motions

Motion for Leave of Court To Serve Summons by Publication Sample

REPUBLIC OF THE PHILIPPINESMETROPOLITAN TRIAL COURT

City of ManilaBranch 1

JOHN DUMAS, Plaintiff, -versus- CIVIL CASE No. 23456 FOR: Recovery of PossessionVAN SHELDON, with Damages Defendant.

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MOTION FOR LEAVE OF COURTTO SERVE SUMMONS BY PUBLICATION

COMES NOW, the plaintiff, through the undersigned counsel and unto this Honorable Court, most respectfully avers:

1. That on August 25, 2012, copy of the summons was served by the process server of this Honorable Court to the defendant on his given address, but defendant is no longer residing on his given address;

2. That considering that the whereabouts of the defendant is unknown and this case affects the property of the defendant, plaintiff most respectfully move with leave of court to serve summons by publication. WHEREFORE, plaintiff prays that the summons be served by publication based on the above reasons.

Such other relief and remedies as may be deemed just and equitable under the premises are likewise prayed for.

City of Manila, August 29, 2012.

ARUM AND SYQUIA LAW OFFICE Counsel for the Plaintiff

Unit 314 The Tower Taft Avenue, Manila

By: CHARLES ARUM

Roll No. 45678 IBP No. 23456/1-3-12/Manila

PTR No. 87654/1-3-12/Manila

NOTICE OF HEARING

VAN SHELDONDefendant

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GREETINGS:

Please submit the foregoing motion for the consideration and approval of the Honorable Court on September 9, 2012 at 2:00 PM.

CHARLES ARUM

Copy furnished: VAN SHELDON 345 Nakpil Street Manila

EXPLANATION

Copy of the Motion to Serve Summons by Publication was served to defendant by registered mail due to time and distance constraints, and for lack of the undersigned’s staff who can serve the same in person.

CHARLES ARUM

Republic of the Philippines

National Capital Judicial Region

METROPOLITAN TRIAL COURT

Branch LXII (62)

Makati City

MARIO BROTHER,

Plaintiff,

- versus - Civil CaseNo. 111222

HELLO KITTY,

Defendant.

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MOTION TO DISMISS

COME NOW, the parties, through their counsels, respectfully moves this Honorable

Court to dismiss the above-caption case with prejudice, on the ground of prescription.

Further, prior to the filing of the aforementioned case, parties have already settled amicable

all claims in dispute and have agreed to forever mutually waive, all claims and

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counterclaims raised, or which could have been raised, by them against each other in the

instant action.

WHEREFORE, in view of the foregoing, it is respectfully prayed before his Honorable

Court, that the instant action, including all claims the parties have against each other, be

DISMISSED, with prejudice.

Makati City, Philippines. August 5, 2013.

ATTY. ANGHEL LOCSIN ATTY. JOHN CRUZ

Counsel for Plaintiff Counsel for Defendant

NOTICE OF HEARING

THE BRANCH CLERK OF COURT

MeTC - Branch 62

Makati City

Greetings!

Please take notice that the undersigned counsel will submit the foregoing Motion to

the Honorable Court on August 27, 2013 at 8:30 in the morning for

its favorableconsideration and approval.

ATTY. ANGHEL LOCSIN ATTY. JOHN CRUZ

Dear PAO,

My brother-in-law borrowed P80,000.00 from me in January 2006.

We agreed that he will return the money without interest after two months or on March 30, 2006.

Unfortunately, he has not paid his indebtedness to me up to now. Can I still file a case against my brother-in-

law for the recovery of my money?

Flordeliza

Dear Flordeliza,

According to Article 1953 of the Civil Code of the Philippines (CCP), a person who receives a loan of money

or any other fungible thing acquires the ownership thereof and is bound to pay to the creditor an equal amount

of the same kind and quality. Hence, your brother-in-law has the obligation to return to you the amount that he

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borrowed on the date and time that you have agreed upon. If he fails to comply with his obligation, you shall

have the right to institute an action against him for the collection of his indebtedness to you.

But even if you were given the right to institute an action against your brother-in-law, the law also gives you a

period of time within which you may assert your right. Your failure to file a case during such period shall

result in the prescription of your right of action against him for the collection of his indebtedness (Article 1139,

CCP). The period of prescription for the collection of sum of money varies depending on the existence of a

written agreement between you and your brother-in-law.

If you and your brother-in-law executed a written contract of loan, you may institute an action for collection of

sum of money within ten (10) years from the time the right of action accrues (Article 1144, CCP). If, however,

you only orally agreed upon the loan, the action shall be considered to have prescribed after the lapse of six (6)

years (Article 1145, CCP).

Hence, since eight (8) years had already lapsed since the obligation of your brother-in-law to pay his loan fell

due, you may institute an action only if you have a written contract of loan. But since the money which you are

claiming is less than one hundred thousand pesos (P100,000.00), your action shall be governed by the Rules of

Procedure for Small Claims Cases. You may file your petition for collection of sum of money before the

Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit

Trial Courts designated as small claims court of the place where you or your debtor lives (En Banc Resolution

No. A.M. No. 08-8-7-SC dated October 27, 2009).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the

facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are

changed or elaborated.

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