dlsu law bar ops special civil actions

7/25/2019 DLSU LAW BAR OPS SPECIAL CIVIL ACTIONS

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LASALLIAN COMMISSION ON BAR OPERATIONSACADEMICS COMMITTEE 2015-2016

LASALLIAN COMMISSION ON

BAR OPERATIONS

PRE-WEEK Q&A

REMEDIAL LAW

ACADEMICS COMMITTEE 2015-2016Committee Head for Academics:

OLIVE GRACE MA. P. CACHAPERODeputy Head:

ANA KATRINA O. CONSTANTINO

Remedial Law TeamSubject Chair for Criminal Law:

GRACE VETUSAssistant: PATRICIA CAALITA

Subject head for CivilProcedureCARL AU & JAS MOLONMembers: ANGELO LOPEZ, LANZ OLIVES, RALPH GERONGA,

JULIAN AGUILAR, FRANCES BUBAN

Subject head for Criminal Procedure JANINE A. GARCIAMembers:SHIRLEY MARIE CADA, ANDREA MARIA THERESE

MAURICIO, JENNIFER BALMEO, JIMUEL MATTIAS, MARIEROJAN PADUA

Subject head for Special ProceedingsGRACE VETUSSubject head for Provisional Remedies -KARLA GUTIERREZ

Subject head for Special Civil Action PATRICIA CANALITASubject head for EvidenceSHIRLEY MARIE CADA

Member: MARIE ROJAN PADUA

SPECIAL CIVIL ACTIONS

Nature of special civil actions

Q: Distinguish Special Civil Actions from OrdinaryCivil Actions

A: Although both types of actions are governed by the rulesfor ordinary civil actions, there are certain rules that areapplicable only to specific special civil actions (Sec. 3[a], Rule1). The fact that an action is subject to special rules other thanthose applicable to ordinary civil actions is what makes a civil

action special.

ORDINARY CIVILACTION

SPECIAL CIVIL ACTION

must always be based on acause of action as defined inSec.2, Rule 2 of ROC.

Not all Special Civil actionsare based on a cause ofaction as defined in section 2of Rule 2 of the ROC. Forinstance in an action forinterpleader, the plaintiffmay file a complaint even ifhe has sustained no actualtransgression of his rights. Infact, he actually has nointerest in the subject matterof the action (Sec.1, Rule 62,ROC).

may be filed initially ineither the MTC of the RTCdepending upon thejurisdictional amount or the

nature of the actioninvolved

There are special civil actionswhich can only be filed in anMTC like the actions forforcible entry and unlawful

detainer. There are alsospecial civil actions whichcannot be commenced in theMTC like the petitions forcertiorari, prohibition, andmandamus.

Venue is determined byeither the residence of theparties where the action ispersonal or by the locationof the property where theaction is real.

Venue varies in differenttypes of special civil actions.

when filed, denominated ascomplaint

Some special civil actionswhen filed are denominatedas petition

Q: Is Jurisdiction in Ordinary Civil Actions the samewith that of Special Civil Actions?A:NO. Ordinary civil actions may be filed initially in either theMTC or the RTC depending upon the jurisdictional amount orthe nature of the action involved. On the other hand, there arespecial civil actions which can only be filed in MTC like theactions for forcible entry and unlawful detainer. Also, there arespecial civil actions which cannot be commenced in the MTCThese are the petitions for certiorari, prohibition, andmandamus (Riano, 2011).

INTERPLEADER (RULE 62)

Q: What are the requisites for Interpleader?A:

1)

There must be two or more claimants with adverse orconflicting interests to a property in the custody orpossession of the plaintiff;

2)

The plaintiff in an action for interpleader has no claimupon the subject matter of the adverse claims or if hehas an interest at all, such interest is not disputed bythe claimants;

3) The subject matter of the adverse claims must be oneand the same; and

4)

The parties impleaded must make effective claims.


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Q: When may a party file an action for InterpleaderA: Whenever conflicting claims upon the same subject matterare or may be made against a person who claims no interestwhatever in the subject matter, or an interest which in whole orin part is not disputed by the claimants, he may bring an actionagainst the conflicting claimants to compel them to interpleadand litigate their several claims among themselves (Sec. 1, Rule62 of ROC).

DECLARATORY RELIEFS AND SIMILAR REMEDIES(RULE 63)

Q: Who may file action for Declaratory Reliefs andsimilar remedies?

A:1)

Any person interested under a deed, will, contract or other

written instrument or whose rights are affected by astatute, executive order or regulation, ordinance or othergovernmental regulation may before breach or violationthereof, bring an action in the RTC to determine anyquestion of construction or validity arising and for adeclaration of his rights or duties, thereunder (Sec. 1,Rule63 of ROC).

2)

Those who may sue under the contract should be thosewith interest under the contract like the parties, theassignees and the heirs as required by substantive law(Art. 1311, Civil Code).

Q: What are the requisites of action for declaratoryrelief?

A:

1)

There must be a justiciable controversy;2)

The controversy must be between persons whoseinterests are adverse;

3)

The party seeking the relief must have legal interest inthe controversy; and

4)

The issue is ripe for judicial determination (Republicvs. Orbecido III, 472 SCRA 114).

Q: When may court refuse to make judicialdeclaration?

A:a)

A decision would not terminate the uncertainty orcontroversy which gave rise to the action; or

b)

The declaration or construction is not necessary andproper under the circumstances as when the

instrument or the statute has already been breached(Sec. 5, Rule63 of ROC).

Q: May action for declaratory relief be converted intoordinary civil action?

A: YES. If before final termination of the case, a breach shouldtake place, the action may be converted into ordinary action toavoid multiplicity of suits (Republic vs. Orbecido, G.R. No.154380, Oct. 5, 2005).

Q: What are proceedings considered as similarremedies?

A:a)

Action for reformation of an instrument;b)

Action for quieting of title; and

c)

Action to consolidate ownership (Art. 1607, CiviCode).

REVIEW OF JUDGMENTS AND FINAL ORDERS ORRESOLUTIONS OF THE COMELEC AND COA

Q: May judgment or final order or resolution of theCommission on Elections and Commission on Audit

be brought by the aggrieved party to the SupremeCourt on certiorari under Rule 65?

A: YES. A judgment or final order or resolution of theCommission on Elections and the Commission on Audit maybe brought by the aggrieved party to the Supreme Court oncertiorariunder Rule 65 (Sec. 2, Rule64 of ROC). Sec. 7, ArtIX-A of the Constitution reads, unless otherwise provided bythe Constitution or by law, any decision, order or ruling of each

commission may be brought to the Supreme Court oncertiorariby the aggrieved party within 30 days from receipt ofa copy thereof. The provision was interpreted by the SupremeCourt to refer to certiorari under Rule 65 and not appeal bycertiorari under Rule 45 (Aratuc vs. COMELEC, 88 SCRA 251;Dario vs. Mison, 176 SCRA 84). To implement the aboveconstitutional provision, the SC promulgated Rule 64.

APPLICATION OF RULE 65 UNDER RULE 64

Q: Will the filing of the petition for certiorari stay theexecution of the judgment, final order or resolution ofthe COMELEC and COA sought to be reviewed?

A: NO. The filing of a petition for certiorarishall not stay the

execution of the judgment or final order or resolution sought tobe reviewed, unless the SC directs otherwise upon such termsas it may deem just (Sec. 8, Rule64 of ROC). To prevent theexecution of the judgment, the petitioner should obtain atemporary restraining order or a writ of preliminary injunctionbecause the mere filing of a petition does not interrupt thecourse of the principal case.

Q: Differentiate Rule 64 from Rule 65.A:

Rule 64 Rule 65

Directed only to the judgments,final orders or resolutions of theCOMELEC and COA;

Directed to any tribunalboard or officers exercising

udicial or quasi-judicialfunctions;

Filed within 30 days from noticeof the judgment;

Filed within 60 days fromnotice of the judgment;

The filing of a motion forreconsideration or a motion fornew trial if allowed, interruptsthe period for the filing of thepetition for certiorari. If themotion is denied, the aggrievedparty may file the petitionwithin the remaining period,but which shall not be less than5 days reckoned from the noticeof denial.

The period within which tofile the petition if the motionfor reconsideration or newtrial is denied, is 60 daysfrom notice of the denial ofthe motion.


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Certiorari, Prohibition and Mandamus

Q: Distinguish prohibition and mandamus frominjunction.

A:

Prohibition Mandamus Injunction

Prohibition is anextraordinary writcommanding atribunal,corporation, boardor person, whetherexercising judicial,quasi-judicial orministerial

functions, to desistfrom furtherproceedings whensaid proceedings arewithout or in excessof its jurisdiction, orwith abuse of itsdiscretion, therebeing no appeal orany other plain,speedy and adequateremedy in theordinary course oflaw (Sec. 2, Rule 65of ROC).

Mandamus is anextraordinary writcommanding atribunal,corporation, boardor person, to do anact required to bedone:(a) When he

unlawfullyneglects theperformance of anact which the lawspecificallyenjoins as a duty,and there is noother plain,speedy andadequate remedyin the ordinarycourse of law; or(b) When oneunlawfullyexcludes another

from the use andenjoyment of aright or office towhich the other isentitled (Sec. 3,Rule 65 of ROC).

Main action forinjunction seeks toenjoin the defendantfrom the commissionor continuance of aspecific act, or tocompel a particularact in violation of therights of the

applicant.Preliminaryinjunction is aprovisional remedy topreserve the statusquo and preventfuture wrongs inorder to preserve andprotect certaininterests or rightsduring the pendencyof an action.

Special civil action Special civil action Ordinary civil action

To prevent anencroachment,excess, usurpation orassumption ofurisdiction;

To compel theperformance of aministerial andlegal duty;

For the defendanteither to refrain froman act or to performnot necessarily a legaland ministerial duty;

May be directedagainst entities

exercising judicial orquasi-judicial, orministerial functions

May be directedagainst judicial

and non-judicialentities

Directed against aparty

Extends todiscretionaryfunctions

Extends only toministerialfunctions

Does not necessarilyextend to ministerial,discretionary or legalfunctions;

Always the mainaction

Always the mainaction

May be the mainaction or just aprovisional remedy

May be brought inthe Supreme Court,Court of Appeals,

May be brought inthe SupremeCourt, Court of

May be brought in theRegional Trial Courtwhich has jurisdiction

Sandiganbayan, orin the Regional Trial

Court which hasurisdiction over theterritorial areawhere respondentresides.

Appeals,Sandiganbayan, or

in the RegionalTrial Court whichhas jurisdictionover the territorialarea whererespondentresides.

over the territorialarea where

respondent resides.

Q: What is an injunctive relief?A: The court in which the petition is filed may issue ordersexpediting the proceedings, and it may also grant a temporaryrestraining order or a writ of preliminary injunction for thepreservation of the rights of the parties pending suchproceedings (Sec. 7, Rule65 of ROC).

Q: What are the exceptions to filing of motion forreconsideration before filing petition for certiorari?

A:1)

When the issue is one purely of law;2)

When there is urgency to decide upon the question andany further delay would prejudice the interests of thegovernment or of the petitioner;

3)

Where the subject matter of the action is perishable;4)

When order is a patent nullity, as where the court a quohas no jurisdiction or there was no due process;

5)

When questions have been duly raised and passed upon bythe lower court;

6)

When there is urgent necessity for the resolution of thequestion;

7)

When Motion for Reconsideration would be useless, e.gthe court already indicated it would deny any Motion forReconsideration;

8)

In a criminal case, where relief from order of arrest isurgent and the granting of such relief by the trial court isimprobable;

9)

Where the proceeding was ex parte or in which thepetitioner had no opportunity to object;

10)

When petitioner is deprived of due process and there isextreme urgency for urgent relief; and

11)

When issue raised is one purely of law or public interest isinvolved

Q: What are the reliefs petitioner is entitled to in apetition for certiorari?

A:1)

The primary relief will be annulment or modification ofthe judgment, order or resolution or proceeding subject ofthe petition (Sec.1 Rule65 of ROC).

2)

may also include such other incidental reliefs as law andjustice may require (Sec. 1, Rule65 of ROC). The court, inits judgment may also award damages and the execution ofthe award for damages or costs shall follow the procedurein Sec. 1, Rule 39 (Sec. 9, Rule65 of ROC).

Q: Where should a party file certiorari against anaction of Regional Trial Court in election casesinvolving elective municipal officials?


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A:The party should file certiorari to the COMELEC. Sec.50 ofBP Blg. 697provides, The Commission is hereby vested withexclusive authority to hear and decide petitions for certiorari,prohibition and mandamus involving election cases.

This provision remains in full force but only in such cases, asprovided in par.2, Sec.1, Art. IX-C of the 1987 Constitution,where COMELEC has exclusive appellate jurisdiction. In otherwords, the COMELEC has the authority to issue theextraordinary writs of certiorari, prohibition, and mandamus,only in aid of its appellate jurisdiction (Justice HilarionAquino, 2002).

The Supreme Court Ruled: Both the Supreme Court andComelec have concurrent jurisdiction to issue writs ofcertiorari, prohibition, and mandamus over decisions of trialcourts of general jurisdiction (regional trial courts) in election

cases involving elective officials. The Court that takesjurisdiction first shall exercise exclusive jurisdiction over thecase. (Carlos v. Angeles, 346 SCRA 571)

Q: Where to file petition for certiorari, prohibitionand mandamus?

A:

Supreme Court Subject to the doctrine of hierarchyof courts and only when compellingreasons exist for not filing the samewith the lower courts

Regional Trial Court If the petition relates to an act or anomission of an MTC, corporation,board, officer or person

Court of Appeals only If the petition involves an act or anomission of a quasi-judicial agency,unless otherwise provided by law orrules

Court of Appeals orthe Sandiganbayan

Whether or not in aid of appellateurisdiction

Commission onElections

In election cases involving an act oran omission of an MTC or RTC

s amended by AMNo. 07-7-12-SC, Dec.12, 2007

Q: What are the effects of filing an unmeritoriouspetition?

A:1)

The Court may impose motu propio, based on res ipsaloquitur, other disciplinary sanctions or measures onerring lawyers (AM 07-7-12-SC, Dec. 12, 2007).

2)

The court may dismiss the petition if it finds the samepatently without merit or prosecuted manifestly fordelay, or if the questions raised therein are toounsubstantial to require consideration. In such event, thecourt may award in favor of the respondent treble costssolidarily against the petitioner and counsel, in addition tosubjecting counsel to administrative sanctions underRules139 and 139-B.

QUO WARRANTO(RULE 66)

Q: What is the difference between Quo warrantounder Rule 66 and Quo warranto in the OmnibusEelction Code?

A:

Quo Warranto (Rule 66) Quo Warranto (ElectionCode)

Subject of the petition is inrelation to an appointive office;

Subject of the petition is inrelation to an elective office;

The issue is the legality of theoccupancy of the office byvirtue of a legal appointment;

Grounds relied upon are: (a)ineligibility to the position; or(b) disloyalty to the Republic.

Petition is brought either tothe Supreme Court, the Courtof Appeals or the RegionalTrial Court;

May be instituted with theCOMELEC by any votercontesting the election of anymember of Congress, regionalprovincial or city officer; or tothe MeTC, MTC or MCTC ifagainst any barangay official;

Filed within one (1) year fromthe time the cause of ouster, orthe right of the petitioner tohold the office or positionarose;

Filed within ten (10) days afterthe proclamation of the resultsof the election;

Petitioner is the personentitled to the office;

Petitioner may be any votereven if he is not entitled to theoffice;

The court has to declare whothe person entitled to the officeis if he is the petitioner.

When the tribunal declares thecandidate-elect as ineligible, hewill be unseated but the personoccupying the second place will

not be declared as the one dulyelected because the law shallconsider only the person whohaving duly filed his certificateof candidacy, received aplurality of votes.

Q: When may government commence an action forQuo warranto against an individual?

A: An action for the usurpation of a public office, position orfranchise may be commenced by a verified petition brought inthe name of the Republic of the Philippines thru the SolicitorGeneral against:a)

A person who usurps, intrudes into, or unlawfully holds orexercises a public office, position or franchise;

b)

A public officer who does or suffers an act which, by theprovision of law, constitutes a ground for the forfeiture ofhis office;

c)

An association which acts a corporation within thePhilippines without being legally incorporated or withoutlawful authority so to act (Sec. 1, Rule66 of ROC).

Q: When may an individual commence an action forQuo warranto?

A: The petition may be commenced by a private person in hisown name where he claims to be entitled to the public office orposition alleged to have been usurped or unlawfully held orexercised by another (Sec. 5, Rule66 of ROC). Accordingly, theprivate person may maintain the action without the


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intervention of the Solicitor General and without need for anyleave of court (Navarro vs. Gimenez, 10 Phil. 226; Cui vs. Cui,60 Phil. 37).

Q: What is the effect of a guilty judgment in quowarranto action?A: judgment shall be rendered that such respondent be oustedand altogether excluded therefrom, and that the petitioner orrelator, as the case may be, recover his costs. Such furtherjudgment may be rendered determining the respective rights inand to the public office, position or franchise of the parties tothe action as justice requires (Sec. 9, Rule66 of ROC).

Q: What are the rights of a person adjudged entitled topublic office?

A: If the petitioner is adjudged to be entitled to the office, hemay sue for damages against the alleged usurper within one (1)

year from the entry of judgment establishing his right to theoffice in question (Sec. 11, Rule66 of ROC).

EXPROPRIATION (RULE 67)

Q: What are the matters that shall be alleged incomplaint for expropriation?

A:a)

State with certainty the right of the plaintiff toexpropriation and the purpose thereof;

b)

Describe the real or personal property sought to beexpropriated; and

c)

Join as defendants all persons owning or claiming to own,or occupying, any part of the property or interest therein

showing as far as practicable the interest of eachdefendant. If the plaintiff cannot with accuracy identify thereal owners, averment to that effect must be made in thecomplaint (Sec. 1, Rule67 of ROC).

Q: What are the two stages in every action forexpropriation?

A:1)

Determination of the authority of the plaintiff toexpropriatethis includes an inquiry into the propriety ofthe expropriation, its necessity and the public purpose.This stage will end in the issuance of an order ofexpropriation if the court finds for the plaintiff or in thedismissal of the complaint if it finds otherwise.

2)

Determination of just compensation through the court-

appointed commissioners (National Power Corporationvs. Joson, 206 SCRA 520).

Q: When can plaintiff immediately enter intopossession of the real property, in relation toRA8974?

A: Except for the acquisition of right-of-way, site or locationfor any national government infrastructure project throughexpropriation, the expropriator shall have the right to take orenter upon the possession of the real property involved if hedeposits with the authorized government depositary an amountequivalent to the assessed value of the property for purposes oftaxation to be held by such bank subject to the orders of thecourt. such deposit shall be in money, unless in lieu thereof thecourt authorizes the deposit of a certificate of deposit of a

government bank of the Philippines payable on demand to theauthorized government depositary (Sec. 2, Rule 67 of ROC).

Q: What is the new system of immediate payment ofinitial just compensation?

A:1)

For the acquisition of right-of-way, site or location for anynational government infrastructure project throughexpropriation, upon the filing of the filing of thecomplaint, and after due notice to the defendant, theimplementing agency shall immediately pay the owner ofthe property the amount equivalent to the sum of (1) 100percent of the value of the property based on the currentrelevant zonal valuation of the BIR; and

2) the value of the improvements and/or structures asdetermined under Sec. 7 of RA 8974 (Sec. 4, RA 8974).

Q: How are defenses and objections made inexpropriation cases?A: Omnibus Motion Rule Subject to the provisions of Sec. 1Rule 9, a motion attacking a pleading, order, judgment orproceeding shall include all objections then available, and alobjections not so included shall be deemed waived (Sec. 8, Rule15 of ROC). If a defendant has any objection to the filing of orthe allegations in the complaint, or any objection or defense tothe taking of his property, he shall serve his answer within thetime stated in the summons. The answer shall specificallydesignate or identify the property in which he claims to have aninterest, state the nature and extent of the interest claimed, andadduce all his objections and defenses to the taking of hisproperty. No counterclaim, cross-claim or third-partycomplaint shall be alleged or allowed in the answer or any

subsequent pleading.A defendant waives all defenses and objections not so allegedbut the court, in the interest of justice, may permiamendments to the answer to be made not later than ten (10)days from the filing thereof. However, at the trial of the issue ojust compensation, whether or not a defendant has previouslyappeared or answered, he may present evidence as to theamount of the compensation to be paid for his property, and hemay share in the distribution of the award (Sec. 3, Rule67 ofROC ).

Q: What is the order of expropriation?A: If the objections to and the defenses against the right of theplaintiff to expropriate the property are overruled, or when no

party appears to defend as required by this Rule, the court mayissue an order of expropriation declaring that the plaintiff has alawful right to take the property sought to be expropriated, forthe public use or purpose described in the complaint, upon thepayment of just compensation to be determined as of the dateof the taking of the property or the filing of the complaintwhichever came first.

A final order sustaining the right to expropriate the propertymay be appealed by any party aggrieved thereby. Such appealhowever, shall not prevent the court from determining the justcompensation to be paid.

After the rendition of such an order, the plaintiff shall not bepermitted to dismiss or discontinue the proceeding except on


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such terms as the court deems just and equitable (Sec. 4,Rule67 of ROC).

Q: How is just compensation ascertained?A: Upon the rendition of the order of expropriation, the courtshall appoint not more than three (3) competent anddisinterested persons as commissioners to ascertain and reportto the court the just compensation for the property sought to betaken. The order of appointment shall designate the time andplace of the first session of the hearing to be held by thecommissioners and specify the time within which their reportshall be submitted to the court.

Copies of the order shall be served on the parties. Objections tothe appointment of any of the commissioners shall be filed withthe court within ten (10) days from service, and shall beresolved within thirty (30) days after all the commissioners

shall have received copies of the objections (Sec.5, Rule67 ofROC).

Q: How commissioners in an action for expropriationappointed?

A: Appointment. Upon the rendition of the order ofexpropriation, the court shall appoint not more than three (3)competent and disinterested persons as commissioners toascertain and report to the court the just compensation for theproperty sought to be taken. The order of appointment shalldesignate the time and place of the first session of the hearingto be held by the commissioners and specify the time withinwhich their report shall be submitted to the court.

Copies of the order shall be served on the parties. Objections to

the appointment of any of the commissioners shall be filed withthe court within ten (10) days from service, and shall beresolved within thirty (30) days after all the commissionersshall have received copies of the objections (Sec. 5, Rule67 ofROC).

Q: What is a commissioners report?A: It is a report ordered by the court, to be made by thecommissioners to inform when any particular portion of thereal estate shall have been passed upon by them, and the courtmay render judgment upon such partial report, and direct thecommissioners to proceed with their work as to subsequentportions of the property sought to be expropriated, and mayfrom time to time so deal with such property. Thecommissioners shall make a full and accurate report to the

court of all their proceedings, and such proceedings shall notbe effectual until the court shall have accepted their report andrendered judgment in accordance with their recommendations(Sec.7, Rule67 of ROC).

Q: What is the court action upon commissionersreport?

A: Upon the expiration of the period of ten (10) days referredto in the preceding section, or even before the expiration ofsuch period but after all the interested parties have filed theirobjections to the report or their statement of agreementtherewith, the court may, after hearing:1)

accept the report and render judgment in accordancetherewith; or

2)

for cause shown, it may recommit the same to thecommissioners for further report of facts; or

3) it may set aside the report and appoint newcommissioners; or

4)

it may accept the report in part and reject it in part; and5)

it may make such order or render such judgment as shalsecure to the plaintiff the property essential to the exerciseof his right of expropriation, and to the defendant justcompensation for the property so taken (Sec. 8, Rule67 ofROC).

Q: What are the rights of plaintiff upon judgment andpayment?

A:1) right to enter upon the property expropriated;2)

right to appropriate the same for the public use or purposedefined in the judgment; or

3)

right to retain possession already previously made inaccordance with Sec. 2, Rule 67.

Title to the property expropriated passes from the owner to theexpropriator upon full payment of just compensation(Federated Realty Corp. vs. CA, 477 SCRA 707).

Q: What is the effect of recording of judgment in theregistry of deeds where the property is situated?

A: It shall vest in the plaintiff the title to the real estate sodescribed for such public use or purpose (Sec. 13, Rule67 ofROC).

FORECLOSURE OF REAL ESTATE MORTGAGE

(RULE 68)

Q: What shall the judgment of the court in foreclosurefor payment or sale contain?

A: If after the trial, the court finds that the matters set forth inthe complaint are true, it shall render a judgment containingthe following matters:1)

An ascertainment of the amount due to the plaintiff uponthe mortgage debt or obligation, including interest andother charges as approved by the court, as well as costs;

2) A judgment of the sum found due;3)

An order that the amount found due be paid to the court oto the judgment obligee within the period of not less than90 days nor more than 120 days from the entry ofjudgment; and

4)

An admonition that in default of such payment theproperty shall be sold at public auction to satisfy thejudgment (Sec. 2, Rule68 of ROC).

Q: What is the effect of sale of mortgaged property?A: The confirmation of the sale shall divest the rights in theproperty of all parties to the action and shall vest their rights inthe purchaser, subject to such rights of redemption as may beallowed by law (Sec. 3, Rule68 of ROC). The title vests in thepurchaser upon a valid confirmation of the sale and retroacts tothe date of sale (Grimalt vs. Vasquez, 36 Phil. 396).

Q: How is disposition of proceeds of sale made?A: The proceeds of the sale of the mortgaged property shallafter deducting the costs of the sale, be paid to the person


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foreclosing the mortgage, and when there shall be any balanceor residue after paying off the mortgage debt due, the sameshall be paid to junior encumbrancers in the order of theirpriority. If there be any further balance after paying them or ifthere be no junior encumbrancers, the same shall be paid tothe mortgagor or any person entitled thereto (Sec. 4, Rule68 ofROC).

Q: What are the instances when court cannot renderdeficiency judgment?

A: Where the debtor-mortgagor is a non-resident and who atthe time of the filing of the action for foreclosure and duringthe pendency of the proceedings was outside the Philippines, itis believed that a deficiency judgment under Sec. 6 would notbe procedurally feasible. A deficiency judgment is by nature inpersonam and jurisdiction over the person is mandatory.Having been outside the country, jurisdiction over his person

could not have been acquired.Q: Differentiate judicial foreclosure and extrajudicialforeclosure.

A:

Extra-judicial Foreclosure(Act 3135)

Judicial foreclosure(Rule 68)

No complaint is filed; Complaint is filed with thecourts;

There is a right of redemption.Mortgagor has a right ofredemption for 1 year fromregistration of the sale;

No right of redemption exceptwhen mortgagee is a bankinginstitution; equity ofredemption only (90 to 120days, and any time beforeconfirmation of foreclosure

sale);Mortgagee has to file a separateaction to recover any deficiency;

Mortagagee can move fordeficiency judgment in thesame action

Buyer at public auction becomesabsolute owner only afterfinality of an action forconsolidation of ownership;

Buyer at public auctionbecomes absolute owner onlyafter confirmation of the sale;

Mortgagee is given a specialpower of attorney in themortgage contract to foreclosethe mortgaged property in caseof default.

Mortgagee need not be givena special power of attorney.

Q: Differentiate equity of redemption from right ofredemption.

A:

Equity of Redemption Right of RedemptionThe right of defendantmortgagor to extinguishthe mortgage and retainownership of the propertyby paying the debt within90 to 120 days after theentry of judgment or evenafter the foreclosure salebut prior to confirmation.

A right granted to a debtormortgagor, his successorin interest or any judicialcreditor or judgmentcreditor or any personhaving a lien on theproperty subsequent tothe mortgage or deed oftrust under which theproperty is sold to

repurchase the propertywithin one year even after

the confirmation of thesale and even after theregistration of thecertificate of foreclosuresale.

May be exercised evenafter the foreclosure saleprovided it is made beforethe sale is confirmed byorder of the court.

There is no right ofredemption in a judicialforeclosure of mortgageunder Rule 68. This rightof redemption exists onlyin extrajudicialforeclosures where thereis always a right ofredemption within oneyear from the date of sale

(Sec. 3, Act 3135), butinterpreted by the Courtto mean one year from theregistration of the sale.

May also exist in favor orother encumbrances. Ifsubsequent lien holdersare not impleaded asparties in the foreclosuresuit, the judgment in favorof the foreclosingmortgagee does not bindthe other lien holders. Inthis case, their equity ofredemption remains

unforeclosed. A separateforeclosure proceeding hasto be brought against themto require them to redeemfrom the first mortgagee orfrom the party acquiringthe title to the mortgagedproperty.

General rule: In judicialforeclosures there is onlyan equity of redemptionwhich can be exercisedprior to the confirmationof the foreclosure sale.This means that after theforeclosure sale but beforeits confirmation, themortgagor may exercisehis right of pay the

proceeds of the sale andprevent the confirmationof the sale.

If not by banks, themortgagors merely have anequity of redemption,which is simply their right,as mortgagor, toextinguish the mortgageand retain ownership of

the property by paying thesecured debt prior to theconfirmation of theforeclosure sale.

Exception: there is a rightof redemption if theforeclosure is in favor ofbanks as mortgagees,whether the foreclosure be

udicial or extrajudicial.This right of redemption is

explicitly provided in Sec.47 of the General BankingLaw of 2000. While thelaw mentions theredemption period to beone year counted from thedate of registration of thecertificate in the Registryof Property

PARTITION (RULE 69)


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Q: In an action for Partition, who may file complaint?A: The action shall be brought by the person who has a right tocompel the partition of real estate (Sec. 1, Rule69 of ROC)or ofan estate composed of personal property, or both real andpersonal property (Sec. 13, Rule69 of ROC). The plaintiff is aperson who is supposed to be a co-owner of the property orestate sought to be partitioned.

Q: In an action for partition, who shall be madedefendants?

A: The defendants are all the co-owners. All the co-ownersmust be joined. Accordingly, an action will not lie without thejoinder of all co-owners and other persons having interest inthe property (Reyes vs. Cordero, 46 Phil. 658). All the co-owners, therefore, are indispensable parties.

Q: What are the matters to be alleged by the plaintiff

in a complaint for partition?A:1)

the nature and extent of his title;2)

an adequate description of the real estate of whichpartition is demanded, and shall join as defendants allother persons interested in the property (Sec. 1, Rule69 ofROC)

3)

a demand for the accounting of the rents, profits andother income from the property which he may be entitledto (Sec. 8, Rule69 of ROC). These cannot be demanded inanother action because they are parts of the cause of actionfor partition. They will be barred if not set up in the sameaction pursuant to the rule against splitting a single causeof action.

Q: What are the two stages in every action forpartition?A: A reading of the Rules will reveal that there are actuallythree (3) stages in the action, each of which could be thesubject of appeal:

a)

the order of partition where the property of thepartition is determined;

b)

the judgment as to the accounting of the fruits andincome of the property; and

c)

the judgment of partition (Riano, Civil Procedure (ARestatement for the Bar), 2007).

Q: When shall the court order the partition of theproperty among all parties in interest?

A: The court shall order the partition of the property among

all the parties in interest, if after trial it finds that the plaintiffhas the right to partition (Sec. 2, Rule69 of ROc). It was heldthat this order of partition including an order directing anaccounting is final and not interlocutory and hence,appealable; thus, revoking previous contrary rulings on thematter. A final order decreeing partition and accounting maybe appealed by any party aggrieved thereby.

Q: What is partition by agreement?A: The order of partition is one that directs the parties or co-owners to partition the property and the parties may make thepartition among themselves by proper instruments ofconveyance, if they agree among themselves. If they do agree,the court shall then confirm the partition so agreed upon by allof the parties, and such partition, together with the order of the

court confirming the same, shall be recorded in the registry ofdeeds of the place in which the property is situated (Sec. 2Rule69 of ROC).

Q: What are the effects of judgment in partition?A:1)

The judgment shall state definitely, by metes and boundsand adequate description, the particular portion of the reaestate assigned to each party, the effect of the judgmentshall be to vest in each party to the action in severalty theportion of the real estate assigned to him.

2)

If the whole property is assigned to one of the parties uponhis paying to the others the sum or sums ordered by thecourt, the judgment shall state the fact of such paymentand of the assignment of the real estate to the partymaking the payment, and the effect of the judgment shalbe to vest in the party making the payment the whole o

the real estate free from any interest on the part of theother parties to the action.3)

If the property is sold and the sale confirmed by the courtthe judgment shall state the name of the purchaser orpurchasers and a definite description of the parcels of realestate sold to each purchaser, and the effect of thejudgment shall be to vest the real estate in the purchaseor purchasers making the payment or payments, free fromthe claims of any of the parties to the action.

4)

A certified copy of the judgment shall in either case berecorded in the registry of deeds of the place in which thereal estate is situated, and the expenses of such recordingshall be taxed as part of the costs of the action (Sec. 11Rule 69 of ROC).

Q: When shall the court appoint commissioners forpartition?A: If the parties are unable to agree upon the partition (Sec.3Rule69 of ROC).

Q: What is a commissioners report in cases ofpartition?

A: The commissioners shall make a full and accurate report tothe court of all their proceedings as to the partition, or theassignment of real estate to one of the parties, or the sale of thesame. Upon the filing of such report, the clerk of court shalserve copies thereof on all the interested parties with noticethat they are allowed ten (10) days within which to fileobjections to the findings of the report, if they so desire. Noproceeding had before or conducted by the commissioners

shall pass the title to the property or bind the parties until thecourt shall have accepted the report of the commissioners andrendered judgment thereon (Sec.6, Rule 69 of ROC).

Q: What is the court action upon commissionersreport, in cases of partition?

A: Upon the expiration of the period of ten (10) days referredto in the preceding section, or even before the expiration ofsuch period but after the interested parties have filed theirobjections to the report or their statement of agreementtherewith, the court may, upon hearing, accept the report andrender judgment in accordance therewith; or, for cause shownrecommit the same to the commissioners for further report offacts; or set aside the report and appoint new commissionersor accept the report in part and reject it in part; and may make


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such order and render such judgment as shall effectuate a fairand just partition of the real estate, or of its value, if assignedor sold as above provided, between the several owners thereof(Sec.7, Rule 69 of ROC).

Q: What are the effects of judgments in action forpartition?

A: If actual partition of property is made, the judgment shallstate definitely, by metes and bounds and adequate

description, the particular portion of the real estate assigned toeach party, and the effect of the judgment shall be to vest ineach party to the action in severalty the portion of the realestate assigned to him. If the whole property is assigned to oneof the parties upon his paying to the others the sum or sumsordered by the court, the judgment shall state the fact of suchpayment and of the assignment of the real estate to the partymaking the payment, and the effect of the judgment shall be tovest in the party making the payment the whole of the realestate free from any interest on the part of the other parties tothe action. If the property is sold and the sale confirmed by thecourt, the judgment shall state the name of the purchaser orpurchasers and a definite description of the parcels of realestate sold to each purchaser, and the effect of the judgmentshall be to vest the real estate in the purchaser or purchasers

making the payment or payments, free from the claims of anyof the parties to the action. A certified copy of the judgmentshall in either case be recorded in the registry of deeds of theplace in which the real estate is situated, and the expenses ofsuch recording shall be taxed as part of the costs of the action(Sec.11, Rule 69 of ROC).

Q: Do the Rules on Partition apply to personalproperty?

A: YES. The provisions of Rule69 shall apply to partitions ofestates composed of personal property, or of both real andpersonal property, in so far as the same may be applicable (Sec.13, Rule69 of ROC).

Q: Does prescription of action for partition runagainst a co-owner or co-heir?

A: NO. Prescription of action does not run in favor of a co-owner or co-heir against his co-owner or co-heirs as long asthere is a recognition of the co-ownership expressly orimpliedly (Art. 494, Civil Code).The action for partition cannot be barred by prescription aslong as the co-ownership exists (Aguirre vs. CA, 421 SCRA310).But while the action to demand partition of a co-ownedproperty does not prescribe, a co-owner may acquireownership thereof by prescription where there exists a clearrepudiation of the co-ownership and the co-owners areapprised of the claim of adverse and exclusive ownership.

FORCIBLE ENTRY AND UNLAWFUL DETAINER(RULE 70)

Q: Differentiate forcible entry from unlawful detainer.A:

Q: Differentiate accion publiciana from accionreivindicatoria.

A:

Accioninterdictal

(forcible entry

and UnlawfulDetainer)

Accion Publiciana AccionReinvindicatoria

The actions forforcible entry andunlawful detainerbelong to the classof actions known bythe generic nameaccion interdictal(ejectment) wherethe issue is theright of physical ormaterial possessionof the subject realproperty

independent of anyclaim of ownershipby the partiesinvolved (Mendozavs. CA, 452 SCRA117 [2005]).

A plenary ordinarycivil action for therecovery of thebetter right ofpossession (juridicalpossession), must befiled after theexpiration of oneyear from theaccrual of the causeof action or from theunlawfulwithholding of

possession of therealty. In otherwords, if at the timeof the filing of thecomplaint more thanone year had elapsedsince defendant hadturned plaintiff outof possession ordefendantspossession hadbecome illegal, theaction will be notone of forcible entry

An action for therecovery of theexercise ofownership,particularly recoveryof possession as anattribute or incidentof ownership;

Forcible Entry Unlawful DetainerThe possession of the

defendant is unlawful fromthe beginning; issue is whichparty has prior de factopossession;

The possession of the defendant

is lawful from the beginningbecomes illegal by reason of theexpiration or termination of hisright to the possession of theproperty;

The law does not requireprevious demand for thedefendant to vacate;

Plaintiff must first make suchdemand which is jurisdictionalin nature;

The plaintiff must prove thathe was in prior physicalpossession of the premisesuntil he was deprived by thedefendant; and

The plaintiff need not have beenin prior physical possession;

The one year period isgenerally counted from thedate of actual entry on theproperty.

The one-year period is countedfrom the date of last demand.


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or unlawful detainerbut an accion

ubliciana (Valdezvs, CA, GR 132424,May 2, 2006).

The basis of therecovery ofpossession is theplaintiffs real rightof possession or jus

ossessionis, whichis the right to thepossession of thereal propertyindependent ofownership.

The basis of therecovery ofpossession is theplaintiffs real rightof possession or jus

ossessionis, whichis the right to thepossession of thereal propertyindependent ofownership.

The basis for therecovery ofpossession isownership itself.

Q: How to determine jurisdiction in accion publiciana,accion reivindicatoria and accion interdictal

A: Jurisdiction is determined by the allegations of thecomplaint. The mere raising of the issue of tenancy does notautomatically divest the court of jurisdiction because thejurisdiction of the court is determined by the allegations of thecomplaint and is not dependent upon the defenses set up bythe defendant (Marino, Jr. vs. Alamis, 450 SCRA 198 [2005]).

Q: Who and when may institute the action for forcibleentry and unlawful detainer?

A: A person deprived of the possession of any land or buildingby force, intimidation, threat, strategy, or stealth, or a lessor,vendor, vendee, or other person against whom the possessionof any land or building is unlawfully withheld after the

expiration or termination of the right to hold possession, byvirtue of any contract, express or implied, or the legalrepresentatives or assigns of any such lessor, vendor, vendee,or other person, may, at any time within one (1) year after suchunlawful deprivation or withholding of possession, bring anaction in the proper Municipal Trial Court against the personor persons unlawfully withholding or depriving of possession,or any person or persons claiming under them, for therestitution of such possession, together with damages and costs(Sec. 1, Rule70 of ROC).

Unless otherwise stipulated, such action by the lessor shall becommenced only after demand to pay or comply with theconditions of the lease and to vacate is made upon the lessee,or by serving written notice of such demand upon the person

found on the premises, or by posting such notice on thepremises if no person be found thereon, and the lessee fails tocomply therewith after fifteen (15) days in the case of land orfive (5) days in the case of buildings (Sec. 2, Rule70 of ROC).

Q: What are pleadings allowed in action for forcibleentry and unlawful detainer?

A: The only pleadings allowed to be filed are the complaint,compulsory counterclaim and cross-claim pleaded in theanswer, and the answers thereto. All pleadings shall be verified(Sec. 4, Rule70 of ROC).

Q: May the court dismiss outright the case for forcibleentry or unlawful detainer based on the allegations ofthe complaint?

A: YES. The court may, from an examination of the allegationsin the complaint and such evidence as may be attached theretodismiss the case outright on any of the grounds for thedismissal of a civil action which are apparent therein. If noground for dismissal is found, it shall forthwith issue summons(Sec. 5, Rule70 of ROC).

Q: When is demand necessary?A: Demand is necessary in Unlawful Detainer case, unlessthere exists a stipulation to the contrary (Sec.2, Rule70 ofROC).

Q: When may the court grant preliminary injunctionin the action for forcible entry or unlawful detainer?

A:The court may grant preliminary injunction, in accordancewith the provisions of Rule 58, to prevent the defendant fromcommitting further acts of dispossession against the plaintiff. Apossessor deprived of his possession through forcible entry orunlawful detainer may, within five (5) days from the filing ofthe complaint, present a motion in the action for forcible entryor unlawful detainer for the issuance of a writ of preliminarymandatory injunction to restore him in his possession. Thecourt shall decide the motion within thirty (30) days from thefiling thereof (Sec. 15, Rule70 of ROC).

Q: In an action for forcible entry and unlawfuldetainer, may a party divest the court of its

jurisdiction by claiming ownership?A: NO. The defendant cannot deprive the court of jurisdiction

by merely claiming ownership of the property involved (RuraBank of Sta. Ignacia vs. Dimatulac, 401 SCRA 742; Perez vsCruz, 404 SCRA 487).If the defendant raises the question ofownership and the issue of possession cannot be resolvedwithout deciding the question of ownership, the issue oownership shall be resolved only to determine the issue opossession (Sec. 3, RA 7691).

Q: How to stay the immediate execution of judgment?A: Defendant must take the following steps to stay theexecution of the judgment:1)

Perfect an appeal;2)

File a supersedeas bond to pay for the rents, damages andcosts accruing down to the time of the judgment appealedfrom; and

3)

Deposit periodically with the RTC, during the pendency othe appeal, the adjudged amount of rent due under thecontract or if there be no contract, the reasonable value ofthe use and occupation of the premises (Sec. 19, Rule70 ofROC).

Exceptions to the rule:1) Where delay in the deposit is due to fraud, accident

mistake, or excusable negligence;2)

Where supervening events occur subsequent to thejudgment bringing about a material change in thesituation of the parties which makes execution inequitableand

3)

Where there is no compelling urgency for the executionbecause it is not justified by the circumstances.


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Q: What are the prohibited pleadings?A: Forcible entry and unlawful detainer actions are summaryin nature designed to provide for an expeditious means ofprotecting actual possession or the right to possession of theproperty involved (Tubiano vs. Riazo, 335 SCRA 531). Theseactions shall both fall under the coverage of the Rules ofSummary Procedure irrespective of the amount of damages orunpaid rental sought to be recovered (Sec. 3, Rule 70 of ROC).Prohibited pleadings and motions:

a)

Motion to dismiss the complaint except on theground of lack of jurisdiction over the subject matter,or failure to comply with section 12;

b)

Motion for a bill of particulars;c) Motion for new trial, or for reconsideration of a

judgment, or for reopening of trial;d)

Petition for relief from judgment;

e)

Motion for extension of time to file pleadings,affidavits or any other paper;f)

Memoranda;g)

Petition for certiorari, mandamus, or prohibitionagainst any interlocutory order issued by the court;

h) Motion to declare the defendant in default;i)

Dilatory motions for postponement;j)

Reply;k)

Third-party complaints;l)

Interventions

CONTEMPT (RULE 71)

Q: What are the kinds of contempt?

A:1)

Civil or Criminal, depending on the nature and effect ofthe contemptuous act.

2)

Direct or indirect, according to the manner of commission.

Q: What are the purpose and nature of each kind ofcontempt?

A:

Civil Contempt Criminal ContemptIt is the failure to do somethingordered to be done by a court ora judge for the benefit of theopposing party therein and istherefore and offense against theparty in whose behalf the

violated order was made;

It is a conduct directedagainst the authority anddignity of the court or audge acting judicially; it is

an obstructing theadministration of justice

which tends to bring thecourt into disrepute ordisrespect;

The purpose is to compensate forthe benefit of a party;

The purpose is to punish, tovindicate the authority of thecourt and protect itsoutraged dignity;

The rules of procedure governingcontempt proceedings orcriminal prosecutions ordinarilyare inapplicable to civil contemptproceedings.

Should be conducted inaccordance with theprinciples and rulesapplicable to criminal cases,insofar as such procedure isconsistent with the summarynature of contempt

proceedings.

Direct Contempt Indirect ContemptIn general is committed in thepresence of or so near the courtor judge as to obstruct orinterrupt the proceedings beforeit

It is not committed in thepresence of the court, butdone at a distance whichtends to belittle, degradeobstruct or embarrass thecourt and justice

Q: What is the remedy against direct contempt?A: A person adjudged in direct contempt may not appeatherefrom. His remedy is a petition for certiorari orprohibition directed against the court which adjudged him indirect contempt. Pending the resolution of the petition forcertiorari or prohibition, the execution of the judgment fordirect contempt shall be suspended. The suspension however

shall take place only if the person adjudged in contempt files abond fixed by the court which rendered the judgment. Thisbond is conditioned upon his performance of the judgmentshould the petition be decided against him (Sec. 2, Rule71 ofROC).

Q: What is the remedy against indirect contempt?A: The person adjudged in indirect contempt may appeal fromthe judgment or final order of the court in the same manner asin criminal cases. The appeal will not however have the effect osuspending the judgment if the person adjudged in contempdoes not file a bond in an amount fixed by the court from whichthe appeal is taken. This bond is conditioned upon hisperformance of the judgment or final order if the appeal isdecided against (Sec. 11, Rule71 of ROC).

CommencementQ: How are contempt proceedings commenced?

A: Proceedings for indirect contempt may be initiated motuproprio by the court against which the contempt wascommitted by an order or any other formal charge requiringthe respondent to show cause why he should not be punishedfor contempt.

In all other cases, charges for indirect contempt shall becommenced by a verified petition with supporting particularsand certified true copies of documents or papers involvedtherein, and upon full compliance with the requirements forfiling initiatory pleadings for civil actions in the courtconcerned. If the contempt charges arose out of or are relatedto a principal action pending in the court, the petition forcontempt shall allege that fact but said petition shall bedocketed, heard and decided separately, unless the court in itsdiscretion orders the consolidation of the contempt charge andthe principal action for joint hearing and decision (Sec. 4Rule71 of ROC).

Acts deemed punishable as indirect contemptQ: What are the acts deemed punishable as indirectcontempt?

A:a)

Misbehavior an officer of a court in the performance of hisofficial duties or in his official transactions;


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b)

Disobedience of or resistance to a lawful writ, process,order, or judgment of a court, including the act of a personwho, after being dispossessed or ejected from any realproperty by the judgment or process of any court ofcompetent jurisdiction, enters or attempts or inducesanother to enter into or upon such real property, for thepurpose of executing acts of ownership or possession, or inany manner disturbs the possession given to the personadjudged to be entitled thereto;

c) Any abuse of or any unlawful interference with theprocesses or proceedings of a court not constituting directcontempt under section 1 of this Rule;

d)

Any improper conduct tending, directly or indirectly, toimpede, obstruct, or degrade the administration of justice;

e) Assuming to be an attorney or an officer of a court, andacting as such without authority;

f)

Failure to obey a subpoena duly served;

g)

The rescue, or attempted rescue, of a person or property inthe custody of an officer by virtue of an order or process ofa court held by him (Sec. 3).

Q: When shall imprisonment be imposed?A:When the contempt consists in the refusal or omission to doan act which is yet in the power of the respondent to perform,he may be imprisoned by order of the court concerned until heperforms it (Sec. 8, Rule71 of ROC).

Q: Do the rules in contempt apply against quasi-judicial bodies?A: YES. The rules on contempt apply to contempt committedagainst persons or entities exercising quasi-judicial functionsor in case there are rules for contempt adopted for such bodies

or entities pursuant to law, Rule 71 shall apply suppletorily(Sec. 12, Rule71 of ROC).

Quasi-judicial bodies that have the power to cite persons forindirect contempt can only do so by initiating them in theproper RTC. It is not within their jurisdiction and competenceto decide the indirect contempt cases. The RTC of the placewhere contempt has been committed shall have jurisdictionover the charges for indirect contempt that may be filed (Sec.12, Rule71 of ROC).

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