RULE 11. WHEN TO FILE PLEADINGS SECTION 1. Answer to the complaint.The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court.

- GR: defendant has 15 days after service of summons within which to file his answer.

- Exception: Those mentioned in Rule 14, 15 and 16 instances when service of summons by publication is prescribed.

- In computing period, use Art. 13 of the CC: exclude the 1st, include the last day rule. Such rule is also found in Sec. 1 of Rule 22.

Rule 22. SECTION 1. How to compute time.In computing any period of time prescribed or allowed by these Rules, or by order the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day.

- The act itself from which the designated period of time where the case will run is to be excluded. When you receive the complaint today or when you are summoned today, you start counting the period tomorrow.

- If the last day falls on a SAT, SUN, HOLIDAY, there is automatic extension, last day would be the next working day

Rule 22. SEC. 2. Effect of interruption.Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof.

The day of the act that caused the interruption shall be excluded in the computation of the period.

- You were summoned, so you have 15 days to file an answer, then you filed a motion to dismiss. The filing of the motion to dismiss will now interrupt the running of the 15-day period. And when your motion to dismiss is denied, if you receive the order of the denial now, you continue computing the balance within the remaining period to file your answer.

- EX: On Nov. 30 you were served with a summons, so you have until December 15 to file your answer. On December 10, you filed motion to dismiss. So the remaining of the period to file an answer is interrupted. Question: Let us say on December 15 or 5 days thereafter, your motion was denied, and you receive a copy of the order of denial. How many days more do you have or left to file your answer? Answer: 6 days. From November 30 to December 10 only 9 days consumed (December 10 is excluded for it is the day of the act that caused the interruption in the computation of the period 2nd sentence of Section 2) Question: So when is the deadline for you to file an answer? Answer: December 21. Since you received the denial of the motion on December 15, you start counting the day after you receive the notice of denial, so you start counting on December 16 (1st sentence of Section 2)

Nov. 30 Dec. 10 Dec. 15 Dec. 16 Dec. 21

Defendant received summons

Defendant file motion to dismiss (day of the act that caused the interruption shall be excluded in the computation of the period)

Motion to dismiss denied- notice received by defendant

Running of period will resume (the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof.)

Deadline to file an answer

SEC. 2. Answer of a defendant foreign private juridical entity.Where the defendant is a foreign private juridical entity and service ofsummons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity.

- The defendant is a foreign private juridical entity doing business in the Philippines (Cathay Pacific, etc.)

- When the foreign corporation has a designated resident agent, the summons shall be served to the resident agent, and he has 15 days to answer

- But if foreign corporation does not have a designated resident agent in the the Philippines under the corporation Code, the summons shall be served to the government official designated by law to receive the same, who is duty bound to transmit to the head office of the corporation abroad. And the corporation has 30 days from receipt of summons to file its answer Q: Who is the proper govt official designated by law to receive summons? A: Generally, it is the Secretary of the Dept. Of Trade & Industry. But for some type of business, the law may designate any other official. (Ex: if foreign insurance company, you serve it to the Insurance Commissioner; if foreign bank with branch in Phil, serve summons to the Superintendent of the BSP)

SECTION. 3. Answer to amended complaint.Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof.

Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (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.

This Rule shall apply to the answer to an amended counterclaim amended cross-claim, amended third (fourth, etc.) party complaint, and amended complaint-in-intervention.

- If the complaint is amended as a matter of right because

defendant has not yet filed an answered (complaint is served and even before it was answered, it was amended and another complaint is served), then you have 15 days to file answer counted from the day of service of the amended complaint. (Forget the original period and you have 15 days all over again)

- If the defendant has already answered the original complaint and then the plaintiff decides to amend his complaint. If the court issued an order admitting the amended complaint and the defendant is furnished a copy of the order admitting the amended complaint, if he wants to answer the amended complaint, he has 10 days to do it. The 10 days will be counted from service of the order admitting the amended complaint, not from the service of the amended complaint because the same may not be admitted. (You wait for the order of the court admitting the amended complaint)

Q: Suppose I will not file an answer to the amended complaint but I filed an answer to the original complaint, can I be declared in default? A: NO, because Sec. 3 provides that the answer earlier filed may serve as an answer to the amended complaint if no answer is filed.

SEC. 4. Answer to counterclaim or cross-claim.A counterclaim or cross-claim must be answered within ten (10) days from service. Q: What happens if plaintiff does not answer the counterclaim of the defendant? A: He can be declared in default on the counterclaim. He still has standing to prove his cause of action in the main cause but he loses his standing to defend himself in the counterclaim.

Q: Are there instances where an answer to a counterclaim is optional? A: Yes, that is when the counterclaim is so intertwined with the main action they are so intertwined that if the plaintiff will answer, it would only be a repetition of what he said in his complaint. If he will not answer, he cannot be declared in default. Ex: You filed a case for damages arising from a vehicular collision due to the negligence of the defendant. Now in his answer, defendant says no and denied his liability and files a counterclaim saying that it is you who is negligent and is also claiming damages against you. So the issue of negligence is thrown back at you. If you are required to answer, you would most likely just repeat what you have alleged.

SEC. 5. Answer to third (fourth, etc.)party complaint.. The time to answer a third (fourth, etc.)party complaint shall be governed by the same rule as the answer to the complaint. SEC. 6. Reply.A reply may be filed within ten (10) days from service of the pleading responded to. - If you want to file a reply, you have 10 days to file. But as a

general rule, the filing of a reply is optional.

SEC. 7. Answer to supplemental complaint.A supplemental complaint may be answered within ten (10) days from notice of

the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. - Same principle as in Section 3, 2nd paragraph.

SEC. 8. Existing counterclaim or cross-claim.--A compulsory, counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein.

- One of the requisites to make a counterclaim compulsory is that the defending party has the counterclaim at the time he files his answer.

SEC. 9. Counterclaim or cross-claim arising after answer. A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. SEC. 10. Omitted counterclaim or cross-claim.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. - if the counterclaim or cross-claim was acquired by a party after

serving his pleading, he may raise it by way of supplemental pleading. But if a pleader fails to set up a counterclaim or a cross-claim which is already matured when he filed his pleading due to inadvertence or excusable neglect, then he may raise it by way of amended pleading.

SEC. 11. Extension of time to plead .Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. - upon motion and on such terms as may be just, the court may

extend the time to plead - if you file motion for extension of time, do it within the original

15-day period. - If you failed to file motion to extend, lawyer may use 2nd

paragraph. The correct motion is motion to admit late answer - As much as possible, both sides must be heard. So in the spirit of

liberality, courts are usually liberal in allowing theses extensions in time to file answer

Summary 1. Answer 15

days 2. Answer of a private foreign corporation

a. With designated Phil. Rep 15 days

b. No designated Phil. Rep 30 days

3. Answer to an amended complaint a. As a matter of right 15

days b. As a matter of judicial discretion 10

days 4. Answer to counterclaim or cross-claim 10

days 5. Answer to 3rd (4th, etc) party complaint 15

days 6. Reply 10

days 7. Answer to supplemental complaint 10

days

RULE 12. BILL OF PARTICULARS

SECTION 1. When applied for; purpose.Before responding to a pleading, a party may move for a definite statement or for a bill of particulars 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 (10) days from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired. - A bill of particulars is a more definitive statement of any matter

which is not averred with sufficient definiteness or particularity in a pleading so as to enable the opposing party to prepare his responsive pleading

- It is a motion that applies to any pleading which in the perception of the movant contains ambiguous allegations

- When you file motion for bill of particulars, you should point out: a. the defects complained of, b. the paragraphs where they are contained; and c. the details desired.

- A complaint cannot be dismissed simply because it is vague & ambiguous. The correct remedy is for the defendant to file a motion for a bill of particulars, which will ask for more details on these vague portions of the complaint.

- Tan vs Sandiganbayan the primary objective is to apprise the adverse party of what the plaintiff wants to preclude the latter from springing a surprise attack later.

- Purpose of the motion is to enable the movant to prepare his responsive pleading. Without the clarifications sought by the motion, the movant may be deprived of the opportunity to submit an intelligent responsive pleading. Where the purpose of the movant is to enable him to prepare for trial, the appropriate remedy is to avail of the discovery procedures from Rules 23-29 and even a pre-trial under Rule 18

- Since the purpose is to allow the movant to properly prepare his own pleading, it would be erroneous for the motion to ask the court to order the adverse party to disclose or to set forth in his pleading the evidences relied upon for his cause of action or defense, or to call for the production of the particulars constituting malice, intent, knowledge, or condition of the mind. To do so would require the statement of evidentiary facts in a pleading. It should only include ultimate facts.

- However, it would not be incorrect to move for a bill of particulars to require the averment of the particular circumstances of fraud or mistake (Under Sec. 5 Rule *, such must be alleged with particularity)

- A motion for a bill of particular to require a pleader to set forth matters showing the jurisdiction of the court to render its judgment is not proper.

EX: The plaintiff will sue the defendant for annulment of contract on the ground that the defendant employed FRAUD in getting the consent of the plaintiff. The defendant filed a motion for bill of particulars: That the defendant employed fraud in getting plaintiffs consent is vague, So, Im asking the plaintiff should give more specifics. How did I fool you? In what way did I employ fraud? In what way was the fraud exercised Q: Is the motion for a bill of particulars meritorious? A: YES, because allegations of fraud must be stated with particularity. Rule 8. Sec. 5. Fraud, mistake, condition of the min. In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. X x x Q: Suppose, it is the answer that is vague, can the plaintiff file a motion for bill of particulars to compel the defendant to clarify or to particularize his vague answer? A: Yes. It works both ways.

- Every pleading which is vague, the other party can always compel the other to make it cleared.

Q: Is this remedy available in criminal cases? A: Yes. There is an identical provision in Rule 116, Sec. 9 of the Rules on Criminal Procedure. Rule 116, Sec. 9. Bill of Particulars The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint of information and the details desired.

SEC. 2. Action by the court.Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant it outright, or allow the parties the opportunity to be heard.

- Upon receipt of the motion which the clerk of court must immediately bring to the attention of the court, the latter has 3 possible options: a) to deny the motion outright, b) to grant the motion outright, c) to hold a hearing on the motion

- The reason behind the provision is that many lawyers have abused Rule 12 to delay the period. To prevent that tactic, the court is now authorized to immediately act on the motion without delaying the filing of the answer.

SEC. 3. Compliance with order.If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party.

Q: Suppose the court grants the motion and the defendant or the plaintiff will be required to submit the bill of particulars. How will you comply with the order to file a bill of particulars? A: 2 ways:

1) just submit the details of the vague paragraphs; 2) amend the whole pleading and clarify the vague

paragraphs

SEC. 4. Effect of non-compliance.If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just.

1. If order is not obeyed OR in case of insufficient compliance.

The court: a. May order the striking out of the pleading or the

portion thereof to which the order is directed; or b. Make such order as it may deem just

2. If the PLAINTIFF fails to obey, his complaint may be dismissed WITH PREJUDICE unless otherwise ordered by the court (Rule 12, Sec. 4; Rule 17. Sec. 3)

3. If the DEFENDANT fails to obey, his answer may be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff (Rule 12, Sec. 4; Rule 17, Sec. 4; Rule 9, Sec. 3)

Q: Suppose the motion was granted, the court ordered the plaintiff to submit a bill of particulars. The plaintiff refused to comply, what is your remedy? A: The court may order the striking out of the pleading or portions thereof which is the object of the bill of particulars. Like, when you do not want to clarify your complaint, the judge will now issue an order to strike out the entire complaint. It is as if the complaint was never filed. Practically, your complaint was dismissed. In effect, your complaint was dismissed because if the complaint was stricken out, then it is equivalent to dismissal of the case itself

SEC. 5. Stay of period to file responsive pleadingAfter service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. Q: What is the effect when you file a motion for a bill of particulars? A: The 15 day period is stopped or interrupted upon the filing of the motion. The period continues to run from the date you received the bill of particulars, or if your motion is granted, or from the receipt of the order denying your motion. EX: You have 15 days to file an answer. On the 8th day, you filed a motion for a bill of particulars. On the 8th day, the running of the period automatically stops. If your motion was denied, and you received the notice, you still have 7 days to file your answer. Q: Suppose, you file your motion on the 14th day and your motion is denied. You received the order today. How many days more to file an answer? A: 5 days. You are guaranteed a minimum of 5 days.

SEC 6. Bill a part of pleading.A bill of particulars becomes part of the pleading for which it is intended.

RULE 13. FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

SECTION 1. Coverage .This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except those for which a different mode of service is prescribed.

SECTION 2. Filing and service, defined.Filing is the act

of presenting the pleading or other paper to the clerk of court. Service is the act of providing a party with a copy of the

pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.

- When you say filing, you present the pleading or other papers to

the office of the clerk of court. When you say service, you furnish a copy of the pleading or paper concerned to a party, or if he is represented by a lawyer, you must furnish a copy of the pleading to the lawyer

- GR: when a party is represented by a lawyer, the service should be to the lawyer and not to the party. Service to a party is not valid, what is valid is service to the counsel. Service to the lawyer binds the party but service to the party does not bind the lawyer and the party, unless the court orders direct service to the party. If a party has not appeared with counsel, then common reason suggests that service must be made upon him

- Retoni Jr vs CA: Usually, service is ordered upon the party himself, instead of upon his attorney, 1) when it is doubtful who the attorney for such party is; 2) when he cannot be located or; 3) when the party is directed to do something personally, as when he is ordered to show cause.

- Bayog vs Natino: Notice to the lawyer who appears to have been unconscionably irresponsible cannot be considered as notice to his client. The doctrine that notice to counsel is notice to parties should be looked into and adopted, according to surrounding circumstances; otherwise, in the courts desire to make a short cut of the proceedings, it might foster, wittingly or unwittingly, dangerous collusions to the detriment of justice. It would then be easy for one lawyer to sell ones rights, by just alleging that he just forgot every process o the court affecting his clients, because he was so busy.

- Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.

- If you are represented by 3 or more lawyers, service to one is service to all

A. FILING OF PLEADING, JUDGMENTS AND OTHER PAPERS

Q: How do you file pleadings?

SECTION 3. Manner of filing .The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case. Q: How about judgments? Rule 36, Sec. 1. Rendition of judgments and final orders. A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it based, signed by him, and filed with the clerk of court. - Two modes of filing under Section 3:

1. By presenting original copy of the pleading, notice, appearance, motion, order of judgment, personally to the clerk of court

- Court usually receives 2-3 copies, one for itself, and for the defendant to be served with summons

2. By registered mail - In registered mails, the rule is that the date of filing is the date of

the mailing. When it is by registered mail, the date of mailing as shown by the Post office stamp is considered as the date of filing. The envelope is attached. The post office is automatically a representative of the court for the purpose of filing.

- If you send it though messengerial service (LBC) or by ordinary mail, the mailing is considered as personal filing and the pleading is not deemed filed until it is received by the court itself. The law treats the messengerial company only as your process helper.

- Garvida vs Sales Jr - Filing a pleading by fax is not sanctioned by the Rules of Court. A facsimile is not a genuine and authentic pleading. Without the original, there is no way of determining on its face whether the facsimile is genuine and authentic and was originally signed by the party and in his counsel.

Q: How do you prove that a pleading was really filed?

SECTION. 12. Proof of filing. The filing of a pleading or paper shall be proved by its existence in the record of the case. if it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and

with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered. - If you filed it in court personally, and it is not there, you can prove

by showing your copy which is duly stamped and received by the court

- If you filed by registered mail, you can prove it by presenting the registry receipt and the affidavit of the server, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court. It must be stressed that the affidavit is very important

B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

SECTION 4. Papers required to be filed and served. Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. - All documents, as a rule, shall be filed to the court and served to

the parties affected; all pleadings subsequent to the complaint. - The complaint does not need to be served to the defendant by

the plaintiff, it is the sheriff who will serve it to the defendant. - But if you are the defendants lawyer, you go directly to the

plaintiffs lawyer to serve the answer because an answer is a pleading subsequent to the complaint

Section 5. Modes of service. Service of pleadings motions, notices, orders, judgments and other papers shall be made either personally or by mail. - Service can be done either: - 1) personally;

2) by mail; 3) substituted service in case of failure of the personal service or registered mail

SECTION 6. Personal service. Service of the papers may be made by 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. If no person is found in his office, or his office is not known, or he has no office, 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. - Personal service is the preferred mode of service - When recourse is made to the other modes, a written explanation

why service of filing was not done personally becomes indispensable. If no explanation is offered to justify resorting to the other modes, the discretionary power of the court to expunge the pleading comes into play

- Personal service is made by a) delivering a copy of the papers served personally to the party or his counsel; b) by leaving the papers in his office with his clerk or a person having charge thereof; c) If no person is found in the office, or his office is not known or he has no office, then by leaving a copy of the papers at the partys or counsels residence, if known, with a person of sufficient age and discretion residing therein between 8am and 6pm

- PLDT vs NLRC: Notices to counsel should be properly sent to the address of record in the absence of due notice to the court of change of address. The service of a decision at the ground floor of a partys building and not at the address of record at the partys counsel on record at the 9th floor of the building cannot be considered valid service. Service upon a lawyer must be effected at the exact given address of the lawyer and not in the vicinity or at a general receiving section for an entire multi-storied building with many offices.

- PCIB vs ORTIZ: For some time, pleadings were delivered to the receiving station of the building where lawyers office is located, which the receiving clerk gives to the lawyer every time he passes by and the lawyer did not question this practice. While the service was improper, the trouble is it has been going on for some time without complaints. So the ground floor became the lawyers adopted address. The lawyer cannot now disown the adopted address to relieve them from the effects of their negligence, complacency or inattention. Service therefore, of the notice of judgment at the ground floor should be deemed effective service.

- DBP vs COA: Service of COA resolution was made to the resident corporate auditor of DBP who holds office in the premises of DBP and is actually an EE of the COA assigned to DBP. SC held that the resident auditor is neither an official nor an EE of DBP. He does not come within the definition of clerk or person having charge of the office that may be served with a copy of the resolution, in fact, he is an extensions of the COA and no department of the petitioner was actually served with a copy of the resolution.

- Personal service is completed upon delivery.

SECTION 10. Completeness of service. Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier.

SECTION 7. Service by mail. Service by registered mail shall be made by depositing the copy in the post office in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the senders or the addressee, service may be done by ordinary mail. (5a; Bar Matter No. 803, 17 February 1998)

- The law prefers service by REGISTERED MAIL - However, if no registry service is available in the locality of

either the sender or addressee, service may be done by ordinary mail

- Service by ordinary mail may be allowed for purposes of service (Sec. 7) but for purposes of filing (Sec.3), the law does not recognize the ordinary mail. If you do it, it will be treated as personal filing. In registered mail, the date of receipt is considered the date of filing not the date of mailing.

- Service by ordinary mail complete upon expiration of 10 days after mailing, unless provided by Court

- Service by registered mail complete upon actual receipt by the addressee, or after 5 days from the date he received 1st notice of the postmaster, whichever date is earlier

- A party or a lawyer cannot defeat the process of the law by simply not claiming his mail. You can be bound by a decision which you never read. That is constructive service.

SECTION 8. Substituted service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, 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 proof of failure of both personal service and service by mail. The service is complete at the time of such delivery.

- This mode of service is availed only when there is failure to effect service personally or by mail. This failure occurs when the office and residence of the party or counsel is unknown

- Substituted service is effected by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail

Q: How to prove service?

Section 13. Proof of Service. Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

- Personal Service: written admission of the party served as admitted that he had been furnished with a copy; or you file the affidavit of your EE, or messenger, that he served the copy in the office of so and so; or the official return of the server for judgments, orders, etc., from the court

- Ordinary Mail: affidavit of the person mailing of facts showing compliance with Sec. 7

- Registered Mail: affidavit of the mailer and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender. Or, in lieu thereof, of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster that is a constructive service

- There must be an affidavit of the person who mailed it. The surrender of a registry receipt alone is not sufficient because if you send the registry receipt, it is not reflected to whom that letter is addressed so how will the court know that the registry receipt really correspond to the pleading that you mailed?

- If you mail a petition even if copy sent by registered mail is written but without the affidavit, there will be an outright dismissal for lack of proof of service

Section 9. Service of judgments, final orders, or resolutions. Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. - Modes of serving court orders or judgments to parties:

1) personally; 2) registered mail; 3) service by publication

- 3rd mode is service by publication. That is if the parties were summoned by publication under Rule 12 and they did not appear. The judgment is also served to them by publication at the expense of the prevailing party

SECTION 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed. - Personal service is prioritized - The law requires that you must give an explanation why you

resorted to mail and not to person service. Violation may be cause to consider the paper not filed.

- Courts are not covered by Section 11. It only applies to parties and lawyers. The court does not have to explain why it resorted to registered mail

- Solar Team Entertainment vs Ricafort: Proximity would seem to make personal service most practicable, but exceptions may nonetheless apply such as when: the adverse party or opposing counsel to be served with a pleading seldom reports to office and no employee is regularly present to receive pleadings, or service is done on the last day of the reglementary period and the office of the adverse party or opposing counsel to be served is closed, for whatever reason.

SECTION 13. Proof of Service. Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. - Constructive notice that if the registered mail was not received

and therefore you want to avail of the rules on constructive service -it is deemed served upon the expiration of so many days. What you will file is the unclaimed letter together with a certified or sworn copy of the notice given by the postmaster to the addressee.

- Johnson & Johnson Phils vs CA: CA served J&J a decision in a registered mail, which was returned to the CA with Return to Sender, Unclaimed on the face of the envelope and at the back is an annotation Return to CA.-> there is no constructive service because there is no certification by the postmaster that is claimed. This is what the law requires not just a one sentence statement. One cannot even ascertain who wrote the statement. Certification should include the details of delivery and not just state that notice was issued. A certification from the postmaster would be the best evidence to prove that the notice has been validly sent. The mailman may also testify that the notice was actually delivered. The postmaster should certify not only that the notice was issued or sent but also as to how, when and to whom the delivery thereof was made.

- Santos vs CA: For completeness of constructive service, there must be conclusive proof that counsel or somebody acting on his behalf was duly notified or had actually received the notice, referring to the postmasters certification to that effect. Consequently, it cannot be too much to expect that when the post office makes a certification regarding delivery of registered mail, such certification should include the data not only as to whether the corresponding notices were issued or sent but also as to how, when and to whom the delivery thereof was made.

Section 14. Notice of lis pendens. In an action affecting the title or the right of possession of real property, the plaintiff and

the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names. The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the rights of the party who caused it to be recorded. - GR: one who registers a notice of lis pendens is the plaintiff. But

under Sec. 14, the law states that, the plaintiff and the defendant may register when affirmative relief is claimed in this answer. In such case, a defendant may register and normally it is done when there is a counterclaim. The defendant is also interposing a defense with the same property.

- How is a notice of lis pendens cancelled? GR: The notice of lis pendens under the rules cannot be removed without the order from the court and generally the court cannot issued the order until the case finished or until the final issue of the case is determined. Exception: After proper showing that the notice is: a) for the purpose of molesting the adverse party; or b) it is not necessary to protect the rights of the party who caused it to be recorded.

RULE 14. SUMMONS

Section 1. Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants.

- Summons is the writ by which the defendant is notified of the action brought against him; the counterpart of warrant of arrest in criminal cases.

- The issuance of summons is not discretionary on the part of the court or the clerk of court but is a mandatory requirement. Sec.1 directs that the clerk of court shall issue the corresponding summons to the defendants upon a) the filing of the complaint, and b) the payment of the requisite legal fees. The use of the term shall leaves no doubt as to the mandatory character of service of summons

- In action in personam, the purpose of summons is not only to notify the defendant of the action against him but also to acquire jurisdiction over his person. The mere filing of the complaint does not enable the court to acquire jurisdiction over the person of the defendant. bY the filing of the complaint and payment of the required filing and docket fees, the court acquires jurisdiction only over the person of the plaintiff, not over the defendant. Acquisition of jurisdiction over the latter is accomplished by a valid service of summons assuming he does not make a prior voluntary appearance in the action.

- In action in rem or quasi in rem, jurisdiction over the defendant is not mandatory and the court acquires jurisdiction over an action as long as it acquires jurisdiction over the res. The purpose of the summons in these actions is not the acquisition of jurisdiction but mainly to satisfy constitutional requirements of due process.

- GR: The rules on summons apply with equal force in actions before the RTC and 1st level courts

- Except where: a) a particular provision expressly or impliedly applies only to either of said courts, or b) in civil cases governed by the rules on summary procedure.

Section 2. Contents. The summons shall be directed to the defendant, signed by the clerk of court under seal and 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 these Rules; (c) a notice that unless the defendant so answers plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem if any, shall be attached to the original and each copy of the summons. Q: Is the defendant bound to comply with the summons where service was made without attaching a copy of the complaint?

A: SC, while admitting that service of summons was defective, treated the defect as having been waived by the defendants failure to seasonably challenge the trial courts jurisdiction over her person.

- When an additional defendant is included in the action, summons must be served upon him for the purpose of enabling the court to acquire jurisdiction over his person. The case is commenced against the additional defendant upon the amendment in the complaint.

- When a defendant who has already been summoned, died, and there was substitution of party, there is no need to issue new summons. The order of the court ordering him to be substituted is already sufficient.

Q: If a defendant is served with summons and later on the complaint is amended by the plaintiff, is there a need to issue another summons based on the amended complaint? A: It depends on whether the amendment was made before or after defendants appearance in the action (appearance in action filing something in court which would show that the court has jurisdiction over your person, like the filing of an answer. When defendant filed an answer through his lawyer, there is now appearance in court)

a) If the defendant has not filed answer to original complaint there must be another summons issued on the amended complaint. A new summons must be served all over again based on the amended complaint.

b) If defendant has already filed an answer to original complaint or he has already appeared in the action, and after that the complaint is amended, there is no need of issuing new summons on the amended complaint.

- The period to file an answer to amended complaint is 15 days all over again. There will be another period of 15 days to file an answer to the amended complaint and the summons.

- If defendant had already filed an answer and there is an amended complaint, all the plaintiff has to do is to furnish the defendant a copy of the amended complaint together with the motion to admit it.

- If the court allowed the admission of the amended complaint, the period to file an answer is 10 days only, not from the receipt of the complaint, but from receipt of the order allowing the amended complaint.

- An appearance in an action is best manifested by the filing of an answer by the defendant however in Pan Asiatic Travel Corp. Vs CA, appearance in the action is not only limited to the filing of ans answer. When defendant files a motion for extension of time to file his answer, that is already an appearance in the action. If a defendant files a motion for Bill of Particulars, that is already appearance in the action.

Section 3. By whom served. The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons.

- Policemen cannot validly serve summons unless authorized by court

- Service of summons is ministerial. It may be made at night as well as during the day, or even on a Sunday or holiday because of its ministerial character.

Section 4. Return. When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff's counsel, and shall return the summons to the clerk, who issued it, accompanied by proof of service.

- It is the duty of the sheriff to inform the court what has happened was he able to serve the copy of the complaint, together with the summons to the defendant? If so, on what day? The duty of the sheriff after service of the summons is that he should make a report to the court as to what happened. That is what is called a sheriffs return

- There must be a report because that will determine when the period to file an answer will start to run. Or, if he failed to serve it, at least you must return the summons to the court and make a report that you cannot serve the summon.

- He must also furnish a copy of his report to the plaintiffs lawyer so that the plaintiffs lawyer can determine what is the deadline for the defendant to file an answer.

Section 5. Issuance of alias summons. If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons.

- Sheriff should tell the lawyer what happened so that if the summons was not served, the lawyer can file a motion for

issuance of an alias summons, like he cannot serve the summons because the defendant is not already in the given process. That becomes the problem of the plaintiff and his lawyer.

- Purpose: so that the plaintiffs lawyer will have to look now for the defendant and once he finds the correct address, he has to inform the court of the new address so that a new summons can be issued on the new address. The 2nd summons is what is called and alias summons.

- Modes of service of summons: - a) Sec. 6 Service in person on defendant;

b) Sec. 7 substituted service; c) Sec. 14, 15,16 Service by publication

FIRST MODE: SERVICE IN PERSON Section 6. Service in person on defendant. Whenever practicable, the summons shall be served by handling a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.

- It is effected by: a) handing a copy thereof to the defendant in person, or b) if he refuses to receive and sign for it, by tendering it to him.

- The summons must be served in person. This is literal, the summons must be served upon the defendant himself not to anybody else.

- It can be served wherever defendant may be found. And the law does not care where to do it.

- If defendant refuses to sign original summons, all the sheriff needs to do or write in the return that he saw the defendant, that he offered but the defendant refused to sign. Under the law , the summons has already been served and the court has already acquired jurisdiction over his person

- Under the 1964 rules, it was called Personal Service, but now it is called Service in Person. Reason: To avoid confusion with Rule 13, because in Rule 13, there is also personal service. Service in Rule 12 is also personal service to the secretary, but in Rule 14, it is literal. Service must be in person to the defendant.

- If defendant refuses to receive and sign, the remedy of the server is to tender the summons to the defendant. If the defendant refuses the service, the server should not resort to substituted service immediately. He must tender summons to him. Tender of summons is not a separate mode of service. It is part of service in person.

SECOND MODE: SUBSTITUTED SERVICE

Section 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof.

- If the defendant cannot be served personally or in person under Sec. 6, the sheriff may resort to what is known as substituted service of summons. This time, you can course it to somebody else. The place is important and the person to whom you will serve it.

- If you want to resort to substituted service, you better have to do it: 1) at the defendants residence with some person of suitable age and discretion residing therein; or, 2) in his office or regular place of business with some competent person in charge thereof

- When effective: 1) Proof of service must indicate the impossibility of service in person within reasonable time+ (there must be several attempts made at least 3 times on at least 2 different dates). 2) That all efforts were exerted to locate defendant 3) Summons was served on a person of suitable age and discretion + residing in the address or competent person + in charge of office or the regular place of business - failure to comply strictly renders service of summons ineffective

+ REASONABLE TIME contemplates a period of time longer than that demarcated by the word prompt and presupposed that a prior

attempt at personal service had failed (Laus vs CA) So much time as is necessary under the circumstances for a

reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done

Sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal

service. The efforts made to find the defendant and the reason behind the failure must be clearly narrated in detail, the date and time of the attempts, the inquiries made to locate the defendant, the name of the alleged occupants of the alleged residence of the defendant and all other acts done

++ SUITABLE AGE AND DISCRETION - one who has attained the full age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of the summons.

Discretion is defined as the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed. Thus person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have a relation of confidence to the defendant, ensuring that the latter would receive or at least be notified of the receipt of summons

service is void where it was given to defendants 12 year old

daughter who threw it away (Sequito vs Letrondo) +++ COMPETENT PERSON IN CHARGE OF THE OFFICE OR REGULAR PLACE OF BUSINESS must be the one managing the office or business, and must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons.

It is not necessary that the person in charge of the defendants regular place of business be specifically authorized to receive the summons. It is enough that he appears to be in charge.

- Where the substituted service has been validly served, its validity is not affected by the defendants failure to actually receive the summons from the person with whom the summons had been left. . Where defendant prevents the service of summons (i.e. instructing security guard of subdivision not to allow server inside service upon SG is

valid) defendant must bear consequences Robinsons vs Miralles)

- In a suit in personam against a resident of the Phil. Temporarily absent from our country, the defendant may be served by substituted service because a man temporarily out of the country leaves a definite place of residence where he is bound to return. He also leaves his affairs to someone who protects his interest and communicates with him on matters affecting his affairs or business. This is in addition to the summons by publication authorized by Sec. 16 in relation to Sec. 15 of this rule

- Distinctions between SERVICE OF PLEADING (Rule 13) and SERVICE of SUMMONS (Rule 14)

In Rule 13, that is known as personal service. In Rule 14, that is known as substituted servce.

In Rule 14, substituted service means if you cannot serve the defendant in person, then you serve the summons at the residence of the defendant with some person of suitable age and discretion rsiding therein or at his office or regular place of business with some competent person in charge thereof, but in Rule 13, substituted service of other pleadings, judgements, order, et., if personal service or service by registered mail have failed, then serve it on the clerk of court

THIRD MODE: SERVICE BY PUBLICATION (SEC. 14, 15,16) - As a rule, summons by publication is available only in actions

in rem or quasi in rem. It is not available as a means of acquiring jurisdiction over the person of the defendant in an action in personam

- Publication is a notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sough to be established. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it

- But summons by publication are permissible under certain conditions

- To avail of such, there must be leave of court. - Newspaper of General Circulation the summons and the

complaint do not have to be published in a national newspaper, as long as it can be presumed that the defendant can read it or at least somebody he knows will read it and inform him.

Section 14. Service upon defendant whose identity or whereabouts are unknown. In any action where the defendant is designated as an unknown owner, or the like, or whenever his

whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order.

- a) Suing an unknown defendant; or b) the defendant is known but his whereabouts are not known and cannot be ascertained by diligent inquiry.

- But definitely, he is in the Phil. that is the important condition.

- Q: If the defendant is in the Phil. And his whereabouts is unknown and the action is in personam, can the plaintiff resort to service by summons?

Fontanilla vs Dominguez: Service of summons is possible even if action is in personam because service by publication when the whereabouts of the defendant is unknown is allowed whether the case is in personam or in rem. It is proper in all actions without distinction provided, the defendant is residing in the Phil but his identity is unknown or his address cannot be ascertained.

Pantaleon vs Asuncion: No, it is allowed only where the action is in rem or quasi in rem, not in personam. In order to bind, there must be service of summons on him. (NAG CONFLICT ANG 2 CASES!!!) but in the following cases:

- Citizens Insurance Surety vs Melencio-Herrera: The remedy of a creditor who wants to sue a debtor whose whereabouts are unknown and you cannot serve summons by publication because your case is in personam is to convert your case to in rem or quasi in rem. You can have your debtors properties attached under Rule 57, Sec 1(f), in which case, the enactment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be deemed valid and effective (reiterates Pantaleon case)

- Magdalena Estate Inc vs Nieto: We reitereate Citizen and Pantaleon. The action must be in rem or quasi in rem.

- Sec. 14 can only be availed of when the action is in rem or quasi in rem. If the action is in personam, like of collection of a sum of money, service of summons by publication is improper.

- Controversial issue: At the start of Sec. 14, it states In any action so does it mean, like in the Fontanilla case that summons by publication is proper in all actions without distinctions? But the Fontanilla case was abrogated by Pantaleon, Citizens and Magdalena cases. Is there an intention to return to old rule and cancel rulings in Magdalena?

- Present Rule-- Santos vs. PNOC: The SC held that the in rem or in personam distinction was significant under the old rule because it was silent as to the kind of action to which the rule was applicable. Because of this silence, the court limited the application of the old rule to in rem actions only. THIS HAS BEEN CHANGED. The present rule expressly states that it applied to any action where the defendant is designated as unknown or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry. THUS, IT NOW APPLIES TO ANY ACTION, whether in personam, in rem or quasi in rem.

Section 15. Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, 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 other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.

- When the defendant is not residing in the Philippines and he is not physically around, he must be served with summons even if he is abroad and that is what is called extraterritorial service.

- Extraterritorial service of summons under Sec. 15 applies when the following requisites concur: 1. The defendant is a non-resident 2. He is not found in the Philippines 3. The action against him is either in rem or quasi in rem

- A fundamental concept to be remembered in extraterritorial service of summons is that it does not apply to a defendant who is a resident of the Philippines. It does not also apply to an action in personam.

- Possible exception is Sec. 16 (residents temporarily out of the Phil) when service may, by leave of court, be effected out of the Phil.

- There are 4 instances when a defendant who does not reside and is not found in the Phil. may be sued and summons served by extraterritorial service, provided the case is in rem or quasi in rem: 1. The action affects the personal status of the plaintiff (a

child left behind files a case against his dad for compulsory recognition at least to improve his status because the res is the status of the plaintiff)

2. When the action relates to or the subject of which is, property within the Phil, in which the defendant has or claims a lien or interest, actual or contingent

3. When the action relates to or the subject of which is property within the Phil in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein

4. When the property of the defendant has been attached within the Phil.

- The difference between Sec. 14 & 15 is that in Sec. 14, the defendant is in the country but his exact whereabouts is unknown, whereas in Sec. 15, he is really out of the country and is no longer residing here.

- Modes of extraterritorial service: Service may, with leave of court, be effected in the Phils: 1) By personal service under Sec. 6; 2) By publication in a newspaper of general circulation in such places and for such time as the court may order, 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; 3) In any other manner the court may deem sufficient

1. Personal Service - Court can send sheriff to the country where defendant is

based (IMPRACTICAL! ) or ask embassy to serve summons personally

- Personal service using Sec.6 will not have the effect of acquiring jurisdiction over the non-resident defendant even if the summons and copy of complaint are personally served and received by him. This is because of the rule that a non-resident defendant who refuses to come to the country voluntarily remains beyond the personal processes of the court which therefore, cannot acquire jurisdiction over him. Nevertheless, summons is served upon the defendant not for the purpose of vesting the court with jurisdiction over the person but merely for satisfying the due process requirement. He should be informed before he loses his property.

2. By publication in a newspaper of general circulation in such places and for such time as the court may order, 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

- Aside from publication, another copy will be sent by registered mail to his last known address

- Sahagun vs CA: Nothing in the law requires the publication to be in a foreign newspaper. While there is no prohibition against availing of a foreign newspaper in extraterritorial service of summons, neither should such publication in a local newspaper of general circulation be altogether interdicted since, after all, the rule specifically authorizes the same to be made in such places and for such time as the court concerned may order.

- There is no need to acquire jurisdiction over the person of the defendant. What is important is that the res is in the country so we can enforce the judgment so that the ownership may be transferred to plaintiff

- If summons is served by publication, any judgment that the court can render is only good for the res. But if he submits now to the jurisdiction of the court by filing an answer or by hiring a lawyer in the country, the court can now render also a judgment in personam against him.

3. In any other manner the court may deem sufficient

- Carriaga Jr. vs. Malaya: The mailing of the summons to the father f an indigent litigant for compulsory acknowledgement as an illegitimate child would fall under

In any other manner the court may deem sufficient. Since the defendant received the summons, due process has been served and the case can now proceed.

- There is no such thing as service of summons by registered mail under rule 14. Only personal service or by publication. It was considered in the MALAYA case as falling under the general phrase, in any other manner the court may deem sufficient

- If the court allows service of summons abroad, the non resident is given not less than 60 days to file his answer.

- Take note that under Sec. 17, there must be a motion to effect service of summons by publication:

- Section 17. Leave of court. Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application.

- Valmonte vs CA: Lourdes Valmonte is a foreign resident. Her husband, who is also her lawyer, has a law office in the Phil. Now Lourdes sister filed for partition of real property. The summons was served on her husband.

SC held that there was no valid service of summons. Since this is an action quasi in rem and Lourdes is a non-resident who is not found in the Phil, summons must be in accordance with Rule 14, Sec. 15. IN this case, service was not done personally because it was given to her husband. There was also no publication. The only possibility is the 3rd mode, but it only applies when you are serving the summons abroad.

Section 16. Residents temporarily out of the Philippines. When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section.

- According to Sec. 16, you can serve summons just like in Sec. 15 through personal service, by publication, and in any other manner the court may deem sufficient.

- In sec. 15, defendant is residing abroad and not found in the Phil, while in Sec. 16, defendant is residing in the Phil. But temporarily out of the country

- A resident defendant temporarily outside the country may still be served through substituted service under Sec. 7. This is because even if he is abroad, he has a residence in the Phil. Or a place of business, and because certainly, he cannot be served within a reasonable period because of his absence, this absence would now trigger the application of the rule on substituted service of summons.

- In sec. 16, the action is in personam. So when residents are temporarily outside of the Phil., there could also be also substituted service of summons in addtition to Sec. 15 and the action could be in personam as distinguished from Sec.14 and where the action must be in rem or quasi in rem

SERVICE OF SUMMONS IN EXCEPTIONAL CASES 1. Service upon entity without juridical personality.

Section 8. Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought.

- Sec. 8 is related to Rule 3, Sec. 15 - Section 15. Entity without juridical personality as defendant.

When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known

- You may also serve summons upon the person in charge of the office of the place of business.

2. Service upon someone who is a prisoner Section 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose.

- Summons shall be served through the person-in-charge of the jail like the jail warden. The jail warden is automatically considered as deputized to serve it to the prisoner.

3. Service of summons upon minors and incompetents

Section 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother.

- Related to Rule 3, Sec. 3 - When you sue a minor or an insane, you serve the

summons to the parents in the case of minor. For a legal guardian, in the case of incompetent people or to the minor himself because under Rule 3, he is the real party in interest

4. When service of summons on domestic private juridical entity

Section 11. Service upon domestic private juridical entity. When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.

- Domestic a corporation or association organized under Phil law

- How to serve summons? Actually, they have no physical existence, they only exist by legal fiction. Therefore, common sense will tell that in case of a corporation, you have to serve the summons through people who run the corporation

- President- sometimes called CEO; Managing Partner in case of partnership; Corp. Sec not typist secretary but the custodian of the records of the corp. He is also a stockholder; Treasurer not cashier; In-house counsel lawyer of the company. He is actually employed by the corp.

- Exclusive enumeration of the officers who can receive summons on behalf of the corp.

- EB Villarosa LTD vs Benito: Under the new rules, service of summons upon an AGENT of the corporation is NO LONGER authorized

5. Service of summons on Foreign private juridical entity

Section 12. Service upon foreign private juridical entities. When the defendant is a foreign private juridical entity which has transacted business in the Philippines, 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 or agents within the Philippines.

- Foreign corporation but doing business in the Phil. - If it has a designated resident agent, you must serve it to

him - If none, then to appropriate Phil government officer who

will transmit it to the head office

- NWA vs CA: If a foreign corporation has designated an agent to receive summons the designation is exclusive.

- Rebulido vs CA: A dissolved corporation can still be sued. Under the Corporation Law, even if you are already dissolved, there is still a period for winding up where you can collect. So you serve summons to the last set of officers.

- When the corporation is placed under a Voting Trust Agreement (VTA) the summons should be served on the trustee. The president has no more personality. So when under VTA, summons should be served on the person in whose favour VTA was executed.

- Pacific Micronisian Line, Inc. Vs del Rosario: In order that a foreign corporation may be regarded as doing business in the Phil., there must be continuity of conduct and intention to establish a continuous business, such as the appointment of a local agent, and not one of a temporary character.

- Linger & Fisher vs IAC: A Phil. Corp entered into a contract with a foreign corp. The foreign corporation agreed to be sued in the Phil. Is Sec. 12 applicable? No. Since it is not doing business here, it is more accurate to apply the rules on Sec. 15 on extraterritorial service of summons of a non-resident defendant who is not physically here.

6. Service of summons upon public corporation

Section 13. Service upon public corporations. When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct.

- an example of a public corporation is the Republic of the Philippines. As a rule, they cannot be sued. But in cases where it can be sued, summons may be effected on the Solicitor General being the representative of the Republic.

- If provinces , cities or municipalities, service may be effected on the executive heads such as the provincial governor, municipal or city mayor

- Summons may also be effected on such other officers as the law or the court may direct. So the court may order that the summons be served on the city legal officer.

Section 18. Proof of service. The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy.

- This is called a sheriffs return where the sheriff will state the manner (personal or substituted, publication); place and date; to whom served. Then you specify that you also serve the complaint. Name of person who received the same

- No need for the return to be sworn to, except when made by a person other than a sheriff or his deputy.

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Section 19. Proof of service by publication. If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. Section 20. Voluntary appearance. The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.

- Even when there is no summons, or if there is improper service of summons, if the defendant files an answer, then in effect, he is submitting himself to the jurisdiction of the court and the court acquires jurisdiction over his person by voluntary appearance

- Voluntary appearance is not necessary an answer. Like a motion for an extension of time to file an answer, or a motion for bill of particulars that is indicative of his submission to the jurisdiction of the court

- When a defendant files a motion to dismiss on the ground that the court has not acquired any jurisdiction over his person, that is not voluntary appearance; that is a SPECIAL APPEARANCE precisely to question the jurisdiction of the court over his person. A special appearance does not indicate intention to submit to the jurisdiction of the court.

RULE 15 MOTIONS Section 1. Motion defined. A motion is an application for relief other than by a pleading.

- In a motion the party is asking the court for a favour other than what is contained in the pleading

- In a motion, you are asking for another relief other than the main cause of action or the main defense (ex: motion to postpone trial)

- Pleadings are limited to those enumerated in Rule 6 such as complaint, answer, cross-claim, counterclaim, etc. But if you look at a motion, it looks like a pleading. In form, it looks exactly like a pleading but under the law, it is not a pleading.

- However. There are 3 exceptions to this. Meaning, you pray, by way of motion for a relief which normally should be prayed in a pleading: 1) Motion for judgment to the demurrer to evidence (Rule 33); 2)Motion for Judgment on the Pleadings (Rule 34); and 3) Motion for Summary Judgment (Rule 35)

Section 2. Motions must be in writings. All motions shall be in writing except those made in open court or in the course of a hearing or trial. Section 3. Contents. A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers.

- It is not necessary that a motion be accompanied by supporting affidavits and other papers unless required by the Rules or necessary to prove facts alleged therein.

- Example: Under Rule 37, Sec. 2, in order for a motion for new trial on the ground of fraud, accident, mistake of excusable negligence to be valid, there must be Affidavit of Merits.

Section 4. Hearing of motion. Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice.

- You must furnish the adverse party a copy of your motion at least 3 days before date of hearing to prevent a surprise upon the adverse party and to enable the latter to study the motion and file his opposition. So a motion cannot be filed ex-parte, meaning, without notice of hearing and without furnishing a copy to the opponent.

- Service of a copy of a motion containing a notice of the time and the place of hearing of that motion is a mandatory requirement, and the failure of movants to comply with these requirements renders their motions fatally defective.

- However a motion need not be set for hearing if it is not a litigated motion (motion which court may act upon without prejudicing the rights of the adverse party such as motion for extension of time to file answer)

- If a party files a motion serving upon the adverse party the motion in less than 3 days, the court may refuse to take action on the motion, unless the court for good cause sets the hearing on a shorter notice.

Section 5. Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion.

- A motion without a notice of hearing is nothing but a mere scrap of paper filed in court, which should be disregarded and ignored.

- It should be addressed to all parties concerned and not the clerk of court

- You must specify the time and date of the hearing which must not be later than 10 days after filing of the motion

Section 6. Proof of service necessary. No written motion set for hearing shall be acted upon by the court without proof of service thereof.

- only exception are motions which can be filed ex-parte because they are not controversial; another example is Rule 23, Sec. 21 on indigent or pauper litigants

REQUISITES FOR A VALID MOTION 1. Shall be IN WRITING.

EXCEPT those made in open court in the course of a hearing or trial 2. Shall state the relief sought and the ground upon which it is based. 3. Must be accompanied by supporting affidavits and other papers (if required by the Rules and necessary to prove the fats alleged). But if already on record, court can check 4. Notice of hearing attached to the motion and the adverse party must receive the motion at least 3 days before date of hearing. UNLESS the court for good cause sets the hearing on shorter notice 5. Notice of hearing addressed to all parties concerned and shall specify the time and date of the hearing w/c must not be later than ten (10) days after filing. 6. There must be proof of service of the motion to adverse party. GR: a motion cannot be filed ex-parte. EXCEPT those not controversial (can be filed exparte)

Section 7. Motion day. Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working day.

- Exception: motions which require urgent action

Section 8. Omnibus motion. Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived.

- The word omnibus means all embracing or all encompassing - Omnibus motion is one attacking a pleading, order,

judgment, or a proceeding which shall include all objections then available and objections not so included shall be deemed waived.

- Example: Motion to Dismiss. In effect, it attacks a proceeding. If you two or more grounds, you file only one motion to dismiss invoking those grounds because the rule is, any ground not so invoked is deemed waived.

- So principle is, if you have 2 or more grounds you should only file one motion where you invoke all your grounds.

- Exceptions: 1. Lack of jurisdiction over the subject matter 2. Litis pendentia 3. Res adjudicate 4. prescription

Section 9. Motion for leave. A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted.

- when you file a motion, the pleading to be admitted must already be included in your motion. The pleading sought to be amended must already be included in the motion.

Section 10. Form. The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form.

RULE 16 MOTION TO DISMISS Section 1. Grounds. Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

(a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is enforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with.

- counterpart of motion to quash in CrimPro - not a pleading - hypothetically admits the truth of the factual allegations of the

complaint such matters of fact that have been sufficiently pleaded.

- Conclusions of law not deemed hypothetically admitted. - Apply Omnibus Motion Rule: when M2D is filed all grounds

available at the time it is filed must be invoked in the motion. Grounds not so invoked are deemed waived. The grounds not waived however, are lack of jurisdiction over subject matter, litis pendencia, res judicata and prescription.

- If no motion to dismiss has been filed, any of the grounds for dismissal provided in the Rules may be pleaded as an affirmative defense in the answer, and in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. Based on the foregoing, a preliminary hearing undeniably is subject to the discretion of the trial court. The trial courts order granting or dispensing with the need for a preliminary hearing may not be corrected by certiorari absent any showing that the trial court had acted without jurisdiction or in excess thereof or with such grave abuse of discretion as would amount to lack of jurisdiction SC has advised against the filing of M2D and instead, has encouraged the alleging of the grounds as defenses in the Answer.

- you file a motion to dismiss within the time for but before filing the answer. So, within 15 days instead of filing an answer the law allows the defendant to file instead a motion to dismiss. The principle is within 15 days from receipt of the summons and the complaint, the defendant should file an answer or in lieu of an answer he may instead file a motion to dismiss based on the grounds enumerated in section 1.

- A motion to dismiss that is filed after the answer has been filed, is considered filed out of time and the defending party is stopped from filing the motion to dismiss

- However, a motion to dismiss may be filed even after the filing of the answer and will not be considered filed out of time if the ground raised in the motion is either of the following: (a) Lack of jurisdiction over the subject matter; (b) Litis pendencia; (c) Res judicata; or (d) Prescription (Sec. 1 Rule 9).

Under said rule, when any of the above grounds appears from the pleadings or from the evidence on record, the court shall dismiss the claim. The authority given to the court is, from the tenor of the rule, not only mandatory but also subject to a motu proprio dismissal. Since the ground for dismissal may appear from the evidence, it is obvious that the dismissal may be made during the trial and this means, even after the answer has been filed

- M2D is available not only for the purpose of dismissing the complaint but also for dismissing a counterclaim, a cross-claim, a third party complaint because the laws says before filing the answer to the complaint or pleading asserting a claim.

First Ground: [a] THAT THE COURT HAS NO JURISDICTION OVER THE PERSON OF THE DEFENDING PARTY - When there is absence of summons or improper service of

summons. - one of the weakest grounds for a motion to dismiss for there are

many exceptions, waivers (the court many acquire jurisdiction over your person in some other capacity):

voluntary appearance (even if there was defect in service of summons, but you filed for a bill of particulars)

even if the summons was not properly served, if actually it came to