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2022 MOCK BAR

EXAMINATIONS

REMEDIAL LAW I
DEAN FERDINAND A. TAN, LL.M.

DISTRIBUTED BY:

ACADEMICUS REVIEW CENTER, INC.

Series of 2022

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I.
A resident of Manila filed a case against B who is a resident of Batangas City for
Collection of Sum of Money in the amount of 10M Pesos for a loan he obtained from the
former in the RTC of Manila. A through counsel C filed a Motion for Leave of Court to allow
the plaintiff to serve the summons to B which was granted by the court. A went to Batangas
City but cannot locate the place of B, so he went back to Manila and submitted to the court
an Affidavit of Service stating that he was able to serve the summons to B. For failure of B to
file his answer Judge D declared him in default and an ex-parte presentation of evidence was
made by A through counsel C. During the said ex-parte presentation of evidence Judge D
asked A as to how and to whom the summons was served, and the manner of service, A
through counsel C cannot answer the questions. Doubtful, Judge D conducted an
investigation and found out that A is not telling the truth.

a) What would be the effects of the acts of A?

A: Sec. 2, Rule 14 states that “If the plaintiff misrepresents that the defendant was served
with summons, and it is later proved that no summons was served, the case shall be:

1) Dismissed with prejudice;

2) The proceedings shall be nullified; and
3) The plaintiff shall be meted appropriate sanctions.

II.

A filed a case for Collection of Sum of Money against B before the Regional Trial Court
of Manila for the loan he obtained from A in the amount of P2M as evidenced by the
promissory note he executed and the checks he issued. B was served with Summons and filed
his answer but failed to deny the due execution of the said promissory note under oath.
A) If you will be the counsel for A, what is your legal remedy? Why? Basis.

A: The remedy is a Motion for Judgment on the pleadings under Sec. 1, Rule 34 of the 2019
Amendments to the 1997 Rules on Civil Procedure since the failure to deny under oath the
genuineness and due execution of the promissory note being an actionable document would
result to an implied admission under Sec. 8, Rule 8.

b) If assuming the case is on a pre-trial stage, and the Court determines that there is
no issue in the case based on the pleadings, Can the court submit the case for decision? Why?
basis.

A: Pursuant to Section. 10 of Rule 18 which provides that “Should there be no more

controverted facts, or no more genuine issue as to any material fact, or an absence of any
issue, or should the answer fail to tender an issue, the court shall, without prejudice to a
party moving for judgment on the pleadings under Rule 34 or summary judgment under Rule
35, motu proprio include in the pre-trial order that the case be submitted for summary
judgment or judgment on the pleadings, without need of position papers or memoranda. In
such cases, judgment shall be rendered within ninety (90) calendar days from termination
of the pre-trial.
c) Can B through counsel file a petition for certiorari questioning the Order of the
Court? Why? Basis.

A: NO. Under Sec. 10 of Rule 18, it is expressly provided that “The order of the court to submit
the case for judgment pursuant to this Rule shall not be the subject to appeal or certiorari.

III.
A filed an Unlawful Detainer case before the MTC of Manila against B, C & D by mere
tolerance. After hearing judgment was rendered by the judge ordering the defendants to
vacate and pay A the amount of P300,000.00 representing reasonable fees for the use of the
lot. B C & D filed an appeal but failed to post a bond. A filed a motion for execution which was
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granted by the court. Despite notice to vacate, defendants refused to vacate hence, the filing
of a writ of demolition. Before the demolition BCD filed a petition for writ of amparo due to
the threatened violation of their right to life and security.

a) If you were the Judge, how would you rule on the petition?
A: I will deny the petition.

The Honorable Supreme Court in the case of Canlas vs. Napico, G.R. No. 182795, June
5, 2008, it aptly ruled that “The threatened demolition of a dwelling by virtue of a final
judgment of the court, which in this case was affirmed with finality, is not included among
the enumeration of rights as stated in the above-quoted Section 1 for which the remedy of a
writ of amparo is made available.

The remedy available to the defendants is to perfect an appeal from the decision of
the Regional Trial Court pursuant to Sec. ____ of Rule 70 of the 1997 Rules of Civil Procedure
and not through petition for writ of amparo, and amparo is not a substitute for a lost appeal,
neither of certiorari.

Also, the instant case involves forcible entry and does not involve extra-legal killings
or enforced disappearance.

IV.
A was a manager of Smart’e Telecommunication Company and one of the privileges
given to her is the car which she can use as part of the employment package. During A’s stint
with the company, she had a misunderstanding with B, the President of the company and as
a consequence A was terminated. A did not report for work and did not return the car.
Smart’e Telecommunication through B filed a case for Replevin with application for Writ of
Replevin. A filed a motion to dismiss the complaint on the ground that the claim of Smart’e
arose out of employer-employee relationship and the court has no jurisdiction over the
subject matter of the case.

a) If you were the judge, how would you rule with basis?

A: I will deny the motion.

The RTC rightfully assumed jurisdiction over the suit and acted well within its
discretion in denying A’s motion to dismiss. SMART’s demand for payment of the market
value of the car or, in the alternative, the surrender of the car, is not a labor, but a civil
dispute. It involves the relationship of debtor and creditor rather than employee-employer
relations. As such, the dispute falls within the jurisdiction of the regular courts.

V.

A obtained a loan from B in the amount of 5M Pesos payable in six (6) months, and
executed a Real Estate Mortgage over the property owned by A located in Batangas City with
an express stipulation that in case of failure of A to pay the loaned amount, B shall foreclose
the mortgaged property extra-judicially by a notary public which shall be governed by Act.
3135, as amended. A failed to pay the said loan of the agreed date, which prompted B to
extra-judicially foreclose the mortgaged property of A before a notary public of Batangas
City. After the said foreclosure, A has a deficiency of 1M Pesos to B since the foreclosed
property was valued at 4M Pesos only.

a) If you were the counsel of B, what is your legal remedy?

b) Where will the venue of the action?

Answer:
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I will file an action for deficiency judgment before the MTC since the remaining unpaid
balance of the loan is 1M Pesos falling within the jurisdiction of the said Court pursuant to
R.A. 11576 amending the provision of Sec. 33 of B.P. 129 which states that”

“Exclusive original jurisdiction over civil actions and probate proceedings, testate and
intestate, including the grant of provisional remedies in proper cases, where the value of the
personal property, estate, or amount of the demand does not exceed Two million pesos
(P2,000,000.00), exclusive of interest, damages of whatever kind, attorney’s fees, litigation
expenses, and costs, the amount of which must be specifically alleged: Provided, That
interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs shall be
included in the determination of the filing fees. Xxx”

b) With respect to the venue of action for deficiency judgment, it being a personal
action, it shall be filed where the plaintiff resides or where the defendant resides at the
election of the plaintiff under Sec. 2, Rule 4 of the 2019 Amendments to the Rule on Civil
Procedure.

VI.

A leased a commercial property to B located in the City of Manila with a stipulation

that B cannot sub-lease the premises to another and the boarding house in the said premises
is being managed by C. During the effectivity of the lease contract, B went to Hongkong to
work as Domestic Helper, while C was left to manage the boarding house. A found out that B
sub-leased the property and terminated the contract. A filed a case before the barangay
against B who failed to appear. After demand to vacate for violation of the lease contract, A
filed a Complaint Unlawful Detainer before the MTC of Manila, but counsel for B filed a
Motion to Dismiss based on lack of barangay conciliation.

a) If you were the judge, how would you rule on the motion?

A: I will grant the Motion.

A Motion to Dismiss a complaint as a general rule is a prohibited motion under Sec. 2,

Rule II of the Expedited Rules of Procedure in First Court, except lack of jurisdiction or failure
to comply with referral of the case to the lupon for conciliation. Further, referral of the case
to the lupon shall if the parties are actual residents of the barangay.

Here, B (lessor) the real party-in-interest, is residing in Hongkong and not an actual
resident of the barangay where the defendant A is residing, the local lupon has no jurisdiction
over their dispute, hence, prior referral to it for conciliation is not a pre-condition to its filing
in court. (Dante M. Pascual represented by Reymel R. Sagario vs. Marilou M. Pascual, G.R. No.
157830, November 17, 2005)

VII.

A corp. was issued a permit to close and conduct excavation of La Paz Road a major
road connecting all barangays of Binan Laguna. Residents of other barangays filed before the
court a class suit since they are affected by the closure and excavation of the said La Paz Road.
During the pendency of the action residents of some other barangays who are also affected
by the closure of the said road also filed a manifestation before the court that they are
similarly situated with that of the complainants in the case.

a) Will the class suit prosper? Why? Basis?

Answer:

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Yes.

The Honorable Supreme Court in the similar case of Juana Complex I Homeowners
Association, Inc., et. al., vs. Fil-Estate Land, Inc., et. al., G.R. No. 152272, March 5, 2012) answered
the question in the affirmative.

The subject matter of the action is of common and general interest to many residents
of different barangays of La Paz, Laguna in connection with the closure of the road due to the
its excavation being undertaken, thereby affected the rights of the affected residents to use
the said major road in going in and out of Laguna.

Therefore, the requirement as provided under Sec. 12, Rule 3 on Class suit has been
satisfied that the case involves subject matter which is of common or general interest to
many persons.

VIII.

a) What is third party complaint?

A: A third (fourth, etc.)-party complaint is a claim that a defending party may, with
leave of court, file against a person not a party to the action, called the third (fourth, etc.)-
party defendant for contribution, indemnity, subrogation or any other relief, in respect of his
or her opponent's claim.
b) When can the court deny a third- party complaint?

A: Under Sec. 11, Rule 6, it shall be denied admission and the court shall require the
defendant to institute a separate action, where:

a) The third (fourth, etc) party defendant cannot be located within thirty (30)
calendar days from the grant of such leave;
b) Matters which are extraneous to the issue in the principal case is raised?
c) the effect would be to introduce a new and separate controversy into the action.

3) What is the rule on presumptive service of notice of court setting under the 2019
Amendments to the 1997 Rules of Civil Procedure?

A: Section 10. Presumptive service. — There shall be presumptive notice to a party of a court
setting if such notice appears on the records to have been mailed at least twenty (20)
calendar days prior to the scheduled date of hearing and if the addressee is from within the
same judicial region of the court where the case is pending, or at least thirty (30) calendar
days if the addressee is from outside the judicial region.”

IX.

A obtained a loan from B in the amount of P2,000,000.00 and executed a Real Estate
Mortgage over A’s property in Cebu City which is payable in six (6) months. After six (6)
months agreed upon, A failed to pay his obligation to B despite oral and written demand to
pay from B. B filed an action for foreclosure of real estate mortgage and collection of Sum of
Money against A in the Regional Trial Court of Cebu.

a) Is B Correct? Why Basis?

A: No.

The rule on joinder of causes action under Sec. 5, Rule 2 of the 1997 Rules of Civil
Procedure, as amended, requires that the joinder shall not include special civil actions
governed by special rules. (Roman Catholic Archbishop of San Fernando Pampanga vs.

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Fernando Soriano, Jr., et al., G.R. No. 153829, August 17, 2011)

Applying the above rule in the case, since a Collection of Sum of Money is an ordinary
civil action and Foreclosure of Real Estate Mortgage is a special civil action under Rule 68,
then the rule on joinder of causes of action shall not apply.

b) Assuming that B files an action for foreclosure of real estate in the Regional Trial
Court of Cebu City where the property is located based on the Real Estate Mortgage executed
by A, and subsequently a Collection of Sum of Money against B based on the loan in the
Metropolitan Trial Court of Manila. Will the actions of B correct?

A: No

It is clearly mandated under Sec. 4, Rule 2 that “If two or more suits are instituted
on the basis of the same cause of action, the filing of one or a judgment upon the merits in
any one is available as a ground for the dismissal of the others.”

Here, in case of a loan secured by a mortgage, the creditor has a single cause. The
creditor (B) cannot split his single cause of action by filing a complaint on the loan, and
thereafter another separate complaint for foreclosure of the mortgage. (Central Visayas
Finance Corporation vs. Sps. Adlawan, G.R. No. 212674, March 25, 2019)

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