte motion for the issuance of a writ of possession. The reason is that the transferee steps into the shoes of the purchaser and acquires whatever rights the transferor had.  (Laureno v. Bormaheco, 404 Phil. 80).

 

 

X

 

Hannibal, Donna, Florence and Joel, concerned residents of Laguna de Bay, filed a complaint for mandamus against the Laguna Lake Development Authority, the Department of Environment and Natural Resources, the Department of Public Work and Highways, Department of Interior and Local Government, Department of Agriculture, Department of Budget, and Philippine National Police before the RTC of Laguna alleging that the continued neglect of defendants in performing their duties has resulted in serious deterioration of the water quality of the lake and the degradation of the marine life in the lake. The plaintiffs prayed that said government agencies be ordered to clean up Laguna de Bay and restore its water quality to Class C waters as prescribed by Presidential Decree No. 1152, otherwise known as the Philippine Environment Code. Defendants raise the defense that the cleanup of the lake is not a ministerial function and they cannot be compelled by mandamus to perform the same. The RTC of Laguna rendered a decision declaring that it is the duty of the agencies to clean up Laguna de Bay and issued a permanent writ of mandamus ordering said agencies to perform their duties prescribed by law relating to the cleanup of Laguna de Bay.

[a] Is the RTC correct in issuing the writ of mandamus? Explain. (2.5%)

[b] What is the writ of continuing mandamus? (2.5%)

 

SUGGESTED ANSWER: 

(a) 

Yes, the RTC is correct.  In MMDA v. Concerned Residents of Manila Bay, 18 December 2008, the SC held that the cleaning or rehabilitation of Manila Bay can be compelled by mandamus.  The ruling in MMDA may be applied by analogy to the clean up of the Laguna de Bay.  

While the term issued by the RTC of Laguna is a permanent writ of mandamus, this should be considered only as a semantic error and that what the RTC really intended to issue is a writ of continuing mandamus.  There is no such thing as a permanent writ of mandamus since the writ shall cease to be effective once the judgment is fully satisfied. 

 

(b) 

The writ of continuing mandamus is a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied.  

 

 

XI

 

Miguel filed a Complaint for damages against Jose, who denied liability and filed a Motion to Dismiss on the ground of failure to state a cause of action. In an Order received by Jose on January 5, 2015, the trial court denied the Motion to Dismiss. On February 4, 2015, Jose sought reconsideration of that Order through a Motion for Reconsideration. Miguel opposed the Motion for Reconsideration on the ground that it was filed out of time. Jose countered that the 15-day rule under Section 1 of Rule 52 does not apply where the Order sought to be reconsidered is an interlocutory order that does not attain finality. Is Jose correct? Explain. (5%)

 

SUGGESTED ANSWER:

 

Yes, Jose is correct. 

The 15-day period to file a motion for reconsideration under Section 1 of Rule 52 refers to a motion for reconsideration of a judgment or final resolution or order. 

Here what is involved is an order denying a motion to dismiss, which is not a final order as it does not terminate the case.  The order is simply an interlocutory order which may be reconsidered by the trial court at any time during the pendency of the case. [See Rasdas v. Estenor, 13 Dec 2005].   It should also be noted that Miguel did not file a motion to declare Jose in default. 

 

XII

 

Tailors Toto, Nelson and Yenyen filed a special civil action for certiorari under Rule 65 from an adverse decision of the National Labor Relations Commission (NLRC) on the complaint for illegal dismissal against Empire Textile Corporation. They were terminated on the ground that they failed to meet the prescribed production quota at least four (4) times. The NLRC decision was assailed in a special civil action under Rule 65 before the Court of Appeals (CA). In the verification and certification against forum shopping, only Toto signed the verification and certification, while Atty. Arman signed for Nelson. Empire filed a motion to dismiss on the ground of defective verification and certification. Decide with reasons. (5%)

 

SUGGESTED ANSWER:

 

The motion to dismiss on the ground of defective verification should be denied.  The Supreme Court has held that a lawyer may verify a pleading in behalf of the client.  Moreover a verification is merely a formal and not a jurisdictional requirement.  The court should not dismiss the case but merely require the party concerned to rectify the defect. 

The motion to dismiss on the ground of defective certification against forum-shopping should likewise be denied.  Under reasonable or justifiable circumstances, as when all the plaintiffs or petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them in the certification against forum shopping substantially complies with the Rule. (Jacinto v. Gumaru, 2 June 2014). 

Here the Petitioners have a common interest and invoke a common cause of action, that is, their illegal dismissal by Empire Textile Corporation for failure to meet production quotas.   

 

XIII

 

The officers of "Ang Kapaligiran ay Alagaan, Inc." engaged your services to file an action against ABC Mining Corporation which is engaged in mining operations in Sta. Cruz, Marinduque. ABC used highly toxic chemicals in extracting gold. ABC's toxic mine tailings were accidentally released from its storage dams and were discharged into the rivers of said town. The mine tailings found their way to Calancan Bay and allegedly to the waters of nearby Romblon and Quezon. The damage to the crops and loss of earnings were estimated at P1 Billion. Damage to the environment is estimated at P1 Billion. As lawyer for the organization, you are requested to explain the advantages derived from a petition for writ of kalikasan before the Supreme Court over a complaint for damages before the RTC of Marinduque or vice-versa. What action will you recommend? Explain. (5%)

 

SUGGESTED ANSWER:

 

I will recommend the filing of a Petition for the issuance of a Writ of Kalikasan.  The following are the advantages of such a petition over a civil complaint for damages. 

Firstly there will be no issue regarding the legal standing or legal capacity of the Ang Kapaligiran ay Alagaan Inc.” (AKAI)to file the action.   Section 1, Rule 7 of the Rules of Procedure for Environmental Cases (RPEC) provides that the writ of Kalikasan is available to a people’s organization, non-governmental organization, or any public interest group.  On the other hand, the legal capacity of AKAI to file an action for damages in behalf of its members may be questioned since a corporation has a personality separate from that of its members.

 

Secondly, the petitioner in a petition for writ of kalikasan is exempt from the payment of docket fees unlike in a civil complaint for damages. 

 

Thirdly in a petition for writ of kalikasan, the petitioners may avail of the precautionary principle in environmental cases which provides that when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, action shall be taken to avoid or diminish that threat.  In effect, the precautionary principle shifts the burden of evidence of harm away from those likely to suffer harm and onto those desiring to change the status quo.  In a civil complaint for damages, the burden of proof to show damages is on the plaintiff. 

 

Finally, the judgment is a writ of kalikasan case is immediately executory unlike in a civil complaint for damages. 

 

The advantage of the civil complaint for damages is that the court may award damages to the Petitioners for the injury suffered which is not the case in a petition for writ of kalikasan.   At any rate a person who avails of the Writ of Kalikasan may also file a separate suit for the recovery of damages.

 

XIV

 

Pedro, the principal witness in a criminal case, testified and completed his testimony on direct examination in 2015. Due to several postponements by the accused, grounded on his recurring illness, which were all granted by the judge, the cross-examination of Pedro was finally set on October 15, 2016. Before the said date, Pedro died. The accused moved to expunge Pedro's testimony on the ground that it violates his right of confrontation and the right to cross-examine the witness. The prosecution opposed the motion and asked that Pedro's testimony on direct examination be admitted as evidence. Is the motion meritorious? Explain. (5%)

 

SUGGESTED ANSWER:

 

No, the motion to expunge Pedro’s testimony on the ground that it violates the accused’s right to confront the witness is not meritorious. 

The Supreme Court has held that where the delay in cross-examining the witness was imputable to the accused, he could not be heard to complain if the witness becomes unavailable through no fault of the party presenting the witness and hence the witness’s direct examination should not be stricken out. 

Here the delay in cross-examining Pedro was imputable to the motions for postponement filed by the accused and the death of Pedro was not the fault of the prosecution. 

 

 

XV

 

Chika sued Gringo, a Venezuelan, for a sum of money. The Metropolitan Trial Court of Manila (MeTC) rendered a decision ordering Gringo to pay Chika P50,000.00 plus legal interest. During its pendency of the appeal before the RTC, Gringo died of acute hemorrhagic pancreatitis. Atty. Perfecto, counsel of Gringo, filed a manifestation attaching the death certificate of Gringo and informing the RTC that he cannot substitute the heirs since Gringo did not disclose any information on his family. As counsel for Chika, what remedy can you recommend to your client so the case can move forward and she can eventually recover her money? Explain. (5%)

 

SUGGESTED ANSWER:

 

The remedy I can recommend to my client Chika is to file a petition for settlement of the estate of Gringo and for the appointment of an administrator.   Chika as a creditor is an interested person who can file the petition for settlement of Gringo’s estate.  Once the administrator is appointed, I will move that the administrator be substituted as the defendant.  I will also file my claim against Gringo as a contingent claim in the probate proceedings pursuant to Rule 86 of the Rules of Court. 

 

 

XVI

 

Under Section 5, Rule 113 a warrantless arrest is allowed when an offense has just been committed and the peace officer has probable cause to believe, based on his personal knowledge of facts or circumstances, that the person to be arrested has committed it. A policeman approaches you for advice and asks you how he will execute a warrantless arrest against a murderer who escaped after killing a person. The policeman arrived two (2) hours after the killing and a certain Max was allegedly the killer per information given by a witness. He asks you to clarify the following:

[a] How long after the commission of the crime can he still execute the warrantless arrest? (2.5%)

[b] What does "personal knowledge of the facts and circumstances that the person to be arrested committed it" mean? (2.5%)

 

SUGGESTED ANSWER:

 

(a) 

The arrest must be made within 24 hours after the commission of the crime.  Where the arrest took place a day after the commission of the crime, it cannot be said that an offense has just been committed.  (People v. Del Rosario, 305 SCRA 740). 

 

(b) 

"Personal knowledge of the facts and circumstances that the person to be arrested committed it" means personal knowledge not of the commission of the crime itself but of facts and circumstances which would lead to the conclusion that the person to be arrested has probably committed the crime.  Such personal knowledge arises from reasonably worthy information in the arresting person’s possession coupled with his own observation and fair inferences therefrom that the person arrested has probably committed the offense.  (Pestilos v. Generoso, 739 SCRA 337).   

 

 

XVII

 

The information against Roger Alindogan for the crime of acts of lasciviousness under Article 336 of the Revised Penal Code avers:

 

"That on or about 10:30 o'clock in the evening of February 1, 2010 at Barangay Matalaba, Imus, Cavite and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, through force and intimidation, did then and there, wilfully, unlawfully and feloniously commit sexual abuse on his daughter, Rose Domingo, a minor of 11 years old, either by raping her or committing acts of lasciviousness on her, against her will and consent to her damage and prejudice.

 

ACTS CONTRARY TO LAW."

 

The accused wants to have the case dismissed because he believes that the charge is confusing and the information is defective. What ground or grounds can he raise in moving for the quashal of the information? Explain. (5%)

 

SUGGESTED ANSWER:

 

The grounds which the accused can raise in moving for the quashal of the information are the following:

 

       1. THE INFORMATION CHARGES MORE THAN ONE OFFENSE.   The information charges two offenses, that is, rape and sexual abuse.  Worse, the charges are stated in the alternative, making it unclear to the accused as to what offense exactly he is being charged with.      

       2. THE INFORMATION DOES NOT CONFORM SUBSTANTIALLY TO THE REQUIRED FORM.  The information merely states that the accused committed acts of lasciviousness upon the victim without specifying what those acts of lasciviousness were.  

 

 

XVIII

 

John filed a petition for declaration of nullity of his marriage to Anne on the ground of psychological incapacity under Article 36 of the Family Code. He obtained a copy of the confidential psychiatric evaluation report on his wife from the secretary of the psychiatrist. Can he testify on the said report without offending the rule on privileged communication? Explain. (5%)

 

SUGGESTED ANSWER:

 

Yes, John can testify on the psychiatric report without offending the rule on privileged communication. 

In a case involving similar facts, the Supreme Court held that there is no violation of physician-patient privilege since the one testifying is not the psychiatrist.  The privilege bars only the physician, not other persons.  (Krohn v. Court of Appeals, 233 SCRA 146).     

There is no violation of marital communication privilege since the report is not a confidential communication between spouses. 

There is also no violation of the marital disqualification rule since the case involves an exception, that is, a civil case by one spouse against the other. 

 

 

XIX

 

Tristan filed a suit with the RTC of Pasay against Arthur King and/or Estate of Arthur King for reconveyance of a lot declared in the name of Arthur King under TCT No. 1234. The complaint alleged that "on account Arthur King's residence abroad up to the present and the uncertainty of whether he is still alive or dead, he or his estate may be served with summons by publication." Summons was published and nobody filed any responsive pleading within sixty (60) days therefrom. Upon motion, defendants were declared in default and judgment was rendered declaring Tristan as legal owner and ordering defendants to reconvey said lot to Tristan.

 

Jojo, the court-designated administrator of Arthur King's estate, filed a petition for annulment of judgment before the CA praying that the decision in favor of Tristan be declared null and void for lack of jurisdiction. He claims that the action filed by Tristan is an action in personam and that the court did not acquire jurisdiction over defendants Arthur King and/or his estate. On the other hand, Tristan claims that the suit is an action in rem or at least an action quasi in rem. Is the RTC judge correct in ordering service of summons by publication? Explain. (5%)

 

SUGGESTED ANSWER:

 

Yes, the RTC judge is correct in ordering service of summons by publication.

 

            Under S15 R14, extraterritorial service, which includes service by publication, may be availed of in actions the subject of which is property within the Philippines in which the defendant has or claims a lien or interest or in which the relief demanded consists in excluding the defendant from any interest therein.  

            Here the action for reconveyance has for its subject a real property in the Philippines in the defendant’s name and in which the relief sought is to annul the defendant’s title and vest it in the plaintiff.  

            While Jojo is correct is saying that the action for reconveyance is in personam (Republic v. CA, 315 SCRA 600, 606), the test of whether an action is covered by S15 R14 is not its technical characterization as in rem or quasi in rem but whether it is among those mentioned in S15 R14.  (See Baltazar v. Court of Appeals, 168 SCRA 354, 363). 

 

 

XX

 

Royal Bank (Royal) filed a complaint for a sum of money against Ervin and Jude before the RTC of Manila. The initiatory pleading averred that on February 14, 2010, Ervin obtained a loan from Royal in the amount of Pl Million, as evidenced by Promissory Note No. 007 (PN) signed by Ervin. Jude signed a Surety Agreement binding herself as surety for the loan. Royal made a final demand on February 14, 2015 for Ervin and Jude (defendants) to pay, but the latter failed to pay. Royal prayed that defendants Ervin and Jude be ordered to pay the amount of P1 Million plus interests.

 

In their answer, Ervin admitted that he obtained the loan from Royal and signed the PN. Jude also admitted that she signed the Surety Agreement. Defendants pointed out that the PN did not provide the due date for payment, and that the loan has not yet matured as the maturity date was left blank to be agreed upon by the parties at a later date. Defendants filed a Motion for a Judgment on the Pleadings on the ground that there is no genuine issue presented by the parties' submissions. Royal opposed the motion on the ground that the PN' s maturity is an issue that must be threshed out during trial.

 

[a] Resolve the motion with reasons. (2.5%)

[b] Distinguish "Summary Judgment" and "Judgment on the Pleadings." (2.5%)

 

SUGGESTED ANSWER:

 

(a) 

The Motion for Judgment on the Pleadings should be denied. 

Under the Rules of Civil Procedure, a motion for judgment on the pleadings may be filed only by the plaintiff or the claimant. 

Here it was the Defendants, not the Plaintiff Royal Bank, which filed a motion for judgment on the pleadings.  Hence the motion should be denied. 

 

(b) 

A summary judgment is distinguished from a judgment on the pleadings as follows:

       1. A summary judgment is proper even if there is a remaining issue as to the amount of damages, while a judgment on the pleadings is proper if it appears that there is no genuine issue between the parties.

       2. A summary judgment is based not only on the pleadings but also upon affidavits, depositions, and admissions showing that, except as to the amount of damages, there is no genuine issue, while a judgment on the pleadings is based exclusively upon the pleadings without the presentation of any evidence. 

       3. A motion for summary judgment requires 10-day notice  (S3 R35), while a motion for judgment on the pleadings is subject to a 3-day notice rule (S4 R15). 

       4. A summary judgment may be prayed for by a defending party  (S2 R35), while a  judgment on the pleadings may be prayed for only by a plaintiff or claimant.  

 

 

 

-oOo-

 

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