General Principles:
1. This is a remedy available to the plaintiff OR defendant when affirmative relief is claimed in his answer.
2. This remedy can be availed of during the pendency of the action and not necessarily at the time of the complaint or answer of the party concerned.
3. A notice of Lis Pendens is proper where there is a proceeding in court which affects the title to or possession of real property. It includes those that establish an equitable estate, interest or right in specific real property or to enforce any lien, charge or encumbrance against it arising during the progress of the suit.
Purpose:
It is intended to protect the real rights of the party who caused the registration thereof. It will serve as a notice (not a lien) that such property is a subject of litigation.
This is important because of the possibility that the subject property may be dispose during the pendency of the action.
Contents of Notice of Lis Pendens 1. Names of the parties
2. Object of the action or defense 3. Description of the property
How to cancel a Notice of Lis Pendens?
A notice of Lis pendens may be cancelled upon a court order 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 party who cause it to be recorded.
Lis Pendens conta Litis Pendentia
Lis Pendens (Sec 14, Rule 13) Litis Pendentia (Sec 1, Rule 16)
32 Notes on Civil Procedure-2012/
elmerpaquitolalong legal resources @ www.sophialegis.weebly.com1.
The annotation of Lis pendens can be cause by theplaintiff OR defendent when affirmative relief is claimed in his answer
2.
It is submitted to the Registry of Deeds of the province in which the property is situated. (no required form, as long as it is written)3.
Not a ground for motion to dismiss, but serve as a notice to third parties that the real property is subject of a pending litigation4.
It can only be availed during the pendency of the action and not necessarily at the time of the complaint or the answer of the party concerned.5.
It is proper only where there is an action or proceeding in court which affects the title to possession of real property. It includes those that establish an equitable estate, interest or right in specific real property or to enforce any lien, charge or encumbrance against it arising during the1. Defendant’s voluntary appearance is equivalent to summons (Sec 20, Rule 15). The first mode of acquiring jurisdiction over the person of the defendant is voluntary appearance not through summons. Because even if there was a defect in the service of summons, it is cured by the voluntary appearance of the defendant.
2. If you do not initiate any move to serve the summons, the court after an inventory and after the lapse of 30 days, dismiss the case on the ground of failure to prosecute.
Side comment: bigyan mo ng pamasahe si sheriff para i-serve ang summons! Kasi baka mas magaling yong defendant. Baka pagpunta ng sheriff sa kanyang bahay sabihin kaagad, sheriff baka gusto mo munang magpahinga o magbakasyon….todas!
3. Before answering a problem regarding summons look at the character of the defendant- is she a resident defendant or a non-resident defendant [the word used by the rules is resident not citizenship or nationality].
4. Before answering a problem regarding summons look also into the nature of the action whether it is an accion in personam, accion in rem or accion quasi in rem.
5. Defective service of summons is a ground for dismissal of the case on the ground of lack of Jurisdiction over the person of the defendant. This ground is not jurisdictional because it can be waived.
6. If the defendant questions the jurisdiction of the court over his person due to defective service of summons, it does not amount to voluntary appearance.
Note: The inclusion in the motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance
What are summons?
A writ or process issued by the court and served upon the defendant in a civil action for the purpose of securing his appearance therein.
Who serves the summons?
The sheriff, and not the judge or plaintiff
33 Notes on Civil Procedure-2012/
elmerpaquitolalong legal resources @ www.sophialegis.weebly.comHow do we know that summons was properly served?
Read the sheriff‟s return of service of summons. Check if the manner of service was in compliance with the requirements of the Rules regarding service of summons.
What is the effect of lack of summons or invalid service of summons?
The proceeding is not binding or it is a dismissible on the ground of lack of jurisdiction over the person of the defendant.
What is the purpose of summons?
1. To comply with the constitutional rights of due process.
2. The service of summons enables the court to acquire jurisdiction over the person of the defendant. If there is no service of summons, any judgment rendered or proceedings had in a case are null and void, except when there is voluntary appearance of the defendant.
What is an alias summons?
A summons issued when original has not produced its effect because defective in form or manner of service, and when issued, supersedes the original summons.
Important Concepts in Relation to Summons Accion in personam
It is an action against a person on the basis of his personal liability.
In an action in personam there is a specific defendant and the plaintiff is asking that defendant to be liable.
“May tiyakang defendant na tinutumbok!”
In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case.
Examples of Accion in Personam
1. Actions for damages- you do not ask the whole world to be liable to the damage you had.
2. Actions for recognition- you do not ask the whole world to recognized a child. Ano siya anak ng buong bayan?!
3. Actions for unlawful detainer and forcible entry 4. Actions for injunction
5. Actions for specific performance 6. Actions for breach of contract Accion in Rem
It is an action against the thing itself instead of against the person.
In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction over the res.
Nonetheless summons must be served upon the defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements.
Examples of Actions in Rem
1. Cadastral proceedings- there is no specific defendant. Although there is a pro-forma defendant but you are not asking him to be liable.
2. Annulment of marriage- though the husband is designated as a defendant but you are not asking him to be liable, ergo no specific defendant, but an action against the whole world.
3. Land registration proceedings 4. Probate proceedings
Accion Quasi-in-rem
34 Notes on Civil Procedure-2012/
elmerpaquitolalong legal resources @ www.sophialegis.weebly.comIt is an action which names a person as defendant but its object is to subject that person's interest in a
property to a corresponding lien or obligation or an action pertaining to the status of a person. The decision which is called judgment quasi-in-rem is binding only between the parties.
There is a specific individual who is interested in a property but it‟s actually the property which is the focal point of the suit.
Example
1. Actions for partition of co-owned real property 2. Actions for accounting of property
3. Actions for foreclosure of mortgage
How can the court acquire jurisdiction over the res (subject matter of the complaint)?
1. By the seizure of the property under legal process, whereby it is brought into actual custody of the law.
2. As a result of the institution of legal proceedings in which the power of the court is recognized and made effective.
MODES OF SERVICE OF SUMMONS