2013 (Remedial Law) Bar Exam Questions: Essay Question 1

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I.

Alfie Bravo filed with the Regional Trial Court of Caloocan, a complaint for a sum of money against Charlie Delta. The claim is for Php1.5Million. The complaint alleges that Charlie borrowed the amount from Alfie and duly executed a promissory note as evidence of the loan. Charlie’s office secretary, Esther, received the summons at Charlie’s office.Charlie failed to file an answer within the required period, and Alfie moved to declare Charlie in default and to be allowed to present evidence ex parte. Ten days later, Charlie filed his verified answer, raising the defense of full payment with interest.

I(A) Was there proper and valid service of summons on Charlie? (3%)

I(B) If declared in default, what can Charlie do to obtain relief? (4%)

9 comments

  1. My answer…

    A. None.

    Under the RRC, summons should be served personally on the defendant and only if personal service cannot be done within a reasonable period of time, then substituted service of summons may be resorted to.

    Here, no personal service of summons was made to Charlie prior to making substituted service of the same to his Secretary.

    As per Lawyer friend…

    B. File a Motion to Lift order of default citing therein that he failed to give an answer because no proper and valid personal service of summons was made to him and the defense of full payment with interest.

    1. Pareho tayo ng answer Benj but may nakapagsabi sa akin na under letter A that the service of summons was not proper but still valid considering that he was still able to file an answer, and there is this jurispudence daw that as long as the court has not yet declared him in default, the court should accept such answer. In this case there was a motion but there was no resolution yet. I dont know if tama ba yung sinabi sakin.

      1. may point yung nagsabi sa iyo anon, there must first be a declaration of default. sa akin iba attack ko here kasi i read somewhere that service to an office secretary who is given the appearance of power to accept is valid. Just like the case of the security guards in ayala alabang where the server was prevented from entering the village under the strict instruction of the homeowner. the court held that the service of the summon to the guards were valid because every person can easily avert court process by giving strict instructions to inform the secretary/gatekeeper that they are not there.

      2. A. Although mali na nga ang naisagot ko dito, dinagdag ko lang na there must be written explanation why personal service cannot be made, and that there must be bonafide attempt to serve personally and according to a case at least 3 times na attempt to serve personally would suffice.

      3. B. Dito naman aside from motion to set aside which is found in the rules on effect of failure to plead, i included other remedies to obtain relief kasi parang obvious kung yung motion to set aside lang, if that is denied may mga remedies on appeal, annulment of judgement etc. basta i discussed these remedies based on their requirements under the rules.

  2. A.) No, there was no valid service of summons.

    Under the Rules of Court, substituted service of summons may only be availed of if it is shown that there is impossibility of personal service of summons, otherwise the substituted service of summons would be considered ineffective.

    In the case at bar, there is no showing that personal service of summons has been availed of by the Petitioner.

    Hence, for failing to comply with the rules provided for by law, the service of summons issued against Charlie is ineffective.

    B.) I would make a distinction:

    The rules provide that if a party is properly held in default, he may file a motion to lift order of default. However, if a party has been improperly held in default, the proper remedy to be availed of is certiorari under rule 65.

    In the instant case, Charlie was improperly held in default since no valid service of summons has been issued against him.

  3. Rule 13, SEC. 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. (4a)

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