remrev 072719.docx - 1 What is “omnibus motion rule”...

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1. What is “omnibus motion rule”? Ans: The omnibus motion rule provides that “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. (Rule 15, Sec. ? 2. What is/are the consequences of failure to include notice of hearing in an adversarial motion? Ans: It will be regarded as a mere scrap of paper. b) To whom should the notice of hearing be addressed? Ans.The notice of hearing should be addressed to the adverse counsel; c) What should the notice of hearing include?Ans: It should contain a direction to the parties concerned, the time and place of hearing. (rule15, Sec. 5) 3. a) What are the requisites of a valid declaration of default?; b) can the court declare a defendant in default mutoproprio? Explain. a. In Spouses Lumanas v. Sablas, the Supreme Court held that, there are three requirements which must be complied with before the court can declare the defending party in default, to wit: 1 the claiming party must file a motion asking the court to declare the defending party in default; 2 the defending party must be notified of the motion to declare him in default; and 3 the claiming party must prove that the defending party has failed to answer within the period provided by the Rules of Court. b. No. In Spouses Lumanas v. Sablas, the Supreme Court held that the rule on default requires the filing of a motion and notice of such motion to the defending party. It is not enough that the defendant fails to answer the complaint within the reglementary period. The trial court cannot motu proprio declare a defendant in default as the rules leave it up to the claiming party to protect his or its interests. The trial court should not under any circumstances act as counsel of the claiming party. 4. In a collection case filed with the RTC, defendant filed a motion to admit belatedly filed answer attaching thereto a copy of his answer. As the answer was filed thirty days late, the judge denied its admission and instead issued an order declaring the defendant in default. Is the judge correct? Explain. No. In Spouses Lumanas v. Sablas, the Supreme Court held that the rule on default requires the filing of a motion and notice of such motion to the defending party. It is not enough that the defendant fails to answer the complaint within the reglementary period. The trial court cannot motu proprio declare a defendant in default as the rules leave it up to the claiming party to protect his or its interests. The trial court should not under any circumstances act as counsel of the claiming party. (Answer of 3.b. and 4 is the same because the questions essentially ask for the validity of a motu proprio declaration of default) 5. a) What are the grounds for dismissal of a complaint?; b) What are the remedies of the plaintiff when a motion to dismiss is granted by the court?; c) What are the remedies of the defendant when his motion to dismiss is denied?
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  • Spring '14
  • atty. torreon
  • Pleading, Federal Rules of Civil Procedure

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