MASTER NOTES IN SPECIAL CIVIL ACTIONS Dean Virgilio Jara (2008) SPECIAL CIVIL ACTIONS (RULES 62 to 71) INTERPLEADER (RULE 62) Ps! * Observe the procedural deviation in interpleader when the parties are plaintiff vs defendant 1. and defendant 2; and Compare this with the case of plaintiff vs defendant 1 and defendant 2 in ordinary civil action (SEE Rule 9 Sec 3c). One will immediately sae that in Interpleader, there is no’such thing as partial default as contemplated in ordinary civil action, aside from the fact that there is no common cause of action against defendant 1 and defendant 2 in interpleader.. Moreover since there Is in fact no cause of actions if Interpleader, it is impossible for them to share’ a common defense. * SEE Warehouse Receipts Law * If there is already an ordinary civil aetion againét the warehouseman, he cannot thereafter fle a separate interpleader action. This is because to do so would result to, the ismissal of the separate special civil action on the ground of absence of cause of action. oF impropriety of the Complaint for interpleaders * SEE Appendix of BFS: FORM 5: Answer with Counterctainy for interpleaders this is the justification why counterclaim {or interpleader is possible.The appendix of forms. being prepared by the Supreme Court itself. * In case of appeal we applyithelordinary rules. DECLARATORY RELIEF AND OTHER SIMILAR REMEDIES (RULE6) “There are 4 specialfélvll actions in RUBE. * THE OTHER SIMILAR REMEDIES) namely quieting of title to real property or remove clouds therefrom, consolidation of title and reformation of instrument all of them need a CAUSE OF ACTION. “The relief ther similar remedies” are not kinds of declaratory * The purpose of declaratory relief is to stop a possible Litigation, * We still need a defendant fn this special civil action, see sec 2. * We cannot expect the petitioner to pray for damages etc. * (MASTER: how do we enforce the judgment here?) * The court can outrightly dismiss the petition * Compare it with interpleader in respect to the power to cutrightly dismiss or refuse to entertain. in interpleader the court cannot do this. Lex Talionis Fraternitas, Inc. SODALITAS DUCUM FUTURORUM CERTIORARI, PROHIBITION & MANDAMUS (RULES 64 & 65) * Compare Certiorari in Rules 45, 64 and 65 examiners are always attracted to this subject matter. * Correlate Rules 64, 41 and 16, 17 and 18, + Important to determine when it is with or without prejudice, forthe correct remedy. * could always file a complaint jf. the dismissal is without prejudice. * Thesintroduction of Rule 4jptogéther with Art Vill Sec 5 of ithe Constitution greatly broadened the application of Rule 65 and now covers also final orders-not only interlocutory orders. * Rule Géisia mode of review bute Mechanism is Rule 65 The period to appeal thould always be followed, even if the ‘appellant has mistaken the period to be 60’ days as in ‘certiorari, the court wll outrightly dismiss the appeal. * When the MOTION TO DISMISS ofilgfound of lack jurisdiction {sdenied, which is an interlocutory ofder, and the defendant Feally belteves that there is lack of jurisdiction, what is the Femedy considering that in Rule 16 he will be required to Petition for prohibition, is the éorrectitemedy: to prohibit the respondent court ‘from proceeding, .that is to stop requiring an answer from defendant. To avoid answering, a provisional remedy for the issuance of the writ of preliminary Injunction may be applied for in the petition for prohibition. ‘The present practice is to file an ANSWER) AD CAUTELAK together with the petition under Rule’ 65. It.is called ad cautelamy because the answer is, fled Just to avoid being declared in default and at the same time the answer will not be construed as a waiver, The filing of the answer ad cautelam wil in effect be just a precautionary measure. The remedy solves this dilemma: Ifthe defendant does not file an janswer he may be declared in default. If however he files an answer he may be deemed to have impliedly waived the defense of Lack of jurisdiction. If instead of filing a petition for prohibition, the defendant files.a petition for certiorari, the SC ruled that the petition for certlorar will be considered or treated as if a Petition for prohibition, This is because the requirements of the two remedies are practically identical, thus the error will be disregarded. * The public respondent must be impleaded although only a nominal party * The purpose of the rule on Hierarchy of Courts ‘ to discourage the filing of certiorari to SC (MASTER: SEE Sec 4, 2" paragraph as amended that omits the SC altogether, to {implement the policy for the petitioner to choose either RTC orca) * In addition to the grounds enumerated in Rule 16, another ground for a mation to dismiss is when petitioner violates the 9-2008 39 pears of excellence and superiorityMASTER NOTES IN SPECIAL CIVIL ACTIONS Dean Virgilio Jara (2008) Ps! * Even if there is no express mention in Sec 1 and 2 on the award of damages, the SC ruled that such award for damages 's contemplated by the broad concept of “incidental reliefs as law and justice may require. principle of hierarchy of courts in Sec 4 Rule 65. * The recovery of damages arising from the wrongful acts should be incorporated. If It 1s not Incorporated then it Is barred by res judicata Thus there can be no separate action for damages because that will be in effect a splitting of a cause of action * The said award of damages may be executed through the Use of Rule 39. But generally we do not use Rule 39 to enforce this special civil action. The proper /remedy! is contempt. * Rule 65 is enforced by a petition for contempt. (QUO WARRANTO (RULE 66) ‘The difference between mandamus and.@U@warranto: = Mandamus complaint; = Quo Warranto: wallow a separate complaint for damages; damages€annot Be filed in a separate * A relator! eansinitiate a quo werranto proceeding, even without the assistance of the Solictior General. (MASTER: SEE Sec 5) ‘EXPROPRIATION (RULE 67) * SEE BP 129 Sec 39 on Multiple appeals “There can be an immediate issuance of writ of posession in expropriation even before the:defendant gives his sideior is heard, as long as the deposit required by law is given. Thibis 2 ministerial duty on the part of the court. (MASTER: See 2) Rute 67) * Motion to dismiss? After control or taking of property, it cannot be dismissed since there isa second stage. * Even if there fs an appeal of 1st stage, the 2nd stage could still proceed. * In so far as the first issue (the propriety of expropriation) is concerned he fs in default, but in so far as the second issue (Gust compensation) is concemed he can participate in the wal * Reason why there are prohibited pleadings: ‘The court is authorized to determine title and ether fssues. There is no need for the litigants to file claims, the court will see to it that the claims are paid by” just Compensation whether or not they are involved in. the litigation. (MASTER: SEE Sec 9.) Lex Talionis Fraternitas, Inc. SODALITAS DUCUM FUTURORUM * In case that the property is in the possession of the defendant but Is in reality owned by national government, ‘what is the proper remedy? Expropriation is proper. It can be filed against the ‘occupant oF unlawful possessor, not only against the owner. This remedy is more expedient and favorable to the government because the complainant, the owner-national government in this case, can immediately take possession of the property FEUD {s also another option, but this ts more tedious, * Rule 36 Sepafate sudment vs Judgments rendered in Expropriation proceeding: Th Expropriation, both the judgment on the right to ‘expropriate and the judgment on aceounting are appealable. However, in separate judgments they are not appealable, if a party wants to appeal smustiget the consent Of the-courte-The remedy is Rule 65 (SEE Rule 41 f as amended) “In Rule 32 appointment BF commissioner is also an incident ‘ofan ordinary civil action. “The difference from lexpropriation is that, in Rule 32 itis. diseretionary. The court ereover may motu propig appaint commissioners, even if the parties object under certain instances. However in expropriation, whether the parties ‘object or agree, it is mandatory ‘Res on appeal: 30 days, record on appeal = Wf on, appa the SC reversed the right toexproprate, the Rules state that the trial court will see to it that the defendant is restored to his property and will determine the amount of damages which is expressly provided for in Sec 11 * According to the SC, the complaint fordamages arising from the wrongful expropriation could be subject of a separate complaint, It iS allowed. ‘The fjustification is that the defendant cannot file a counterclaim being a prohibited pleading in Sec 3. So there is really nothing he can do in the expropriation case jf the RTC did not award damages pursuant to Sec 11. We follow the same rule in Quo Warranto. There is no expressimention of this remedy, but there is nonetheless a Supreme Gourt decision to support the remedy of a separate complaint for damages. JUDICIAL FORECLOSURE OF REAL MORTGAGE (RULE 68) * How does a mortgagee foreclose chattel mortgage? ‘The recourse is to file a complaint for replevin. Once the possession of personal property is recovered, then foreclosure may commence. * ACT 3135 Real Estate Mortgage Law- In Extra-judicial foreclosure because of the need for SPA, it is really the mortgagor who decides in the deed of mortgage whether that remedy can be availed of. ‘The statement in textbooks that there is no judicial intervention in extrajudicial foreclosure is inaccurate. The 1969-2008 39 pears of excellence and superiorityusrennores marecacautacrons GY Dean Virgilio Jara (2008) norxee wil be eal sng the cost, The righ cal Se cea ares eee werent tle tt “The Extra-judicial mortgagee does not have to possess the property. If he decides, he may file a petition with clerk of Court of RTC or seek the assistance of a notary public. The clerk will raffle the petition among the sheriff. The sheriff will then prepare the notice, then there will be a public ‘auction. There will be issuance of certificate of sale to the highest bidder. If no right of redemption is exercised within the prescribed period, title will be consolidated. The ‘mortgagee may then move or a file a petition for the issuance of the writ of possession. The remedy is not a special civil action nor/an ordinary civil action. The remedy is a mere motion, a petition which is incident of a land registration proceeding. Andi the Court has the MINISTERIAL duty to grant the motion. The decision should be heard ex parte. There {s this no need to notify the mortgagor. * Indispensable parties: ‘The SC held that the inalspengable parties are: the borrowers, mortgagor «and of course the mortgagee (plaintiff. But the pergons having or clairving an interest in the property subordinate in right to that of the holder of the mortgage, they are only necessary parties SEE Rule 68 Sec 1 * A person Who has interest inferior to the foreclosing ‘mortgagee i only a necessary party + Note that if the mortgagee Is ordered to implead, a necessary party, there will only be a waiver of rights.of the plaintiff of any claim. against _a necessary party not Impleaded. SEE Rute 3 See9 * If one mortgages his ear, a second oniseverabstimes ft is a criminal act. Gut if one mortgages real property several times, itis just fine, as can be implied from Sec 1/on the eoncept of inferior lien holders. + If Mortgagee 3 commences a special civil action (6h foreclosure he need not implead Mortgages 1 and 2. This is 50, since each mortgage is independent from each other. The {interests of Nortgagees 1 and 2 are superior (being prior liens), Even ifthe property is sold in public auction and the sale subsequently confirmed, Mortgagee 1 and 2's interests or lien on the property have to be annotated in the certificate of sale. That is the reason wity there is no need to impleed them. (MAST: They are sufficiently protected.) * ifthe parties did not answer, follow the ordinary procedure. Thus there could be a judgment by default ultimately * The rule is the same as in expropriation on multiple appeals. The court can render three final decisions. The special civil action of judicial foreclosure of real estate mortgage is MULTI-STAGED. * Note that there is no right of redemption in Rute 68, even if we follow the procedure on levy on execution of real estate sale in Rule 39, Lex Talionis Frater SODALITAS DUCUM FUTURORUM * The equity of redemption continues to exist even if there is already a public auction sae, it runs until confirmation of the sale, * As long as there is an appeal in the 1st and 2nd judgment (judgment on right of foreclosure and order on confirmation of sale respectively), equity of redemption exists. Until the issuance of the order of confirmation of public auction sale, the equity of redemption stil exists. There is no fixed term as long as there is an appeal pending. The third stage, which 's the recovery of deficiency, may or may not exist-(MAST: Caveat: | cannot personally understand what fs meant by this Paragraph. Still pondering hehe Any thoughts?) * The mortgageelmaysus6! Rule 39 to levy on execution of others properties “betongingsst® mortgagor to get the ‘efficiency, + What the Civil Code refers to when it says that the deficiency is not recoverable, js. when)ithere Is chattel mortgage and the subject loan iS Bayable in installments, # Provisional remedy: F@teivership of the collateral. SEE Rule 59 Sec t (b). F the mortgagee can \move for writ of preliminary attachment. The rules do not exclude this possibilty as long as Rule 57 is complied with. Not aver the collateral but over {the other properties of the mortgagor, one of the allegations 1 that there is no sufficient collateral, SEE Sec 3 of Rule 57 ‘+ Aleompiaint for foreclosure with the prayer for receivership and writ of preliminary attachment is possible PARTITION (RULE 69) + IF one of the co-owners wants to leavé oF fet his portion over the objection of other co-ownets, he cannot be forced to remain in the co-ownership. The €O-owner who wants to leave may file this special civilaction. (WAST: What if two co- owners wants to leave and three does not want?) He must ‘plead all other co-owners because they are indispensable parties. * The Rule contemplates a situation where the co-owners cannot apres. * The special efilaction consists also of multiple stages, * After the court determines that the co-owner has right to Partition, the court may then proceed to ask if the co-owners ‘want to agree on a partition, If they want to agree then there: will be a deed of partition. Thereafter the court will render judgment based on that deed of partition executed amicably by the parties * But if they cannot agree, then the court shall appoint commissioners. Partition 1s similar to expropriation In this matter. See Sec 2 (NAST: It seems that the appointment is also mandatory by the use of the word ‘shall”) (mast: is this appealable? Probably not, being an interlocutory order. The remedy is Rule 65.) itas, Inc. 1969-2008 39 pears of excellence and superiority pageMASTER NOTES IN SPECIAL CIVIL ACTIONS Dean Virgilio Jara (2008) Ps! * Up to the last centavo there can be a division * Stage of Accounting is another final judgment FORCIBLE ENTRY & UNLAUFUL DETAINER (RULE 70) * Why are forcible entry and unlawful detainer special civit actions? Is it because it is governed by Rules on Summary Procedure? No. We have to look for a procedural deviation aside from RSP. This is because recovery of loans in the amount of 400k or 200k as the case may be, is also governed. by RSP. Such another action governed by the RSP remains to be art frdinary civil action though it has deviations consistent. with its summary nature, Deviations: * In relation to Rule 39, judgments renderééiin ordinaryiehvil action are not immediately executory, one has to wait until entry. WHILE in FEUD It is immediately executory. SEE Sec 19 * The statement in Rule 39 Sée-4 “and suehiother judgments as are now or hereafter be declared” ineludes FEUD. * Accion publicanasi@nd reinvindicatOAd’ are cognizable depending on therassessed value of the property. * According|to the SC, the 1 year period can be reckoned from the time of discovery, if there is forcible entry of the ground of stealth oF strategy, jn.all other instances we follow the general rule, which is from unlawful possession. “NOTE: the doctrine'Of implied new lease, SEE Civil Cade “Rule 41 = If the defendant files @ Mation to Dismissioniground of lack ff jurisdiction for absence of «demand, and the court dismisses, ths is a dismissal witht prejudice. ‘Can the plaintiff availof Rule 41? But Rule 41 Bays it {snot appealable, can he file a petition under Rule 652 No, there can be an appeal, this time the plaintiff should rely on Rule 40 Sec 8 regarding ordinary appeal from the MTC * Damages: ‘As to the question of whether damages in FEUD only Includes back rentals, Dean Jara says that the old cases say that iti only limited to back rentals agreed upon or if there fs no agreement, payment for the use and possession of the premises. In Progressive Development Corp. vs CA 301 SCRA 637, 1999 case the SC however ruled otherwise and announced that unliqudiated damages may also be awarded. When I asked him, he said that itis BETTER if one wil cite and apply the two views. Because Progressive case stands hither’ affirmed nor abandoned. But of course the Progressive case is the latest view of the SC. * When cases involving title to property like recovery of property or annulment of sale are filed in another court, such Cannot defeat or stop FEUD. In that case of recovery of property, the adverse party cannot move for the issuance of 2 writ of preliminary injuction to stop MTC from trying the Lex Talionis Frater SODALITAS DUCUM FUTURORUM Complaint for FEUD. Any case involving title to property and FEUD could stand together. * It possible to have a stipulation in the lease contract that there will be no need to file ejection suit when the lessee violates the terms of the agreement or refuses to pay or refuses to vacate. The said stipulation is valid provided the remises are leased for commercial purposes. The lessor cannot be criminally or civily lable. If the premises. are residential, then the validity of stipulation is doubtful CONTEMPT (RULE 71) * Contempt is previously a provisional remedy, that is why it figs similar features with provisional remedies where there is a principal case. At present, itis already raised or elevated to the level of an independent special eivil action. But still ‘contempt proceedings presume or invalveyastpain case or action.-beforeayailment of the lspecial civil action of ‘contempt. “In direct contempt, thers no need for a complaint unlike ‘the other special civil actions. The judgment is rendered Fight away. Here is a final order which 1s not subject to appeal but certiorari. MAST: Someliow of a feature the same as same of those enumerated in Rule.) * The remedy of habeas corpus can be invoked especially if ‘carceration is concemed. “This is similar to quo warrant becausesit is also cognizable byallcourts: * In contempt proceeding there is a ned for an appeal bond, if the contamner does not want to go\t0 prison. This is because the judement of contempt is immediately executory itas, Inc. 1969-2008 39 pears of excellence and superiority PageMASTER NOTES IN SPECIAL PROCEEDINGS Dean Virgilio Jara (2008) SPECIAL PROCEEDINGS (RULES 72 to 109) SETTLEMENT PROCEEDINGS (RULES 72 to 90) Ps! “Note Rule 1 Sec 3, there is no mention of the applicability of ordinary rules ‘to Specpro, See Rule 72 Sec 2, which mentions this applicability; CONDITION PRECEDENT = Barangay Conciliation is not applicable to Special Proceedings, Settlement of Estate, REASON: SPECPRO Is governed by its own set of Rules, the Rules does not so state such applicability * Motion to Dismiss: may or may not ,6€€ur - possible it probate proceedings and petition for the issuance of letters Of administration, this is so because groundsimay be invoked to dismiss the petitions or application (SEE what grounds) ‘Note ADR, enforcement of arbitrallaward * There are some SC decisions which sae thal there is even ‘no need to file a complaint‘or petition at all 0 initiate some special proceedings.( ts supports the JaraiNotes which says that the surrender @f the will alone sufficiently initiates tha probate proceedings.) * Partition vs Probate, quasi in rem vs in fein * Sottlement in private‘instrumontis still vad, although this fs binding only between the parties to it;(verfy this again) * The only (verify) difference between Summary Settlement and Ordinary Settlement is the absence of an executor and administrator. * Note the difference betwaeh Summary Procedlre, and Summary Settlement Proceedings {Verify} * Supreme Court Justice, appointed executor in the will (Werify): See also textbook; “The court does nat isue summons, there is no defendant; JURISIDICTION OVER THE PERSON. * petitioner, jurisdiction; files petition, voluntary surrender to * Third Person, or interest in the estate - publication of ‘notice of hearing and service of notice, they must concur and they are BOTH mandatory; * Notice to Creditors: Statute of Non-claims * The claims could either be due or contingent (MASTER: Meaning not yet due or still conditional) * Note that we cannot {sue a notice to creditors before the appointment of executor or administrator (regular); it is Lex Talionis Frater SODALITAS DUCUM FUTURORUM imperative that a regular executor or administrator be duly appointed and qualified first before there could be notice to Creditors, as a consequence there is no notice yet to creditors’ if it is only a special administrator who is appointed, this understandable because @ special administrator has limited powers which does not include determination of the claims of creditors; EVIDENTIARY MATTERS * General Rule in Public Documents: There is no need for authentication, presumed prima facie as to its due execution and authenticity Exception:Notacial Will, autheneity Must be proved; + Best Evidence Rules Generally in case of a public document before secondary evidence can be presented the other gxiinal copies must be faccounted for. For example in case of @ Deed of Sale which ‘was notarized the vendor, vendee. and the Notary public have their respective original copies. However as an exception due tolthe fact that there,is only one copy of the notarial will, Upon its destruction and loss @ xerox copy can be presented in evidence and in the absence thereof then testimony of a Witness; CHALLENGE OF APPOINTMENTS Note that in case of a challenge of the appointment of a special administrator under Rule 65, the higher court may ‘issue a writ. of preliminary injunction to stop the appointment. The grant of such injunction however is not Usual, since the higher court usually prefers that there be somedne to preserve the property. * In probate proceedings when thelWill is disallowed, the proceedings, will not be terminated instead the testate proceeding will be converted to intestate proceeding or there will be intestacy. Since there will besintestacy, since the purpose of ‘settlement proceedings is to distribute the property the property will be Aiquidated and distributed accordingly. (verify) * Jurigdjctional factsyahat the decedent has died and is a Tesident and the gross value of the estate; * according to SC| decisions there is even no need for a petition at alto be able to.commence a special proceedings * In case the fit proceeding is intestate or for the issuance of letters of administration and then another proceeding is instituted which is testate or a probate proceeding, meaning the will was subsequently discovered. The subsequent probate proceeding will have to be terminated and the will Submitted to the court where the first proceeding was commenced. In effect the first will be converted into a testate proceeding or probate proceeding. There is nothing ‘wrong with this procedure because both proceedings have a common purpose which is. liquidation and subsequent istribution of the estate. Stil we follow the principle that the first court which takes cognizance of the case excludes ‘others without prejudice to the principle that testacy Prevails over intestacy. (MAST: How do we know that there is Another proceeding initiated in a court? Do we apply the Certification of non-forum shopping in special proceeding? | itas, Inc. 1969-2008 39 pears of excellence and superiority PageSMASTER NOTES IN SPECIAL PROCEEDINGS & Dean Virgilio Jara (2008) ikea ny be om sere beaten nd en ase er pie ccd oe a erm Oe ee re See a ee) * Wen the money claim is secured, the creditor need not participate in the proceedings; SEE Sec 7 Rule 86; * Rule 3 Sec 20 * According to some authors a contingent claim - includes a ending case, even before there is a Judgment, This is Because it may happen that the defendant dies or a party dies during the pendency of the case. During the pendency of the case a settlement proceeding may also be initiated and ‘we know that it will take time for the case of the creditors t0 be final and be entered. And because of the statute af non- claims, the remedy of the creditors in a. pending case fsito already file a claim in the settlement of the estateito protect their interests. And since they do not havea final (and executory judgment) yet in their favor, thelr claim is classified as a contingent claim. * Rule 39 Sec 10 - correlate withiBast Jara Notes * Affidavit 1s the one filed to pursue ai¢laim, By the creditor. ‘The RTC has jurisdiction ever the amount of the claim, even below the jurisdictional amount. (WASTER: Dean Jara by his, statement that vregardless of whether the claim is below of beyond the jurisdictional amount in BP 129° seems to imply that a claimof Sin the MTC will stil be entertained butthis {s of course obviously isnot an assurance that such claim Will be satisfied in full\(ls it still possible for the creditor to satisfy his whole claim in the future?) * Even if the testatOh in his will expressly stated thdt he i indebted to creditors aia, commands the payment thereof, there is still a need to fileaiclaim in accordance with the Rules. Even if we know that the will ofthe testator must be given effect, such however is not true when ft comes to the payment of the liabilities of his tate. It is for the court to inally determine whose) ciaim should be allowed. There might be collusion between the testator and the creditors mentioned in the will to the prejudice of the other creditors ‘Rot mentioned in the will. The settlement court prevails in determining whose claim is to be allowed. (verify) ISSUE OF OWNERSHIP; EXCEPTIONS * GENERAL RULE: ‘The issue of ownership should be determined or raised not in a special proceeding but in an ordinary civil action Exceptions: 1. When the heirs agree to submit the issue of ownership to the probate court; NOT: Even if the heirs all agree to submit the issue of ‘ownership to the probate court; still, the determination of the court as to ownership is not binding against third persons who did not participate in the resolution of the isue. 2. Provisional ruling on ownership allowed; * once the court issues an order directing the executor or Lex Talionis Frater SODALITAS DUCUM FUTURORUM administrator to pay the creditors, then the executor and administrator (execad) must pay. * Even if the claim of a creditor is approved by the court, it cannat move for the execution of such claim, The creditor ‘must walt for the proper time, which is when the settlement court finally isues the order directing the executor to pay the creditors. * When the assets are hard assets or not liquid assets, there is a need to liquidate said assets if the claim is pecuniary in character. When the indebtedness or claim is In the form of money, the settlement court should pay also in money by selling Uproperty of thesestate to satisfy the debts. Consequently, daeionsen ago or payment in kind is not possible, * When it comes to personal property the court can authorize ithe executor himself for the sale of the property. In case of eal property the Rules authorize the sale Onencumbrance of Property.tosatisy the debts. STATUS OF SALE WITHOUT AUTHORITY OF COURT “In case of a buyer of the property under administration and tthe contract of sale of such property was not submitted to the court for approval or without authority of the settlement [court, such sale is VOID. The third person or the buyer cannot argue that he isa buyer in good faith or for value. This is not 2 good argument in cases of sale between third person and ‘execad, if Its without the PRIOR approval or authority of the: court. REASON: -TH\THIRD PERSON buyer.cannot claim that he fs in good faith. He should know that the execad is just acting as an officer of the court (as an officer he needs prior authority in entering jnte contracts of sale involving property under administration) and that the execad is under the authority and supervision of the court. * Ina case, the settlement court issued an order directing the sale of the property under! administration at its minimum Prize provided that the deed of sale must be first submitted to the! court for approval. The administrator of the estate soldjit at a good price to.a buyer, but neglected to submit to ‘the-courk.the deed af sale for approval. The buyer having the deed of Sale registered it with the Register of Deeds. Subsequently.an heir questioned the contract of sale on the ground of the lack of court approval or disobedience of the lawful court order. The SC ruled in favor of the heir and declared the disputed contract of sale voi. In this case, the execad ISnot obeying the lawful order of the settlement court. To cure the defect, the remedy is to submit the questioned deed to the settlement court for approval ‘The court is given enough discretion on whether to approve or authorize the sale of personal or encumbrance of reat Property, as the case may be, if it will serve the best Interests of the estate of the deceased person CONTRACT OF LEASE * QUERY: Can the execad, sign a contract of lease? 1969-2008 39 pears of excellence and superiority itas, Inc. Page6wsvennores marecaLrroceeoncs — @Y Dean Virgilio Jara (2008) sepa Ye i cnt har pa the somes ht * QUERY: If the tenant however during the pendency of the contract does not pay the execad as lessors, can the settlement caurt order the ejectment or eviction of the tenants? Answer: No. The execad must file a separate and Independent special civil action for ejectment or unlawful detainer under Rule 70. The settlement court has only limited Jurisdiction (to liquidate the estate of the deceased person), {and cannot enforce the terms of the contract of lease even If this contract is approved by the court. DEED OF MORTGAGE WITH SPA TO EXTRAJUDICIALLY FORECLOSE * QUERY: Can the court authorize the exetad that inthe deed of mortgage, for the purpose of paying debts, to giveval special power of attorney to mortgagee to extra-judically foreclose the mortgage on the property. in case of non payment of debt? Answer: Yes, the mortgageetiimay go ahead with the foreclosure. & foreclosure proceeding afi proceed against the execad and the court cannotienjoit the mortgagee from doing so. DISTRIBUTION OF SHARES * After the debts paid and assets are stil left for distribution. The settlement Court has authority to determine who the heirs ae, * How to divide the property The heirs will submit @ project of partitidn. The project of partition will then be approved; entered If no appeal is taken from the order of the court approving) the project of partition. * QUERY: IF the execad failed {@ deliver their distributive shares embodied in or pursuant to the project of partition, can the heirs move for execution? Answer: No. The remedy is not to move for execution unde Rule 39. The remedy is a special civil action for contempt Under Rule 71 on the ground of disobedience to a lawful order of the court Under the Rules, in a settlement proceeding, a writ of execution cannot be directed against execad but a writ of ‘execution can be directed against the heirs. * Again to compel distribution of the respective shares to the heirs, the remedy is not Rule 39 but Rule 71 particularly the provision on indirect contempt. * In ordinary civil action, contempt as a general rule is not available to enforce a final order. However In settlement proceeding, we can have the executor or administrator cited in contempt of the settlement court, if it does not obey a lawful order of the court. (ORDER OF CLOSURE * After the order of distribution is issued and a report by the execad that the distributive shares are already distributed, Lex Talionis Frater SODALITAS DUCUM FUTURORUM then the settlement court will issue the order of closure ‘which is also appealable. The ORDER OF CLOSURE assumes that the final accounting has been submitted and approved by the court. The issuance of the order of closure marks the end of settlement proceedings. REOPENING OF THE SETTLEMENT PROCEEDING * However, its possible that an heir is left out or certain properties are subsequently discovered, * QUERY: Ifthe allegation of the person who claims to be an heir, who was left out, appears to be meritorious, can he file ‘an iidependent special proceeding against the heirs? Or can the execad filel another special proceeding to liquidate the newly discovered property? ‘Answer: NO. The remedy Is to file a petition for the Teopening ofthe settlement proceeding or case. * QUERY: Is there a time frame? There flhoyperiod or time frame given by the Rules. It can Be held even after the order ‘of closure ts entered or has become final executory, or even after a year or two years\from the time the order of closure 1was entered by the court, In ordinary procedure, reopening is algo allowed, it is not ‘expressly recognized by the Rules of Civil procedure (except that it is recognized in the Rules on Summary Procedure as a Pohibited motion and also an express mention of itis made Wf Criminal Procedure (before jt becomes final and ‘executory}, so there is in fack an express mention atleast by the Rules of Court in general) but jurisprudence says it is avaliable. The time frame is from thertime trial has ended Unt renattion of judgment. Thus after the judgment has been rendered, reopening is mo, longer available. The remedies after Fendition of judgment in ordinary procedure are Rule 37,38, appeal and 47. * Dead Mads Statute ESCHEAT (RULE 91) uItIS not a continuation of settlement proceeding, but an ‘independent and separate special proceeding. * Two instahices under the Rules escheat proper; and + reversion proceeding * Assumes that the person has died; has not left a will; no heirs; but may have debts, * In the Civil Code the State is also an heir, thus provisions of Civil Code applies; * QUERY: Do we also follow the jurisdictional principles in settlement proceedings? ‘Answer: We do not follow. An escheat proceeding is cognizable by the tral court. The subject is not capable of pecuniary estimation. * Ie is a proceeding in rem, since there is no respondent and the publication requirement isin fact longer than settlement itas, Inc. 1969-2008 39 pears of excellence and superiority page7MASTER NOTES IN SPECIAL PROCEEDINGS Dean Virgilio Jara (2008) proceedings. (MAST: It is also binding against the whole world, the only difference is that the State is the sole heir, there being no other heir.) * Justification of escheat: The State is an heir as provided in the Civil Code. In the enumeration of hes, the State is the last hei * Unclaimed Balances Act: Basis of confiscating dormant bank deposit: There is nothing in the Civil Code on this subject since st is a special law. The justification is in the potice power of the State. Afterall, these bank deposits will be part Of the National Treasury intended for the use in economic development of the country. * QUERY: In Rule 91, it may turn out that the déeased have various creditors, what is the remedy of the’ creditors? Cant they file a separate petition for the settlement ofithe estate fr a petition for the Issuance of letters of administration, fonce the properties have been escheated? Answer: No. The creditor can move within the period ofS years that the State pay the indebtedness out of the assets inherited by the State. If there are enough assets then it may be paid in full. However, if the assets, ar@inot enough, the creditors cannot compel the State to pay the deficiency. Thus in case of insufficient assets, the ereditors cannot expect full payment. * Reversion prdéseding: SEE Sec 5 Rule 91: = Im this proceeding we do not assume that the respondeat is dead; or there is no.will; it is possible that he is alive; + the properties Here are-acquired in violation of the Constitution or any statutes under the present ALA this is called forfeiture procedute Which is similar to reversion proceeding; = the proceeding fs not necessarily an in rem action, because there isa plaintiff whichis the Republic; or the defendant or respondent who acquired the property imiviotation of lays. This is more of a civilaction with elements of escheat; * In escheat, the court actBjinallimited jurisdiction: meaning, {issues which are not related to-escheat cannot be resolved validly by the court. The issue in escheat proceeding is Whether the State is authorized to take over the estate or Property. Rule 10 Sec 5 on amendment to conform to evidence is thus not applicable, * In ordinary civil action: The does not resolve a case with Limited jurisdiction, in the sense that amendment to conform to evidence under Rule 10 Sec 5 is possible. For example, in an action for recovery of a loan of 5M filed in the RTC. The fssue is non-payment of the loan. Can this court resolve a different issue of ownership of ‘the piece of land? Yes. ‘Amendment to conform to evidence Rule 10 Sec 5. (GUARDIANSHIP OF INCOMPETENTS. (RULES 92 t0.97) GUARDIANSHIP OF MINORS (FAMILY CODE & R.A. 8369) LEGAL Basis: Ps! Lex Talionis Fraternitas, Inc. SODALITAS DUCUM FUTURORUM * Substantive law provided in 4. Family Code; and 2 Law creating Family Courts Family Courts Act, RA 8369; + In order to update the guardianship proceedings pursuant to said substantive laws an Administrative Circular was fsued by the sc. JURISDICTION: RT has jurisdiction over guardianship proceeding involving an Incompetent who is not a minor + QUERY: What is the source oF BaSisof the in circular saying that RTC and nat FG hasifursdiction over incompetents? ‘The basis is found in BP.429/Sec 19 par. 7 providing that ithe RTC will be exercising exclusive original jurisdiction over all civil actions and special proceedings that used to be ‘cognizable by the Old or Former Juvenile and Domestic Relations Court. 8P 129 has done away with: the said OLD COURT. and: decided to transfer the’ authority over the cases, ‘which includes guardianship proceeding over incompetents ‘wlio are not minors, to the jurisdiction of the RTC. * FAMILY couRT: = has jurisdiction over guardlanship proceeding over a minor 5 provided by the Law creating the Family Court or Family Courts Act, RA8369 Sec 5 par. b IN CASE OF MINOR ‘The'procedure prescribed ia the circular is almost identical procedure to settlement of estate: petition states: 4 Jurisdictional facts; 2. identity of the ward 5. value of the property of the ward 44, person asking forthe issuance of letters of guardianship * Circular fecognizes classification: 4. natural, judicial general, aver property, ‘over person, ad liter ‘decisions: de facto guardian? * Administrative Cireular ang Rules: Factor in Rule 3 Sec'5 and 18 on guardian ad litem and = Rule 14 how, summons is served upon a minor or ‘incompetent GGUARDIAN AD LITEM * Appointment Guardian ad litem of a minor or an incompetent who is not a minor Is it also cognizable exclusively by the FC? Is the appointment of incompetent exclusively by the RTC: * Principle: Any court before which the principal case is Pending has the authority to appoint a guardian ad litem. The SC ruled that the appointment of a guardian as litem is only an incident to a principal action; It is not necessary for anyone of the litigants to file an ‘independent petition for Appointment of a uardian ad litem, 1969-2008 39 pears of excellence and superiority pageBMASTER NOTES IN SPECIAL PROCEEDINGS Dean Virgilio Jara (2008) EXAMPLE: More particularly if the defendant is an incompetent, an Inferior court can possibly take cognizance. This is if the recovery of damages is only for 250K for act of negligence of * The appointment of a guardian ad litem is only for a very limited purpose for the protection of the interest in the particular case, After case has ended then the authority also ends (GENERAL GUARDIAN, * The General Guardian could be a: 1. over the person only; 2. or over the property only;or 3. both over the property or person [APPLICATION OF THE RULES ON OBJECT OR REAL EVIDEN * In the trial of a petition for guardianshiplver a mig6F or incompetent who is not a minor, the: law mandates. the application of the rules of evidencayarticuarly the RULEON OBJECT EVIDENCE. The law requifes that the minor himself op the incompetent himself must be presenitasThis is for the court or judge to easily ascertain whether the minor or ward {s indeed a minor; or the! incompetent or ward is really an incompetent who is not a minor. INCOMPETENT! Two stages: FILING OF THE PETITION: ‘The petition will allege that thefe is an incompetence, that the person is: suffering fm elvil interdiction; ‘a hospitalized leper; a prodigal; deat and dumb unable to read and write; even if not insane will bésubject_ to exploitation ISSUANCE OF NOTICE AND SERVICE’THEREOF * QUERY: Upon the filing of petition, will the court issue summons to acquire jurisdiction over respondent? 2: No. The petitioner does not implead a particular respondent. This is because a guardianship proceeding is a proceeding in rem. But unlike settlement proceedings where notice and publication requirements are jurisdictional, the law does not require the court in guardianship proceeding to issue an order setting the case for hearing which should be published. The law only requires personal notice which must be served upon ward himself (if he is at least 14 years of age) or persons interested. The guardianship proceedings do not require service of summons, there is just a notice to interested persons. * tt is possible that nobody will appear to contest the allegation in the petition that there is an incompetence. However, it is also possible that an interested person wil file {an opposition contesting the allegation that the proposed ward fs incompetent. If that there {an issue or factum probandum as to the incompetence of the proposed ward, it Ps! Lex Talionis Frater SODALITAS DUCUM FUTURORUM must be first adjudicated by the guardianship court. If the Courts says that the proposed ward is incompetent, then the Court can proceed to the appointment of the guardian. QUERY: Is the order of the court adjudicating that the Proposed ward is indeed an incompetent an interlocutory order? ‘A: NO. The order of the court declaring the proposed ward as indeed incompetent is a final order, although there are other proceedings to be taken by the court lke the appointment of the guardian. The order being a final order, it can therefore be appealed. RULES. OF EVIDENCE: PRESUMPTION THAT THE PERSON 15 ‘CAPACITATED TO ACT + The trial court 15 Bound to:foll6w the presumption that a Berson s capacitated to act: presumption on competency. It's the duty of the petitioner. to prove to the court that the proposed ward is really incompetent. QUERY: What is the quantum of proofto, defeat the Presumption,of competence? ‘Ast is clear and convincing evidence, not preponderance of fevidence. The reason fg that there fs a presumption in law that the person is competent, Just lke in ordinary ‘elvit actions, when there is an allegation of fraud or bad faith, | the presumption in law is thar the parties to the contract has acted in good faith. The {quantum to destroy the presumption of good faith is always lear and convincing evidence, GUARDIAN HAS BEEN ALREADY APPOINTED itas, Inc. ESTATE OR (GUARDIANSHIP INTESTATE, cour ‘COURT STATUTE OF NON There None CLANS | DETERINES THE Yes Wo authority VALIDITY OF ‘CLAIMS OF CREDITORS PERSONAL Yes No requirement, 1 PROPERTIES cean either be real SSHOULD BE SOLD ‘or personal RST ‘BOND DEFATING & Yes Wo PETITION FOR AUTHORITY TO SELL PUBLICATION OF Yes Wo, Notice ORDER SETTING. sufficient ‘THE HEARING OF PETITION FOR AUTHORITY TO SELL, DURATION OF Period ie T year from AUTHORITY TO indefinite | _ granting of order SELLOR ENCUMBER, PROPERTY * When the incompetent Is also a minor then the jurisdiction must be in the Family Court 1969-2008 39 pears of excellence and superiority pagedMASTER NOTES IN SPECIAL PROCEEDINGS Dean Virgilio Jara (2008) Ps! * In case of petition for guardianship of an incompetent, there should be a declaration by the court that he is an incompetent; While in petition for guardianship of a minor the best evidence of minority i the birth certificate; * SEE definition of incompetent in the Rules: * There Is no requirement of publication, simply require the court to serve copies personally to parties named; General Rule: There is no need for publication; Exception: In case of guardianship over the properties of the ‘miner or incompetent who is a non-resident, the Rules give authority to the court to order publication; Thus in this case there is a need for publication. * Ifthe interested parties do not agree withithe appointment of the guardian there can be an appeal. Andi Unlike in settlement proceedings there is no similar provision providing for a special guardian. Some cases have ruled that’ the appointment of the guardian is immediately executory a (ong as he files a bond and other conditions complied with, and thus the guardian will undertake his duties despite the appeal. Granting that the court betievesy(since this case ls ‘ot included under Rule 39 on immediately executory orders) that the decision isnot immediately executory, under Rule 39 also there can be anvexecution pending appeal. There can be Feasons that can justify ths: there must be someone to take care of the interests of the ward, the rules of guardianship are designed to benefit the best interests of the ward. The guardian is of course required to file a bond, * In some instances therdll@ RO RBBY to file @ bond. The dues of a guardian are somewhat similar to execad or any person. who occupies a ficuctary position, * The minor may be suedyBecause he can entet valid contracts like a. contract of sale .whenjithes minor Buys necessaries, Most of the contracts @ntered int by a minor are voidable, nonetheless he cafi be sued as a minor since they are valid until annulled * Under the Rules the representative party must implead the real party-in-interest; * The creditor can move for execution in case of final and lexecutory judgment against the guardian as representative of the ward in an ordinary case of recovery of sum of money. ‘Thus the guardian is not immune from execution (but note the court that will execute is not a guardianship court). In settlement proceeding, the estate is immune from execution in case of claim for money. * If the ward is sued, the guardian must represent the ward. ‘nd if guardian is convinced that there are properties with third persons, can the guardian ask the guardianship court to Corder the third person to appear for examination? Yes, but if the third person says he is owner can the guardianship court conduct a trial? No, the guardianship court is a court of limited jurisdiction. it can only resolve incidents pertaining to guardianship. It cannot resolve dispute over tile, * In the care of the ward, the needs should be financed by the assets of the ward, can the guardian sell and encumber Lex Talionis Frater SODALITAS DUCUM FUTURORUM the properties to meet these finances? Yes, with the Permission from the guardianship court. The guardian should file a correlative petition asking for leave to sell. There shall be notice to ward, incompetent or next of kin. Then the court finally issues the order. Is the guardian duty bound to sell the property in public auction? No, There could be public sale or also private sale, depending on the appreciation of the guardian of the market forces. + The authority to sell is only for a period of one year, if it expires the authority is revoked by operation of law. In such a cate the remedy is to file anather petition asking for anew authority. * The guardlanshipshould!automatically end when the ward reaches, the age of majority This 5 50 even if no order is issued Saying that the guardianship is terminated. By operation of law the ward is deemed emancipated and the guardian loses power. This does not_mean that the {uarclanship proceeding is already closed, \the guardian must Sill submitia final accounting; “cin case-of guardianship by reason of incompetency, the incompetent or the guardian files a petition with’ the ‘uardianship court to declare his competency. The petition is Not a separate proceeding but is considered as a continuation fof the guardianship proceeding. If the court declares the ‘Ward competent, the guardiapshigiends.; + The quantum of evidence to declare Incompetent 1s clear land convincing evidence, to defeat a disputable presumption ‘the evidence must be clear andiconvincing evidence; “There is a mention in the rules ofa summary special proceeding|for the approval of the bond, This applies when the assets of the ward is worth at least 50,000. It is a Separate independent summary proceéding where the parents petition forthe approval of the bond so that they can manage the property of minor; * The appointment of a guardians/@d item: assumes or presupposes that there are no parents (natural guardians) or Sudical guardians. Thus it there is already a judicial guardian appointer by the court itis mproper for a court to appoint a suarcian ad litem. “Tis ig an in rem proceeding since it concerns the STATUS of the person under Rule 39 Sec 47; IMPORTANT MATTERS I Query: Are there slibstantial differences as to the duties with respect to the settlement of indebtedness of a ward and the settlement of indebtedness of the estate? A: There isa difference. Recall that in settlement proceedings, itis the duty of the creditors of the estate arising from a contract express or ‘implied, to submit or file their claims in the intestate or estate court within the period of statute of non-claims, otherwise it wil be barred. Iti the estate or intestate court that determines the validity of claims. If the court determines the claim as valid, even if the order approving the claim has been entered, the creditor cannot move for execution, The creditor must wait for the court to issue an order directing the execad to pay the indebtedness, The court decides the merit of a claim for money presented to itas, Inc. 1969-2008 39 pears of excellence and superiority Page 10