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ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER

DISTINCTION BETWEEN INTERPLEADER AND INTERVENTION INTERPLEADER INTERVENTION An original action Ancillary action Presupposes that plaintiff Proper in any of the four has no interest in the situations: person having subject matter of the a) legal interest in the action OR has an interest matter in litigation, or b) therein in whole or in part success of either of the which is not disputed by parties, or c) an interest the other parties. against both; or d) is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. (Rule 19 Sec 1) Defendants are sued Defendants are original precisely to interplead parties to the pending them suits Section 1. When interpleader proper REQUISITES IN AN INTERPLEADER ACTION 1. Conflicting claims upon the same subject matter are, or may be made, against the plaintiff who claims no interest in the subject matter or an interest (in whole or in part) which is not disputed by the claimants. OR 2. There are two or more claimants to the fund or thing in dispute through separate and different interests. The claims must be adverse before relief can be granted and the parties sought to be interpleaded must be in a position to make effective claims. 3. The subject matter (fund, thing or duty) over which the parties assert adverse claims must be one and the same and derived from the same source. WHEN TO FILE AN INTERPLEADER An action in interpleader should be filed within a reasonable time after a dispute has arisen without waiting to be sued by either if the contending claimants. Otherwise he may be barred by laches or undue delay. Section 2. Order Section 3. Summons Section 4. Motion to dismiss

SPECIAL CIVIL ACTIONS

SPECIAL CIVIL ACTIONS INITIATED BY COMPLAINTS Interpleader Expropriation

Foreclosure of Real Estate Mortgage Partition Forcible Entry and Unlawful Detainer

SPECIAL CIVIL ACTIONS INITIATED BY PETITIONS Declaratory Relief Review of the Adjudication of the Comelec/COA Certiorari Prohibition Mandamus Quo Warranto Contempt

VENUE (Rule 62-71) The venue of special civil actions is governed by the general rules on venue, except as otherwise indicated in the particular rule.

RULE 62 INTERPLEADER NATURE OF INTERPLEADER This is a remedy whereby a person who has property (personal or real) in his possession, or an obligation to render wholly or partially, without claiming any right to either, comes to court and asks that the persons who claim the said property or demand compliance with the obligation, be required to litigate among themselves in order QuickTime and a to determine finally who is TIFF (Uncompressed) decompressor entitled to the same. ded to see this picture. are nee PURPOSE OF THE REMEDY This remedy is afforded to protect a person NOT against double liability but AGAINST double vexation in respect of one liability.

Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007


GROUNDS FOR MOTION TO DISMISS: 1. on the ground of impropriety of the interpleader action; or 2. other appropriate grounds specified in rule 16. (Rule 62, Sec 4) Section 5. Answer and other pleadings 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 may file counterclaims, cross-claims, third party complaints and responsive pleadings thereto. Wack Wack Golf v. Won 70 SCRA 165 (1976) A defendant may file a counterclaim for interpleader against the plaintiff and a third party also claiming the subject matter of the suit. Section 6. Determination Section 7. Docket and other lawful fees, costs of litigation and expenses as liens DISTINCTIONS BETWEEN ORDINARY ACTION AND ACTION FOR DECLARATORY RELIEF ORDINARY ACTION DECLARATORY RELIEF Writ of execution is Writ of execution is not available available There is a breach or There is no breach or violation of a right violation of a right Grounds for dismissal Grounds for dismissal a. rule 16 Rule 16 b. additional ground where the decision of the court would not terminate the uncertainty or controversy, or where the declaration is not necessary or proper under the circumstances SIMILAR REMEDIES WHICH MAY BE BROUGHT UNDER RULE 63 1. Action for Reformation of an Instrument; 2. To quiet title to real property or remove clouds therefrom; 3. Consolidate ownership under Article 1607. (Sec 1, 2nd paragraph, Rule 63) A procedural distinction between the two remedies is that in the actions falling under the 2nd paragraph, the court is bound to render judgment, whereas in actions falling under the first paragraph, the court may refuse to exercise the power to declare rights and construe instruments. (Sec. 5, Rule 63) Section 1. Who may file petition WHO MAY FILE THE PETITION Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation. WHEN TO FILE PETITION Before breach or violation of a right under a deed, will, contract or other written instrument, or under a statute or ordinance. The concept of a cause of action as an act or omission by which a person violates the right of another under ordinary civil action does not apply. In declaratory relief, there must be NO breach or violation of the instrument or statute involved.

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES PURPOSE OF DECLARATORY RELIEF The purpose is to ask the court to make a proper interpretation of a written instrument (deed, will, contract, or any other written instrument) or a statute, executive order, ordinance, or other governmental regulation. It also adjudicates the legal rights, duties, or status of parties. Purpose is NOT to ask for injunction, execution or other relief beyond the adjudication of the legal rights which are the subject of controversy between the parties. The relief is confined to the actual controversy within the courts jurisdiction. A third-party complaint is see this picture. when the main are needed to improper case is a special civil action for declaratory relief since the court is confined merely to the interpretation of the terms of the contract.
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REQUISITES OF ACTION FOR DECLARATORY RELIEF 1. The SUBJECT MATTER of the controversy must be a deed, will, contract or other written instrument, statute, executive order, regulation or ordinance 2. the terms of the said documents and the validity thereof are DOUBTFUL and require judicial construction 3. there must have been NO BREACH of the documents in question 4. there must be an actual controversy or the RIPENING SEEDS between persons whose interests are adverse 5. the issue must be ripe for JUDICIAL DETERMINATION 6. ADEQUATE RELIEF is not available Section 2. Parties PARTIES All persons who have a claim or interest which would be affected by the declaration. A declaration shall not, except as otherwise provided in the rules, prejudice the rights of persons not parties to the action. (Sec. 2, Rule 63) Section 3. Notice on Solicitor General Section 4. Local government ordinances Section 5. Court action discretionary COURT HAS DISCRETION TO REFUSE TO GRANT DECLARATORY RELIEF WHEN: 1. the decision will not terminate the uncertainty or controversy giving right to the action 2. the declaration is not necessary or proper under the circumstances Section 6. Conversion into ordinary action WHEN CONVERSION TO ORDINARY APPEALS IS PROPER: If after filing of petition for declaratory relief but before the rendition of judgment, a breach or violation of the instrument or statute occurs, then a same may be the QuickTime and decompressor converted into anTIFF (Uncompressed) this picture. ordinarytoaction. (Sec. 6, Rule 63) are needed see WHEN ACTION FOR DECLARATORY RELIEF WILL NOT LIE: a. action to obtain a judicial declaration of citizenship b. action to establish illegitimate filiation and actions to determine hereditary rights c. the subject of the action is a court decision d. action is to resolve a political question e. those determinative of the issues rather than the construction of definite status, right or relation f. where the terms of the assailed ordinance are not ambiguous or of doubtful meaning g. where the contract or statute subject of the case had been breached h. When the purpose of the action is merely to seek an advisory opinion from the court on a moot question (enumerations from Feria, p. 437)

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND THE COA Section 1. Scope SUBJECT MATTER Judgments and final orders or resolutions of the COMELEC and the COA. Section 2. Mode of review The petition may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except otherwise provided. The order to comment under Sec. 6, Rule 64 in case the Supreme Court finds the petition sufficient in form and substance, is equivalent to summons in ordinary civil action. Section 3. Time to file petition Thirty (30) days from notice of judgment or final order or resolution sought to be reviewed. Filing of motion for new trial or reconsideration shall interrupt the period. If the motion is denied, petition must be filed within the remaining period but not less than 5 days in any event reckoned from notice of denial. RULE 64 Must be filed within 30 days from notice of judgment or resolution If MR is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days RULE 65 Must be filed within 60 days from notice of judgment or resolution If MR is denied, he aggrieved party will have another 60 days within which to file the petition counted from the notice of denial

Section 4. Docket and other lawful fees


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Section 5. Form and contents of petition a) Petition shall be verified and filed in 18 legible copies; b) Petition shall name the aggrieved party as petitioner and join as respondents the Commission concerned and the person(s) interested in sustaining the judgment, final order, or resolution a quo. c) Petition shall state the facts with certainty, present the issues involved clearly, set forth the grounds and brief arguments relied upon, and pray for judgment annulling or modifying the question judgment, order or resolution. d) Petition shall be accompanied by clearly legible duplicate original or certified true copy of the of the questioned judgment, order or resolution, together with certified true copes of material portions of the record as are referred to therein, and other relevant and pertinent documents. e) Petition shall state the specific material dates showing that it was filed within the period fixed. f) Petition shall contain a sworn certification of non-forum shopping g) Petition shall be accompanied by proof of service of a copy thereon on the Commission concerned and on the adverse party, and of the timely payment of docket and other lawful fees. Failure of petitioner to comply with any of the above shall be sufficient ground for dismissal of the petition. Section 6. Order to comment Section 7. Comment of respondent (a) 18 copies (b) no other pleadings may be filed by any party unless required or allowed by the court Section 8. Effect of filing Filing of a petition for certiorari shall not stay the execution of judgment, final order or resolution sought to be reviewed,QuickTime andthe Supreme Court unless a TIFF (Uncompressed) decompressor shall direct otherwise upon this picture. terms as it may such are needed to see deem just. Under this rule, petitioner may apply for a restraining order and preliminary injunction from the Supreme Court to stay the execution of judgment or final order or resolution sought to be reviewed. Covers discretionary acts RULE 65 CERTIORARI, PROHIBITION, AND MANDAMUS AN ORIGINAL ACTION FOR CERTIORARI, PROHIBITION AND MANDAMUS IS AN INDEPENDENT ACTION. AS SUCH: a. it does not interrupt the course of the principal action b. it does not affect the running of the reglementary periods involved in the proceedings c. it does not stay the execution of the judgment, unless a TRO or writ of preliminary injunction is issued CERTIORARI Directed against an entity or person exercising judicial or quasijudicial functions. PROHIBITION Directed against an entity or person exercising judicial, quasijudicial, or ministerial functions Entity or person is alleged to have acted: (1) without jurisdiction; (2) in excess of jurisdiction; or (3) with grave abuse of discretion amounting to lack or excess of jurisdiction Purpose is to have respondent desist from further proceeding MANDAMUS Directed against an entity or person exercising ministerial functions

Entity or person is alleged to have acted: (1) without jurisdiction; (2) in excess of jurisdiction; or (3) with grave abuse of discretion amounting to lack or excess of jurisdiction

Entity or person is alleged to have acted: (1) neglected a ministerial duty; or (2) excluded another from a right or office

Purpose is to annul or nullify a proceeding

This remedy is corrective to correct

Covers discretionary and ministerial acts This remedy is preventive and negative

Purpose is for respondent to 1. Do the act require d and 2. To pay damag es. Covers ministerial acts

This remedy is affirmative or positive (if the

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usurpation of jurisdiction to restrain or prevent usurpation or jurisdiction performance of a duty is ordered) or it is negative (if a person is ordered to desist from excluding another from a right or office. 2. Tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion; and 3. There is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. GRAVE ABUSE OF DISCRETION This occurs when an act of a court or tribunal was performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. WHEN CERTIORARI MAY BE INVOKED: a. An appeal does not lie; b. The right to appeal having been lost with or without the appellants negligence, the court has no jurisdiction to issue the order or the decision which is the subject matter of the remedy. MOTION FOR RECONSIDERATION IN COURT OF ORIGINAL PROCEEDING NECESSARY BEFORE INVOKING PETITION FOR CERTIORARI EXCEPTIONS 1. Where a Motion for Reconsideration would be useless 2. Where the issue raised is one purely of law; 3. Where public interest is involved; 4. In case of urgency; 5. Where question of jurisdiction was squarely raised, submitted to and met and decided by the lower court; and 6. Where the order is a patent nullity. 7. Where the petitioner has been deprived of due process Section 2. Petition for prohibition PROHIBITION Legal remedy available to prevent inferior courts, or other tribunals, corporations, boards, officers, or persons, from usurping or exercising a jurisdiction with which they have not been vested by law, to prevent the unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice.

Section 1. Petition for certiorari CERTIORARI It is a writ issued by a superior court to an inferior court, board or officer exercising judicial or quasijudicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law. CERTIORARI IS A PREROGATIVE WRIT Never demandable as a matter or right, never issued except in the exercise of judicial discretion. CERTIORARI DISTINGUISHED FROM APPEAL BY CERTIORARI CERTIORARI UNDER RULE 65 APPEAL BY CERTIORARI UNDER RULE 45 Appellate court can only review questions or errors of law decided or committed by the lower court

Only question is whether or not respondent has acted without or in excess of jurisdiction or with grave abuse of discretion Parties: Petitioner is the Parties: appellant as aggrieved party; petitioner; appellee as Respondent is the respondent tribunal or officer exercising judicial function Writ of certiorari issues Appeal brings up for for correction of errors of review errors of judgment jurisdiction only or grave committed by the court in QuickTime and a abuse of discretion (Uncompressed) decompressor of its the exercise TIFF are amounting to lack or needed to see this picture. amounting to jurisdiction excess of jurisdiction nothing more than an error or judgment. REQUISITES FOR ISSUANCE OF WRIT OF CERTIORARI 1. Tribunal, board, or officer exercises judicial or quasi-judicial functions;

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DISTINCTION BETWEEN PROHIBITION AND INJUNCTION INJUNCTION PROHIBITION Directed only to the party Directed to court itself, litigants, without in any commanding it to cease manner interfering with from the exercise of a the court jurisdiction to which it has no legal claim REQUISITES OF PROHIBITION 1. There must be a controversy 2. Respondent is exercising judicial, quasijudicial or ministerial functions 3. Respondents acted without or in excess of its jurisdiction, or acted with grave abuse of discretion; 4. There must be no appeal or other plain, speedy and adequate remedy. Section 3. Petition for mandamus MANDAMUS- Command issuing from a court of law of competent jurisdiction, in the name of the state or sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law. Purpose of Mandamus Mandamus is employed to compel the performance, when refused, of a ministerial duty, and NOT a discretionary duty. It is available to compel action, when refused, in matters involving judgment and discretion, but NOT to direction action in one way or another. It does not lie to require anyone to fulfill a contractual obligation or to compel a course of conduct, nor to control or review the exercise of discretion. GROUNDS FOR MANDAMUS 1. When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law QuickTime and a TIFF enjoins as (Uncompressed) decompressor specifically are needed to see this a duty resulting from picture. office, trust, or station. 2. When any tribunal, corporation, board, officer, or person unlawfully excludes another from the use and enjoyment of a right or office to which the other is entitled. REQUISITES OF MANDAMUS: 1. There must be a clear legal right or duty 2. Act to be performed must be within the powers of the respondent to perform such that if the writ of mandamus was issued, he can comply with it, or else the essence will be defeated. 3. Respondent must be exercising a ministerial duty a duty which is absolute and imperative, and involves merely its execution. 4. Duty or act to be performed must be existing a correlative right will be denied if not performed by the respondents 5. No appeal or other plain, speedy and adequate remedy in the ordinary course of law. Discretionary Act and Ministerial Act Distinguished DISCRETIONARY ACT MINISTERIAL ACT One which an officer or The power or right conferred upon them by tribunal performs in a given state of facts, in a law acting officially prescribed manner, in under certain obedience to the mandate circumstances, of legal authority, without according to the regard to or the exercise of dictates of their own judgment or conscience his own judgment upon the propriety or impropriety of and not controlled by the act done. Nothing is the judgment or left to the discretion of the conscience of others. person who must perform. GENERAL RULE: Mandamus will not issue when administrative remedies are still available EXCEPTIONS: 1) If party is in estoppel If he has led the other party to believe that immediate judicial recourse is available and acceptable. 2) Where pure questions of law are raised. Mandamus and Quo Warranto Distinguished MANDAMUS QUO WARRANTO When the respondent When respondent claims unlawfully excludes the any right to the office and petitioner from an office usurps, intrudes into, or to which the latter is unlawfully holds it against entitled without usurping, the petitioner. intruding into, or unlawfully holding the office. Both remedies may be combined with one another. Mandamus and Injunction Distinguished MANDAMUS INJUNCTION
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Remedial To set in motion and to compel action (active) Motion to Dismiss Rules 16 and 17 Preventive To restrain motion or to enforce inaction (conservative) Additional ground for Motion to Dismiss Rule 58 Section 6 Private Respondent To appear and defend, both in his behalf and in behalf of the public respondent(s) affected by the proceedings. Public Respondent Shall NOT appear in or file an answer or comment to the petition or any pleading therein, unless otherwise specifically directed by the court. They are included in the petition only as nominal parties. JURISDICTIONAL QUESTIONS - questions having to do with an indifferent disregard of law, arbitrariness, and caprice or omission to weight pertinent consideration, a decision arrived at without rational deliberation, as distinguished from questions that require digging into the merits and unearthing errors of judgment which is the office on the hand of review under Rule 45 of the Rules. Section 5. Respondents and costs in certain cases Section 6. Order to comment Section 7. Expediting proceedings; injunctive relief Section 8. Proceedings after comment is filed If the petition is not sufficient in form and in substance, the court may dismiss it outright The court may dismiss the petition after the filing and consideration of the comment without holding a hearing or requiring the admission of memoranda It is not mandatory on the court to receive evidence and hear the petition Section 9. Service and enforcement of order or judgment

Section 4. Where and when petition filed FOR CERTIORARI, PROHIBITION, AND MANDAMUS 1. When petition filed: Not later than sixty (60) days from notice of judgment, order, or resolution. In case a motion for reconsideration or new trial is timely filed, the 60 days shall be counted from notice of the denial of said motion. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days. 2. Where petition filed: Supreme Court; or Regional Trial Court exercising jurisdiction over the territorial area if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person; or Court of Appeals whether or not in the aid of its appellate jurisdiction, and unless otherwise provided, in its exclusive jurisdiction when it involves the acts or omissions of a quasi-judicial agency; or Sandiganbayan if it is in aid of its appellate jurisdiction 3. Respondents: Public Respondents the judge, court, quasijudicial agency, tribunal, corporation, board, officer or persons whose acts or omissions are questioned Private Respondents person(s) interested in sustaining the proceedings in the court. 4. Duty of Respondents:
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RULE 66 QUO WARRANTO Quo Warranto under Rule 66 Distinguished from Quo Warranto under Omnibus Election Code RULE 66 OMNIBUS ELECTION CODE Basis is that occupant is Challenge rights of a disqualified from holding person to hold office on office by reason of the ground of ineligibility or disloyalty irregularities in the
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If successful, respondent is ousted but petitioner shall not automatically assume the office vacated conduct of the election Successful protestant will assume office if he had obtained plurality of valid votes Section 2. When Solicitor General or Public Prosecutor must commence an action Section 3. When Solicitor General or Public Prosecutor must commence an action with permission of the court Section 4. When hearing had on application for permission to commence action Section 5. When an individual may commence action WHO COMMENCES THE ACTION 1. 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. (mandatory quo warranto) 2. The Solicitor General or a public prosecutor may, with the permission of court, bring an action at the request and upon the relation of another person. (discretionary quo warranto) 3. A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may also bring an action, in his own name. Section 6. Parties and Contents of Petition PETITIONER Name of the person who claims to be entitled thereto, with an averment of his right to the same and that the respondent is unlawfully in possession thereof. Petitioner must show that he is entitled to office held by respondent, not merely that he has a preferential right to be appointed. Section 7. Venue: (c) Supreme Court (d) Court of Appeals (e) Regional Trial Court exercising jurisdiction over the territorial are where the respondent or any of the respondents resides (f) Regional Trial Court in the City of Manila, CA, or SC When Solgen commences the action

Presupposes that the respondent is actually holding office; action must be commenced within 1 year from the cause of ouster or from the time the right of petitioner to hold office arose The petitioner must be the government or the person entitled to the office and who would assume the same if his action is successful Person adjudged entitled to the office may also bring a separate action against the respondent to recover damages

Petition must be filed within 10 days from the proclamation of the candidate

May be filed by any registered candidate for the same office and who, even if the petition prospers, would not be entitled to that office Actual or compensatory damages are recoverable

Section 1. Action by government against individuals QUO WARRANTO- Latin phrase meaning by what authority. It is the remedy or proceeding by which the sovereign or state determines the legality of a claim which a party asserts to the use or exercise of an office or franchise and ousts the holder from its enjoyment, if the claim is not well founded, or if the right to enjoy the privilege has been forfeited or lost. QUO WARRANTO LIES AGAINST: 1. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, QuickTime and a position, or franchise. decompressor TIFF (Uncompressed) are needed to see does 2. A public officer who this picture.or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or 3. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

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Section 8. Period for pleadings and proceedings may be reduced; action given precedence Section 9. Judgment Where Usurpation Found That Respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may, recover his costs. Such further judgment may be rendered determining the respective rights in the public office, position or franchise of all the parties to the action, as justice requires. Section 10. Rights of Persons Adjudged Entitled to Office; delivery of books and papers; damages If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office, he may, after taking the oath of office and executing any official bond required by law: 1. take upon himself the execution of the office; 2. may immediately thereafter demand all the books and papers in the respondents custody or control appertaining to the office to which the judgment relates; and 3. May bring an action against the respondent to recover damages sustained by such persons by reason of usurpation. Section 11. Limitations Action must be commenced within 1 year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose. An action for damages in accordance with Sec. 10 should be commenced within 1 year after the entry of the judgment establishing petitioners right to the office in question. Section 12. Judgment for costs
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Section 1. The complaint CONTENTS OF VERIFIED COMPLAINT 1. right and purpose of expropriation 2. description of the real and personal property sought to be expropriated 3. all persons owning or claiming to own or occupying any part or interest 4. if the property to be expropriated is in the name of the Republic of the Philippines, an averment to that effect shall be made GENERAL RULE: All properties can be expropriated EXCEPTIONS: 1. Money 2. Choses in action Section 2. Entry of plaintiff upon depositing value with authorized government depositary PURPOSE OF DEPOSIT: 1. provide damages if the court finds that plaintiff has no right to expropriate 2. advance payment for just compensation Section 3. Defenses and objections If the defendant has no objection: 1. file and serve a notice of appearance and manifestation to that effect 2. thereafter, he shall be entitled to notice of all proceedings If defendant has an objection: he must file his answer within the time provided for in the summons No counterclaim, cross-claim or third party complaint shall be alleged or allowed in the answer or subsequent pleading Section 5. Ascertainment of compensation commissioners Section 6. Proceedings by commissioners Section 7. Report by commissioners and judgment thereupon Section 8. Action upon commissioners report 2 STAGES OF EXPROPRIATION:

RULE 67 EXPROPRIATION

EMINENT DOMAIN the right of the State to acquire private property for public use upon payment of just compensation EXPROPRIATION the procedure to be followed in the exercise of the right of eminent domain

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a. Determination of plaintiffs authority to exercise the power of eminent domain and the propriety of its exercise - A final order sustaining the right to expropriate is appealable, but the appeal does not prevent the court from determining the just compensation to be paid b. Determination of the just compensation for the property sought to be taken. Formula for the determination of just compensation: JC=FMV+CD-CB If CB is less than CD, then JC=FMV Where: JC=Just compensation FMV=Fair market value CD=consequential damages CB=consequential benefits When plaintiff can take possession of property pending litigation Plaintiff can enter or take possession of the real property upon DEPOSIT with the authorized government depositary an amount equal to ASSESSED VALUE of property. If personal property, its value will be PROVISIONALLY ASCERTAINED and amount to be deposited fixed by the court. Defendant, if he objects, must file his ANSWER within time stated in theQuickTime and a No counterclaim, summons. TIFF (Uncompressed) decompressor cross-claim or third are neededcomplaint is allowed. party to see this picture. Section 10. Rights of plaintiff after judgment and payment When title is vested in expropriation: 1. If personal property, upon payment of just compensation JUDICIAL FORECLOSURE - requires court intervention - There is only an equity of redemption - Governed by Rule 68 EXTRAJUDICIAL FORECLOSURE - does not require court intervention - Right of redemption exists - Governed by Act 3135 RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE 2. If real property, upon compensation and registration payment of just

Section 11. Entry not delayed by appeal; effect of reversal Section 12. Costs, by whom paid Section 13. Recording judgment and its effect Section 14. Power of guardian in such proceedings Benguet Consolidated Inc. v. Republic 143 SCRA 466 (1986) For the determination of just compensation, three (3) commissioners are appointed. They shall assess the consequential damages to the property not taken and deduct the consequential benefits to be derived from the public use of the property taken. Legal interest is demandable from the time the government took the petitioners mining claims until payment is made by the government.

Section 1. Complaint in action for foreclosure Foreclosure is initiated by a COMPLAINT. CONTENTS OF THE COMPLAINT 1. the date and due execution of the mortgage 2. its assignments, if any 3. names and residences of the mortgagor and the mortgagee 4. description of the mortgage property 5. statement of the date of the note or other documentary evidence of the obligation secured by the mortgage 6. amount claimed to be unpaid thereon 7. names and residences of all persons having or claiming interest in the property
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subordinate to the holder of the mortgage all of whom shall be made defendants in the action Section 2. Judgment on foreclosure If upon trial, the court finds the facts set forth in the complaint to be true, it shall: 1. Ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs AND Render judgment for the sum so found due and order that the same be paid to the court or to judgment obligee i. within a period of not less than 90 days nor more than 120 days from entry of judgment ii. in default of such payment: such property shall be sold at public auction to satisfy the judgment. b. when there is balance or residue, after paying the mortgage debt, the same shall be paid to junior encumbrancers in the order of priority as ascertained by the court c. if no junior encumbrancers, the residue goes to mortgagor/duly authorized agent or person entitled to it Section 5. How sale to proceed in case the debt is not all due If debt not all due, as soon as sufficient portion of property has been sold to pay amount due and costs, the sale shall terminate. Otherwise, court may, on motion, order more to be sold as often as more becomes due. BUT if property cannot be sold in portions, one single sale and the entire debt and costs shall be paid, and where rebate is proper, rebate must be made. Section 5. How sale to proceed in case the debt is not all due If debt not all due, as soon as sufficient portion of property has been sold to pay amount due and costs, the sale shall terminate. Otherwise, court may, on motion, order more to be sold as often as more becomes due. BUT if property cannot be sold in portions, one single sale and the entire debt and costs shall be paid, and where rebate is proper, rebate must be made. Section 6. Deficiency judgment Court, upon motion, shall render judgment against the defendant for any balance for which, by the record of the case, he may be personally liable to the plaintiff. If balance is all due at the time of the rendition of the judgment: execution may issue immediately. Otherwise: plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment.

2.

If defendant fails to pay the amount of the judgment within the period specified 1. Court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. 2. Sale shall not affect the rights of persons holding prior encumbrances upon the property or a part there 3. When confirmed by an order of the court, upon motion, sale shall operate to: i. ii. divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law.

Section 3. sale or mortgage of property; effect RULE 39 No need to confirm sale


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RULE 38 Need to confirm sale

Section 4. Disposition of proceeds of sale a. amount realized from foreclosure sale less the costs of sale is paid to the person foreclosing

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JUDGMENT OF FORECLOSURE Action quasi in rem Section 7. Registration Registration a) If no right of redemption, certificate of title of mortgagor is cancelled, new one issued to purchaser b) If with right of redemption, certificate of title of mortgagor is not cancelled, but certificate of sale and order confirming the sale is registered with brief memorandum made by RD upon the certificate of title. c) If property redeemed, deed of redemption is registered with RD and brief memorandum on certificate of title is made. d) If not redeemed, final deed of sale registered with RD, certificate of title of mortgagor is cancelled and new one issued to purchaser EQUITY OF REDEMPTION Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within 90-120 days after the entry of judgment or even after the foreclosure sale but prior to confirmation RIGHT OF REDEMPTION Right of the debtor, his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property within 1 year from the registration of the Sheriffs certificate of foreclosure title Governed by Rule 68 Governed by Rule 39, Sections 29-31 Period is 90-120 days Period is within 1 year after entry of or even from the registration of after the foreclosure sale the Sheriffs certificate of uickTime and a but prior to confirmation Qpressed) decompressor title foreclosure TIFF (Uncom
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DEFICIENCY JUDGMENT Action in personam

Right of Redemption GENERAL RULE In judicial foreclosure, there is NO RIGHT OF REDEMPTION. EXCEPTION In case of judicial (as well as extrajudicial) foreclosure of any mortgage on real estate in favor of a BANK, QUASI BANK or TRUST ENTITY, mortgagor is granted right of redemption to be exercised WITHIN ONE YEAR after sale of real estate. Provisional Remedies Available to Mortgagee in Case of Foreclosure 1. Preliminary attachment of properties of the debtor not covered by the mortgage; 2. receivership of mortgaged property Section 8. Applicability of other provisions

RULE 69 PARTITION PARTITION The process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in the property. KINDS OF PARTITION 1. Judicial-procedure governed by Rule 69 2. Extrajudicial-no court intervention is required Section 1. Complaint in action for partition of real estate Initiated Through a Complaint a) by a person having the RIGHT to COMPEL PARTITION; b) setting forth the NATURE and EXTENT of his TITLE; c) and an adequate description of the real estate; d) joining as defendants all other persons interested in the property. PARTIES a) All co-owners are indispensable parties b) Creditors or assignees of co-owners may intervene and object to a partition effected

GSIS V. CFI of Iloilo 185 SCRA 19 (1990) There is no right of redemption in judicial foreclosure sale after the confirmation of sale except if the mortgagee is a bank.

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without their concurrence. But they cannot impugn a partition already executed, unless: 1. there has been fraud, or 2. in case it was made notwithstanding a formal opposition presented to prevent it. Two Stages of Partition a) Determination of whether or not a COOWNERSHIP EXISTS, and partition is proper Ends in either a) declaration that plaintiff is not entitled to partition because no coownership exists or partition is legally prohibited; or b) a judgment that coownership exists and partition is proper b) Second stage commences when the parties are unable to agree upon the partition directed by the court. In that case, 3 commissioners are called. May also deal with the rendition of the accounting and its approval by the court When Partition Made GENERAL RULE It can be made anytime and the right to demand partition is imprescriptible. EXCEPTION If a co-owner asserts adverse title to the property in which case the period of prescription runs from such time of assertion of adverse title. Section 2. Order of partition, and partition by agreement thereunder CONTENTS OF EFFECT OF JUDGMENT JUDGMENT To vest in The judgment each party to shall state the action, in definitely, by severalty the metes and portion of the bounds and estate adequate assigned to description, the him particular portion QuickTime and a TIFF (Uncompressed) decompressor ofare needed to see this picture. the estate assigned to each party The judgment To vest in the shall state the fact party making of such payment the payment and the the whole or assignment of the part of the real real estate to the estate free party making the from any or sums ordered by the court If the property is sold and the sale is confirmed by the court payment interest on the part of the other parties to the action To vest the real estate in the purchaser/s making the payment/s, free from the claims of any of the parties to the action

The judgment shall state the name of the purchaser/s and a definite description of the parcels of real estate sold to each purchaser

Section 3. Commissioners to make partition when all parties fail to agree Section 4. Oath and duties of commissioners Section 5. Assignment or sale of real estate by commissioners If real estate cannot be divided without prejudice to parties interest, court may: 1. ASSIGN it to ONE of the parties PROVIDED he pays to the other parties an amount deemed equitable by the commissioners; or 2. SELL it if ONE of the parties asks that the property be sold instead of being so assigned. Section 6. Report of commissioners, proceedings not binding until confirmed Section 7. Action of the court upon commissioners report Section 8. Accounting for rents and profits in action for partition Section 9. Power of guardian in such proceedings Section 10. Costs and expenses to be taxed and collected Section 11. The judgment and its effects; copy to be recorded in the registry of deeds Section 12. neither paramount rights nor amicable partition affected by this Rule Section 13. Partition of personal property

If actual partition of property is made

If the whole property is assigned to one of the parties upon paying to the others the sum

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RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER FORCIBLE ENTRY Possession of land is unlawful from the beginning due to force, intimidation, threat, strategy or stealth No requirement of previous demand for defendant to vacate premises Plaintiff must prove that he was in prior physical possession until he was deprived thereof by defendant 1-year period counted from date of actual entry or when plaintiff learned thereof. UNLAWFUL DETAINER Possession of defendant is inceptively lawful but becomes illegal by reason of termination of right of possession Demand is jurisdictional Unlawful detainer: 1. from the date of the last demand to vacate in case of non-payment of rent or noncompliance with the conditions of the lease; 2. from the date of the notice to quit, in case of a tacit renewal of the lease; 3. from the date of the revocation of the permit in case of occupancy on mere tolerance or under a temporary permit. Section 2. Lessor to proceed against lessee only after demand Demand may either be: 1. to pay and vacate; or 2. to comply with the conditions of the lease and vacate. When Prior Demand in Unlawful Detainer Not Required 1. When purpose of action is to terminate lease because of expiry of term and not because of failure to pay rental or to comply with terms of lease contract; 2. Purpose of suit is not for ejectment but for enforcement of terms of contract; 3. When defendant is not a tenant but a pure intruder. Demand In all other cases, there must be a demand: a) To pay or to comply with the conditions of the lease; AND b) To vacate by written notice on the person in the premises or by posting such notice on the premises if no person is found thereon and this is a condition precedent to the filing of the case; ORAL demand is not permitted. c) If demand is in the alternative (pay OR vacate), this is NOT the demand contemplated by the Rules. How Demand is Made 1. Personally 2. Posting it at the premises if no person is found thereon 3. Substituted service 4. Registered mail 5. Section 3. Summary procedure Section 4. Pleadings allowed 1. Complaint 2. Compulsory counterclaim 3. Cross-claim
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Plaintiff need not have been in prior physical possession

1-year period from date of last demand

Section 1. Who may institute proceedings and when THREE KINDS OF ACTION FOR RECOVERY OF POSSESSION ACCION ACCION ACCION INTERDICTAL PUBLICIANA REIVINDICATORIA Summary A plenary An action for the action for the action for the recovery of recovery of recovery of ownership, which physical the real right necessarily possession of possession includes the where the when the recovery of dispossession dispossession possession has not lasted has lasted for for more than more than 1 1 year year MTC only RTC if value RTC if value of of property property exceeds exceeds P20,000.00, or P20,000.00, P50,000.00 in or P50,000.00 Metro Manila Quic in (Uncompre kTime and a TIFFMetro ssed) decompressor are needed to see this picture. Manila

Date from Which One Year Period Counted Forcible entry: from the date of entry or taking of possession by force, intimidation, threat, strategy or stealth

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4. Answers thereto Section 5. Action on complaint Court may dismiss the case outright if any ground for dismissal of a civil action is apparent or issue summons if no ground is apparent. Section 6. Answer When Filed Must be file within 10 days from service of summons. Answer to counterclaims and cross-claims shall be served and filed within 10 days from service of the answer in which they are pleaded Section 7. Effect of failure to answer 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; 4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits or any other paper; 6. Memoranda; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply; 11. Third-party complaints; 12. Interventions Section 14. Affidavits Section 15. Preliminary injunction Plaintiff may ask for preliminary injunction within 5 days from filing of the complaint Section 16. Resolving defense of ownership Involves provisional determination of ownership only. Section 8. Preliminary conference; appearance of the parties Preliminary conference held not later than 30 days after the last answer is filed. If plaintiff fails to appear, the complaint shall be dismissed and the counterclaims and cross-claims dismissed. If defendant fails to appear, the plaintiff shall be entitled to judgment. Section 9. Record of preliminary conference Section 10. Submission of affidavits and position papers Section 11. Period for rendition of judgment Section 12. Referral for conciliation QuickTime and a
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Effect of Failure to Answer The court will, motu proprio or on motion, render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed therein.

Section 17. Judgment Azcuna Jr. v. CA (G.R. No. 116665 March 20, 1996) The court can award damages provided said damage refers only to: (1) the fair rental value of the property; (2) rent in arrears; and (3) liquidated damages since they are part of the contract. De Laureano v. Adil 72 SCRA 148 (1976) Attorneys fees cannot be considered damages. Section 18. Judgment conclusive only on possession; not conclusive in actions involving title or ownership Section 19. Immediate execution of judgment, how to stay the same GENERAL RULE Judgment against the defendant is immediately executory. EXCEPTION When the following concur: 1. the defendant files an appeal; 2. defendant files a sufficient supersedeas bond to pay the rents, damages and costs accruing down to the time of judgment appealed from; and
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Section 13. Prohibited motions and pleadings Prohibited Motions and Pleadings 1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with section 12; 2. Motion for a bill of particulars;

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3. defendant deposits with the court the amount of rent due from time to time under the contract, or in the absence of a contract, the reasonable value of the use and occupation of the premises on or before the 10th day of each succeeding month or period. SUPERSEDEAS BOND To stay execution of judgment against defendant, he must perfect an appeal and file a supersedeas bond to pay the rents, damages and costs accruing down to the time appealed from and DEPOSIT with appellate court the AMOUNT OF RENT due from time to time if with contract. If without contract, deposit with RTC the REASONABLE VALUE for the use and occupation of the premises. If defendant fails to make these payments from time to time during pendency of the appeal, appellate court, upon plaintiffs motion, shall order the execution of judgment appealed from with respect to the restoration of possession. Ejectment Suit Not Suspended or Barred by the Following Actions: 1. Injunction 2. Consignation of rentals 3. Accion publiciana 4. Writ of possession case 5. Quieting of title 6. Specific performance with damages 7. Reformation of instrument 8. Reconveyance of property or accion reivindicatoria 9. annulment of sale, of title, or document (enumeration from Feria, p. 615) Section 20. Preliminary mandatory injunction in case of appeal Section 21. Immediate execution on appeal to Court of Appeals or Supreme Court DIRECT CONTEMPT Committed in the presence of or so near a court or judge Punished summarily without hearing No appeal may be taken but the party adjudged in contempt may avail himself of actions of certiorari or prohibition which shall stay the execution of the judgment, provided a bond fixed by the court is filed Remedy is certiorari or prohibition Certiorari/prohibition suspends execution provided there is a bond CRIMINAL CONTEMPT Purpose is to vindicate public security INDIRECT CONTEMPT Not committed in the presence of the court Punished only after hearing complaint in writing or motion or party or order of court requiring person to appear and explain, opportunity to appear and show cause.

Remedy is appeal Immediately executory unless a bond is filed

Conduct is directed against the dignity or authority of the court If accused is acquitted, there can be no appeal

CIVIL CONTEMPT Purpose is to protect and enforce the civil rights and remedies of the litigants Failure to do something ordered by the court for the benefit of a party If judgment is for respondent, there can be an appeal

Section 1. Direct contempt punished summarily GROUNDS FOR DIRECT CONTEMPT 1. Misbehavior in the presence of or so near the court 2. Disrespect towards the court 3. Offensive personalities towards others 4. Refusal to be sworn or to answer as witness or to subscribe an affidavit or deposition Section 2. Remedy therefrom Section 3. Indirect contempt to be punished after charge and hearing GROUNDS FOR INDIRECT CONTEMPT 1. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;

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RULE 71 CONTEMPT

CONTEMPT A defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with or prejudice parties litigant or their witnesses during litigation.

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2. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court 3. Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt 4. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; 5. Assuming to be an attorney or an officer of a court, and acting as such without authority; 6. Failure to obey a subpoena duly served; 7. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. Section 4. How proceedings commenced How Proceedings Commenced 1. An order or formal charge by the court requiring the respondent to show cause why he should not be punished for contempt; or 2. A verified petition charging indirect contempt with supporting particulars and certified true copies of the necessary documents and papers. Section 5. Where charge to be filed Section 6. Hearing, release on bail Section 7. Punishment for indirect contempt Section 8. Imprisonment until order obeyed Section 9. proceedings when party released on bail fails to answer Section 10. Court may release respondent Section 11. review of final judgment or final order; bond for stay The judgment against the person adjudged to be in contempt is immediately executory and can be stopped only by filing a bond. and a QuickTime
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Section 12. Contempt against quasi-judicial entities Rule 71 applies suppletorily to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions. The RTC of the place where the contempt was committed shall have jurisdiction over such charges.

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