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Provisional Remedies Review TSN

Based on the Lectures of Atty. Catherine Guerzo 1


4-Manresa (a.y. 2014-2015)

PROVISIONAL REMEDIES TRANSCRIPTION


November 26, 2014
Transcribed by: Ela Velarde

How do you define PROVISIONAL REMEDIES? What are provisional remedies?

A provisional remedy is a collateral proceeding permitted only in connection with a regular action
and as one of its incidents which provides for the present need or for the occasion one adapted to
meet a particular exigency. (Silangan Manufacturing Corporation vs. Demetria 518 SCRA 160)

What are the NATURE OF PROVISIONAL REMEDIES?

1. It is interim
 These provisional remedies are interim because they can only be resorted to for the
preservation or protection of rights or interests during pendency of an action. (Coo Tau
Co vs. CA 162 SCRA 122)

2. It is ancillary
 These are merely incidents in and are independent upon the result of the main action.

3. It is provisional
 Provisional remedies constitute temporary measures availed of during the pendency of
the main action.

What are the BASIC PRINCIPLES you have to remember in provisional remedies?

1. A provisional remedy is not a civil action but merely a remedy attached to the main action.
2. If you have a good cause of action in the principal or main action, it does not follow that you
have a ground for a provisional remedy.
3. If the provisional remedy is granted, it does not mean that you are already a winner in the
main case.

What are the different KINDS OF PROVISIONAL REMEDIES under the Rules of Court?

1. Attachment – Rule 57
2. Preliminary Injunction and TRO– Rule 58
3. Recievership – Rule 59
4. Replevin – Rule 60
5. Support pendente lite – Rule 61

How about in criminal cases, are there provisional remedies that are available? Or can provisional
remedies be availed of in criminal cases?

Yes. The Basis there is Section 1 of Rule 127.


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RULE 127
PROVISIONAL REMEDIES IN CRIMINAL CASES

Section 1. Availability of provisional remedies.

The provisional remedies in civil actions may likewise be availed of in connection with the
civil action deemed instituted with the criminal action, insofar as they are applicable.

How about under Special Laws? Are there any PROVISIONAL REMEDIES UNDER SPECIAL LAWS?

1. RA 9262 (VAWC)
 The provisional remedy under it is a Temporary Protection Order (TPO).
2. RA 9372 (Human Security Act of 1997)
 Inspection and examination of accounts and freeze order
 Seizure and sequestration of accounts and assets
 Restriction of travel.
3. RA 9775 (Anti-child pornography act o 2009)
 Protective order
4. RA 9194 (AMLA)
 The provisional remedy is the issuance of a freeze order. Once na-file tapos mag-issue
ang court ng freeze order.
5. RA 9851 (Act on crimes against international humanitarian law, genocide or other crimes
against humanity)
 Protection order for victims and witnesses.

PROVISIONAL REMDIES UNDER SC ISSUANCES:

A. Provisional Remedies under the Rule on the Writ of Amparo (A.M. No. 07-9-12-SC)

1. Temporary Protection Order


2. Inspection Order
3. Production Order
4. Witness Protection Order

B. Provisional Remedies under the Rule on Corporate Rehabilitation (A.M.No. 00-8-10 SC)

1. Stay Order
2. Receivership

C. Provisional Remedies under the Rule on Provisional Orders (A.M. No. 02-11-12-SC)

1. Spousal Support
2. Child Support
3. Child Custody
4. Visitation Rights
5. Hold Departure Order
6. Order of Protection
7. Administration of Common Property
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D. Provisional Remedies under the Rule on Involuntary Commitment of Children (A.M. 02-1-19)

1. Guardian Ad Litem of a Child


2. Temporary Custody of a ChildE.

Provisional remedies under the Rules of Procedure for EnvironmentalCases (A.M. 09-6-8-SC)

Hold Departure Order in Criminal Cases

RULE 57 – PRELIMINARY ATTACHMENT

How do you define PRELIMINARY ATTACHMENT (PA)?

A writ of preliminary attachment is a provisional remedy.

When is it issued or available?

It is available uponcommencement of a trial or at any time before entry of judgment.

How about on appeal? Can you avail of the remedy of preliminary attachment on appeal?

Yes. Because, under the law, a PA is available at any time before entry of judgment.

What if there is already a judgment that is final and executory? Can you avail of the remedy of PA?

No, because the remedy there would be a motion for the execution of the judgment and not PA.

A writ of PA is a preliminary, provisional remedy issued upon the commencement of trial or at any
time before entry of judgment, even on appeal, where an action is pending ordering the levy of the
property or properties of the defendant therein, the same to be held after by the sheriff as security
for the satisfaction of whatever judgment that might be secured in said action by the attaching
credit against the defendant.

Who are the proper parties that can avail of this provisional remedy? Who can apply for this PA?

The plaintiff or defendant, cross-claimant, third party defendant.

What are the different types of attachment?

1. Preliminary attachment – the provisional remedy.


2. Final attachment or levy on execution – that is to enforce a judgment that has become final
and executory.
3. Garnishment – refers to the attachment of tangible properties, like bank accounts.

Santos VS Aquino Jr. (205 SCRA 127) and Tai Chung Sui vs. CA (212 SCRA 713): The SC held that
a writ of attachment is substantially a writ of execution except that it emanates at the beginning
instead of at the termination of the suit.

What is the PURPOSE of this remedy?

1. To secure the satisfaction of any judgment that may be recovered in payment of the
pecuniary obligation contracted by a person or believed to have been contracted by him,
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either by virtue of a civil obligation emanating from contract or from law, or by virtue of some
crime or misdemeanor that he might have committed.
2. To secure a contingent lien on defendant’s property until plaintiff can, by appropriate
proceedings, obtain a judgment and have such property applied to its satisfaction, or to make
some provision for unsecured debts in cases where the means of satisfaction thereof are
liable to be removed beyond the jurisdiction, or improperly disposed of, or concealed or
otherwise placed beyond the reach of creditors.
3. To enable the court to acquire jurisdiction over the action by the actual or constructive
seizure of the property in those instances where personal service of summons on the creditor
cannot be effected. (Philippine International Commercial Bank vs. Alejandro 533 SCRA 738)

DISTINGUISH PA from GARNISHMENT.

PRELIMINARY ATTACHMENT GARNISHMENT


It involves 2 persons: only the plaintiff and It involves 3 persons, namely the obligee,
defendant obligor and garnishee
The property attached is actually seized and There is no actual seizure
taken into actual custody

WHO MAY APPLY for a PA?

Not only the plaintiff, but also the defendant when he asserts a counterclaim, crossclaim or third
party claim.

WHO IMPLEMENTS the writ of PA?

The sheriff of the court where the PA is issued.

The writ issued is executed by a sheriff attaching and safely keeping the movable property of the
defendant by annotating upon the record of the Register of Deeds a copy of the order with an notice
aqnd description of the property attached to an extent as may be sufficient to satisfy the plaintiff’s
demands.

What is the NATURE AND SCOPE of PA?

PA is purely statutory. It does not exist unless granted by the statute. It is not available except in
those cases where the statute expressly permits. For this purpose, the party seeking an attachment
must show that a sufficient cause of action exists and that the amount due him is as much as the
sum for which the order of attachment is sought. (General vs. De Venecia 73 Phil 780)

When we speak of PA, the law mandates that there should be STRICT COMPLIANCE with the rule.
Why?

This kind of remedy should be issued only on concrete and specific grounds. (Dy vs. Enage 70
SCRA 96)

How do you construe (CONSTRUCTION) this kind of remedy?

The rule on the issuance of the writ of attachment must be construed strictly against the applicant
and in favor of the defendant. If all the requisites for the issuance of the writ are not present, the
court which issues it acts in excess of jurisdiction. (Gruenberg vs. CA 138 SCRA 471)
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Furthermore, an order of attachment cannot be issued on a general averment, such as one


ceremoniously quoting from a pertinent rule. To sustain an attachment under Section 1(d), Rule 57
of the Rules of Court, it must be shown that the debtor, in contracting the debt, or incurring the
obligation, intended to defraud the creditor. In this case, there were no factual allegations as to how
the fraud alleged by petitioner was committed. Again, it lacks particulars upon which the court can
discern whether or not a writ of attachment should issue. (Philippine Bank of Communications vs.
CA 352 SCRA 616)

What is the principle (rationale) behind the rule on strict construction?

A PA is a rigorous remedy which exposes the debtor to humiliation and annoyance, such that it
should not be abused to cause unnecessary prejudice. It is, therefore, the duty of the court, before
issuing the writ, to ensure that all the requisites of the law have been complied with. Otherwise, the
judge acts in excess of his jurisdiction and the writ so issued shall be null and void.(Sievert vs. CA
168 SCRA 692, Spouses Salgado vs. CA, Salas vs. Adil 90 SCRA 121)

You apply to the court for the issuance of a PA, so attached kasa main case. Is it automatic for the
court to issue the writ? What is the correct PROCEDURE?

STAGES IN THE ISSUANCE OF THE WRIT (Assuming that all the requisites of the law are complied
with):

 First stage: The court issues the order granting the application;
 Second stage: The writ of attachment issues pursuant to the order granting the application;
and
 Third stage: The writ is implemented.

WHO ISSUES the writ?

It is the court.

Can a writ of PA be issued ex parte?

Yes. It can be issued ex parte, meaning there is no need for hearing. However, you have to follow the
stages.

Why is this allowed?

This is justified on the ground that the defendant might abscond before the writ is issued.

For the first 2 stages, is it required for the court to acquire jurisdiction over the person of the
defendant?

No. For the initial 2 stages (before the implementation of the writ), it is not necessary that
jurisdiction over the person of defendant is obtained. That is why the writ can be issued ex parte.
However, once the writ is implemented by the court sheriff, it is necessary for the court to have
jurisdiction over the person of the defendant for the purpose of (aside from jurisdiction) due
process.

We said that there is strict construction. So the grounds under the rule are exclusive. The grounds
are exclusive and strictly construed. Thus, in case of doubt, it should be resolved in favor of the
attached debtor.
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What are the GROUNDS under Section 1?

Section 1. Grounds upon which attachment may issue.

At the commencement of the action or at any time before entry of judgment, a plaintiff or
any proper party may have the property of the adverse party attached as security for the
satisfaction of any judgment that may be recovered in the following cases:

(a) In an action for the recovery of a specified amount of money or damages, other than
moral and exemplary, on a cause of action arising from law, contract, quasi-contract,
delict or quasi-delict against a party who is about to depart from the Philippines which
intent to defraud his creditors;

(b) In an action for money or property embezzled or fraudulently misapplied or converted


to his own use by a public officer, or an officer of a corporation, or an attorney, factor,
broker agent, or clerk, in the course of his employment as such, or by other person in a
fiduciary capacity, or for a willful violation of duty;

(c) In an action to recover the possession of property unjustly or fraudulently taken,


detained or converted, when the property, or any part thereof, has been concealed,
removed, or disposed of to prevent its being found or taken by the applicant or an
authorized person;

(d) In an action against a party who has been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is brought, or in the performance thereof;

(e) In an action against a party who has removed or disposed of his property, or is about to
do so, with intent to defraud his creditors; or

(f) In an action against a party who does not reside and is not found in the Philippines, or
on whom summons may be served by publication.

a) In action for the recovery of a specified amount of money or damages against a party who is
about to depart from the Philippines and with intent to defraud credits.

So this speaks of money. Even though the amount is unliquidated, an application for writ of PA is
allowed.

It also speaks of damages. What kind of damagesangpwede? All kinds of damages except moral and
exemplary damages.

What is your main action under paragraph a? Your main action is an action to recover money or
property.

What if the defendant is in the verge of insolvency, can you apply for PA? No. The leading case is
Aboitiz vs. Cotabato Bus Line June 17, 1981.

KO Glass Construction Company Inc. vs. Valenzuela 116 SCRA 568: Where the plaintiff merely
stated that the defendant was a foreigner but there was no showing, much less an allegation, that
the defendant was about to depart from the Philippines with intent to defraud his creditors, or that
he was a non-resident alien, the attachment of properties was not justified.
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b) In an action involving embezzlement or fraudulently misapplied or converted money or


property.

What is you main action here? Malversation or estafa cases.

c) In an action to recover possession of fraudulently taken property.

It speaks of property, what kind? Both personal and real property.

d) In an action involving fraud in contracting the debt or incurring or performing an obligation.

This speaks of dolocausanteand/or doloincidente. The fraud in contracting the debt or incurring the
obligation must relate to the execution of the agreement and must have been the reason which
induced the other party into giving consent, which he would not have otherwise given. To constitute
A GROUND FOR ATTACHMENT UNDER Section 1(d), fraud should be committed upon the
contracting the obligation sued upon. A debt fraudulently contracted if, at the time of contracting it,
the debtor had a preconceived plan or intention not to pay. (Metro Inc. vs. Lara’s Gifts and Decors
606 SCRA 175)

Ng Wee vs. Tan Kiang Se, 545 SCRA 263: The applicant must sufficiently show the factual
circumstances of the alleged fraud because fraudulent intent cannot be inferred from the debtor’s
non-payment of the debt or failure to comply his obligation.

As a review of your civil procedure, how do you allege fraud? You recit the circumstances which
would show fraud. Dili man syapwede direct, so circumstantial sya.

e) In an action against a party who has, or is about to remove or dispose of his property, to
defraud creditors.

f) In an action against a non-resident defendant who is not found in the Philippines.

Under Section 2, HOW IS AN ORDER OF ATATCHMENT ISSUED?

Sec. 2. Issuance and contents of order.

An order of attachment may be issued either ex parte or upon motion with notice and
hearing by the court in which the action is pending, or by the Court of Appeals or the
Supreme Court, and must require the sheriff of the court to attach so much of the property
in the Philippines of the party against whom it is issued, not exempt from execution, as
may be sufficient to satisfy the applicant's demand, unless such party makes deposit or
gives a bond as hereinafter provided in an amount equal to that fixed in the order, which
may be the amount sufficient to satisfy the applicant's demand or the value of the property
to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at
the same time to the sheriffs of the courts of different judicial regions.

An order of attachment may be issued either ex parte or upon motion with notice and hearing. So, if
it is upon motion, there should be notice and hearing.

Kasali dun sa notice and hearing, anoangkailangan? There should be valid service of summons
which must first be made on defendant. Kasinga, on motion sya.
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WHO ISSUES / BY WHOM ISSUED?

An order of attachment may be issued by the court in which the action is pending or by the CA or
the SC.

How about circuit courts, yungsamgaprobinsya or munisipyo, pwedebasila mag-issue ng writ of PA?

Yes, even the lower courts (MTC, MTCC, RTC). They can issue provided that the main action falls
within their jurisdiction.

If it is issued by the MTC or RTC, the writ of PA is only enforceable within its territorial jurisdiction.

How about if it is issued by the CA and SC? It is enforceable anywhere in the Philippines.

Take note that the trial court can issue a writ of PA even though an appeal had been perfected
because the remedy of PA is available before finality of the judgment. Even if appeal had been
perfected, the trial court can still issue a writ of attachment. The trial court may even issue orders
for the protection and preservation of the rights of the parties which do not involve any matter
litigated by the appeal. (Uy vs. CA 215 SCRA 859)

Provrem, Nov 26, 2nd part

Cuartero vs. CA
212 SCRA 260

Why is the issuance of the writ of attachment ex parte justified?

A hearing in the case would render nugatory the purpose of the provisional remedy. Thus, the trial
court may grant the writ of premilinary attachment even before the defendant is summoned.

Q: What are the contents of a writ of preliminary attachment?

A: The order shall require the sheriff to attach property in the Philippines of the party against whom
it is issued which is not exempt from execution as may be sufficient to satisfy the applicant’s
demand unless such party makes a deposit or gives a bond in the amount fixed in the order.

So the principle there is that, all properties that are exempt from execution are also exempt from
attachment.

Applicant’s Affidavit

Contents:

a. That there is a sufficient cause of action


b. That the case is one of those mentioned in Rule 57, Section 1
c. That there is no sufficient security for the claim sought to be enforced by the action.

Thus, if your claim is secured by a mortgage, you cannot avail of this remedy because you have
sufficient security.
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d. That the amount due to the applicant is as much as the sum for which the order is granted
among all legal counterclaims.

Q: Who determines that sufficiency of the affidavit?

A: The judge of the court where the main case is being filed. The judge before whom the application
is filed exercises full discretion in considering the supporting evidence proffered by the applicant.
Thus, the mere filing of an affidavit reciting the facts required by the above provision is not
sufficient to compel the judge to grant the writ. Mandamus is not the proper remedy. The judge
exercises full discretion. It all depends upon the amount of credit given to it by the judge, who may
reject or accept it in the exercise of his discretion (Lagranja vs. Samson, 58 Phil 378)

The affidavit is the foundation of the writ.

Q: What are the conditions of the applicant’s bond?

1. All cost which may be adjudged to the adverse party


2. All damages which the adverse party may sustain by reason of the attachment if the court
shall finally adjudge that the applicant was not entitled thereto

Q: Under Section 5, regarding the manner of attaching the property, what may be attached by the
sheriff?

A: The sheriff, in enforcing the writ, shall only attach only so much of the property in the
Philippines of the adverse party that is not exempt from execution as may be sufficient to satisfy the
applicant’s demand?

Q: What is the rule on prior or contemporaneous jurisdiction?

A: The rule on prior or contemporaneous jurisdiction means that the levy on the property, pursuant
to the writ, may not be validly effected unless preceded or contemporaneously accompanied by
service on the defendant of summons.

We said before that in the first two stages, jurisdiction over the defendant is not necessary. But
once the writ is implemented by the sheriff, it is necessary that the court acquires jurisdiction over
the defendant, by serving the summons and attaching the property.

Serve summons and attach property to acquire jurisdiction over the person of the defendant.
Service of summons should be valid pursuant to the case of Zachary Company vs CA, 232 SCRA
329.

Q: What should be served on the defendant?

a. Copy of the summons


b. Copy of the complaint
c. Application for attachment
d. Plaintiff’s affidavit and the attachment bond
e. Order and writ of attachment

Q: What is the reason behind the rule?


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A: It is indispensable, not only for the acquisition of jurisdiction over the person of the defendant,
but also upon the consideration of fairness, to apprise the defendant of the complaint against him,
and the issuance of the writ and the ground therefore. (Torres vs. Satsatin, 605 SCRA 453)

GR: Prior or contemporaneous service of summons

Exceptions:

1. When summons could not be served personally or by substituted service despite diligent
efforts
2. When the defendant is a resident of the Philippines temporarily absent therefrom
3. When the defendant is a non resident
4. When an action is in rem or quasi in rem

Q: In these cases, what will the sheriff do?

A: He will just attach the property.

Q: Is that justified under the law?

A: Yes. In these kinds of action, jurisdiction over the person of the defendant is not a prerequisite to
confer the jurisdiction on a court, as long as the court acquires jurisdiction over the res. When the
sheriff attaches the property of defendant, the action is converted to an action in rem, or quasi in
rem. That is why jurisdiction over the person of the defendant is not necessary.

Q: How do you attach real or personal property?

A: If it is real property, by filing with registry of deeds a copy of the order proper description in the
notice that it attached.

Du vs. Strongfold Insurance


GR No. 156580

Thus, the rule that an attachment that is duly annotated to the TCT is superior to the right of a
prior but unregistered buyer, by leaving a copy of such order, description, and notice with the
occupant of the property or his agent if found within the province.

If it is personal property capable of delivery, by taking and safely keeping it in the sheriff’s custody.

If it is stocks or shares, by leaving with the resident or managing agent, a copy of the writ, and
notice that the stock or interest, is attached in pursuance to the writ..

If it is debts, and credit, and other personal property not capable of manual delivery, by
garnishment.

Q: Is service of summons upon the garnishee necessary for the trial court to confer jurisdiction over
the person of the garnishee?

A: No. all that is necessary for the trial courts to bind the said garnishee is service upon him of the
writ of garnishment. Because upon the service of that writ of garnishment, the garnishee becomes a
forced intervenor (Perla Co9mpania de Siguros vs. Ramolete, GR No 60887)
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Q: How will the sheriff attach interest in property belonging to the estate of the decedent?

A: By serving the executor, administrator or other representative of the decedent with a copy of the
writ and notice that said interest is attached, filing the same in the estate settlement court and
serving the same upon the heir, legatee or devisee.

Q: Can a property under custodia legis be attached?

A: Yes. A property attached can be attached all over again.

Q: How?

A: If the property sought to be attached is in custodia legis, a copy of a writ of attachment shall be
filed with the proper court or quasi-judicial agency, and notice of the attachment should be served
upon the custodian of such property.

Sheriff’s Return

Under section 6, after enforcing the writ, the sheriff must make a return to the court which issued
the writ with a full statement of his proceedings under the writ and a complete inventory of the
property attached together with any counterbond given by the party against whom the attachment
is issued.

Q: What are the effects of attachment?

A: If what is attached are debts, credit, and other similar personal property, a debtor becomes a
forced intevenor. If what is attached is the interest of an heir, legatee or devisee of a property
belonging to the estate of the decedent shall not impair the power of the executor, administrator or
representative of the decedent over such property for the purpose of administration.

Q: Can a property attached be sold by the court?

GR. A property that is attached cannot be sold because it is merely a security.

Exceptions:

1. When the property attached is perishable


2. When the interest of all the parties to the action will be served by the sale therefore.

Q: How will you discharge a writ of attachment?

1. By filing a motion for discharge of the attachment and you put up a counterbond. This
remedy is available after the writ has been enforced.

2. By filing a motion for the discharge of the attachment. This available before or after levy or
even after the release of the attached property.

Calderon vs. IAC


155 SCRA 531

These remedies are cumulative.


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Q: When is a motion to discharge not allowed?

Chui Dian vs Sandiganbayan


349 SCRA 745

The merits of the action in which the writ of preliminary attachment has been issued are not triable
on a motion for the dissolution of the attachment. Otherwise, an applicant for the lifting of the writ
will force the trial of the merits of the case by mere motion.

Q: What are the grounds for the discharge of the writ?

1. When the debtor has posted the counterbond, or has made the requisite cash deposit
2. When the attachment was improperly or irregularly issued as where there is no ground for
attachment, or the affidavit or bond filed are defective or insufficient or the writ was
improperly or irregularly enforced
3. When attachment is excessive but the discharge will be limited only to the excess
4. When the property attached is exempt from execution
5. When the judgement is rendered against the attached creditor

Q: What if the ground for the discharge is the lack of notice to him on the plaintiff’s application for
the issuance of the writ?

A: No. this is not a ground. A writ of preliminary attachment can be issued ex parte.

Q: What if the property attached does not belong to the defendant?

A: Your remedy is to file a third party claim or a terceria.

Q: Suppose you put up a counterbond, when you put that counterbond the attachment is
discharged. What if the plaintiff is the one who won the case, what is your remedy?

A: The remedy of plaintiff is to recover on the counterbond under section 17. Counterbond is given
as security and here the judgment has become executory.

There can be recovery of damages from the bond on account of improper, irregular or excessive
attachment.

Q: When can you avail of this remedy?

A: You can avail of this remedy before appeal is perfected. The application must be filed with the
trial court before appeal is perfected or before the judgment becomes executory with due notice to
the attaching party and his sureties.

Q: Where do you file this claim?

A: In the same action which gave rise to the special proceeding.

GR: It cannot be subject of a separate action because the court that had acted on the special
proceedings which occasioned the damages has the exclusive jurisdiction to assess the damages
because of its control of the case.
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Exception: Where the principal action is dismissed for lack of jurisdiction over the subject matter
and the court is prevented from rendering any judgment thereon which could include a claim for
damages. Hence, you can file it in another court.

Jurisprudence

Andawan vs. Star


233 SCRA 654

When the ground relied upon in asking for preliminary attachment is impending fraudulent removal
concealment and disposition of defendant’s property under par d and e of Section1 rule 57, the
court should conduct a hearing to gather facts regarding the allegations of fraud

Consolidated Bank and Trust Corp vs. IAC


150 SCRA 591

What happens to a property that is levied upon by virtue of a writ of preliminary attachment?

It becomes one under custodial egis and a subsequent extra judicial foreclosure of said property by
a third party mortgagee does not affect the lien created by the attachment

Binan Steel Corp vs. CA


391 SCRA 90

Attachment is a proceeding in rem or in quasi in rem. Hence, in effect it means that the property
attached is an indebted thing and in a virtual condemnation of it to pay the owner’s debt.

PNB vs. Pabalan


183 SCRA 595

Garnishment does not lie against the funds of the regular departments or offices of the government
but fund of public corporations are not exempt from garnishment.

Q: How can the judgment be satisfied out of the property attached?

1. By payment to the judgment creditor or all sales of perishable or other property


2. If any balance remains by selling other properties as may be necessary to satisfy the
judgment
3. By collecting from all persons having possession of credit belonging to the judgment debtor

RULE 58 PRELIMINARY INJUNCTION


Definition
A preliminary injunction is an order granted by the court where the action or proceedingis
pending, at any stage prior to judgment, requiring a party or a court, agency or a person to refrain
from doing a particular act or acts. It may also require the performance of a particular act or acts,
in which case, it shall be known as a preliminary mandatory injunction.
Distinguish Preliminary Injunction form a Final Injunction
Final Injunction – is one that is granted after the trial of the action perpetually restraining the party
or person enjoined from the commission or the continuance of the act or acts complained of.
Nature
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1) Ancillary and Provisional - A preliminary injunction is a mere adjunct, an ancillary


remedy which exists only as an incident of the main proceeding. A preliminary
injunction, as the term itself suggests, is merely temporary, subject to the final
disposition of the principal action. An independent action merely to obtain preliminary
injunction is not allowed. Some substantive relief must be sought in the principal action.

So if your provisionalremedy is preliminary injunction, what is your main action? Main


action is an Action for Injunction. “Injunction with prayer for preliminary injunction or tro”
2) Preservative -It is a preservative remedy to ensure the protection of a party’s substantive
rights or interests pending the final judgment in the principal action. A plea for an injunctive
writ lies upon the existence of a claimed emergency or extraordinary situation which
should be avoided for, otherwise, the outcome of a litigation would be useless as far as the
party applying for the writ is concerned.

3) Issuance must be exercised with great caution(AM No. 7-99) – Judges are enjoined to
observe utmost caution, prudence and judiciousness in the issuance of temporary
restraining order and in the grant of writs of preliminary injunction to avoid any
suspicion that its issuance or grant was for consideration other than the strict merits of the
case.

Rationale: There is no power, the exercise of which is more delicate and requires
greater caution, deliberation, and sound discretion, or (which is) more dangerous in a
doubtful case than the issuing of an injunction. It is the strong arm of equity that
never ought to be extended unless in cases of great injury, where courts of law cannot
afford an adequate or commensurate remedy in damages.
A preliminary injunction is a strong arm of equity or a transcendent remedy since it should
be used cautiously as it affects the respective rights of the parties.
Kinds (Section 1)
1) Preliminary prohibitory injunction- which commands a party to refrain from doing a
particular act; and
2) Preliminary mandatory injunction-which commands the performance of some positive act to
correct a wrong in the past.

Purpose
Generally, the sole object of a preliminary injunction, whether prohibitory or mandatory, is to
preserve the status quo until the merits of the case can be heard.
Status Quo -is the last, actual,peaceable, uncontestedstatus(LAPUS)that preceded the
pending controversy.
More specifically, the purpose of a preliminary prohibitory injunction is not to correct a wrong of
the past, in the sense of injury already sustained, but to prevent further injury, while the
purpose of a preliminary mandatory injunction is to reestablish and maintain a preexisting
continuing relation between the parties, recently and arbitrarily interrupted by the defendant, than
to establish a new relation.
PRELIMINARY PROHIBITORY INJUNCTION
Essential requisites for issuance
a. the applicant must have a clear and unmistakable right, that is already in existence(Right in Esse)

SarenovsDictado – Injunction is not a proper remedy to protect contingent or future rights,


nor is it a remedy to enforce an abstract right.

b. there is a material and substantial invasion of such right;


c. there is an urgent need for the writ to prevent irreparable injury to the applicant; and
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d. noother ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable
injury.

Instances where preliminary prohibitory injunction lies


i. inpetitions for relief from judgment entered through fraud, accident, mistake or excusable
negligence. (Section 5 Rule 38 ROC)
ii. in petitions for certiorari, prohibition and mandamus. (Rule 65)
iii. to restrain continued breach of a valid negative obligation.
iv. to restrain a spouse from alienating or encumbering conjugal property during the pendency of
legal separation or annulment proceedings.
v. to enjoin repeated trespass on land.
vi. to restrain a city from proceeding with the abatement of a nuisance “per accidens”
before it has been judicially declared to be such.
vii. to restrain voting of disputed shares of stock.
viii. to restrain a sheriff from selling property on execution not belonging to the judgment
debtor.

Instances where preliminary prohibitory injunction does not lie


When preliminary prohibitory injunction is prohibited under statute
a. In labor cases

i. Under Article 255 of the Labor Code of the Philippines, as amended by Section 4 of Batas
PambansaBlg. 227, no temporary or permanent injunction in cases growing out of labor
disputes shall be issued by a court or other entity, except by the following:
 The National Labor Relations Commission, which shall have the power and authority
to enjoin or restrain any actual or threatened commission of any or all prohibited or
unlawful acts in any labor dispute which may cause grave or irreparable damage to any
party, provided that said injunction shall be issued only after due notice and hearing.
(Art 218 LC)

 The Secretary of Labor and Employment, who shall assume jurisdiction over or decide
a labor dispute which in his opinion is likely to cause strikes or lockouts adversely
affecting the national interest, or he may certify the same to the commission for
compulsory arbitration. Such assumption or certification shall have the effect of
automatically enjoining the intended or impending strike or lockout.(Art 264 LC)

b. Injunctions to restrain the collection of tax under Rep. Act No. 8424.

GENERAL RULE: No court may grant an injunction to restrain the collection of any national
internal revenue tax, fee or charge imposed by the National Internal Revenue Code of 1997.
(Sec 218 NIRC)

EXCEPTION: Where some special circumstances are shown to exist, as in irreparable injury.

David vs Ramos – a person was taxed under a law subsequently declared to be


unconstitutional. Since the tax law was unconstitutional, the collection of taxes can be
enjoined.

c. Injunctions to prevent the implementation of national government infrastructure projects


under Rep. Act No. 8975.

Example: If there is a construction of a national highway, that cannot be enjoined.


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R.A.8975 – An Act to Ensure the Expeditious Implementation and Completion of Government


Infrastructure Projects by Prohibiting Lower Courts from Issuing Temporary Restraining Orders,
Preliminary Injunctions or Preliminary Mandatory Injunctions, Providing Penalties for Violations
thereof, and for Other Purposes, enacted November 7, 2000
“National government projects" shall refer to all current and future national government
infrastructure, engineering works and service contracts, including projects undertaken by
government-owned and –controlled corporations, all projects covered by Republic Act No.
6957, as amended by Republic Act No. 7718, otherwise known as the Build-Operate-and-
Transfer Law, and other related and necessary activities such as site acquisition, supply
and/or installation of equipment and materials, implementation, construction, completion,
operation, maintenance, improvement, repair and rehabilitation, regardless of the source of
funding.
"Service contracts" shall refer to infrastructure contracts entered into by any department,
office or agency of the national government with private entities and non-government
organizations for services related or incidental to the functions and operations of the
department, office or agency concerned.
GENERAL RULE: The issuance of temporary restraining orders, preliminary injunctions, or
preliminary mandatory injunctions against national government infrastructure projects is
prohibited under this law.

No court, except the Supreme Court, shall issue any TRO or preliminary injunction or
preliminary mandatory injunction against the government, or any of its subdivisions or
officials, whether public or private, acting under the government direction to restrain,
prohibit or compel the following acts:

a. Acquisition, clearance and development of the right-of-way and/or site or location of any
national government project;
b. Bidding or awarding of contract/ project of the national government;
c. Commencement, prosecution, execution, implementation, operation of any such contract or
project;
d. Termination or rescission of any such contract/project; and
e. The undertaking or authorization of any other lawful activity necessary for such
contract/project.

EXCEPTION: This prohibition shall not apply when the matter is of extreme urgency
involving a constitutional issue, such that unless a temporary restraining order is issued, grave
injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be
fixed by the court, which shall accrue in favor of the government if the court should finally
decide that the applicant was not entitled to the relief sought.

d. Injunctions to prevent the foreclosure of real estate mortgages by government financing


institutions under Pres. Decree No. 385.

The law prohibits the issuance of any restraining order, temporary or permanent
injunction against any government financing institution in any action taken by such
institution in connection with the mandatory foreclosure where arrears amount to at least
20% of the total outstanding obligations, including interest and other charges as
appearing in the book of accounts and/or related records of the financial institutions
concerned.

Courts are directed to exercise utmost caution and judiciousness in the issuance of
Temporary Restraining Orders or Preliminary injunctions in the foreclosure of real
estate mortgages by government financial institutions.
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Example of financial institutions: DBP, Landbank

Inapplicability.Presidential Decree No. 385 cannot, however, be applied in the


following instances:

a. Where the extent of the loan actually received by the borrower is still to be determined.

b. Where properties involved are already foreclosed . The prohibition found in Pres. Decree No.
385 against the issuance of injunctions by lower courts, unless certain conditions are
met, applies only to foreclosure proceedings initiated by government financing institutions,
like the Development Bank of the Philippines.

e. Injunctions to prevent theAnti Money Laundering Council from issuing and/or


implementing freeze orders under Rep. Act 91601, as amended by Rep.Act No. 9194.

No court, except the Court of Appeals or the Supreme Court, shall issue a temporary restraining
order or writ of injunction against any freeze order of accounts issued by the AMLC where
there has been a determination of probable cause that the subject account is dubious in
character.

f. Injunctions to restrain the Presidential Agrarian Reform Council, Department of Agrarian


Reform, the Department of Agriculture, the Department of Environment and Natural
Resources and the Department of Justice under Rep. Act No. 6657, as amended by
Rep.Act No. 9700.

Except for the Supreme Court, no court in the Philippines shall have jurisdiction to
issue any restraining order or writ of preliminary injunction against the PARC, the DAR,
or any of its duly authorized or designated agencies in any case, dispute or controversy
arising from, necessary to, or in connection with the application, implementation,
enforcement, or interpretation of such Act and other pertinent laws on agrarian reform.

No injunction, restraining order, prohibition or mandamus shall be issued by the regional


trial courts, municipal trial courts, municipal circuit trial courts, andmetropolitan trial courts
against the DAR, the DA, the DENR, and the Department of Justice in their implementation
of the agrarian reform program.

g. Injunction against the Asset Privatization Trust (APT) under Proc.No. 50, as amended by
Proc.No. 50-A.

No injunction. — No court or administrative agency shall issueany restraining order or


injunction against the Trust in connection with the acquisition, sale or disposition of assets
transferred to it pursuant to this Proclamation. Nor shall such order or injunction be issued
against any purchaser of assets sold by the Trust to prevent such purchaser from
taking possession of any asset purchased by him.

Note:The term of the Asset Privatization trust ended on December 31, 2000. However, its
powers and functions are now undertaken by the Privatization and Management Office under
the Department of Finance.

h. Injunctions against public administrative officers in the issuance of public grants


for the exploitation of natural resources under Pres.Decree No. 605. 2

1
Anti-Money Laundering Act of 2001, enacted September 29, 2001.
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No court of the Philippines shall have jurisdiction to issue any of the following: restraining
order; preliminary injunction; or preliminary mandatory injunction in any case involving or
growing out of: the issuance; approval or disapproval; revocation or suspension of; or any action
whatsoevercommitted by the proper administrative official or bodyinvolving any of the following:
concessions, licenses, permits, patents, or public grants of any kind which are related to the:
disposition, exploitation, utilization, exploration, and/or development of the natural resources
of the Philippines.

Exception: The prohibition does not apply in a case where the complaint does not put
in issue the legitimacy of the defendant’s claim of being holders of mining lease contracts,
but asserts that defendants had rights.

Where Preliminary Prohibitory Injunction Was Held Improper

a. To restrain the sale of conjugal properties where the claim can be annotated on the title
as a lien, such as the husband’s obligation to give support.

b. To restrain a mayor proclaimed as duly elected from assuming his office.

c. To restrain consummated or ministerial acts.


i. not proper to restrain the disposition of a case on the merits.
ii. not proper to stop the execution of judgment where the judgment was already executed.
iii. not proper for the regional trial court to issue a writ of injunction against the
Register of Deeds if its effect is to render nugatory a writ of execution issued by the
National Labor Relations Commission.
iv. Where the act sought to be prevented had already been committed. An injunction suit
becomes moot and academic after the act sought to be enjoined has already been
committed or consummated.

d. Where an action for damages would adequately compensate the injuries caused. The very
foundation of the jurisdiction to issue the writ of injunction rests on: (1) the possibility of
irreparable injury, (2) the inadequacy of pecuniary compensation, and (3) the prevention of
multiplicity of suits. Where facts are not shown to bring the case within these conditions,
the relief of injunction should be refused.

e. When it is issued against courts or tribunals of co-equal rank.


i. a court may not interfere by injunction with the judgments or orders of another court or
quasi-judicial agency of coordinate and concurrent jurisdiction.
ii. no writ may be issued by the Regional Trial Court against quasi-judicial bodies of equal
rank, such as the Social Security Commission, Government Service Insurance
Commission, Securities and Exchange Commission,Intellectual Property Office,
Commission on Elections, Workmen’s Compensation Commission and others.

Exception:
(1) If not co-equal or concurrent jurisdiction (Example: RTC and MTC – injunction by the
RTC of the MTC is allowed)
(2) If a third party claimant is involved. Thus when a third party asserts a claim over the
property levied upon by the sheriff, said property may vindicate his claim by an
independent action in the proper court which may issue an injunctive relief to stop the
execution of the judgment on the property claimed by the third party.(Salas vs Castro)
(So if RTC-RTC pwede if based on this.)
2
Banning the Issuance by Courts of Preliminary Injunctions in Cases Involving Concessions, Licenses, and other Permits Issued by Public Administrative Officials or
Bodies for the Exploitation of Natural Resources, enacted December 12, 1974.
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Rationale: if a coordinate court is allowed to interfere with each other’s judgments, decrees,
or injunctions, the same would lead to confusion and might seriously hinder the
administration of justice.

f. To prevent the implementation or execution of contracts for the operation of a public utility.

g. When the act sought to be enjoined has already been committed.

h. Where the injunction is not prayed for in the complaint. Courts should not issue orders or
injunctions beyond those prayed for in the complaint.

i. To restrain criminal prosecutions, except in the following cases: (Usual Bar question)

i. For the orderly administration of justice;


ii. ii. To prevent the use of the strong arm of the law in an oppressive and vindictive
manner;
iii. To avoid multiplicity of actions;
iv. To afford adequate protection of constitutional rights;
v. Where the statute relied upon is unconstitutional or was held invalid;
vi. Where the constitutionality of the Chinese Book Keeping Law was questioned;
vii. Where the hearing of the libel case was enjoined by permanent injunction after
the Supreme Court, in a separate case, found the communication alleged to be
libelous as privileged and not libelous;
viii. Where a traffic ordinance was found to be invalid;

PRELIMINARY MANDATORY INJUNCTION


Requirement: the usual requirement is an (1) affidavit and (2) bond.
Requisites

a. Invasion of the right is material and substantial;


b. Right of complainant is clear and unmistakable;
c. Urgent and permanent necessity forthe writ to prevent serious damage.

When not allowed


a. to compel one of the spouses to cohabit with, and render conjugal rights to, the other;
b. to cancel an attachment;
c. to transfer the property in litigation from the possession of one party to another where the
legal title is in dispute and the party having possession asserts ownership thereto. This is
more particularly applicable where the legal title is in dispute and the party having possession
asserts ownership in himself.
d. when the effect would be to create a new relation between the parties.
Reason: because the purpose of preliminary mandatory injunction is to maintain the status
quo
When allowed
a. In forcible entry cases where the Court may issue a preliminary mandatory injunction,
upon motion within 5 days from the filing of the complaint, to restore the plaintiff in
possession3and those involving leases in which the court may, on appeal, grant similar
mandatory injunctive relief.

3
RULES OF COURT, Rule 70, Sec. 15.
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The exception applies only to ejectment cases exclusively cognizable by the municipal trial court.

b. Property covered by Torrens Title when there is a clear finding of ownership and
possession of the land, unless the subject property is covered by a Torrens Title pointing to one
of the parties as the undisputed owner.

Procedure for issuance of preliminary injunction


1) The application for injunction must be verified (verified application - affidavit under oath) and
must show facts entitling the applicant to the relief demanded 4

2) Unless exempted by the court, the applicant must file a bondexecuted to the party or
person enjoined, in an amount to be fixed by the court (discretionary upon the court UNLESS
he is exempted by the court)

Grounds
a. applicant is entitled to the relief demanded which consists in restraining the commission or
continuance of the act or acts complained of, or in requiring the performance of an act or
acts;

b. commission, continuance or non-performance of the acts complained of during the


litigation would probably work injustice to the applicant; or

c. a party, court, agency or a person is doing, threatening, or is attempting to do, or is


procuring or suffering to be done, some act or acts probably in violation of the rights
of the applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual.

Q: Can a writ of preliminary injunction be issued ex parte?Dibaang preliminary attachment can be


issued ex parte kasi time is of the essence. How about a writ of preliminary injunction?
A: GENERAL RULE: NO, it cannot be issued ex parte.
Section 5 – no preliminary injunction shall be granted without hearing and prior notice to a
party or person sought to be enjoined.
“notice to the party sought to be enjoined” – means the valid service of summons.
Rationale: Preliminary injunction is a strong arm of equity, an extraordinary peremptory
remedy that must be used with extreme caution since it affects the respective rights of the
parties.
Under Section 5, it appears that before a preliminary injunction shall be issued, a clear
showing must be made that there exists a right to be protected and that the acts to which the
writ is directed upon are violative upon an established right. Thus, the holding of a hearing
where both parties can present evidence and present their sides are also required before the
courts may issue a TRO or an injunctive writ. (China Banking Inc. vsSps. Ciriaco)
EXCEPT: Exceptions to the requirement of hearing:
a. Great or irreparable injury would result to the applicant before the matter can be heard on
notice.
i. Thus, the court may issue a TRO effective for 20 days from service on the party sought to
be enjoined.
ii. Injury is “irreparable” if it is of such constant and frequent recurrence that no fair or
reasonable redress can be had therefor in a court of law, or where there is no standard by
which their amount can be measured with reasonable accuracy.
b. The matter is of extreme urgency and the applicant will suffer grave injustice and irreparable
injury.
4
RULES OF COURT, Rule 58, Sec. 4
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i. Judge may issue ex parte a TRO effective for 72 hours from issuance. (this is the BABY TRO)

 Issued by the Executive judge – if it is filed in a multiple sala court


 Issued by the presiding judge of the court where it is filed - If it is filed in a single sala
court

Why from the “issuance” – because it issued ex parte. So upon the filing of the complaint
with a prayer for the issuance of a TRO, immediately, the executive judge issues the 74
hour TRO.

ii. Within 72 hours, the judge shall conduct a summary hearing to determine whether the
TRO shall be extended until the application for preliminary injunction can be heard.

Assuming the BABY TRO will be extended, how long shall it be extended? 17 days, for a total
of 20 days.

iii. Maximum period of effectivity of TRO is 20 days.


 If the application for preliminary injunction is denied or not resolved within the
said period, the TRO is deemed automatically vacated.
 The effectivity of a TRO is not extendible and no court shall have authority to extend
or renew the same on the same ground for which it was issued

Q: Is there a TRO which lifetime/effectivity is indefinite?

 However, if issued bythe Court of Appeals or a member thereof, the TRO shall be effective
for 60 days from service on the party or person sought to be enjoined.
 A TRO issued by the Supreme Court or a member thereof shall be effective until
further orders.

Provisional Remedies
December 10, 2014

So Before we proceed with rule 59, I would just like to emphasize regarding the bond requirement in
both the preliminary attachment and preliminary injunction. So again, what is the purpose of that
bond requirement? It is to answer for all the damages. So take note, its purpose is to compensate
the other party for the damages caused by the wrongful issuances of the preliminary attachment or
preliminary injunction.
Under section 17 or rule 57 regarding the counterbond that is given by the surety, that remedy is
available to whom? The plaintiff. This presupposes that the plaintiff wins. Suppose you put up a
counterbond, what happens? The writ of preliminary attachement is dissolved. Now if the plaintiff
wins, what is his remedy? So the remedy is under section 17 and that is to recover to the
counterbond. For emphasis, what is required there is that the surety should be notified.
The latest case there is the case of united pulp and paper company vs acropolis gr no: 171750,
this case talks about the liability of the surety on the counterbond in the preliminary attachment.
The supreme court ruled that, on the recovery of the counterbond, the court finds merit in the
argument of the petitioner, here it is evident that a surety on a counter-bond given to secure the
payment of a judgment becomes liable for the payment of the amount due upon: (1) demand made
upon the surety; and (2) notice and summary hearing on the same action. After a careful scrutiny
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of the records of the case, the Court is of the view that UPPC indeed complied with these twin
requirements.This Court has consistently held that the filing of a complaint constitutes a
judicial demand.[32] Accordingly, the filing by UPPC of the Motion to Order Surety to Pay Amount of
Counter-Bond was already a demand upon Acropolis, as surety, for the payment of the amount due,
pursuant to the terms of the bond. In said bond, Acropolis bound itself in the sum of
₱42,844,353.14 to secure the payment of any judgment that UPPC might recover against Unibox
and Ortega.[
Another case, the case of spouses marquez vs spouses alindog gr no. 184045, here the supreme
court rule that preliminary injunction is improper where the act sought to be enjoined is already
consummated.
Another case, the case of republic of the Philippines vs caguioa gr no 174385 the supreme court
held that The notice requirement is even more mandatory when the movant asks for the issuance of
a preliminary injunction and/or a TRO. Under Section 5, Rule 58 of the Rules of Court, no
preliminary injunction shall be granted without a hearing and without prior notice to the party
sought to be enjoined. The prior notice under this requirement is as important as the hearing, as no
hearing can meaningfully take place, with both parties present or represented, unless a prior notice
of the hearing is given.
Tml gasket industries vs BPI gr. No. 188768 the supreme court held that The issuance of a
preliminary injunction rests entirely within the discretion of the court taking cognizance of the case
and is generally not interfered with except in cases of manifest abuse. For the issuance of the writ of
preliminary injunction to be proper, it must be shown that the invasion of the right sought to be
protected is material and substantial, that the right of complainant is clear and unmistakable and
that there is an urgent and paramount necessity for the writ to prevent serious damage. 12 In the
absence of a clear legal right, the issuance of a writ of injunction constitutes grave abuse of
discretion.
Executive secretary vs Runner multi resources Gr. No. 199324 the supreme court held that
Injunction will not issue on the mere possibility that a litigant will sustain damage, without proof of
a clear legal right entitling the litigant to protection. 22in other words, injunctive relief will not be
granted for self inflicted losses which are damnunabsqueinjuria.

Now, we will proceed to rule 59. Receivership.


Receivership is a legal or equitable proceeding in which a receiver is appointed for an insolvent
corporation, partnership or individual to preserve its assets for the benefit of the affected
parties.186

A receiver is a person appointed by the court on behalf of all the parties to the action for the
purpose of preserving and conserving the property in litigation and prevent its possible destruction
or dissipation, if it were left in the possession of any of the parties.187 He is not the agent or
representative of either party to the action, but is uniformly regarded as an officer of the court,
exercising his functions in the interest of neither plaintiff nor defendant, but for the common benefit
of all parties in interest.

In the case of Commodities Storage & Ice Plant Corporation, et al. v. Court of Appeals, et al., G.R. No.
125008, June 19, 1997, 274 SCRA 439. The supreme court held that The guiding principle is the
prevention of imminent danger to the property. If an action by its nature, does not require such
protection or reservation, said remedy cannot be applied for and granted.
Arranza, et al. v. B.F. Homes, Inc., et al., G.R. No. 131683, June 19, 2000, 333 SCRA 799. The
supreme court held that It is the duty of the receiver to administer the assets of the receivership
estate; and in the management and disposition of the property committed to his possession, he acts
in a fiduciary capacity and with impartiality towards all interested persons.
When is the remedy of receivership available? It is available during pendency of proceeding, after
judgement, or during pendency of appeal, or even after final judgement. That is in aid of execution.
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Question, can a party to a case be appointed as a receiver? As a general rule, NO! the exception
there is unless consented to by all the parties.
Can a court sheriff be appointed as receiver? NO!
Can a clerk of court be appointed as receiver? NO!
IMPORTANT: Can a court appoint a receiver exparte? Cge a little review muna. Diba kapag
preliminary attachment pwede exparte. Kapag injuction naman, as a general rule it requires notice
and hearing except the 72 hours TRO and the 20 days TRO. How about naman if receivership
pwede ba siya? NO!! because there has to be a hearing. Kasi kelangan mo idetermine ang
qualification ng receiver.
Can a receiver be appointed over a property under custodia legis? YES. That was answered in the
case of dollar vs sundiang 38 scra 616 the supreme court stated that yes, when it is necessary to
protect the rights of the real owner.
Now, if your provisional remedy is for receivership, what then is your main action? These are the
following examples:
1. action for receivership with a prayer for appointment of receiver.
2. real action involving title to or possession of realty.
3. foreclosure of mortgage.
4. dissolution of a corporation.

Now, when may be a receiver appointed? remember ha if provisional remedy, always verified ang
application.
Under section 1:
a. When it appears from the verified application, and such other proof as the court may
require, that the party applying for the appointment of a receiver has an actual interest in
the property subject of the action or proceeding, and that such property is in danger of being
lost, removed, or materially injured, unless a receiver be appointed to administer and
preserve it;
b. When it appears in an action by the mortgagee for the foreclosure of a mortgage that the
property is in danger of being wasted or dissipated or materially injured, and that its value is
probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in
the contract of mortgage;
c. After judgment, to preserve the property during the pendency of an appeal, or to dispose of
it according to the judgment, or to aid execution when the execution has been unsatisfied or
the judgment obligor refuses to apply his property in satisfaction of the judgment, or
otherwise to carry the judgment into effect;
d. Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the property in
litigation.

So what court can appoint the receiver?


1. the court where the main action is pending
2. the supreme court
3. the court of appeals
- take note that during appeal, there may be appointment of receiver to be appointed by the
court of origin.
Now, how about the lower courts can they appoint receivier? Mga municipal level courts? pwede
ba dun ang receivership? Is that allowed? PWEDE as long as the main action falls under the
jurisdiction of the first level court.
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Take note under section 2. what is this bond requirement? When we speak of the remedy of
receivership, there are two bonds that are required to be posted. That is the bond of the
applicant unders section 2 and the bond of the receiver.
So what is this bond by the applicant? Section 2:

Section 2. Bond on appointment of receiver. — Before issuing the order appointing a receiver
the court shall require the applicant to file a bond executed to the party against whom the
application is presented, in an amount to be fixed by the court, to the effect that the
applicant will pay such party all damages he may sustain by reason of the appointment of
such receiver in case the applicant shall have procured such appointment without sufficient
cause; and the court may, in its discretion, at any time after the appointment, require an
additional bond as further security for such damages.

Ano naman tong bond of the receiver? That is under section 4:

Section 4. Oath and bond of receiver. — Before entering upon his duties, the receiver shall
be sworn to perform them faithfully, and shall file a bond, executed to such person and in
such sum as the court may direct, to the effect that he will faithfully discharge his duties in
the action or proceeding and obey the orders of the court. (5a)

So what happens? Under section 3 it talks about denial of application and discharge of receiver.
How is a receiver discharged? Upon a filing of a COUNTERBOND!

Section 3. Denial of application or discharge of receiver. — The application may be denied, or the
receiver discharged, when the adverse party files a bond executed to the applicant, in an amount to
be fixed by the court, to the effect that such party will pay the applicant all damages he may suffer
by reason of the acts, omissions, or other matters specified in the application as ground for such
appointment. The receiver may also be discharged if it is shown that his appointment was obtained
without sufficient cause. (4a)

Can you file a case against a receiver? Take note he is an officer of the court ha. Can you sue him
in court? Yes you can. Provided that you ask permission from the court where he is appointed.
That is found under section 6.
How about compensation, is a receiver entitled to compensation? Yes he is allowed provided he is
only given reasonable compensation as the circumstances of the case warrant which shall be
charges against the defeated party.
Now, what are the general powers of a receiver? Pls memorize atleast five, malay niyo itanong sa
bar.
1. Bring and defend, in such capacity, actions in his own name with leave of court;
2. Take and keep possession of the property in controversy;
3. Receive rents;
4. Collect debts due to himself as receiver or to the fund, property, estate, person, or
corporation of which he is the receiver;
5. . Compound for and compromise the same;
6. Make transfers;
7. Pay outstanding debts;
8. Divide the money and other property that shall remain among the persons legally entitled to
receive the same;
9. Generally, to do such acts respecting the property as the court may authorize;
10.Invest funds in his hands, but only by order of the court upon the written consent of all the
parties.
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Question, can a receiver enter a compromise? YES, provided he is duly authorized by the parties.
He has to be SPECIALLY authorized by the parties. So necessarily, there has to be a special power
of attorney.

So what are those specific situations when a receiver may be appointed?

1. Family Code, Article 101

If a spouse, without just cause, abandons the other or fails to comply with his or his
obligations to the family, the aggrieved spouse may petition the court for receivership.

2. Rules of Court, Rule 39, Section 41

The court may appoint a receiver of the property of the judgment obligor; and it may also
forbid the transfer or other disposition of, or any interference with, the property of the judgment
obligor not exempt from execution.

So how is receivership terminated?


- by the court motu propio or on motion and based on the following grounds:
 that the necessity for the receiver no longer exists
 when the receiver asserts ownership over the parties
 after due notice and hearing to all the parties.

Now, we begin with the provisional remedy of REPLEVIN.

So, if your provisional remedy if for replevin, what is your main action? RECOVERY OF
POSSESSION OF PERSONAL PROPERTY.

How about pala if it is real property?


NO. because replevin is limited to personal property only.

What is the definition of replevin?

Replevin is a possessory action, the gist of which is the right of possession in the plaintiff. The
primary relief sought therein is the return of the property wrongfully detained by another person. It
is an ordinary statutory proceeding to adjudicate rights to the title or possession of personal
property.

In the case of Sergs products vs PCI leasing gr no. 137705, the supreme court held that machines
placed by defendant in the factory built on defendands land cannot be subject to replevin since
machines become immobilized by destination as they are essential and principal in the industry.

So what the purpose of replevin?

The provisional remedy of replevin allows the plaintiff to retain the thing in dispute during the
pendency of the action and hold it pendente lite and prevent defendant from damaging or disposing
the property. This is based on the case of BA finance corporation vs CA 258 scra 102.

PROVREM DECEMBER 10 SECOND PART


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When is the remedy of replevin available?

Under Rule 60, it is available at the commencement of the action or at anytime before answer.

Section 1. Application. — A party praying for the recovery of possession of personal property
may, at the commencement of the action or at any time before answer, apply for an order
for the delivery of such property to him, in the manner hereinafter provided. (1a)

So, very brief period lang siya. My next question: Saan ba pwede magfile nito? It depends upon the
value of the property sought to be recovered. Yun yung jurisdictional requirement.

How about the Court of Appeals and Supreme Court? No. Kasi nga, before answer lang siya pwede
ma-avail.

Can this be issued ex parte? Yes. Kasi diba ang limitation, before the answer is filed. So, pwede siya
immediately based on the affidavit of the applicants and can be issued ex parte.

So who may apply? Under Section 1. A party praying for the recovery of possession of personal
property.

Basic requirement under Section 2. So remember basta provisional remedy, affidavit talaga ang
kailangan.

Section 2. Affidavit and bond. — The applicant must show by his own affidavit or
that of some other person who personally knows the facts:

(a) That the applicant is the owner of the property claimed, particularly describing it,
or is entitled to the possession thereof;

Based on this first requirement, even if the applicant is not the owner of the property, as long as he
is entilted to the possession thereof, then, he can apply for this provisional remedy.

(b) That the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to the best of his knowledge, information, and belief ;

(c) That the property has not been distrained or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise
placed under custodia legis, or if so seized, that it is exempt from such seizure or custody;
and

(d) The actual market value of the property.

Why actual market value of the property? Why not probable value? For purposes of jurisdictional
requirement.

The applicant must also give a bond, executed to the adverse party in double the
value of the property as stated in the affidavit aforementioned, for the return of the property to the
adverse party if such return be adjudged, and for the payment to the adverse party of
such sum as he may recover from the applicant in the action. (2a)

So diba yung bond requirements sa previous provisional remedies is discretionary upon the court,
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kasi that is to answer for the damages. But here, the amount of the bound is double the value of the
property. Kasi it is for the return of the property and for payment to the adverse party.

Section 3. Order. — Upon the filing of such affidavit and approval of the bond, the
court shall issue an order and the corresponding writ of replevin, describing the personal property
alleged to be wrongfully detained and requiring the sheriff forthwith to take such property
into his custody. (3a)

May order of replevin yan. Why? Because under section 4, the sheriff is duty bound to execute the
said writ.

Section 4. Duty of the sheriff. — Upon receiving such order, the sheriff must serve a copy
thereof on the adverse party, together with a copy of the application, affidavit and bond,
and must forthwith take the property, if it be in the possession of the adverse party, or his agent,
and retain it in his custody. If the property or any part thereof be concealed in a building or
enclosure, the sheriff must demand its delivery, and if it be not delivered, he must
cause the building or enclosure to be broken open and take the property into his
possession. After the sheriff has take possession of the property as herein provided, he
must keep it in a secure place and shall be responsible for its delivery to the party entitled
thereto upon receiving his fees and necessary expenses for taking and keeping the same. (4a)

Within 5 days from taking, please take note of that 5 days. Bakit kailangan 5 days? Bakit di pwede
na ibigay agad sa applicant? This is in order to give the defendant the chance to object to the
sufficiency of the bond or post a redelivery bond.

Please take note under section 5. These are alternative remedies.

Section 5. Return of property. — If the adverse party objects to the sufficiency of the
applicant's bond, or of the surety or sureties thereon, he cannot immediately require the
return of the property, but if he does not so object, he may, at any time before the delivery of
the property to the applicant, require the return thereof, by filing with the court where the
action is pending a bond executed to the applicant, in double the value of the property as
stated in the applicant's affidavit for the delivery thereof to the applicant, if such delivery be
adjudged, and for the payment of such sum, to him as may be recovered against the adverse
party, and by serving a copy of such bond on the applicant. (5a)

So alternative remedies:

First remedy: To object to the sufficiency of the applicant's bond. If the adverse party avails of this
remedy, he cannot require the return of the property. Why? The leading case there is La Tondena
Distillers v. CA 209 SCRA 553 and the case of Aravez Industries v. CA 216 SCRA 602. This is
because if you question the sufficiency of the applicant's bond, it is tantamount to saying that the
replevin bond is void. That is why you cannot require the return of the property.

Second Remedy: You put up a counterbond. You file a counterbond double the value of the
property. If you put up a counterbond or redelivery bond, you are entitled to the return of the
property seized pursuant to the writ of replevin. When can you avail of this? The following are the
requisites:

1. You post a redelivery bond executed to the plaintiff in an amount double the value of the
property;

2. The defendant should serve the plaintiff a copy thereof;


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3. It should be done within 5 days from the taking; and

4. The bond should be sufficient.

Take note, you can avail of this remedy before the delivery of the property to the applicant.

Under Section 6, for example, naglapse na yung 5 day period. Then itong si sheriff, hindi niya pa rin
nadeliver yung property to the applicant. What is the duty of the sheriff?

Section 6. Disposition of property by sheriff. — If within five (5) days after the taking of the
property by the sheriff, the adverse party does not object to the sufficiency of the bond, or of the
surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of
the applicant's bond or approves a new bond, or if the adverse party requires the return of the
property but his bond is objected to and found insufficient and he does not
forthwith file an approved bond, the property shall be delivered to the applicant. If
for any reason the property is not delivered to the applicant, the sheriff must return it to the
adverse party. (6a)

What if hindi gireturn ng sheriff, what is your remedy? You can compel him through Mandamus.
That is his duty to deliver.

Let's go to Section 9.

Section 9. Judgment. — After trial of the issues the court shall determine who has the
right of possession to and the value of the property and shall render judgment in the
alternative for the delivery thereof to the party entitled to the same, or for its value in case
delivery cannot be made, and also for such damages as either party may prove, with
costs. (9a)

Take note, that judgment is always in the alternative.

What if the said property seized is claimed by a third person? It is similar to terceria. So the said
third person may vindicate his claim in the same action or in a separate proceeding.

Now we go to SUPPORT PENDENTE LITE

When is this remedy available?

Section 1. Application. — At the commencement of the proper action or proceeding,


or at any time prior to the judgment or final order, a verified application for support
pendente lite may be filed by any party stating the grounds for the claim and the financial
conditions of both parties, and accompanied by affidavits, depositions or other authentic
documents in support thereof. (1a)

If your remedy is for support pendente lite, ano ang iyong main action?

1. In a family case for support, legal separation between spouses or nullity of marriage

2. In a criminal action where civil liability includes support for the offspring as a
consequence of the crime.

So when you speak of Support Pendente Lite, ano ang nature ng action na yan? Summary in
nature. Kailangan yan, diba.
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So again in Section 1, basic requirement is a verified application.

Who may apply? Any party.

When?

1. At the commencement of the proper action or proceeding

2. At anytime prior to the judgment or final order

What are the contents of your application?

1. Grounds for the claim

2. Financial conditions of both parties

3. Affidavits, depositions or other authentic documents in support thereof

Can this issue ex parte? No. Why? Necessary magkaroon ng hearing to give the other party a
chance to defend himself. Under section 2

Section 2. Comment. — A copy of the application and all supporting documents


shall be served upon the adverse party, who shall have five (5) days to comment thereon unless
a different period is fixed by the court upon his motion. The comment shall be verified and shall
be accompanied by affidavits, depositions or other authentic documents in support thereof.
(2a, 3a)

Under section 3, kailangan siya i-set for hearing.

Section 3. Hearing. — After the comment is filed, or after the expiration of the period
for its filing, the application shall be set for hearing not more than three (3) days thereafter. The
facts in issue shall be proved in the same manner as is provided for evidence on
motions. (4a)

Under section 4, assume that nagkaroon na ng hearing.

Section 4. Order. — The court shall determine provisionally the pertinent facts, and
shall render such orders as justice and equity may require, having the regard to the probable
outcome of the case and such other circumstances as may aid in the proper resolution of
the question involved. If the application is granted, the court shall fix the amount of money to
be provisionally paid or such other forms of support as should be provided, taking
into account the necessities of the applicant and the resources or means of the adverse
party, and the terms of payment or mode for providing the support. If the application is denied,
the principal case shall be tried and decided as early as possible. (5a)

My question is, what is your remedy against an order of the court denying Support Pendente Lite?
Certiorari under Rule 65. It is merely an interlocutory order.

What if your application is granted, what is the remedy of the other party? If the application is
granted, take note, the order is immediately executory.

Take note, under section 5

Section 5. Enforcement of order. — If the adverse party fails to comply with an order
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granting support pendente lite, the court shall, motu proprio or upon motion; issue an
order of execution against him, without prejudice to his liability for contempt. (6a)

This is an exception to the general rule that an interlocutory order is not subject to execution.

What is si Judge, naluoy man siya, so gi-issue niya ex parte, what is your remedy? Pwede ka mag-
certiorari because of grave abuse of discretion.

What are the possible defenses against Support Pendente Lite?

1. Denial of paternity

2. Non-existence of marriage. Take note, if the answer of the defendant denies the
marriage between him and plaintiff, thus, putting in issue the very status of the plaintiff,
Support Pendente Lite should not be allowed until the marriage is established as a fact. Kasi
sabi dito non-existence of marriage, not legality of marriage.

3. Death of the recipient.

In the case of Lam v. Chua 426 SCRA 29. The Supreme Court ruled that the amount of support is
by no means permanent. In Advincula vs. Advincula, we held that another action for support could
be filed again by the same plaintiff notwithstanding the fact that the previous case for support filed
against the same defendant was dismissed.

My question is, is the principle of res judicata or collateral estoppel applicable in support cases? It
will not apply because judgment for support does not become final.

(From Lam v. Chua) Judgment for support does not become final. The right to support is of such
nature that its allowance is essentially provisional; for during the entire period that a needy party is
entitled to support, his or her alimony may be modified or altered, in accordance with his increased
or decreased needs, and with the means of the giver. It cannot be regarded as subject to final
determination

In the case of San Juan v. Valenzuela 117 SCRA 926, it was held that the amount of support
pendente lite is not final in character in the sense that it can be the subject of modification,
depending on the changing conditions affecting the ability of the obligor to pay the amount fixed for
support.

In another case, the case of Reyes v. Ines-Luciano 88 SCRA 803, the Supreme Court said that Mere
affidavits may satisfy the court to pass upon the application for support pendente lite.It is enough
the the facts be established by affidavits or other documentary evidence appearing in the record.

What if common law spouse. Now, gi-abandon ni lalake si babae. Nagfile ng case si babae, tapos
nagseek siya ng Support Pendente Lite. Can the court grant Support Pendente Lite? No, but if there
are children, yes. (answer ni Mae)

What if the issue of the maternity of the common child is put in issue, can the court grand Support
Pendente Lite? No, because it is put in issue. So, the court should not grant it, otherwise, the judge
acts in grave abuse of discretion.

How about provisional remedies in criminal actions? The provisional remedies in civil actions,
insofar as they are applicable, may be availed of in connection with the civil action deemed
instituted with the criminal action.
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So, anong provisional remedies pwede? Attachment. The basis there is Rule 111.

December 13, 2014

So how will you distinguish SPECIAL CIVIL ACTION FROM AN ORDINARY CIVIL ACTION?

SPECIAL CIVIL ACTION ORDINARY CIVIL ACTION

Cause of action not really needed Must have a cause of action

Initiated by a complaint or petition Initiated through a complaint

What are those SPECIAL CIVIL ACTIONS COMMENCED BY COMPLAINT?

1. INTERPLEADER
2. EXPROPRIATION
3. FORECLOSURE OF REAL ESTATE MORTGAGE
4. PARTITION
5. FORCIBLE ENTRY AND UNLAWFUL DETAINER

What are those SPECIAL CIVIL ACTIONS COMMENCED BY A PETITION?

1. PETITION FOR DECLARATORY RELIEF


2. CERTIORARI, MANDAMUS
3. QUO WARRANTO
4. CONTEMPT

RULE 62 INTERPLEADER

Definition:

It is a REMEDY whereby a person who has property in his possession, or an obligation to render
wholly or partially without giving any right to either, comes to court and ask that the persons’ who
claim the said personal property or who consider themselves entitled to demand compliance of the
obligation, be required to litigate among themselves in order to determine finally who is entitled to
it.

In the case of WAKWAK GOLF VS. WON 76 SCRA 165, SC ruled that this remedy is accorded to
protect a person not against double liability but against double vexation in respect of one’s liability.

What is a classic example of an interpleader case?

OCAMPO VS. TIRONA 455 SCRA 62, an action for INTERPLEADER is proper when the lessee
doesn’t know the person to whom the rentals due to conflicting claims over the property.

What court?
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Jurisdiction depends UPON THE VALUE OF THE PROPERTY INVOLVED whether personal or real
property.

When must an action for interpleader be filed?

Within reasonable time after the dispute has arisen before being barred by laches.

REQUISITES

1. That the interest has no claims or his claim is not dispute


2. There must be 2 conflicting claimants
3. That the parties to be interpleaded must make effective claims
4. Subject matter is one and the same

Section 2 Order. Upon the filing of the complaint, the court shall issue an order
requiring the conflicting claimants to interplead with one another. If the interests of
justice so require, the court may direct in such order that the subject matter be paid
or delivered to the court.

Section 3 Summons. Summons shall be served upon the conflicting claimants,


together with a copy of the complaint and order.

Should there be service of summons in interpleader?

Yes, necessarily.

Why is it necessary?

Because a controversy actually exists between the claimants and the plaintiff have no actual
interest in the matter.

Can you file a motion to dismiss in interpleader?

Section 4. Motion to Dismiss. Within the time for filing an answer, each claimant may
file a motion to dismiss on the ground of impropriety of the interpleader action or on
other appropriate grounds specified in Rule 16. The period to file the answer shall be
tolled and if the motion is denied, the movant may file his answer within the remaining
period, but which shall not be less than five (5) days in any event, reckoned from
notice of denial.

When do you file a motion to dismiss?

Within the time for filing an answer. (Section 4)

What is the effect of the motion to dismiss?


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The period to file answer shall be tolled and if the motion is denied the movant may file his answer
within the remaining period, but which shall not be less than 5 days in any event, reckoned from
the notice of denial. (Section 4)

Assume that the defendant failed to file action within the prescribed period, what is the
effect?

He can be declared in default?

Section 5. Answer and Other Pleadings. Each claimant shall file his answer setting
forth his claim within fifteen (15) days from service of the summons upon him, serving
a copy thereof upon each of the other conflicting claimants who may file their reply
thereto as provided by these Rules. If any claimant fails to plead within the time herein
fixed, the court may, on motion, declare him in default and thereafter render judgment
barring him from any claim in respect to the subject matter.

The parties in an interpleader action may file counterclaims, cross-claims, third-party


complaints and responsive pleadings thereto, as provided by these Rules.

Section 6. Determination. After the pleadings of the conflicting claimants have been
filed, and pre-trial has been conducted in accordance with the Rules, the court shall
proceed to determine their respective rights and adjudicate their several claims.

DISTINGUISH INTERVENTION VS. INTERPLEADER

INTERVENTION INTERPLEADER

Ancilliary action Original

Section 1 Rule 19 Presupposes that plaintiff has no interest


or has an interest but not disputed by the
other parties to the action

Defendants are already considered Defendants are being sued to implead


original action them to the action

May an action for interpleader be availed of to resolve a breach of undertaking? Is that a


proper remedy?

It is not a proper remedy. It must be an ordinary action for SPECIFIC PERFORMANCE

PROPER
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SEQUIA VS. SHERIFF 46 Phil 400 Interpleader is proper in an action by the Sheriff against
claimants who may have conflicting claims to a property seized by the Sheriff in the foreclosure of a
chattel mortgage

OCAMPO VS. TIRONA In an action by a lessee who does not know to whom he shall pay the rents
of the said property.

MESINA VS. IAC 145 SCRA 497 Interpleader is proper in an action by a bank where the purchaser
of a cashier’s check claims that it was lost and another has presented it for payment.

IMPROPER

VDA DE VS. SARCAMON 3 SCRA 146 it is improper in an action, where the defendants’ respective
claims are separate and distinct from each other

WAKWAK GOLF VS. WON where one of the defendants sued the plaintiff and secured judgements
against him and thereafter barred by laches.

BELTRAN VS PEOPLE 29 SCRA 145 where there were no conflicting claims by defendant
corporations as against plaintiffs’ tenants.

RULE 63 DECLARATORY RELIEF AND SIMILAR RELIEFS

How commenced?

Through a PETITION

Definition:

It is an action by any person interested in any deed, will, contract, or other written instrument,
executive order or resolution filed before breach or violation thereof to determine any question of
construction or validity arising from the said instrument, executive order, regulation or statuted
and for declaration of its rights and duties there under (ALMEDA VS. BATHALA MARKETING 542
SCRA 470)

REQUISITES TO AVAIL OF THIS REMEDY:

1. That there must be a justiceable controversy


2. Between persons with adverse interests
3. Must have legal rights in the said controversy
4. Ripe for judicial determination
5. That an adequate relief is not available through other means or proceedings

JURISDICTION

Section 1. Who may file Petition. Any person interested under a deed, will, contract or
other written instrument, whose rights are affected by a statute, executive order or
regulation, ordinance, or any other governmental regulation may, before breach or
violation thereof, bring an action in the appropriate Regional Trial Court to determine
any question of construction or validity arising, and for a declaration of his rights or
duties, thereunder.
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An action for the reformation of an instrument, to quiet title to real property or remove
clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code,
may be brought under this Rule.

Pwede ba sya sa first level courts? No, because the law says, it is the RTC which has exclusive and
original jurisdiction.

What are the specific features?

1. It is AN ADVERSARIAL PROCEEDINGS - There is a controversy between persons whose


interest are adverse

Is it necessary that there is a cause of action? No need for a cause of action

2. No NEED for cause of action (Special Civil Action) – in lieu of, the requirement of actual
damage is substituted by impending damage or injury.

Why is there no need for cause of action? Before an actual breach. There is NO ACTUAL BREACH of
the instruments involved or of the rights arising thereafter.

VELARDE VS. SOCIAL JUSTICE SOCIETY 428 SCRA 283 Nevertheless, the breach should be
impending, imminent or at least threatened. Meaning, the ripe is not yet legally demandable

3. Pure REITERATION OF THE RIGHTS under an instrument or statute

So is there an execution?

GENERAL RULE: This does not entail an EXECUTORY PROCESS because it is only for declaration
rights.

EXCEPTION: DBM VS. MANILAS FINEST RETIREES ASSOCIATION SC said, that the execution of
judgments in this action is not necessarily indefeasible considering your advanced years. Thus the
court in this case ordered an execution of judgment.

ACTIONS THAT MAY BE BROUGHT UNDER RULE 63

1. ACTION FOR REFORMATION OF INSTRUMENT


2. QUIET TITLE OR REMOVE DOUBTS THEREFROM
3. CONSOLIDATE OWNERSHIP ARTICLE 1607, CC
4. DECLARE A LAW, STATUTE, EXECUTIVE ORDER, GOVERNMENT REGULATION OR
ORDINANCE UNCONSTITUTIONAL

JUMAMIL VS. CAFÉ 470 SCRA 475 It is proper when the subject matter is a deed, a will, a
contract, any written instrument, statute, executive order, regulation or ordinance.

SANTOS VS. AQUINO 94 PHIL 65 When the terms and validity of an instrument are doubtful and
requires declaration

MMDA VS. VIRON TRANSPO 530 SCRA 341 when the controversy is already RIPE for judicial
determination, litigation is already imminent
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QUISOMBING VS. GARCIA 573 SCRA 266 that it is proper that a petition must be filed before
there is an actual breach or violation

What are those cases where AN ACTION FOR DECLARATORY RELIEF IS NOT PROPER?

LIM VS. REPUBLIC 37 SCRA 783 It is improper to obtain a judicial declaration of citizenship. This
is NOT A REMEDY.

GSIS EMPLOYEES ASSOCIATION VS. ALMENDIA 108 PHIL 505 it is improper to seek relief on
MOOT QUESTIONS, or to resolve hypothetical abstract, theoretical questions, or to decide claims
which are uncertain.

DELA LLEANA VS. COMELEC 80 SCRA 525 it is improper to resolve POLITICAL ISSUES or
QUESTIONS.

CJH DEVELOPMENT CORP VS. BIR 575 SCRA 467 it is improper to test the correctness or
validity of a court decision.

Why? What is your remedy to correct the correctness of a court decision? Appeal or
Reconsideration, NOT DECLARATORY RELIEF

ELADES VS. ELADES 99 PHIL 675 it is improper to establish a legitimate filiation and determine
hereditary rights. There is another kind of relief for that issue.

VELARDE VS. SOCIAL JUSTICE SOCIETY it is improper when the petition is based upon the
happening of a contingent event.

SANTOS VS. AQUINO 94 PHIL 65 it is improper when petitioner is NOT THE REAL PARTY IN
INTEREST.

OLLANA VS. CENTRAL BANK 5 SCRA 297 when administrative remedies HAVE NOT yet been
exhausted because one of the requisites of this remedy is that other relief is not available through
other means or proceedings.

TALEO VS PROVINCIAL FISCAL 5 SCRA 235 when the action is filed by a notary public who is
not a party to the contract because none of his rights thereunder need be declared.

Section 5. Court Action Discretionary. Except in actions falling under the second
paragraph of section 1 of this Rule, the court, motu proprio or upon motion, may refuse
to exercise the power to declare rights and to construe instruments in any case where
a decision would not terminate the uncertainty or controversy which gave rise to the
action, or in any case where the declaration or construction is not necessary and
proper under the circumstances.

GENERAL ACTION: Court Action is DISCRETIONARY. The court may refuse to make a decision
when

1. Where a decision whould not terminate the uncertainty or controversy which gave rise to the
action
2. In any case where the declaration or construction is not necessary or proper under the
circumstances
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EXCEPTION: In actions on an instrument to QUIET TITLE OR REMOVE CLOUDS therefrom or to


consolidate ownership under Article 1607. These exceptions are MANDATORY FOR THE COURT to
take action.

This action may be brought only BEFORE A BREACH IS COMMITTED.

What happens if during the pendency of the action, there was a breach committed?

Section 6. Conversion to Ordinary Action. If before the final termination of the case, a
breach or violation of an instrument or a statute, executive order or regulation,
ordinance, or any other governmental regulation should take place, the action may
thereupon be converted into an ordinary action, and the parties shall be allowed to file
such pleadings as may be necessary or proper.

We said that DECLARATORY RELIEF is proper when an action is ripe for judicial determination.

BAYAN TELECOM VS. REPUBLIC G.R. 161140 JANUARY 31, 2007 an issue is ripe for judicial
determination when litigation is inevitable or when administrative remedies have been exhausted.

Dec 13 (40:00-1:20:05)

An action for declaratory relief is proper when the action is ripe for judicial determination. In the
case of BAYAN TELECOM V. REP OF THE PHILS GR. NO. 161140 JAN 31, 2007: the SC held that
an issue is ripe for judicial determination when litigation is inevitable and administrative remedies
had been already exhausted.

ALMEDA V. BATHALA MKTG 542S470: the only issue that can be raised in a petition for
declaratory relief is the question of construction or validity of the provisions in an instrument or
statute.

MANILA ELECTRIC COOP V. PHIL CONSUMERS FOUNDATION, GR NO. 101783 JAN 23, 2002: in
a petition for declaratory relief gives a practical remedy in ending controversies that have not
reached other stage where other relief is available.

IS A THIRD PARTY COMPLAINT ALLOWED IN A declaratory relief? GR: NO! Because there is no
material relief sought, it is only for declaration of rights but if declaratory relief is converted into a
civil action then it is allowed.

COMPULSORY COUNTER-CLAIM, ALLOWED? YES in the case of VISAYAN PACKING CORP V.


REPARATIONS COMMISSION 155S542: a compulsory counter-claim based on or arising from the
same transaction, deed or contract on which the petition is based, maybe filed and entertained in a
declaratory proceedings because there is nothing in the nature of the declaratory relief that
prohibits the filing of a counter-claim and rules of ordinary civil actions apply suppletorily.

Only the RTC has jurisdiction over a petition for declaratory relief. EXCLUSIVE!
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OFFICE OF THE OMBUDSMAN V. IBAY 364S281: even if only questions of law are involved, the
SC has no jurisdiction over this kind of action.

Rule 65: certiorari, prohibition and mandamus

How do you commence an action for certiorari? Through a verified petition.

CERTIORARI: a remedy for correction of errors of jurisdiction NOT errors of judgment. It shall only
be issued to correct errors of jurisdiction NOT errors of procedure.

REMEDY IF THERE IS ERROR OF JUDGMENT: MR or appeal. (New Frontier v. RTC 513S601)

ERROR OF JUDGMENT is one where the court may commit error in the exercise of jurisdiction in
which error is reviewable by appeal. Whereas, ERROR IN JURISDICTION is subject of certiorari,
where the act complained of is issued without or in excess of jurisdiction or in grave abuse of
discretion.

REQUISITES FOR CERTIORARI

There must be a controversy.

1. There must be a tribunal or officer that exercises a judicial or quasi- judicial authority.
2. That said tribunal or officer that exercises a judicial or quasi- judicial authority in excess of
or in grave abuse of discretion that amounts to lack of jurisdiction.
3. There is no appeal or plain remedy or ordinary course of law that is available.

WHAT CAN BE SUBJECT OF A CERTIORARI PROCEEDING?

Only interlocutory orders, because if final orders, ang remedy mo is appeal.

MADRIGAL TRANSPORT V. LAPANDAY 436S123: a writ of certiorari may be used only to correct
errors of jurisdiction or in abuse of discretion or excess of jurisdiction or without jurisdiction. It
cannot be used for any other purpose as its function is only limited in keeping the inferior courts
within the bounds of its jurisdiction.

What do you mean by without jurisdiction?

Ex: the case should be filed before the MTC but you filed it with the RTC, and the RTC took
cognizance of the case, clearly RTC has no jurisdiction.

EXCESS OF JURISDICTION: the court has jurisdiction but fails to comply with the conditions
prescribed for its exercise.

GRAVE ABUSE OF DISCRETION: it is the capricious, whimsical exercise of jurisdiction, equivalent


to lack of jurisdiction. The abuse of discretion must be so patent to amount into evasion of a
positive duty or a virtual performance of a duty enjoined by law. (JULIES FRANCHISE CORP V.
RUIZ 597S463)

WHAT IS THE NATURE OF THIS REMEDY? CORRECTIVE because it operates on acts already
consummated.

The general premise is that, certiorari is not proper if appeal is available or exists or lost through
the fault of petitioner. Why improper? In the case of CONEJO v. CA: a certiorari is not a substitute
for a lost appeal. That a remedy for certiorari and appeal is not exclusive.
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The gen rule is that a motion for reconsideration of a challenged order or resolution must first be
filed before you can resort to certiorari to give the trial court a chance to correct the error imputed
upon it. (METRO TRANSIT CORP V. CA 392S229).

WHAT ARE THE EXCEPTIONS TO THE GR? In the cases of:

JOSE V. ZULUETA: when the issue involved is public welfare and the advancement of public policy

PHIL. CONSUMERS CORP V. NAT’L TELECOMMUNICATION (125S825): when the order is issued
in excess of or without jurisdiction.

YAN V. MANILA BANKING CORP.: where the order is a patent nullity where the court a quo had
no jurisdiction.

NEA V. CA 126S394: when petitioner’s right to due process was denied in the lower court or has
been unlawfully deprived f his right to appeal.

VDA. DE SAYMAN V. CA (121S650): when the relief sought is extremely urgent thus there is no
need to wait for the resolution of a MFR.

CENTRAL BANK V. CLORIBEL (44S307) when the question is purely of law.

To avoid miscarriage of justice. (ESCUDERO V. DULAY 158S69)

Certiorari is not a proper remedy to assail the order of the court denying a demurrer to evidence
both in civil and criminal cases. Why? Because if that is made with leave of court and it is denied,
the accused can still present evidence. If it is filed without leave of court, the case is now deemed
submitted for decision.

SPS ROMERO V. CA 458S483: certiorari is not a proper remedy to question an interlocutory order
that does not assail jurisdiction. What is the proper remedy? To continue the principal case and
wait for the unfavourable order and the remedy is to appeal and include that in your assignment of
error.

WHAT ARE THE REQUIREMENTS FOR THE EXTRINSIC SUFFICIENCY OF A PETITION FOR
CERTIORARI?

1. Should be commenced through a verified petition.


2. It should be accompanied by a certificate of non-forum shopping.
3. The petition must be appended with a copy of the MFR filed before the respondent court.
(RODSON PHILS V. CA)141857 JUNE 9, 2004
4. It must be accompanied by a certified thru copy of the order, judgment, resolution subject
thereof and copies of all pleadings and documents relevant thereto.
5. It must be accompanied by a proof of service pursuant to Rule 30 Sec 1.
6. It must be accompanied by an explanation why personal service was not resorted thereto.

WHEN SHOULD YOU FILE YOUR PETITION FOR CERTIORARI?


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It should be filed w/in 60 days from notice of decision, order or resolution sought to be assailed or
from the denial of petitioner’s MFR or new trial filed.

Sabi mo kay CA magpa-extend ako kasi hindi mahabol, is that allowed under the law?

It is strictly prohibited notwithstanding any allegation of reason.

Which court has jurisdiction over petition for certiorari?

The GR is SC, CA, RTC have concurrent jurisdiction over petition for certiorari, prohibition,
mandamus and quo warranto.

In relation to petition for certiorari, we have this DOCTRINE OF HIERARCHY OF COURTS.

If the petition for certiorari questions the acts or omissions of a Municipal Trial Court, board or
officers, you should file it before the RTC which has jurisdiction over the territorial area. If the
petition for certiorari questions the acts or omissions of an RTC or quasi-judicial bodies, it should
be before CA. Can Sandiganbayan courts entertain petitions for certiorari? Yes but only in aid of its
appellate jurisdiction. The appellate jurisdiction of Sandiganbayan is in concurrence with the SC. In
election cases ruled upon by MTC and RTC, it should be filed before the COMELEC in aid of its
appellate jurisdiction. Why do we need to respect this doctrine? It is in the case of CHAMBER OF
REAL ESTATE V. SEC OF DAR (GR # 183409 JUNE 18, 2010)

EXCEPTION TO THIS DOCTRINE:

1st is the case of CHAVEZ V. ROMULO 431S534

2ND GOV’T V. PURGANAN 438PHIL417

3rd COMELEC V, JUSTICE QUIJANO 438PHIL281

4th BUKLOD NG MGA KAWANI V. ZAMORA 352PHIL461

Last is FORTICH V. CORONA

Assume that a certiorari is filed against an RTC, so the judge is impleaded. What is the mandate of
the law to the presiding judge of the RTC if the petition for certiorari is filed before the CA? To
continue with its proceedings after 10 days from the filing of the party for certiorari with a higher
court or tribunal a TRO or a preliminary injunction is issued by a higher court. When a TRO is
issued and expires without ripening into a preliminary injunction, the trial court shall proceed with
the main case after 10 days from the expiry of the TRO.

PRINCIPLE OF JUDICIAL COURTESY MAY NO LONGER BE INVOKED BY A PARTY TO SUSPEND


THE PROCEEDING IN THE MAIN CASE unless a TRO or an injunction is issued by a higher court.
(MONTEMAN V. DACANAY 455S110)
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SEC 8. CODAL

Under RULE 41. Example you filoed a case at umusad siya then may order na, you can file for a
motion for reconsideration. If dineny ang MR mo, CERTIORARI IS NOT YOUR REMEDY BUT AN
APPEAL BECAUSE YOUR MR IS NOT CONSIDERED AS AN INTERLOCUTORY ORDER.

December 13, 2014 (3rd part)

In the case of Fabian v. Desierto, G.R. No. 129742, here, the issue raised is, what is the
remedy of the aggrieved party to assail the decision of the Ombudsman in administrative
disciplinary cases? Can he avail of certiorari to assail the decision of the Ombudsman in
administrative disciplinary cases? Pwede ba? No. Take note, kapag decision gani, hindi man yan
siya interlocutory diba? So your remedy there is an appeal and not certiorari.

In another case, what is the remedy of the complainant whose complaint is dismissed by the
fiscal conducting preliminary investigation? Nag-file ka ng case before the City Prosecutor’s Office.
Now, sabi ni fiscal, ay, no probable cause. Can you assail that on certiorari? NO, because the
remedy there is to appeal before the DOJ Secretary. If the DOJ Secretary dismisses your appeal,
you can file for a motion for reconsideration before the Secretary. Now, if the MR is still denied by
the Secretary, what is your remedy? Now, you can resort to Rule 65. Please take note of that class.

Now, we will go to prohibition. Now, what is the nature of Prohibition? Take note, Prohibition
is a preventive remedy. It is a preventive remedy because its function is to restrain the doing of
some act which is about to be done. It is not intended to provide a remedy which is already
consummated. Kasi, kapag consummated na ang acts, ang remedy mo diyan ay certiorari.

So how do you define prohibition? It is an action applied forth in courts to prevent inferior
courts, corporations, boards or persons from usurping or exercising jurisdiction or power with
which they may have not been vested by law and to command the respondent to desist from further
proceedings in the action or the matters specified therein or otherwise granting such incidental
reliefs which the law and justice may require.

So, what are the requisites of prohibition as a remedy?

1. When the proceedings of any tribunal, corporation, board, officer or person exercising
judicial, quasi-judicial or ministerial functions are without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction
2. When there is no appeal or any other claim, speedy or any other adequate remedy in
the ordinary course of law

So, how do you commence a prohibition remedy? It is commenced through a verified petition
and it should be accompanied by:

1. A certified true copy of the judgment, order or resolution subject thereof


2. Copies of pleadings, documents relevant or pertinent thereto
3. Sworn statement of certification of non-forum shopping
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Again ha. Ang nature nitong remedy is a preventive remedy which function is to restrain the
doing of some act about to be done. So broader ang prohibition kasi judicial, quasi-judicial and
ministerial functions.

In the case of Rivera v. Espiritu, 374 SCRA 351, here, the SC ruled that the objective of
prohibition is to stop the challenged proceeding pending resolution of the appellate court or any
tribunal, corporation, board, officer or person exercising judicial, quasi-judicial or ministerial
functions which proceedings are conducted without or in excess of jurisdiction or with grave abuse
of discretion.

In another case, the case of Vera v. Avelino, here, the SC ruled that if the respondents do not
exercise judicial, quasi-judicial or ministerial functions, there being legislative or political, it is clear
that it falls beyond the scope of the special remedy. So, in other words, prohibition is not available
against a body exercising legislative function.

Another case, prohibition will not lie to determine title to office. The general premise is that,
prohibition will not lie to determine title to office. Why? What is your remedy there? Your remedy is
quo warranto. That is based on the case of Nacionalista Party v. Bautista, 85 Phil 101. The
authorities and decisions of courts is unanimous in saying that prohibition will not lie to determine
title of a de facto judicial officer since its only function is to prevent a usurpation of jurisdiction of a
subordinate court. That is the general rule. What is the exception? Still in the case of Bautista.
Here, prohibition was allowed due course. Bale dito, title to the office was determined through
prohibition. It was allowed because no one was entitled to the office, hence, there was no party,
who in his name, may institute quo warranto proceedings and the only other party who can
institute the proceedings in the name of the Republic was the respondent himself. That’s why, the
Court allowed prohibition to determine title to office.

Again, ano ang nature ng prohibition? It is a preventive remedy. It will not apply to
consummated acts kasi ang remdy mo diyan is certiorari. That is based on the case of Montes v.
Court of Appeals, 489 SCRA 432. General rule, it does not apply to an act which was already
consummated.

Exception to the general rule is based on the case of Tan v. COMELEC, 142 SCRA 727. Here,
the SC ruled that considering that the legality of the plebiscite itself is challenged for its non-
compliance with constitutional requisites, the case cannot be truly be viewed as one already moot
and academic. Please read this exception to the general rule kung bakit inallow ang prohibition
considering that the act was already consummated.

Now, we will go to Mandamus. Mandamus is what kind of remedy? It is an affirmative


remedy for it commands that something be done. Take note, when you say mandamus, this is
similar to mandatory injunction because it commands. Mandamus will lie to compel the
performance of a ministerial duty and not a discretionary duty.

Assume that there is a case in court. Nag file ka ng motion. Does the court have discretion
the discretion not to act upon your motion or does the court have to act upon your motion? May
discretion ba or duty bound ba si judge to act upon your motion. The court has not discretion not
to act upon the motion since it is duty bound to act upon your motion. So, in other words, it is the
ministerial function of the court to act upon your motion. Take note ha, damages can be awarded
by mandamus by reason of the wrongful act of the respondents.

In the case of Mayuga v. CA, 261 SCRA 309, the SC ruled that Mandamus will lie to compel a
judge or other public officer to perform a duty specifically enjoined by law if it is shown that the
judge or other public officer has unlawfully neglected its performance. A court neglects the
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performance of his duty only when demand has been made upon it and still it refuses to perform
the same. Take note of this case.

How is Mandamus commenced? It is by verified petition accompanied by certified true copies


of judgment, order or resolution subject thereof, copies of all pleadings and a certification of non-
forum shopping.

What are the requisites?

1. That the tribunal, corporation, board or officer or person, unlawfully neglects the
performance of an act which the law specifically enjoins as a duty arising from an office, trust or
station or unlawfully excludes another from the enjoyment of a right or office to which plaintiff is
entitled
2. There is no other plain, speedy or adequate remedy in the course of law.

In the case of Lumanlan v. Hon. Peralta, 482 SCRA 395, the SC ruled that the writ of
mandamus is available to compel a dismissal of a case.

In another case, the case of Limtay v. CA, 293 SCRa, 634, here, the SC ruled that for the writ
to issue, it is essential that the person petitioning for the same has a clear legal right to the thing
demanded and that it is the imperative duty of the respondent to perform the act required. Please
take note of that case.

We said that mandamus will lie to compel the performance of a ministerial duty. Now, can
Mandamus be used to compel a discretionary act? The general rule is that mandamus is only
applicable to ministerial duties. However, it can be used to the extent of requiring the performance
of a discretionary duty to act but not to require performance of such duty in a particular manner.

So, the case there is Kant Wong v. PCGG, 156 SCRA 222. Here, the SC ruled that when there
is grave abuse of discretion, manifest denial or palpable excess of authority equivalent of a denial of
a settled right to which the petitioner is entitled and there is no other plain, speedy and adequate
remedy.

Another exception is the case of First Philippine Holdings v. SB, 353 SCRA 30. This is an
exception to the general rule.

Will Mandamus lie to enforce contractual obligations? The answer there is no. Your action
there is specific performance, based on the case of Province of Pangasinan v. Reparations
Commission, 80 SCRA 376. In the case of UP v. Ayson, 176 SCRA 571, the SC said that mandamus
is not proper to compel a school to enrol a student for academic deficiencies. Why? It involves the
exercise of academic freedom of the school.

In another case, Suanez v. Chief Accountant of the Senate, 81 Phil 818, mandamus is
improper as against the President or the Congress because of the principle that the Judiciary is a
co-equal department of the Executive and Legislative departments.

In another case, the SC ruled that failure to exhaust administrative remedies is generally
fatal to petitions for mandamus. That is the general premise. You cannot avail of mandamus except
when the issue is purely a question of law. That is based on the case of One Heart Sporting Club v.
Court of Appeals, 108 SCRA 416.
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What is a writ of continuing mandamus? This is usually issued in environmental cases.


When any agency or instrumentality of the government or an officer thereof, unlawfully neglects or
fails to do an act which the law imposes as a duty in connection with the enforcement of an
environmental law or regulation or unlawfully excludes another from the use or enjoyment of such
right and there is no other plain, speedy or adequate under the normal course of law. You can file
before the RTC, CA or SC (observing/respecing the hierarchy of courts), through a verified petition,
for a writ of continuing mandamus, basta limited ito siya sa violation of an environmental law, rule
or regulation.

Now, we go to Rule 66 or Quo Warranto. How do you define a quo warranto? A quo warranto
is a prerogative writ by which the government may call upon anyone to show by what warrant he
holds a public office or exercises a public franchise. This is not limited to public office but this also
applies to corporations.

How is this commenced? Through a verified petition.

What are the requisites?

1. It may be brought against:


a. Any person who usurps or intrudes into or unlawfully holds or exercises a public
office, position or franchise;
b. A public officer who does or suffers an act which under the law constitutes a ground
for the forfeiture of his office
c. An association of persons which acts as a corporation in the Philippines without being
incorporated or without lawful authority to do so.

What are the contents of the petition?

1. The name of persons or entitled who claims to be entitled to the office;


2. Averment of the right to the office, position or franchise; and,
3. An allegation that respondent is unlawfully in possession thereof.

Who may commence quo warranto proceedings?

1. If it is commenced by the government, it should be through the Solicitor General


2. By the public prosecutor,
3. By the individual claiming to be entitled to the office or position usurped or unlawfully
held or exercised by another

There are two kinds of quo warranto:

1. Mandatory or Compulsory Quo warranto


2. Discretionary Quo Warranto

When is a quo warranto mandatory? It is provided under Section 2:


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Section 2. When Solicitor General or public prosecutor must commence action. — The Solicitor
General or a public prosecutor, when directed by the President of the Philippines, or when upon
complaint or otherwise he has good reason to believe that any case specified in the preceding
section can be established by proof, must commence such action.

When is quo warranto discretionary? Under Section 3:

Section 3. When Solicitor General or public prosecutor may commence action with permission
of court. — The Solicitor General or a public prosecutor may, with the permission of the court in
which the action is to be commenced, bring such an action at the request and upon the relation of
another person; but in such case the officer bringing it may first require an indemnity for the
expenses and costs of the action in an amount approved by and to be deposited in the court by the
person at whose request and upon whose relation the same is brought.

However, under Section 3, what is required? You have to secure a leave of court. Magpaalam
ka muna. That is discretionary quo warranto.

Who is this relator?

A relator is a person at whose request and upon whose relation to the Solicitor General or to
the public prosecutor brings an action for a quo warranto with the permission of the court. That is
under Section 3, discretionar warranto.

Saan ang venue? Under Rule 66, it can be filed before the SC, CA, or the RTC exercising
jurisdiction over the territorial area where any of the respondent resides. However, if it is
discretionary quo warranto, it may be brought before the RTC of Manila, the CA or in the SC.

How about if it involves a disqualification of an elected barrangay official? Saan mo siya i-


file? This is based on the case of Regatcho v. Cleto, Decemebr 21, 1983. You can file that before the
first lever courts where the barangay official resides.

When do you file the action? If it is against a public official or employee, or his ouster form
office, it should be filed one year from the date of his ouster from the position or when the right to
claim to hold office arises because based on the case of Unabia v. City Mayor of Cebu, G.R. No.
8759, May 25, 1956, the SC ruled that title to the public office cannot be subjected to continued
uncertainty and that such right be speedily determined. You should file that within one year from
the ouster from his office.

How about section 5? Can an individual bring a quo warranto proceeding in his own name?
Yes, he may.That is under Section 5 pero mahirap siya. Why? He has the burden of proving his
right to the said office. If the individual fails to prove his right to the said office, the corut is not
required to pass upon the right of the defendant., Please take note of that.

Under Section 9:

When the respondent is found guilty of usurping into, intruding into, or unlawfully holding
or exercising a public office, position or franchise, judgment shall be rendered that such respondent
be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be,
recover his costs. Such further judgment may be rendered determining the respective rights in and
to the public office, position or franchise of all the parties to the action as justice requires.
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Take note, a judgement under Section 9 is considered as a special judgment. So, what of the
losing party fails to comply then andiyan na yung judgment? He can be punished for contempt.
Diba? Non-compliance of a special judgment is subject to a contempt of court.

In the case of Secretary of justice v. Atty. Josefinca Bacal, 347 SCRA 338. The SC said that in
a quo warranto proceeding, the claiming party should clearly show his title to the office allegedly
held by another.

What are the rights of the persons adjudged to the said office? This is found under
Seciton 10:

1. To take upon himself the execution of the office


2. To demand from the respondent all the books and papers pertaining to the office

3. To bring an action for damages against the respondent sustained by him by reason of
usurupoation.

When do you file the action for damages? Under Section 11, within one year from entry of
judgment and may be taken as an ordinary civil action:

Nothing contained in this Rule shall be construed to authorize an action against a public
officer or employee for his ouster from office unless the same be commenced within one (1) year
after the cause of such ouster, or the right of the petitioner to hold such office or position, arose,
nor to authorize an action for damages in accordance with the provisions of the next preceding
section unless the same be commenced within one (1) year after the entry of the judgment
establishing the petitioner's right to the office in question. (16a)

A group of businessmen formed an association in Cebu City to distribute imported cars in


the said city. It did not incorporate itself under the law nor did it have any permits. The OSG filed a
petition for quo warranto seeking to stop the operation of the said association. The latter filed a
motion to dismiss the petition on the ground of improper venue claiming that its place of business
is in Cebu and not in Manila (kasi nga ditto, si SolGen, nag file ng case sa Manila). Is the
contention of the association correct? Sa Cebu ba or sa Manila?

The contention of the association is wrong. When the SolGen commences an action, it may
be brought before the RTC of Manila or in the CA or in the SC. Please take note of the distinction
between a quo warranto as a special civil action and a quo warranto as an electoral proceeding.

This is based on the case of Mendoza v. Alias, February 4, 1999. Can a decision in a quo
warranto case be enforced with his successors in interest? (Recit) The answer there is no. The
judgment in a quo warranto is not directed against the person but not against the office. It is an
action in personam. In order to bind the successors in in interest, they must be impleaded 5666in
the said case.
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January 7 (first part)


Jen

We proceed with Rule 67


EXPROPRIATION is defined as the taking of a privately-owned property for public use under its
power of eminent domain. The right of eminent domain is usually understood to be the ultimate
right of the sovereign power to appropriate not only the public but also the private property of all
citizens within its territorial sovereignty for public purposes.
What kind of properties may be subject to expropriation?
Any kind of property can be subject of expropriation except MONEY.
Brgy San Roque vs. Heirs of Francisco Pastor 334 S 127
SC held that the principal or primary consideration in an expropriation suit is whether the
government where any of its instrumentalities has complied with the requirement for the taking of
private property.
Where are expropriation proceedings filed?
It is incapable of pecuniary estimation that’s why it has to be filed before the RTCs regardless of the
value of the subject property.
Bargillon vs. Brgy Masili of Calamba Laguna 402 S 440
Requisites for the exercise of the right:
1. Due process of law has to be observed. – The procedures or requirements under Rule 67 must be
observed.
2. There must be a genuine necessity of a public character which must precede or accompany the
taking of the land.
3. Payment of just compensation.
4. The taking must be for public use.
How do you commence expropriation proceedings?
Through a verified complaint which contains:
1. The right and purpose of expropriation.
2. The description of the real or personal property sought to be expropriated.
3. All persons owing or claiming to own or occupying a part or interest must be made as
defendants, showing as far as practicable the separate interest of each defendant.
4. If the title of the property to be expropriated is in the name of the Republic although occupied by
private individuals or if the title is obscure or doubtful an averment to that effect shall be made in
the complaint.
Knecht(?) vs. CA - All persons owing or claiming to own must be made as defendants include the
mortgagee, the lessee, the vendee in possession under an executory contract.
Why should they be made as defendant?
Because they have a lawful interest in the subject property and are entitled to the award of the
same.
What are the specific features under Rule 67?
1. It must be commenced through a complaint which must be verified under oath.
2. It is comprised of two stages:
a. Determination by the court of the authority of the plaintiff to exercise the power of
eminent domain and the propriety of its exercise.

If the court issues an order finding that plaintiff has authority to exercise the same, it
will issue an order of expropriation to that effect, it can be subject to appeal because under
the first stage, the order will be issued and it shall become final after the lapse of a number
of days. That is why in expropriation proceedings, there can be multiple appeals.
b. Determination of just compensation.
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4-Manresa (a.y. 2014-2015)

How is it done?
It is done with the assistance of three commissioners. Take note that although it is
done with the assistance of three commissioners, determination of just compensation is a
judicial function.
Napocor vs. Jocson 206 S 520
It is only upon the completion of the two stages that expropriation is said to have been completed.
Apo Fruits Corporation vs. CA 514 S 537
The foundation of property in eminent domain is essentially a judicial function which is vested in
the RTC acting as special agrarian court. The same cannot be lodged with administrative agencies
and may not be usurped by any other branch or official of the government. The trial court acting a
special agrarian court is authorized to appoint commissioners to assist in the determination of just
compensation.
When is a plaintiff entitled to the immediate possession of properties subject of
expropriation proceedings?
Under Sec. 2, 1) he files a verified complaint, 2) he serves a notice of the same to the defendant. And
3) there should be a preliminary deposit in the amount of the assessed value of the property for
purposes of taxation to be held by such bank subject to the orders of the court.
Assessed value of the property is found in the tax declaration.
What is the purpose of the preliminary deposit?
SC ruled in once case that it is an advance deposit for just compensation and an advance deposit to
answer for damages.
Assume that plaintiff complied all three requisites, what happens next?
The court shall order the sheriff or other proper officer to place the plaintiff in possession of the
property and promptly submit a report thereof to the court with service of copies to the parties.
City of Manila vs. Serrano 359 S 231
The issuance of a writ of possession by the court is a ministerial duty upon the filing of the
complaint and the deposit in the amount equivalent of the assessed value of the property. The
samewrit will be executed by the sheriff of the court.
Take note, the LGU is allowed to exercise eminent domain. It can be exercised through an ordinance
and not merely a resolution. Under the LGC, the LGU may immediately take possession of the
property upon deposit with the court of the amount of at least 15% of the fair market value of the
property. It is different if it is the national government which basis the amount on the assessed
value.
What if there is already possession and the ownership of the property is uncertain, what
must the court do?
Sec. 9. If the ownership of the property taken is uncertain or there are conflicting claims to any part
thereof, the court may order any sums awarded as compensation for the property to be paid to the
court for the benefit of the person adjudged in the same proceeding to be entitled thereto. But the
judgment shall require the payment of the sum or sums awarded to either the defendant or the
court before the plaintiff can enter upon the property or retain it for the public use or purpose if
entry has already been made.
What pleading must defendant file?
We have to distinguish:
1. If defendant has no objection to the expropriation, then he may file and serve a notice of
appearance and a manifestation that he has no objection or defense, specifically designating or
identifying the property in which he claims to be interested, within the time stated in the summons.
Thereafter, he shall be entitled to notice of all proceedings affecting the same.
What if defendant has objections to the said expropriation?
He should file his answer within the time stated in the summons, specifically designating or
identifying the property which he claims to have interest, stating the nature and extent of the
interest claimed, and adduce all his objections and defenses to the taking of his property.
Provisional Remedies Review TSN
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Take note that in Remedial Law, defenses and objections not raised are deemed waived. It is
applicable to expropriation proceedings. Except, the court in the interest of justice may allow him to
amend his answer not later than ten days from filing.
What if the defendant files a Motion to Dismiss?
No Motion to Dismiss is allowed because Rule 67 is clear. Any objection or defense to the taking of
the property of the defendant must be set forth in an ANSWER. (Masikip vs. City of Pasig 479 s
391)
Is counterclaim allowed?
No. it is still a prohibited pleading. No counter claim, cross claim or third party complaint allowed.
We are talking about the first stage which is the determination of the propriety of expropriation.
Under Sec. 4, when will the court issue an order for expropriation?
1. When the objections or defenses of the defendant have been overruled.
2. The defendant raised no such defense or objection.
3. No party appears to defend.
What are the contents of the said order?
It will declare that the plaintiff has a lawful right to take the property sought to be expropriated for
public use or purpose described in the complaint upon payment of just compensation to be
determined as of the date of the taking of the property or the filing of the complaint, whichever came
first.
If the court issues the order, the first stage ends.
Assume that the court issued an order conveying the property. It can be subject to an appeal.
What happens to the expropriation case in the RTC when it is brought on appeal?
An appeal of a final order does not prevent the court from determining just compensation.
What if, on appeal, the order of condemnation was reversed by the CA? If the plaintiff is
found to be not entitled to the expropriation, what is the effect?
The owner-defendant shall be repossessed of the property with the right to be indemnified with all
the damages sustained due to the taking. Damages and repossession. This is based on Sec. 11.
Multiple appeals are allowed according to Municipaltiy of Binan vs. Garcia 180 s 576
Stage 2: Determination of Just Compensation
EPZA vs. Dulay
SC held that determination of just compensation is judicial.
Meralco vs. Pineda 206 s 196
The report of the commissioners is merely recommendatory.
How do you define just compensation?
It is the full and fair equivalent of the property taken from its owner by the expropriator. The
measure is not the taker’s gain but the owner’s loss.
How much is it? It is determined as of the date of the taking of the property or the filing of the
complaint, whichever comes first.
Determined as of the date of the taking – when is there taking of the said property?
There is taking when:
1. The expropriator enters a private property.
2. The entry must be for more than a momentary period.
3. The entry should be under a warrant or color of legal authority.
4. The property must be devoted for public use or otherwise informally appropriated or injuriously
affected.
5. That the utilization of the property for public use must be in such a way as to oust the owner and
to deprive him of beneficial enjoyment of the property (Didipio Earth Savers vs. Gozon 485 s 586)
In expropriation cases, may the trial court on its own determine the amount of just
compensation?
Meralco vs. Pineda – The SC held that the appointment of commissioners cannot be dispensed
with. This is a mandatory procedure and a substantive right of a party.
When should there be an appointment of commissioners?
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Upon rendition of the order of expropriation, the court shall appoint not more than three competent
and disinterested persons as commissioners to ascertain and report to the court the just
compensation for the property sought to be taken. This is akin to trial by commissioner.
This is mandatory and cannot be dispensed with by the court. If the court will not appoint three
commisoners, the judge of the court is liable for gross ignorance of the law.
What are the contents of the order of appointment?
1. The time and place of the first session of the hearing to be held by the commissioners
2. The time when the report shall be submitted to the court.

Can the parties to the case object to the appointment of the commissioners?
Yes. Under Sec. 5, Objections to the appointment of any of the commissioners shall be filed with the
court within then days from the service and shall be resolved within thirty days after all the
commissioners shall have received copies of the objection.
What are the powers and duties of commissioners?
Just read that.
If the court issues an order of expropriation but defendant appeals, can the court still
appoint commissioners?
Yes, even if there was an appeal during the first stage, we can still continue.
When should the commissioners file a report?
They are required to make and submit it before the court. The rule says that except as otherwise
expressly ordered by the court, such report shall be filed within 60 days from the date the
commissioners were notified of their appointment, which time may be extended in the discretion of
the court. Upon the filing of such report, the clerk of the court shall serve copied thereof on all
interested parties, with notice that they are allowed ten days within which to file objections to the
findings of the report, if they so desire.
What will the court do upon receipt of the report? (Sec. 8)
1. Accept the report and render judgment in accordance therewith
2. Recommit the same to the commissioners for further report of facts
3. Set aside the report and appoint new commissioners
4. Accept the report in part and reject it in part
5. It may make such order or render such judgment as shall secure to the plaintiff the property
essential to the exercise of his right of expropriation, and to the defendant just compensation
for the property so taken.

What are the contents of the judgment?


The judgment entered in expropriation proceedings shall state definitely, by an adequate
description, the particular property or interest therein expropriated, and the nature of the public
use or purpose for which it is expropriated.When real estate is expropriated, a certified copy of such
judgment shall be recorded in the registry of deeds of the place in which the property is situated,
and its effect shall be to vest in the plaintiff the title to the real estate so described for such public
use or purpose.
What are the rights of the plaintiff? We have already ended in the first and second stages.
Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with
legal interest thereon from the taking of the possession of the property, or after tender to him of
the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the
property expropriated and to appropriate it for the public use or purpose defined in the judgment,
or to retain it should he have taken immediate possession thereof under the provisions of section 2
hereof.
What if the defendant refuses payment?
If the defendant and his counsel absent themselves from the court, or decline to receive the amount
tendered, the same shall be ordered to be deposited in court and such deposit shall have the same
effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto.
(Sec 10)
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What is the effect of registration in the Registry of Deeds?


When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry
of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff
the title to the real estate so described for such public use or purpose. (Sec 13)
Assume that he appealed during the first stage and the decision was reversed?
Judgment shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration to
the defendant of the possession of the property, and to determine the damages which the defendant
sustained and may recover by reason of the possession taken by the plaintiff.
What are the rights of the defendant?
Receipt of full compensation by the defendant does not bar his right to appeal. (The City of Manila
vs. Battle? 25 Phil 566)
JURISPRUDENCE

The City of Manila vs. Chinese Community of Manila 48 Phil 349


Property already devoted to public use is not subject to expropriation.
Republic vs. Holy Trinity Realty 551 S 303
The Government pays just compensation twice:
(1) Immediately upon the filing of the complaint, where the amount to be paid is 100% of the value
of the property based on the current relevant zonal valuation of the BIR (initial payment); and
(2) When the decision of the court in the determination of just compensation becomes final and
executory, where the implementing agency shall pay the owner the difference between the amount
already paid and the just compensation as determined by the court (final payment)
RA 8974 AN ACT TO FACILITATE THE ACQUISITION OF RIGHT-OF-WAY, SITE OR LOCATION FOR
NATIONAL GOVERNMENT INFRASTRUCTURE PROJECTS AND FOR OTHER PURPOSES

If it is a national government infrastructure project, RA 8974 is the law that is followed. How do you
define a national government project?
Section 2. National Government Projects. - The term "national government projects" shall refer to all
national government infrastructure, engineering works and service contracts, includingprojects
undertaken by government-owned and controlled corporations,all projects covered byRepublic Act
No. 6957, as amended by Republic Act No. 7718, otherwise known as the Build Operate-and-
Transfer Law, and other related and necessary activities, such as site acquisition,supply and/or
installation of equipment and materials, implementation, construction, completion, operation,
maintenance, improvement, repair, and rehabilitation, regardless of the source of funding.

Republic vs. CFI of Pampanga 33 S 527


What if there is a case of conflicting claims over the property subject of expropriation? What
must the court do?
The court has jurisdiction to determine in the same proceedings the ownership of the property
involved and declare the lawful owner thereof.
Republic vs. Baylosis 109 S 580
In the event the judgment of expropriation is reversed by the appellate court and the case is
remanded to the lower court with the mandate to determine the damages to the land owner, such
land owner has the option of proving such damages either in the same expropriation case or in a
separate action instituted for such purpose as the judgment denying the right of expropriation is
not res adjudicata on the issue of damages arising from such illegal expropriation.
Eminent domain is not an inherent power in LGUs
A local government unit through its Chief Executive and acting:
1. Pursuant to an ordinance exercise the power of eminent domain for public purpose or welfare
for the benefit of the poor and the landless upon payment of just compensation
2. Provided, however, that the power may not be exercised unless a valid and definite offer has
been previously made to the owner and such was not accepted.
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3. A deposit to the proper court of at least 15% of the fair market value of the property based on
the current tax declaration of the value sought to be expropriated.

RULE 68 Foreclosure of Real Estate Mortgage


Assume that you have a debt secured by a mortgage and that debtor or mortgagor defaults in
the payment. What are your remedies?
Bank of America vs. American Realty 321 S 659
1. Foreclose the mortgage
2. Collect on the principal amount of the debt in the contract

Why is it alternative?
Danao vs. CA Sept. 30, 1987
If you pursue both remedies, it violates the rule on Splitting of Cause of Action. Take note, your
remedy is only in the alternative.
How do you commence it?
By a verified complaint.
How do you define foreclosure of real estate mortgage?
Foreclosure is the termination of all the rights of the mortgagor or his grantee in the property
covered by the mortgage.
How will you distinguish judicial from extrajudicial foreclosure?
Rule 68 is judicial.

Judicial Extra judicial

It requires court intervention Does not require court intervention


There is only an equity of redemption There is a right of redemption

Governed by Rule 68 There must be a stipulation in the


contract to that effect to avail to this
remedy.

SPS Viola vs. EPCI Bank November 2008


A mortgage must “sufficiently describe the debt sought to be secured, which description must not
be such as to mislead or deceive, and an obligation is not secured by a mortgage unless it comes
fairly within the terms of the mortgage.
Who are the defendants?
1. The persons obliged to pay the mortgage debt
2. The persons who own, occupy or control the mortgaged premises or any part thereof
3. The transferee or grantee of the property
4. The subsequent mortgagee or junior encumberancers or any persons claiming a right or
interest in the property subordinate to the mortgage sought to be foreclosed. This refers to
subsequent lien holders.
5. The mortgagor even if he is not the owner of the mortgaged property should be included in
order to satisfy the deficiency judgment.

Contents of the complaint


1. the date and due execution of the mortgage;
2. its assignments if any
3. the names and residences of the mortgagor and mortgagee
4. a description of the mortgaged property;
5. a statement of the date of the note or other documentary evidence of the obligation secured
by the mortgage, the amount claimed to be unpaid thereon; and
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6. the names and residences of all persons having or claiming an interest in the property
subordinate in right to that of the holder of the mortgage, all of whom shall be made
defendants in the action.

Very important allegation in your complaint is number 6. The SC held that they should be included
since the purpose of foreclosure is to cut off the right not only of the owner but of all persons who
claim interest over the property.
Judicial foreclosure, we say that it includes only equity of redemption.
How do you define EQUITY OF REDEMPTION?
Under the law, it is the right of the defendant mortgagor to extinguish the mortgage and retain
ownership of the property by paying the debt within 90-120 days after entry of judgment. Meaning
judgment must be final, but prior to the confirmation of the sale. Simply stated, the mortgagor is
given the chance to pay off the debt but limited to the period.
Why is it prior confirmation?
Because after the sale is confirmed, the certificate of sale will be issued and it will cut off the rights
after the same and is vested to the new owner.
How do you distinguish that to RIGHT OF REDEMPTION?
Right of redemption is defined as the right of the debtor or his successor-in-interest or any
judgment creditor of the said debtor or any person having a lien on the said property subsequent to
the mortgage or deed of trust under which the mortgagor sought to redeem the property within one
year from the registration of the sheriff’s certificate of foreclosure sale.
What are the specific features of Rule 68?
It is possible that there can be two judgments:
1. foreclosure judgment
2. deficiency judgment

Foreclosure judgment in Sec. 2, the judgment in the judicial foreclosure proceeding should:
1. Make a finding of the amount due to the plaintiff including interests, costs and other charges
approved by the court;
2. Order defendant to pay the said amount within a period of not less than ninety (90) days nor
more than one hundred twenty (120) days from the entry of judgment, and that in default of
such payment the property shall be sold at public auction to satisfy the judgment.

Assume that defendant defaults in the payment? What happens next?


The court will order the sale of the foreclosed property at public auction. Take note, is that
automatic for the court to issue the order to sell at public auction? No, it requires a motion for the
court to order sale at public auction.
Assume that there is already a public auction and the foreclosure sale is confirmed by the
court. The buyer is entitled to possession. Can the court now execute the writ of execution
ex parte?
You still have to file a motion for the issuance of writ of possession.
What is the reason behind this?
Ramos vs. Manalac GR. 2610 June 16, 1951, according to the SC, it is a necessary remedy to
put an end to the litigation, so that the purchaser may be placed in the possession of the property
which he purchased at public auction sale.
Thus, there is no permit to file an unlawful detainer case against the mortgagor who refuses to
vacate the said property.
What is the effect of mortgaged property at public auction?
The sale of the mortgaged property in public auction will not per se affect the right of persons
holding prior encumberances. It is only upon confirmation of sale by the court that the rights are
cut off.
The second type of judgment is deficiency judgment. When can there be such?
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Sec. 6. A motion for deficiency judgment may be made only after the sale and after it becomes
known that the deficiency exists. Now you file a motion in court so that the court will render a
deficiency judgment. This is not ex parte.
How will you distinguish between the two judgments?
Foreclosure Judgment Deficiency Judgment
Quasi in rem – because it is directed In Personam- directed against the
against the property itself mortgaged debtor personally

When can there be no deficiency judgment?


1. Deficiency judgment cannot be rendered against a NON-resident defendant because it is in
personam;
2. Against the owner who is not a mortgagor and has not assumed personal liability for the
debt;
3. If the debtor dies. Now you file a claim against his estate.

JURISPRUDENCE
Philtrust vs. Sia
A personal action for recovery of debt constitutes a waiver of right of foreclosure. Why? Because the
remedy is in the alternative.
Alpha Insurance vs. Reyes
The first mortgagee may be joined as a party defendant in an action for foreclosure by the second
mortgagee. Even if not joined, the mortgagee may file a complaint-in-intervention.
Confirmation of sale is required to cut off the rights. In one case, the court held that a motion for
confirmation of sale is a litigable motion because an order of confirmation requires notice and
hearing otherwise it will be set aside at anytime.
Why is there a need for notice and hearing?
The SC ruled that this is to enable all interested parties to resist the motion and inform them of the
time when the right of redemption is cut off. This is based on the case of Tiglao vs. Butones
Ocampo vs. Domalanta
The SC ruled that an order of confirmation retroacts to the date of the sale and is appealable.
Ponce de Leon vs. RFC
Mere inadequacy of price is not a ground to set aside the sale unless shocking to the conscience of
the court.

Provisional Remedies, 01.07.15 2nd half. :D


Partition

Q: How do you commence Partition?


A: Through a verified complaint

Q: How do you define partition?


A: Under Black’s Law Dictionary, it is the division between several persons of property which
belongs to them as co-owners.

Take note that partition can also be a mode of settlement of estate under Rule 74.

Q: Jurisdiction, what court?


A: depends on the value of the property.

Q: What are the two kinds of partition?


A: First we have extra-judicial, this is effected through an agreement between co-owners. The
second is that of judicial partition which is a compulsory process governed by Rule 69.
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Q: Who can file an action for partition?


A: Any person having the right to compel the partition of real estate. That is provided under Sec. 1.

Q: What are the contents of the complaint?

1. The nature and extent of the title – The complainant must have an interest over the subject
property.
2. An adequate description of the real estate of which partition is demanded
3. Defendants and all other persons and interested parties should be named and joined. Meaning
all co-owners are indispensable parties. Indispensable parties ha, take note. Who is an
indispensable party? Indispensable parties are those without whom the case cannot proceed.

Q: What is the effect of non-exclusion of a co-owner who is an indispensable party?


A: You have to distinguish, if before the judgment it is not a ground to file for a motion to dismiss or
to dismiss. What is your remedy then? You file a motion in court to include him in the said action.
How about after judgment, what is the effect? The judgment is void! Because they are indispensable
parties.

Q: What are the specific features of partition?


A: Partition is similar to expropriation proceedings – it has two stages. The first stage in partition is
the determination of propriety of partititon. So the court is mandated to determine whether the
subject property is held in common and whether all the co-owners are made parties in the said
case. What if the court determines that they are indeed co-owners? Then the court will now issue an
order of partition, directing the parties to partition the said property. If this order is not appealed,
then the parties may partition the property in the way they want. Now assume that they cannot
agree on how they will divide the property, what will happen? Then the case goes into the second
stage. The second stage is the actual partitioning of the subject property. If the parties agree as to
how it will be divided, then the court will only confirm the agreement of the parties. If they are
unable to agree, then the partition shall be done with the assistance of not more than 3
commissioners. Take note, stage 1 and stage 2 is subject to multiple appeals, parang expropriation
proceedings.

In the case of Heirs of Abalos vs. Mungcal, 546 S 352, the SC ruled that an action for partition is
an action for declaration of co-ownership and for segregation and conveyance of determinate portion
of the properties involved. It is only properties owned in common that may be the subject of an
action for partition. It will not lie if the claimant has no rightful interest over the subject property.

In another case, the case of Heirs of Velasquez vs. CA, 325 S 552, the SC ruled that the court
cannot proceed to second stage unless it makes a determination of co-ownership which is made
during the first stage of the proceeding.

Q: Saan naman ang venue ng partition? Venue ha, not jurisdiction!


A: It should be filed in the RTC of the province where the property or part thereof is situated if
several distinct parcels of land are situated in different provinces, then venue may be laid in the
RTC of any of the said provinces.

Q: Does the right to demand partition prescriptible?


A: GR is that it is imprescriptible and not subject laches, and each co-owner may demand anytime
for the partition of the property held in common. This is based in the case of De Guia v. CA, 413 S
114.
Exceptions:
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1. When there is repudiation, where one of the interested parties openly and adversely occupy the
property without recognizing co-ownership, then it is subject to acquisitive prescription.
2. Family home, under Art. 159 of the FC of the Philippines, it proscribes against the immediate
partition of the Family home. This signifies that even if the family home has passed thru succession
to the co-ownership of the heirs, or has been willed to anyone of them , this fact alone cannot
transform the family home to an ordinary property. The rights of the individual co-owners of the FH
cannot subjugate the rights granted under Art. 159 to the beneficiaries of the FH.

Q: When is there repudiation?


A: The leading case here is Robles vs. CA, 328 S 97. There is repudiation provided the following
concur:
1. The owner has performed unequivocal acts of repudiation amounting to ouster of other co-
owners;
2. such positive acts of repudiation has been known to the other co-owners;
3. The evidence is clear and convincing.
If there is repudiation of the co-ownership, the action for partition is prescriptible.
Q: What is your remedy if the right to partition has prescribed because of clear repudiation?
A: Accion Reindivicatoria.

Next we have the case of De Asis vs. CA, 303 S 176. The facts of the case are as follows: Here the
children filed a partition case claiming to be the legitimate children of the decedent. Attached to
their petition filed in court are copies of their birth certificate which appears to be falsified, since
they made it appear that their mother married the decedent.

What is the ruling of the SC? Diba we said that the court is mandated to determine the propriety of
the partition by determining whether petitioners are really co-owners of the property sought to be
partitioned. Here the Petititioners claiming to be born under a validly contracted subsequent
marriage must show proof to prove their legitimacy. Paternity or filiation or lack of it is a
relationship that must be a fact judicially established. The petitioners miserably failed to prove the
fact or even presumption of marriage between their parents hence they cannot invoke a
presumption of legitimacy in their favor. Thus, the petitioners were unable to establish any right to
partition since they have failed to establish that they were legitimate children of the decedent.

Q: What is the nature of an action for partition?


A: Partition is an action QUASI IN REM. It is quasi in rem because it is for the purpose of affecting
the defendant’s interest in a specific property and not to render a judgment against him.

Q: Under S2 of R67, kailan mag issue ng order of partition ang court?


A: After the trial if the court finds that the petitioners has a right in the property sought to be
partitioned, it shall issue an order demanding the partition of the Real estate among the parties in
interest. If the parties are able to agree, then that is now called a partition by agreement. However if
they are unable to agree in the partition, then it will done through the assistance of commissioners,
that is known as partition by commissioners. The court shall appoint not more than 3 competent
and disinterested persons as commissioners to make the partition. Be familiar with the duties of the
commissioners.

Q: Assume that the commissioners determine that the real estate cannot be divided among the co-
owners without prejudice to the interest of the other parties, what then will the court do?
A: The court may order that the property be assigned to one of the parties willing to take the same,
provided he will pay to the other parties such amounts as the commissioners deem equitable.
Subject of course to exception: If one of the parties ask that the property be sold instead of being
assigned, then the court shall order the commissioners to sell the property in a public sale in such
condition and time as the court shall determine.
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Note that the commissioners are delegated to make a full and accurate report to the court of all
their proceedings as to the partition and all interested parties are allowed within 10 days to file their
objections to the findings of the report if they so desire.

Q: What is the importance of the commissioner’s report?


A: No proceeding had before or conducted by the commissioners shall pass the title of the property
or bind the parties, until the court accepts the commissioner’s report and rendered judgment
thereon, although it is only recommendatory. Note that the court shall upon the expiration of the 10
day period, or even before the expiration of such period but after the interested parties filed their
objections to the report, the court upon hearing may:
1. accept the commissioner’s report and render judgment thereon; or
2. recommit the report to the commissioner’s for further*** of facts if there is cause to do the same;
3. it can set aside the report and appoint new commissioners;
4. accept the report in part and reject it in part; or
5. Make such order and render such judgment which shall effectually a fair and just partition of the
real estate.

Take note of S12 of R69, the law provides that a judgment in the action for partition is res
adjudicata only on the parties thereto and their successors in interest. Thus the rights of third
parties over the property are not affected.

Finally under S11, a certified copy of the judgment be recorded in the ROD of the place where the
Real estate is situated.

Q: What are the effects of judgment in a partition proceeding?


A: 1. If partition is properly made, then judgment shall vest in each parties to the action in severalty
a portion of the RE(real estate) assigned to him.
2. If the whole property is assigned to one of the parties after payment, judgment shall vest in the
party making the payment the whole of the RE, free from any interests of the other parties.
3. If the property is sold and the sale is confirmed by the court, the judgment shall vest the RE in
the purchaser making the payment free from the claims of any parties to the action.

Q: In the case of Del Val vs. Del Val, 29 Phil 534, what are the properties that can be subject of
partition?
A: An action for partition may involve personal property, real property or both real and personal
property.

Q: how about oral partition, is this allowed?


A: Yes oral partition of a land, when the same is consummated is valid and binding upon the
parties thereto. The case in point is that of Crucillo v. IAC, 317 S 351.

Another principle, the general premise is that estoppel applies in a partition proceeding. The SC
held that parties to a partition proceeding who elected to undertake partition and who took
possession of the portion allotted to them are estopped to question title of the portion allotted to
another party. Why? Because they are precluded from subsequently attacking the validity of the
partition already made. The case in point is Maglucot-aw vs. Maglucot, 329 S 78.

Now let us go to R70, Forcible entry(FE) and Unlawful Detainer(UD).

Q: What kind of action is forcible entry and unlawful detainer?


A: That is an action interdictal. Both are action interdictal. It is an Ejectment proceeding either that
for forcible entry(detentacion) or unlawful detainer (desahucio) which is a summary action for the
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recovery of physical possession, where the dispossession has not lasted for more than 1 year and
should be brought in the proper inferior court. Case in point is Encarnacion v. Amigo, 502 S 172.

Q: what is the purpose of an accion interdictal? What is the purpose of R70?


A: Note that it is a summary proceeding, the purpose of the law is to provide an expeditious means
of protecting actual possession or right to possession of property. The case there is Salandanan vs.
Sps. Mendez, 581 S 182.

Q: Anong court ang may jurisdiction ng accion interdictal?


A: Exclusive and Original jurisdiction is vested in first level or inferior courts, meaning MTCs,
MeTC, MCTCs, regardless of the value of the property involved and irrespective of the amount of
damages and unpaid rentals sought to be recovered.

As a review, importante malaman natin ang kinds of action in possession of real property to
determine which court has jurisdiction:
1. Accion interdictal(UD and FE) –first level courts, ang issue in this kind of action is possession de
facto.
2. Accion publiciana – the issue is possession de jure which is a real right hence it falls under the
jurisdiction of the RTC, regardless of the value of the property.
3. Accion reinvidicatoria – the issue here is recovery of ownership including possession of the
property. The jurisdiction depends on the value of the property.

Q: Who may bring an action under accion interdictal?


A: We must distinguish. If it is Forcible entry, under the law it is provided that anyone deprived of
possession of any land or building by FISTS (force, intimidation,strategy, threats or stealth). If it is
unlawful detainer, any landlord, vendor, vendee or other person against whom the possession of
any land or building is unlawfully withheld after the expiration or termination of the right to hold
possession by virtue of any contract whether express or implied.

Q: What are the main distinctions between FE and UD?


A: 1. As to the grounds – if it is FE, the deprivation of the physical possession is effected thru fists,
whereas if it is UD, the ground is the unlawful withholding of possession after expiration or
termination of the right to hold possession of the property by virtue of an express or implied
contract.
2. As to the nature of defendant’s possession – if it is FE, the defendant’s possession is from the
beginning illegal because he deprived the plaintiff of possession thru FISTS. If it is UD, the
possession of the defendant is lawful in the beginning however it became illegal by virtue of the
expiration of his right to possess the property.
3. As to the necessity of demand to vacate – if it is FE, it is not required. If it is UD, the demand is a
jurisdictional requirement, therefore, the plaintiff should first make a demand as a jurisdictional
requirement.

Q: What if the ground of the plaintiff for UD is the failure of the defendant to pay the rent, should
you still make a demand?
A: Yes! If your ground is the failure to pay rent there should be two demands, the first is the
demand to pay and if he fails to pay despite demand, then you should make a demand to vacate! So
there should be two demands ha!.

4. As to proof of prior possession – if it is FE, the plaintiff must prove that he was in prior physical
possession of the premises until he was deprived thereof by the defendant thru fists. If it is UD,
then the plaintiff need not have been in prior physical possession.

Q: what are the specific features or rules?


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A:
1. It is covered by summary procedure and so the only pleadings allowed to be filed are complaint,
compulsory, counter and cross –claim. All pleadings shall be verified.
Prohibited pleadings are Motion to dismiss except on the ground of lack of jurisdiction over the
subject matter or the failure to comply with S12 (conciliation). Other prohibited pleadings are
-Motion for bill of particulars, Motion for Reconsideration, new trial or petition for relief from
judgment, time to file pleadings, memoranda, petition for certiorari, mandamus or prohibition,
motion to declare the defendant default, reply, intervention and third party complaints.

Q: Assume that a complaint for FE or UD is already filed in court, what should be the proper action
of the court?
A: Under the law, after the court has examined the allegations in the complaint and the supporting
evidence attached, the court may dismiss it outright based on the grounds of dismissal for ordinary
civil actions apparent in the complaint or issue summons if no ground for dismissal is found.

Defendant is required to file his answer and serve a copy of it to the plaintiff within 10 days from
service of summons.

Q: what is the effect of defendant’s failure to answer?


A: It shall give the court the power to motu propio or upon motion render judgment as maybe
warranted by the facts alleged in the complaint and limited as to what is prayed for therein. Can he
be declared in default? No because it is a prohibited pleading, so he cannot.

Affirmative and negative defenses not pleaded in the answer are deemed waived except lack of
jurisdiction over the subject matter.

Q: Assume that the defendant raises the defense of ownership of the property in his pleading, can
the court MTC rule on the said issue? Note that accion interdictal concerns itself only with
possession de facto or physical possession.
A: Yes the court is allowed to rule on such issue, provided that the question of possession cannot be
resolved without deciding the issue of ownership, the issue of ownership however shall be resolved
only to determine the issue of possession. Note however that the determination of the court is only
provisional in nature. Later on if the parties so desire to institute a different or separate action to
determine the issue on ownership, pwede pa.

Note also that the issue of ownership can be resolved by the MTC and the same will not deprive the
MTC of its jurisdiction.

Another important point: not later than 30days after the last answer is filed, a preliminary
conference shall be held. So the court is mandated to conduct a preliminary conference.

Q: When you say preliminary conference, is that the same as a pre-trial conference? Kasi sabi ng
law, R18 is applicable.
A: No the two are not the same. In civil cases, before the trial proper, there is still a pre-trial
conference. In FE and UD on the otherhand, what is to be conducted is a preliminary conference
only.

Q: What if the plaintiff fails to appear during the preliminary conference, what will happen?
A: It shall be cause for the dismissal of his complaint and all cross-claims shall all be dismissed.

Q: Ano ngayon ang remedy ng plaintiff if the case was dismissed for his failure to appear?
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A: He may file a Motion for reconsideration. That is based on the case of Lucas vs. Cabros, 324 S 1.
In the said case, if the plaintiff fails to appear during the preliminary conference, the case shall be
dismissed and the defendant who appears shall be entitled to the judgment on his counter-claim.

Q: What if it was defendant who fails to appear?


A: Plaintiff shall be entitled to judgment.

Take note that because this is subject to a summary procedure, the parties are required to submit
their affidavits. Based on S9 and S10, the parties shall submit within 10 days from the receipt
of the order, affidavits of their witnesses and other evidence on the factual issues defined in
the order together with their position papers.

Q: Pag summary procedure kailangan pa ba mag-present ng evidence ang plaintiff and mag-testify
siya in court?
A: No! Summary procedure eh. Kaya nga ditto, the court will rule based on the papers submitted by
the parties. Kaya nga the parties are required to submit affidavits of their witnesses together with
their position paper. No more hearing, except for the pre-trial conference na mag harap harap ang
mga parties.

Q: What is the effect of judgment?


A: The leading case here is the case of Sunflower neighbourhood Assoc. v. CA, 410 S 318. The SC
ruled that a judgment in an Ejectment suit is binding not only upon the defendant in the suit, but
also against those not made parties thereto if they are:
1. Trespassers, squatters or agents of the defendant fraudulently occupying the property to
frustrate the judgment;
2. guests or other occupants of the premises with the permission of the defendant;
3. Transferees pende lite;
4. sub lessees;
5. members of the family, relatives and other privies of the defendant.

Q: When should the court render judgment in an accion interdictal?


A: The court shall render judgment within 30 days from the date of the receipt of the position
papers or the expiration of the period for filing the same, kasi nga summary procedure siya. If the
court finds that the allegations found in the complaint are true it shall render judgment in favor of
the plaintiff for the:
1. Restitution of the property;
2. the just sum due in arrears or rents or reasonable compensation for the use and occupation of
the premises;
3. Attorney’s fees and costs.

On the otherhand, if the court finds that the allegations of the plaintiff are not true, it shall render
judgment for the defendant to recover his costs.

Take note that the judgment rendered in action for forcible entry shall be conclusive with respect to
the possession only and shall not in any way affect the title or ownership of the land or building
hence such judgment shall not bar an action between the same parties with respect to the title of
the land or building.

Judgment in an accion interdictal is considered as a final order and is appealable before the
second-level courts (RTC).

Q: If the MTC renders an adverse judgment against the defendant in an Ejectment case, may
execution issue immediately even if judgment has not yet attained finality?
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A: Yes that is allowed because of the urgency of the need to restore the plaintiff of his possession.
GR is that if judgment in a FE or UD case is rendered against the defendant then execution shall
issue immediately. To be exempt from this GR or to stay the execution of the judgment, you must
do three things:
1. you must perfect your appeal. File the appeal within 15 days;
2. defendant should file a supersedeas bond approved by the MTC within 15 days;
3. Periodic deposit of rents before the appellate court. during the pendency of the appeal, the
defendant should deposit before the appellate court (RTC) the amount of the rent due from time to
time under the contract, if any as determined by the judgment of the MTC on or before the 10 th day
of each succeeding month.

Q: What if hindi nagawa ng defendant lahat ng requirements, e.g nag perfect lang siya ng appeal,
what will happen? Will it stay the execution of the judgment?
A: NO! kasi you have to do all three to stay the immediate execution of the judgment under R70.

Q: What is the purpose of the supersedeas bond?


A: Shall answer for all the amounts due to the plaintiff up to the date of judgment.

Q: Although the decision is immediately executory, the judge should not order immediate execution
of his decision. This is based on the case of Lu v. Shapno,335 S 181. Bakit na naman?
A: Because there must be a notice of the judgment and a motion for execution with notice to the
adverse party. Case in point is Kaw v. Anunciacion. 242 S 1. Although it is immediately executory
but still kailangan pa ng motion for execution.

Q: Assume that the plaintiff won the claims, so the court will order na ibalik siya in possession of
the said property. What if the defendant will not vacate, what is the remedy?
A: The writ of execution will now be enforced by the court sheriff and the sheriff will forcibly eject
the losing defendant.

Again, the supersedeas bond is equivalent to the amount of rents, damages and costs stated in the
judgment of the MTC. The supersedeas bond should be filed with the period for the perfection of the
appeal and be filed with the MTC and it requires that it be approved by the MTC. Take note also
that after the perfection of the appeal, the records of the case will now be forwarded to the appellate
court – to the RTC. So saan na I file ang supersedeas bond? It should be filed before the RTC. Upon
perfection of the appeal, doon na sa RTC.

Q: What is the purpose of the periodic payments? Note that is the third requirement for the stay of
execution.
A: it shall answer for the rents accruing during the pendency of the appeal. Case in point Chua v.
CA, g.r. 113886, February 24, 1998.

Q: What about Preliminary Injunction, can the court grant this provisional remedy in FE and UD
case?
A: Yes! The court may grant PI in accordance with R58 to prevent the defendant from committing
further acts of dispossession against the plaintiff. A possessor deprived of his possession may move
for preliminary mandatory injunction within 5 days to restore him of his possession of the property.
The court shall then decide the motion within 30days from the filing thereof.

Q: under S16, resolving the defense of ownership, is the court allowed to resolve issues on
ownership?
A: yes! But the same determination is only prima facie and provisional hence no res adjudicata.
Case in point is Refugia v. CA, 258 S 347. Even if the defendant alleges ownership, MTC will not be
divested of jurisdiction.
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Note also of S20, Preliminary Mandatory Injunction can still be availed of even on appeal. Before the
RTC, if the appeal of defendant is frivolous or dilatory or the appeal of the plaintiff is prima facie
meritorious, pwede mag avail ng PMI. So in effect, the plaintiff will be restored of his possession.

Q: How about monetary awards, what can be awarded by the court in FE and UD cases?
A: Damages. What kind of damages? Damages other than reasonable rents or the fair rental value
are not recoverable by the plaintiff.

Q: what about attorney’s fees, can that be awarded by the courts?


A: Yes that is under Article 2208 of the Civil Code, but the same shall not exceed 20,000 pesos.

Q: So again, what damages may be awarded?


A: Liquidated damages as they are already part of the contract.

Q: How about moral damages, can it be awarded?


A: No! Note that temperate, moral and exemplary damages are not recoverable!

Q: So what kind of damages may be awarded?


A: 1. The fair and reasonable value of the use and enjoyment of the property or the rent arising from
the loss of possession.
2. The rent in arrears
3. liquidated damages
4. attorney’s fees not exceeding 20k pesos.

Q: Regarding the enforceability and the binding effect of the judgment in FE and UD cases.
A: GR, the said judgment is enforceable only against the party sought to be ejected under a writ of
execution EXCEPT the trespassers, squatters, transferees pendente lite, the sublessees and the
family members and guests as mentioned earlier.

Q: it is said earlier that demand is jurisdiction if it UD, how should demand be made?
A: Demand may be made orally. The leading case here is Jackijaca v. Aquino, 181 S 67. Demand
may be made orally, if demand is made upon the person found in the premises it must be done by
serving him notice of such demand or by posting such notice on the premises if no such person be
found. It may also be made thru registered mail.

Q: How about LBC, pwede ba yung private courier?


A: to be safe, registered mail ka thru the Philippine postal corporation.

Q: What if your ground for UD is failure to pay the rent or to comply with the conditions of the
lease?
A: For emphasis, in these cases you have to make 2 demands. First is the demand to pay the rental
or comply with the conditions of the lease and if he does not comply with the said demand, then
you have to give a demand to vacate within 15 days in case of land or 5 days in case of buildings
from notice thereof. This requirement is jurisdictional.

Q: bakit hindi sufficient yung demand to pay or to comply with the conditions of the lease?
A: It is not sufficient, because the demand to pay or comply only makes the lessee in default, while
demand to pay and vacate is a requirement for the filing of an UD case, and that will make the
possession of the defendant illegal. So kailangan ng 2 demands!
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Q: When do the 2 demands not required? For example nag rent siya ng building tapos nag expire na
ang period of lease, hindi pa siya nag vacate, kailangan pa ba mag demand to vacate to file for UD
case?
A: demand is not necessary in the present case, because the mere fact na nag expire na ang lease,
then he is already holding the premises illegally. However if you are the lawyer, as practical
consideration mag make pa rin ako ng demand to vacate, although sabi ng law no prior demand is
necessary upon the expiration of the term of the lease, as the lessee is already considered to be
unlawfully withholding the property. Case in point is Panganiban v. Filipinas petroleum, 395 S 624.

So note ha, demand to pay and demand to vacate. An alternative demand to either renew the
expired lease contract at a higher rental rate or vacate, is not a definite demand to vacate and
therefore an insufficient basis for the filing of a case for UD. That is based in the case of Penas Jr. v.
CA, 233 S 744.

Q: how about refusal or failure to collect rentals, is that a valid defense in UD cases?
A: this is not a defense! There must be consignation.

Another case is the case of Caniza v. CA, 268 S 640. An action for Ejectment is not abated by the
death of the defendant because the heirs become the substitute defendants.

Q: So we are now with the last rule, the rule on contempt. So how do we define contempt?
A: Contempt is a remedy for the preservation of the dignity of the court against which it is
committed. Case in point is Calo jr. vs. Ibarnez, 88 S 78. The power to punish contempt is inherent
in all courts and is essential to the preservation of order in judicial proceedings and the
enforcement of judgment, orders and mandates of the courts and consequently to the due
administration of justice.

Q: Can quasi-judicial bodies punish for contempt?


A: Yes but as a GR, they do not have contempt powers unless authorized by law.

Q: What court has jurisdiction in contempt cases?


A: If a charge for direct contempt was committed against a RTC or a court of equivalent or higher
rank, or against an officer appointed by it, the contempt case should be filed before such court.
Where such contempt has been committed against a lower court, the charge may be filed before a
RTC of the place where the lower court is sitting. But execution of the judgment or final order shall
not be suspended until a bond has been filed by the person adjudged in contempt.

Q: What are the different kinds of contempt?


A: There is direct contempt or contempt facie curae (not sure of the spelling), consists of his
behaviour committed in the presence of or so near a court or judge as to obstruct or interrupt
proceedings before the same. This is summarily made without hearing. So halimbawa lawyer kayo
and nag hearing ang judge tapos nag ring ang cellphone mo bigla, can you be punished for direct
contempt? Yes because you obstruct the proceedings, and you can be fined. So that can be
considered as direct contempt.

Q: how about indirect or constructive contempt?


A: refers to contumacious acts perpetrated outside of the sitting court which may be punished only
after a written charge and due hearing.

Other kinds of contempt are civil contempt and criminal contempt. Civil contempt is failure to do
something ordered to be done by the court or a judge for the benefit of the opposing party. It is
remedial or compensatory in nature. Criminal contempt on the otherhand is a contempt directed
against the dignity and authority of the court, unlawfully assailing and discrediting the authority of
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the court or judge or in doing a forbidden act. If it is criminal contempt, intent is a necessary
element and it is punitive in nature. Unlike civil contempt which is remedial and compensatory in
nature. Case in point, REMMAH enterprise v. CA, 268 S 68.

Note that under R71, if you are charged with criminal contempt you can also be charged for direct
contempt, hindi siya mag preclude.

Q: Requisites under direct contempt


A: In the presence of the judge or the court, so immediate yan siya. An order of direct contempt is
not appealable. What is your remedy then? Certiorari or prohibition.

Q: How about indirect contempt?


A: The grounds may be found in the rule: Disobedience or resistance to a lawful writ, process, order
or judgment of the court, or any unauthorized intrusion to any real property after being ejected.

Q: When is resistance considered contemptuous?


A: 1. It must appear that an order was in fact made by a court, requiring the performance of an act;
2. the acts which are forbidden or required to be done must be clearly defined; and
3. the order must be lawful; and
4. the disobedience must be wilful.

Be sure to know the distinctions between direct and indirect contempt. So take note ha, basic
distinction, pag indirect contempt, kailangan mag initiate or file, unlike in direct contempt, no need.

Another important point, if it is indirect contempt kailangan diba you file or initiate a complaint or
petition in court, it requires a certification of non-forum shopping.

In the case of Judge Pakuripot v. Lim, 275 S 543, the SC ruled that the failure to attend a
scheduled hearing without a valid cause is a ground for indirect contempt. Another case is that of
Espinosa v. CA, G.R. 128686, May 28, 2004, here the SC held that the submission of false
certificate of non-forum shopping is punishable by indirect contempt. Contempt is punishable even
if committed without relation to a pending case. Another case Paredes Garcia v. CA, 261 S 693, the
power to punish for contempt is inherent in all courts and this power is an implied constitutional
power. Bugaring v. Espanol, 349 S 687, SC ruled that the court cannot help but notice the sarcasm
in petitioner’s use of the phrase “Your Honor, please” for after using the same phrase he manifested
utter disrespect to the court in his subsequent utterances. Barrete v. Amila, 230 S 219, the mere
refusal or unwillingness on the part of complainant to vacate did not constitute contempt.

Q: How about contempt by a non-party, is that allowed?


A: GR no, no contempt can be done by one who is not a party to the case. Exception: persons who
are not parties to a proceeding may be declared guilty for contempt for wilful violation of an order
issued in a case, if such persons are guilty of conspiracy with anyone of the parties in violating the
court’s order.

Lastly, there may be contempt of court eventhough the case has been terminated if such
publication is attended by either of these circumstances:
a. where intent to bring the court into disrespect; or in other words to scandalize the court;
b. clear and present danger that the administration of justice would be impeded. That is the case of
Godoy v. People, 243 S 64. So basically that is contempt. –End!!!!!!!!!!!!!!!!!-----