Rule 68. Foreclosure of Real Estate Rule 69. Partition Rule 70 Forcible Entry and Unlawful Rule 71.

cible Entry and Unlawful Rule 71. Contempt

Mortgage Detainer
Definition A real estate mortgage is an instrument Partition is the separation, division and Ejectment cases are summary
used to create a security for the payment assignment of a thing held in common proceedings intended to provide an
of an indebtedness by creating a lien overamong those to whom it may belong. expeditious means of protecting actual
a real property. Every act which is intended to put an end possession of property. [Tubiano v. Razo,
to indivision among co-heirs and legatees G.R. No. 132598 (2000)]
Foreclosure of mortgage is the process by or devisees is deemed to be a partition.
which a mortgagee acquires an absolute Forcible entry (detentacion)
title to the property of which he had Possession of land by the defendant is
previously been only the conditional unlawful from the beginning as he
owner, or upon which he had previously a acquires possession by force,
mere lien or encumbrance. intimidation, strategy, threat, or stealth
(FISTS) [Dikit v. Ycasiano, G.R. No. L-3621
(1951)]
Contempt of court is disobedience to the
court by acting in opposition to its
authority, justice, and dignity.
It signifies not only a willful disregard or
disobedience to the court’s orders but
also conduct tending to bring the
authority of the court and administration
of law into disrepute, or, in some manner,
to impede the due administration of
justice. [Siy v. NLRC, G.R. No. 158971
(2012)]

Unlawful detainer (desahucio)

Possession is initially lawful but it
becomes illegal by reason of the
termination of his right to possession of
the property under his contract (express
or implied) with the plaintiff [Dikit v.
Ycasiano, G.R. No. L-3621 (1951)]

Cause of Action / Non-payment of the mortgage loan, but it Compel the partition of real estate Recovery of physical possession where
Purpose may be on other grounds which under the the dispossession has not lasted for more
contract warrant the foreclosure, such as than one year
the violation of the other conditions
therein.
When applicable The mortgage can be foreclosed only a. Partition of real estate Forcible Entry Unlawful Detainer
when: b. The provisions of Rule 69 shall apply to When a person When a lessor,
a. The debt remains unpaid at the time it partitions of estates composed of deprived of the vendor, vendee, or
is due [Producers Bank v. CA, G.R. No. personal property, or of both real and possession of any other person
111584 (2001)], or personal property, in so far as the land or building by against whom the
b. In case of default in the payment of same may be applicable [Sec. 13, Rule force, intimidation, possession of any
obligation [PNB v. CA, G.R. No. 126908 69] threat, strategy, or land or building is
(2003)] stealth unlawfully withheld
or his legal
representatives or
assigns
Judicial Extrajudicial Judicial Extrajudicial A. According to Nature
Kinds - Governed by - governed by Act - Governed by - No court Criminal contempt Civil Contempt
Rule 68 3135, as Rule 69 intervention is
amended required
 Conduct directed Failure to do
- Requires court - No court against the something ordered
intervention intervention authority and to be done by a
necessary dignity of the court court or by a judge
or a judge acting for the benefit of
- equity of - Right of judicially. the opposing party.
redemption redemption
- Punitive in - Remedial in
- There could be a - No deficiency nature nature
deficiency judgment, no
judgment judicial - Purpose is to - Purpose is to
proceeding preserve the provide a
court’s authority remedy for an
- Deficiency - Recovery of and to punish injured suitor
judgment shall deficiency is for disobedience and to coerce
be rendered, on through an of its orders compliance with
motion. independent an order; for the
action preservation of
Exception: - Exception: the rights of
- right of - [Sec. 47, R.A. private persons
redemption w/in 8791]
1 yr when loan - Intent is - Intent is not
or credit is necessary necessary
granted by a
bank
B. According to Manner of Commission
[Sec. 47, R.A.
Direct Contempt Indirect Contempt
8791]
Act committed in One not committed
the presence of or in the presence of
so near the court or the court. It is an act
judge as to obstruct done at a distance
or interrupt the which tends to
proceedings before belittle, degrade,
the same. obstruct, or
embarrass the
court and justice.
 - - - -

- - - -

- - - -

- - - -

R.A. 8791 – The General Banking Law of

2000
Nature of the action Real action Action quasi in rem Accion Interdictal (ejectment) The power to declare a person in
In the nature of settlement of estate contempt of court and in dealing with him
The issue is the right of physical or accordingly is an inherent power of the
material possession of the subject real court. It is used as a means to protect and
property independent of any claim of preserve the dignity of the court, the
ownership by the parties involved. solemnity of the proceedings, and
administration of justice. [Montenegro v.
Montenegro, G.R. No. 156829 (2004)]

Jurisdiction Action involves title to, or possession of, MTC or the RTC depending on the value of MTC
real property the property.
⤷ exclusive original jurisdiction would
fall either in the MTC or the RTC
depending on the assessed value.
Venue RTC of the province where the land or any
part thereof is situated.

If a mortgage contract covers several

distinct parcels of land situated in
different provinces, the action may be
brought in the RTC of any of the provinces
and the judgment will be enforceable
against any of the parcels of land involved.
[Monte de Piedad v. Rodrigo, G.R. No. L-
42928 (1936)]
Who may file / Mortgagee A person having the right to compel the Forcible Entry Unlawful Detainer
Plaintiff partition of real estate. [Sec. 1, Rule 69] a person deprived - a lessor, vendor,
of the possession of vendee, or other
any land or building person against
by force, whom the
intimidation, possession of
threat, strategy, or any land or
stealth building is
unlawfully
withheld; or

Defendant Mortgagor
Necessary parties
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.
- his legal
representatives
or assigns
All other persons interested in the Person or persons unlawfully withholding Generally, a non-party may not be liable
property. [Sec. 1, Rule 69] or depriving of possession, or any for contempt unless he is guilty of
person/s claiming under them. conspiracy with any of the parties in
violating the court’s orders. [Desa
Enterprises Inc. v. SEC, G.R. No. L-45430
(1982)]

Prescription The right of action to demand partition Forcible Entry Unlawful Detainer
does not prescribe. [De Castro v. Echarri, The 1-year period is The 1-year period is
G.R. No. 5609 (1911)] generally counted counted from the
⤷ Exception: Where one of the from the date of date of last
interested parties openly and actual entry on land demand
adversely occupies the property ⤷ Exception: In
without recognizing the co-ownership case of stealth
[Cordova v. Cordova, G.R. No. L-9936 or strategy, from
(1958)] the time
plaintiff learned
Prescription does not run in favor of a co- of entry.
owner or co-heirs as long as there is a
recognition of the co-ownership,
expressly or impliedly.
⤷ Exception: If a co-owner asserts
adverse title to the property, in which
case, the prescription period runs from
such time of assertion of the adverse
title.
Form The complaint shall set forth: Matters to allege in the complaint for Forcible Entry Unlawful Detainer
1) date and due execution of the partition: a. That the plaintiff a. Initially,
mortgage; 1) The nature and extent of his title; had prior possession of
2) its assignments, if any; 2) Adequate description of the real physical property by the
3) the names and residences of the estate of which partition is demanded; possession of defendant was
mortgagor and the mortgagee; and the property; by contract with
4) description of the mortgaged 3) Join as defendants all other persons b. That the or by tolerance
property; interested in the property. [Sec. 1, Rule defendant of the plaintiff;
5) statement of the date of the note or 69] deprived him of b. Eventually, such
other documentary evidence of the 4) Demand for accounting of the rents, such possession possession
obligation secured by the mortgage, profits, and other income from the by means of became illegal
the amount claimed to be unpaid property to which he may be entitled FISTS; upon notice by
thereon; and to as his share [Sec. 8, Rule 69] c. That the plaintiff to
6) the names and residences of all complaint was defendant of the
persons having or claiming an interest filed within 1 termination of
in the property subordinate in right to year from the latter's right
that of the holder of the mortgage, all dispossession of possession
of whom shall be made defendants in c. Thereafter, the
the action. Note: First two defendant
requirements are remained in
jurisdictional [Abad possession of
v. Farrales, G.R. No. the property and
178635 (2011)] deprived the
plaintiff of the
enjoyment
thereof, and
d. Within one year
from the last
demand on
defendant to
vacate the
property, the
plaintiff
instituted the
complaint for
ejectment
Procedure See below Two Stages in Every Action for Partition:
First stage – Determination of the
propriety of partition

This involves a determination of whether

the subject property is owned in common
and whether all the co-owners are made
parties in the case.
Second stage - Actual partitioning of the
subject property
FORECLOSURE OF REAL ESTATE MORTGAGE

JUDICIAL EXTRAJUDICIAL
Governing R39, ROC Act. No. 3135
law/rules

Special w/o special power w/ special power or authority to sell

Power inserted in the real estate mortgage
contract or executed in a separate
instrument and annexed thereto,
allowing the mortgagee to institute an
extrajudicial foreclosure sale

In the absence of such authority, the

foreclosure must be done judicially as
provided under Rule 68.

Nature of Real action Real action

the action

Jurisdiction exclusive original jurisdiction of either exclusive original jurisdiction of either

in the MTC or the RTC depending on in the MTC or the RTC depending on
the assessed value. the assessed value.

Posting Before the sale of real property, it is
requirement required that there be posting for 20
days in 3 public places, preferably in
conspicuous areas of the municipal or
city hall, post office, and public market
in the municipality or city where the
sale is to take place. Such notice must
particularly describe the property and
state where the property is to be sold.
[Sec 15(c), Rule 39]
Notice shall be given by posting
notices of the sale for not less than 20
days in at least 3 public places of the
municipality or city where the
property is situated. [Sec. 3, Act 3135]
Failure to abide by the general rule, or
its exception, renders the foreclosure
proceedings null and void. [Paradigm
v. BPI, G.R. No. 191174 (2017)]

Effect of failure to Post Notice

The failure to post a notice is not per se a ground for invalidating the sale
provided that the notice thereof is duly published in a newspaper of general
circulation. [DBP v. Aguirre, G.R. No. 144877 (2001)]
Publication Newspaper publication
requirement
If the assessed value of the property
exceeds P50,000, one must also
publish a copy of the notice once a
week for 2 consecutive weeks in one
newspaper having general circulation
in the province or city. [Sec. 15(c), Rule
39]
Republication / Reposting
Personal The mortgagor is notified through the General Rule: Personal notice to the
notice to service of summons. [Sec. 1, Rule 68] mortgagor in extrajudicial foreclosure
mortgagor
Where to sold in the manner and under the
sell provisions of Rule 39 and other
regulations governing sales of real
estate under execution. [Sec. 3, Rule
68]
Also see S19 onwards, , R39.
If such property is worth more than
P400, such notice shall also be
published once a week for at least 3
consecutive weeks in a newspaper of
general circulation in the municipality
or city. [Sec. 3, Act 3135]
Republication as well as reposting of
the notice of sale is required if the
foreclosure does not proceed on the
date originally intended. The lack of
republication of the notice of the
foreclosure sale renders it void.
[Metrobank v. Nikko, G.R. No. 178479,
(2009)]
proceedings is not necessary, and
posting and publication will suffice.
Exception: When the parties stipulate
that personal notice is additionally
required to be given the mortgagor.
Failure to abide by the general rule, or
its exception, renders the foreclosure
proceedings null and void. [Paradigm
v. BPI, G.R. No. 191174 (2017)]
Said sale cannot be made legally
outside of the province in which the
property sold is situated; and in case
the place within said province in which
the sale is to be made is subject to
stipulation, such sale shall be made in
said place or in the municipal building
of the municipality in which the
 property or part thereof is situated.
(S2)
The place of the sale may be agreed
upon by the parties. In the absence of
such agreement, the sale of the real
property shall be held in the office of
the clerk of court of the RTC or MTC
which issued the writ

Possession General Rule: Upon the: The purchaser may petition the RTC of
by a. finality of the order of the province or place where the
Purchaser of confirmation or property or any part thereof is
Foreclosed b. expiration of the period of situated, to give him possession
Property redemption the purchaser at the thereof during the redemption period,
auction sale or last redemptioner, furnishing bond in an amount
if any, shall be entitled to the equivalent to the use of the property
possession of the property. for a period of twelve months, to
indemnify the debtor in case it be
Exception: shown that the sale was made without
When a third party is actually holding violating the mortgage or without
the same adversely to the judgement complying with the requirements of
obligor. In such a case, the purchaser this Act. [Sec. 7, Act 3135]
or the last redemptioner may secure a
writ of possession, upon motion, from
the court. [Sec. 3, Rule 68]

Remedy The debtor-mortgagor is allowed the
(foreclosure opportunity to show why the sale
not proper) should not be confirmed during the
hearing on the motion of
confirmation of the sale.
The debtor may, in the proceedings in
which possession was requested, but
not later than 30 days after the
purchaser was given possession,
petition that the sale be set aside and
the writ of possession cancelled,
specifying the damages suffered by
him, because the mortgage was not
violated or the sale was not made in
accordance with the provisions
hereof. [Sec. 8, Act 3135]

Rules on a. Equity of redemption Right of redemption

redemption exercised prior to the order of 1 year from the date of the
confirmation of the foreclosure sale registration of sale
Exception
b. Right of redemption
Mortgagor may exercise right of
redemption within one year after the
sale, when the loan or credit
accommodation is granted by a bank
[Sec. 47 par. 1, R.A. 8791]
Equity of Redemption
Right of defendant mortgagor to
extinguish the mortgage and retain
ownership of the property by paying
the secured debt within the 90 to 120-
day period after entry of judgment or
even after the foreclosure sale but
prior to its confirmation.
⤷ Governed by Rule 68
When available: Only for real property
Who may redeem
a. judgment obligor / mortgagor
b. his successor in interest
c. creditor / redemptioner having a c. judicial creditor or judgment
lien by virtue of an attachment,
judgment, or mortgage on the
property or some parts thereof
subsequent to the lien under which
the property was sold.
Amount of redemption price
Debt amount
Exception
Juridical persons shall have the right to
redeem until, but not after, the
registration of the certificate of
foreclosure sale with the Register of
Deeds which in no case shall be more
than 3 months after foreclosure,
whichever is earlier. [Sec. 47 par.2,
R.A. 8791]
Ordinary extrajudicial foreclosure: 1
year
Juridical persons: 3 mos. or before
registration with RD
Right of Redemption
Right of the debtor, his successor in
interest, or any judicial creditor of said
debtor or any person having a lien on
the property subsequent to the
mortgage.
⤷ Governed by Secs. 29-31, Rule 39
a. debtor
b. his successor in interest
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, may
redeem the same. [Sec. 6, Act
3135]
a. Bank redemptioner
1. The amount due under the
mortgage deed,

Period for redemption
Period is 90-120 days after entry of Period is 1 year from date of
judgment or even after foreclosure registration of certificate of sale.
sale but prior to confirmation.
When to redeem
a. judgment obligor
b. first redemptioner
c. all subsequent redemptioners
Writ of
possession
2. Interest rate specified in the
mortgage, and
3. Expenses incurred by the bank
from the sale of the property.
b. Non-bank redemptioner
1. Full amount paid by the
purchaser,
2. 1% interest per month on the
purchase price, up to the time
of redemption,
3. Taxes assessed that purchaser
paid, and
4. d. Interest of 1% on the taxes
assessed.
Within 1 year from the date of
registration of the certificate of sale
Within 1 year from the date of
registration of the certificate of sale
Within 60 days from last redemption
 FLOWCHART
JUDICIAL FORECLOSURE

1) Mortgagee action for the foreclosure of

a mortgage

2) Service of summons

3) Trial

4) Judgement → If mortgagor failed to pay amount due

a. amount due
b. payment to court or to judgment
obligee
⤷ period: not less than ninety (90)
days nor more than one hundred
twenty (120) days from the entry
of judgment
► Period to exercise equity of redemption
commences (after entry of judgment)
within period prescribed in the judgment
↓
Mortgagee files a motion for foreclosure
sale
↓
Court orders for the property to be sold in
public auction (R39, ROC, RA 8791)

5) Foreclosure sale
a. Posting of notice of public auction
b. Publication in newspaper of general
circulation
c. Republication / reposting

6) Mortgagee files motion for the ► Period to exercise equity of redemption

confirmation of the sale
continues (prior confirmation of sale)
a. after the foreclosure sale but before
its confirmation, the mortgagor may
exercise his right to pay the
proceeds of the sale and prevent
the confirmation of the sale.
b. Exception: There is a right of
redemption in a judicial foreclosure
(period of 1 year) if the foreclosure
is in favor of banks, as provided for

7) Notice and hearing
- mortgagor will be allowed to show why
the sale should not be confirmed
8) Order of confirmation
- removes from the parties the right to
the property
- grants such right to the purchaser,
subject to redemption
↓
a. finality of the order of confirmation
or
b. expiration of the period of
redemption
9) Issuance of writ of possession
Purchaser / redemptioner to file a motion
for the issuance of writ of possession
The pendency of a suit for annulment of the
foreclosure proceedings does not defeat the
right of the purchaser to a writ of possession
to which the purchaser becomes entitled to
as a matter of right.
in the General Banking Law. [Sec.
47]
→ Action for Annulment of Sale
The pendency of a suit for annulment of
the foreclosure proceedings does not
defeat the right of the purchaser to a writ
of possession to which the purchaser
becomes entitled to as a matter of right.
An injunction to prohibit the enforcement
of the writ is entirely out of place. [Carpo
v. Chua, 471 SCRA 471 (2005)]
A failure to give notice of the hearing for
motion of confirmation is good cause for
setting aside the sale. [Grimalt v.
Velasquez, 36 Phil 936 (1917)]
→ Appeal
→ Exception: Third party is actually holding
the same adversely to the judgement
obligor
↓
Redemption to file motion for possession
↓
 Court to issue writ of possession

10) Disposition of proceeds of sale

a. proceeds to be paid to the person
foreclosing the mortgage after
deducting costs of sale
b. balance or residue shall be paid to
junior encumbrancers
c. if there is no junior encumbrancers, or
there is balance/residue after making
payments, such amount shall be paid
to the mortgagor
 FLOWCHART
EXTRAJUDICIAL FORECLOSURE

1) Mortgagee files an extrajudicial

foreclosure of real estate mortgage
with the Executive Judge through the
COC

2) Service of notice of the public auction

3) Posting of notice of the public auction

4) Foreclosure sale
5) Trial

6) Judgement → If mortgagor failed to pay amount due

c. amount due
d. payment to court or to judgment
obligee
⤷ period: not less than ninety (90)
days nor more than one hundred
twenty (120) days from the entry
of judgment
► Period to exercise equity of redemption
commences (after entry of judgment)
within period prescribed in the judgment
↓
Mortgagee files a motion for foreclosure
sale !!!
↓
Court orders for the property to be sold in
public auction (R39, ROC, RA 8791)

7) Foreclosure sale
d. Posting of notice of public auction
e. Publication in newspaper of general
circulation
f. Republication / reposting

8) Mortgagee files motion for the ► Period to exercise equity of redemption

confirmation of the sale
continues (prior confirmation of sale)
c. after the foreclosure sale but before
its confirmation, the mortgagor may
exercise his right to pay the
proceeds of the sale and prevent
the confirmation of the sale.

9) Notice and hearing
- mortgagor will be allowed to show why
the sale should not be confirmed
10) Order of confirmation
- removes from the parties the right to
the property
- grants such right to the purchaser,
subject to redemption
↓
c. finality of the order of confirmation
or
d. expiration of the period of
redemption
11) Issuance of writ of possession
Purchaser / redemptioner to file a motion
for the issuance of writ of possession
d. Exception: There is a right of
redemption in a judicial foreclosure
(period of 1 year) if the foreclosure
is in favor of banks, as provided for
in the General Banking Law. [Sec.
47]
→ Action for Annulment of Sale
The pendency of a suit for annulment of
the foreclosure proceedings does not
defeat the right of the purchaser to a writ
of possession to which the purchaser
becomes entitled to as a matter of right.
An injunction to prohibit the enforcement
of the writ is entirely out of place. [Carpo
v. Chua, 471 SCRA 471 (2005)]
A failure to give notice of the hearing for
motion of confirmation is good cause for
setting aside the sale. [Grimalt v.
Velasquez, 36 Phil 936 (1917)]
→ Appeal
→ Exception: Third party is actually holding
the same adversely to the judgement
obligor
↓
The pendency of a suit for annulment of the
foreclosure proceedings does not defeat the
right of the purchaser to a writ of possession
to which the purchaser becomes entitled to
as a matter of right.
Redemption to file motion for possession
↓
Court to issue writ of possession

12) Disposition of proceeds of sale

d. proceeds to be paid to the person
foreclosing the mortgage after
deducting costs of sale
e. balance or residue shall be paid to
junior encumbrancers
f. if there is no junior encumbrancers, or
there is balance/residue after making
payments, such amount shall be paid
to the mortgagor

Foreclosure sale

Mortgagee files motion for the confirmation

of the sale

Notice and hearing

- mortgagor will be allowed to show why
the sale should not be confirmed
↓

Order of confirmation → Appeal

- removes from the parties the right to the
property
- grants such right to the purchaser,
subject to redemption
↓
 e. finality of the order of confirmation or
f. expiration of the period of
redemption
Possession
a. purchaser may petition the RTC to give
him possession thereof during the
redemption period
b. post a bond in an amount equivalent to
the use of the property for a period of
twelve months
→ The debtor may, in the proceedings in
which
possession was requested, but not later
than
30 days after the purchaser was given
possession, petition that the sale be set
aside
and the writ of possession cancelled,
specifying the damages suffered by him,
because the mortgage was not violated
or the
sale was not made in accordance with
the
provisions hereof. [Sec. 8, Act 3135]
 FLOWCHART
PARTITION

1) Mortgagee action for the foreclosure of a real estate mortgage

FIRST STAGE
Determination of the propriety of partition
2) Filing of complaint for partition
3) Summons
4) Answer
5) Preliminary conference
6) Trial
7) Order of Partition and Accounting → Appeal
Order of Partition and Partition by Commissioners
Partition
by Agreement A. Appointment of Commissioners [Sec. 3, Rule
A. Partition by Agreement 69]
[Sec. 2, Rule 69] B. Oath of commissioners [Sec. 4, Rule 69]
► partition among C. Duties [Sec. 4, Rule 69]:
parties by proper 1. View and examine the real estate (after
instruments of due notice to the parties)
conveyance 2. Hear the parties as to their preference in
B. Court confirmation the portion of the property
C. Recording with the 3. Set apart the same to the parties in lots or
Registry of Deeds parcels
Assignment of real Property be sold
estate to one party instead
a. real estate, or a a. one of the
portion thereof, interested parties
cannot be divided asks that the
b. court may order it property be sold
assigned to one of instead
the parties willing to b. court shall order
take the same the commissioners
c. provided he pays to to sell the real
the other parties estate at public sale
such amounts as the
commissioners deem
equitable

4. Commissioner’s Report
 5. COC shall serve copies of the report on all
the interested parties, with notice that they
are allowed 10 days within which to file
objections to the findings of the report.

D. Hearing on the report

► Upon expiration of period to file objection, or
before the expiration of such period but after
the interested parties have filed their
objections to or statement of agreement on
the report

E. Court may:
a. Render judgment
b. Recommit the report to the Commissioners
for further report of facts
c. Set aside the report and appoint new
commissioners
d. Accept the report in part and reject it in part
8) Court Confirmation / Judgment
If actual partition is properly If the whole property is If the property is sold and
made assigned to one of the parties the sale confirmed by the
after payment court
Contents of Effects of Contents of Effects of Contents of Effects of
judgment judgment judgment judgment judgment judgment
Judgment shall Judgment Judgment shall Judgment Judgment Judgment
state definitely, shall vest state the fact of shall vest shall state shall vest the
by metes and in each such payment in the party the name of real estate in
bounds and party to and of the making the the the
adequate the action assignment of payment purchaser or purchaser or
description, the in severalty the real estate the whole purchasers purchasers
particular the portion to the party of the real and a making the
portion of the of the real making the estate free definite payment or
real estate estate payment from any description payments,
assigned to each assigned to interest on of the free from the
party him the part of parcels of claims of any
the other real estate of the parties
parties to sold to each to the action
the action purchaser
9) Recording in the Registry of Deeds
Such partition, together with the order of the court (certified copy)
confirming the same, shall be recorded in the registry of deeds of the
place in which the property is situated. [Sec. 11, Rule 69]
RULE 70: FORCIBLE ENTRY AND UNLAWFUL DETAINER

FORCIBLE ENTRY (DETENTACION) UNLAWFUL DETAINER (DESAHUCIO)

As to Possession of land by the defendant is
possession by unlawful from the beginning as he
the defendant
acquires possession by force,
intimidation, strategy, threat, or
stealth (FISTS)
Possession is initially lawful but it
becomes illegal by reason of the
termination of his right to possession
of the property under his contract
(express or implied) with the plaintiff

As to prior Plaintiff must prove that he was in Plaintiff need not have been in prior
physical prior physical possession of the physical possession
possession by
premises until he was deprived
the plaintiff
thereof by defendant

Distinguished Accion Interdictal Accion Publiciana Accion Reivindicatoria

from Accion Summary action for Plenary action for An action for recovery of
Publiciana and
recovery of physical recovery of real right of possession based on
Accion
Reivindicatoria possession where the possession when ownership
dispossession has not dispossession has lasted
lasted for more than 1 for more than 1 year
year

MTC has jurisdiction Assessed value of the Assessed value exceeds

property or any interest P400,000.00
therein does not exceed
P400,000.00

As to No previous demand for the Demand is jurisdictional

demand defendant to vacate the premises is ⤷ Period to comply: after fifteen (15)
necessary. days in the case of land or five (5)
days in the case of buildings.
Note: with exceptions: ⤷ Contents:
FISTS a. Pay or comply with the
Stealth/Strategy – there should be still conditions of the lease, or
be a demand b. Vacate [Sec. 2, Rule 70]
⤷ Form:
Notes: a. By service of written notice of
1. Sec. 15: if with the MTC – pendente such demand upon the person
lite, disturbance of social order found on the premises, or
2. Sec. 20: if with the RTC - appeal b. By posting of the written notice
on the premises if no person be
- Sec. 16
 found thereon, or [Sec. 2, Rule
70]
c. Orally
⤷ When not required:
a. When parties stipulate that
demand shall not be necessary
[Sec. 2, Rule 70]; or
b. When action is predicated on
the expiration of the lease.
[Labastida v. CA, G.R. No.
110174 (1998)]

Prescription The 1-year period is generally counted Period is counted from the date of last
from the date of actual entry on land Demand

Jurisdiction MTC has jurisdiction MTC has jurisdiction

Nature of Real action;

the action
Summary procedure
Exceptions:
a. In cases covered by agricultural tenancy laws; or
b. When the law otherwise expressly provides.

Pleadings The only pleadings allowed to be filed are the:

Allowed a. Complaint
b. Compulsory counterclaim pleaded in the answer
c. Cross-claim pleaded in the answer, and
d. Answers thereto [Sec. 4, Rule 70]

Note: Pleadings must be verified.

Prohibited [Sec. 13, Rule 70]

Pleadings 1. Motion to dismiss the complaint except on the ground of lack of
and jurisdiction over the subject matter, or failure to comply with section 12
Motions (Referral for conciliation);
2. Motion for a bill of particulars;
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.
Availability a. Within 5 days from the filing of the complaint [Sec. 15, Rule 70]
of b. On appeal to the RTC upon motion of the plaintiff within 10 days from
preliminary perfection of appeal [Sec. 20, Rule 70]
mandatory
injunction Granted if the court is satisfied that:
a. Defendant’s appeal is frivolous or dilatory, or
b. The appeal of plaintiff is prima facie meritorious. [Sec. 20, Rule 70]

Notes:
1. Sec. 15: if with the MTC – pendente lite, disturbance of social order
2. Sec. 20: if with the RTC - appeal

MTC can also issue a preliminary mandatory injunction in an unlawful detainer

case. [Day v. RTC of Zamboanga, G.R. No. 71119 (1990)]

Preliminary preventive injunction is available in either case. Note that Sec. 15

makes the provisions of Rule 58 applicable to Rule 70. [1 Regalado 891, 2010
Ed.]
Resolving When the defendant raises the questions of ownership in his pleadings and the
Defense of question of possession cannot be resolved without deciding the issue of
Ownership ownership, the issue of ownership shall be resolved only to determine the
issue of possession. [Sec. 33(2), B.P. 129, as amended by R.A. 7691]

Guidelines:
1) The primal rule is that the principal issue must be that of possession, and
that ownership is merely ancillary thereto.
2) It must sufficiently appear from the allegations in the complaint that what
the plaintiff really and primarily seeks is the restoration of possession.
3) The inferior court cannot adjudicate on the nature of ownership where the
relationship of lessor and lessee has been sufficiently established.
4) The rule in forcible entry cases, but not in those for unlawful detainer, is
that a party who can prove prior possession can recover such possession
even against the owner himself.
5) Any such pronouncement made affecting ownership of the disputed
portion is to be regarded merely as PROVISIONAL, hence, does not bar nor
prejudice an action between the same parties involving title to the land.
 FLOWCHART
FORCIBLE ENTRY AND UNLAWFUL DETAINER

1) Plaintiff files a complaint → ► Court may motu proprio dismiss the

case on any of the grounds for the
dismissal of a civil action [Sec. 5, Rule
70]

→ ► Preliminary mandatory injunction

Plaintiff may also file a motion for
preliminary injunction
⤷ within 5 days from the filing of the
complaint
⤷ resolved by the court w/in 30 days
2) Issuance of summons
If no ground for dismissal is found, the court
shall forthwith issue summons. [Sec. 5, Rule
70]

3)Answer → ► Compulsory Counterclaim and Cross-

► within 10 days from service of summons
► serve copy of Answer to plaintiff
► Affirmative and negative defenses not
pleaded therein shall be deemed waived
⤷ except lack of jurisdiction over the
subject matter
► Cross-claims and compulsory
counterclaims not asserted in the
answer shall be considered barred [Sec.
6, Rule 70]
Claim
Defendant may file his compulsory
counterclaim and cross-claim; serve
copy to plaintiff
⤷ plaintiff/party to answer within 10
days from service of the answer in
which they are pleaded [Sec. 6, Rule
70]

→ ► Judgement; failure to answer

Should the defendant fail to answer the
complaint within the period provided,
the court, motu proprio or on motion of
the plaintiff, shall render judgment as
may be warranted by the facts alleged in
the complaint and limited to what is
prayed for therein. [Sec. 7, Rule 70]

4) Preliminary Conference (Sec. 8)
► Not later than 30 days after last answer
► The provisions of Rule 18 on pre-trial
shall be applicable, unless inconsistent
with the provisions of Rule 70
► No postponement of the preliminary
conference shall be granted except for
highly meritorious grounds
5) Order of preliminary conference
► Issued within five (5) days after the
termination of the preliminary
conference
Statement on the following matters:
a. Whether the parties have arrived at an
amicable settlement, and if so, the
terms thereof;
b. The stipulations or admissions entered
into by the parties;
c. Whether judgment may be rendered
without the need of further
proceedings on the basis of the
pleadings and the stipulations and
admission made by the parties, in which
event the judgment shall be rendered
⤷ The court may in its discretion
reduce the amount of damages and
attorney's fees claimed [Sec. 7, Rule
70]
⤷ If a sole defendant shall fail to
appear, the plaintiff shall likewise be
entitled to judgment
→ ► plaintiff fails to appear = DISMISSAL
⤷ defendant who appears in the
absence of the plaintiff shall be
entitled to judgment on his
counterclaim (in re Sec. 7)
⤷ All cross-claims shall be dismissed
→ ► sole defendant fails to appear
⤷ plaintiff shall be entitled to judgment
on his counterclaim (in re Sec. 7)
→ ► one of two or more defendants sued
under a common cause of action
defense appears
⤷ procedure above shall NOT apply
→ ► Judgment
If judgment may be rendered without the
need of further proceedings, it shall be
rendered within thirty (30) days from
issuance of the order
 within thirty (30) days from issuance of
the order;
d. A clear specification of material facts
which remain converted; and
e. Such other matters intended to
expedite the disposition of the case.

6) Submission of affidavits and position

papers
► within 10 days from receipt of the
receipt of the order of preliminary
conference
► submit:
a. affidavits of witnesses;
b. Other evidence on the factual issues
defined in the order;
c. Position papers setting forth the law
and the facts relied upon by them.
[Sec. 10, Rule 70]

7) Judgment → ► If court finds it necessary to clarify

► Within 30 days from receipt of affidavits
and position papers, or
► After the expiration of the period for
filing the same.
► Judgment is immediately executory
upon motion of the plaintiff
⤷ within 15 days after the receipt of the
certain material facts, it may, during the
said period, issue an order:
c. Specifying the matters to be
clarified; and
d. Require the parties to submit
affidavits or other evidence on the
said matters within 10 days from
receipt of said order
↓
Judgement
last affidavit or the expiration of the
period for filing the same. [Sec. 11, Rule
70]

► Plaintiff may file a motion for execution

of judgment
⤷ immediately executory

→ ► Defendant party may appeal with RTC

 How to Stay the Immediate Execution of
Judgment (all requisites must concur)
1) An appeal has been perfected;
2) Defendant should post supersedeas
bond (appeal bond/pertains to unpaid
rentals) with MTC, executed in favor of
the plaintiff to pay the rents, damages,
and costs accruing down to the time of
the judgment appealed from;
3) Defendant to make periodical deposits
pertaining to rent to RTC (w/ contract);
or reasonable value of use and
occupation (w/o contract)

Judgement of RTC
⤷ Judgment will be immediately
executory

Appeal (CA or SC)

→ ► Plaintiff may file for preliminary

mandatory injunction within 10 days
from perfection of appeal
⤷ Defendant to make periodical
deposits pertaining to rent to RTC
(w/ contract); or
⤷ Reasonable value of use and
occupation (w/o contract)
↓

⤷ If defendant fails to make payments,

plaintiff may file a motion for
execution of judgment; must
provide proof of such failure
⤷ Judgment will be immediately
executory
RULE 71: CONTEMPT

Kinds A. According to nature

1. Criminal Contempt
2. Civil Contempt

B. According to manner of commission

1. Direct contempt
2. Indirect contempt

CRIMINAL CONTEMPT CIVIL CONTEMPT

a. Punitive in nature a. Remedial in nature

b. Purpose is to preserve the court’s b. Purpose is to provide a remedy for

authority and to punish for an injured suitor and to coerce
disobedience of its orders compliance with an order; for the
preservation of the rights of
private persons

c. Intent is necessary c. Intent is NOT necessary

d. State is the real prosecutor d. Instituted by the aggrieved party,

or his successor, or someone who
has a pecuniary interest in the right
to be protected

e. Proof required is proof beyond e. Proof required is more than mere

reasonable doubt preponderance of evidence

f. If accused is acquitted, there can f. If judgment is for respondent,

be NO appeal there can be an appeal

DIRECT CONTEMPT INDIRECT CONTEMPT

a. Summary in nature a. There is charge and hearing

b. Punishment: See Sec. 1 b. Punishment: See Sec. 7

c. Remedy is certiorari or prohibition c. Remedy is appeal

 d. Otherwise known as Contempt in d. Otherwise known as Constructive
Facie Curiae Contempt
Grounds DIRECT CONTEMPT
Misbehavior in the presence of or so a. Misbehavior of an officer of a court
near a court as to obstruct or interrupt
the proceedings before the same,
including:
a. Disrespect toward the court
b. Offensive personalities toward
others, or
c. Refusal to be sworn or to answer as
a witness, or to subscribe an
affidavit or deposition when
lawfully required to do so. (S1)
d. Willful and deliberate forum
shopping [Sec. 5, Rule 7]
e. Submission of pleadings containing
derogatory, offensive, and
malicious statements submitted to
the court [Re: Letter of Atty. Noel
Sorreda, A.M. No. 05-3-4-SC
(2005)]
INDIRECT CONTEMPT
in the performance of his official
duties or in his official transactions;
b. Disobedience of or resistance to a
lawful writ, process, order, or
judgment of a court, including the
act of a person who, after being
dispossessed or ejected from any
real property by the judgment or
process of any court of competent
jurisdiction, enters or attempts or
induces another to enter into or
upon such real property, for the
purpose of executing acts of
ownership or possession, or in any
manner disturbs the possession
given to the person adjudged to be
entitled thereto;
c. Any abuse of or any unlawful
interference with the processes or
proceedings of a court not
constituting direct contempt under
section 1 of this Rule;
d. Any improper conduct tending,
directly or indirectly, to impede,
obstruct, or degrade the
administration of justice;
e. Assuming to be an attorney or an
officer of a court, and acting as
such without authority;
f. Failure to obey a subpoena duly
served;
g. 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.
 Other examples
a. Submission, of a false certification
of nonforum shopping or non-
compliance with any of the
undertakings [Sec. 5, Rule 7]
b. Upon a judgment obligor’s failure
to pay any such installment when
due without good excuse, if the
court orders him to pay the
judgment in fixed monthly
installments [Sec. 40, Rule 39]

Effect of ► The execution of the judgment ► Execution of the judgment or final

Petition shall be suspended pending
resolution of such petition
► Person adjudged in direct
contempt to file a bond fixed by
court
order shall NOT be suspended until
a bond is filed by the person
adjudged in contempt

How a. Criminal: State is the real a. Motu proprio by the court

commenced prosecutor b. Verified petition
b. Civil: instituted by the aggrieved
party, or his successor, or someone
who has pecuniary interest in the
right to be protected.

Jurisdiction a. Committed against a RTC or a court

of equivalent or higher rank, or
against an officer appointed by it,
the charge may be filed with such
court.
b. Committed against a lower court,
the charge may be filed with the
RTC of the place in which the
lower court is sitting;
⤷ but the proceedings may also
be instituted in such lower
court subject to appeal to the
RTC of such place in the same
manner as provided in Sec. 2,
Rule 71.