Brondial Notes

REMEDIAL LAW REVIEW 2007

PROVISIONAL REMEDIES We are now on provisional remedies from Rule 57 - 61. So there are 5 provisional remedies. Just remember the word AIRRS. But if you are asked, don't say attachment as a provisional remedy but rather it is preliminary attachment. Don't say injunction as a provisional remedy but rather preliminary injunction. As to receivership, yes it is both an action and a provisional remedy. Technically, it is not the receivership which is the provisional remedy but rather appointment of a receiver because in receivership it is also a kind of action. And then you have replevin or delivery of possession of personal property. And then finally you have support pendente lite. Support is not a provisional remedy but it is support pendente lite which is a provisional remedy. Now, let me give you a bird's eye view of these provisional remedies. First, because they are provisional, they cannot stand alone. Being provisional remedies, they are dependent, contingent, or adhere to a principal action. So that you cannot find an action for preliminary attachment. It must always be adhered to the principal action. Q: Because of that, what are the principal actions to which these provisional remedies attach? A: 1.) As to preliminary attachment, the principal action is recovery of real or personal property. If you try to look at Section 1 Rule 57, you will find out that all the actions there are for recovery of either real or personal property. 2.) As to preliminary injunction, the principal action is injunction although these seldom find, in actual practice, an action for injunction because it always goes with some other actions. Like for example specific performance and injunction plus damages with prayer of preliminary injunction. Is there an action which is injunction? Yes. Under Section 4 of Rule 39. 3.) As to receivership, receivership is the principal action. The provisional remedy is appointment of a receiver. If you go and look at Section 4 of Rule 39, you will see that receivership is an action. 4.) As to replevin, the principal action is recovery of personal property. In replevin, a foreclosure on mortgage is possible. 5.) As to support pendente lite, the principal action is support. Q: Which court has jurisdiction over these provisional remedies? A: General answer is because they are contingent, that court which has jurisdiction over the principal action also has jurisdiction over these provisional remedies. Precisely because they adhere to the principal action. But let us be more specific, because prior to the 1997 Rules of Court injunction, for example, is cognizable only by the RTC. But with RA 7691 (expansion of the ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 inferior courts) and looking at Rule 70 (Sections 15 and 19, all about injunction), therefore under the present rules, the preliminary injunction is now cognizable by the inferior courts. Before the effectivity of the 1997 Rules, that was applied also by jurisprudence only on unlawful detainer. But now it applies to both unlawful detainer and forcible entry as is specifically provided under Rule 70. Q: How about support pendente lite which adheres to an action for support? A: Remember that it cannot be taken cognizance of by the inferior courts because support is an action which is incapable of pecuniary estimation. Therefore, support pendente lite is only cognizable by the RTC because support to which it adheres is incapable of pecuniary estimation. Exception: In criminal cases. Because the present rules on criminal procedure speaks that once a criminal case is filed, the civil aspect is deemed instituted with it under Rule 111. Hence, if the action is criminal in nature but cognizable by the inferior court and the prosecution includes the civil action for support, then support pendente lite can be taken cognizance of by the inferior courts. Example: complaint for seduction which is cognizable by the inferior courts. And together with that you pray for the acknowledgment of the child (suppose merong anak) and you pray for support pendente lite. In this instance the support pendente lite is taken cognizance of the inferior courts. In Receivership: both inferior courts and RTC. In Replevin: both inferior courts and RTC. In Injunction: both inferior courts and RTC. In Attachment: both inferior courts and RTC depending now on the principal action to which the provisional remedy attaches. Q: What are the requirements in applying for these provisional remedies attaching to the principal action? A: 1.) In case of preliminary attachment, what is required is the affidavit and bond. 2.) In case of preliminary injunction, the requirement is a bond and a verified petition. 3.) In case of receivership, also a bond and verified petition. 4.) In case of replevin, affidavit and bond. 5.) In case of support pendente lite, only a verified application. No bond. Q: How do you secure, aside from these requirements, the writs for these provisional remedies? A: 1.) In case of preliminary attachment, you may secure it ex parte. Although the writ cannot be implemented ex parte but it can be issued ex parte. 2.) In case of preliminary injunction, as a general rule you cannot secure it ex ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 parte under Section 5, Rule 58, although in cases of urgency, that injunctive relief for a period of 72 hours can be granted summarily (meron pa din notice and hearing for due process). That is how stringent in applying for injunctive relief. 3.) In replevin, you cannot get it ex parte. 4.) In support pendente lite, there is a peculiar provision under Section 2 (Rule 61) wherein the respondent, within a period of 5 days from notice, is bound to file his comment. And if he does not file his comment, the case will be heard on the application only (Section 3) within 3 days. Q: Once the writ is granted or issued, how do you discharge the writ? A: 1.) In case of preliminary attachment, it may be discharged under Sections 5, 12 and 13 of Rule 57. Cash deposit or counter bond (Secs 5 and 12) or a motion questioning the propriety or regularity of the issuance of the writ (Section 13). 2.) In case of preliminary injunction, it cannot be discharge it by a bond neither if it be granted by a bond, although bond is required but a counter bond does not discharge a writ of preliminary injunction. 3.) The same thing with replevin and receivership, you cannot discharge it with a bond. You have to file a motion questioning the propriety or regularity of the issuance of the writ. 4.) In support pendente lite, there is no bond. If the judgment is in favor of the respondent, the support pendente lite must also be discharged because it has no basis to stand with.

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REMEDIAL LAW REVIEW 2007

RULE 57 PRELIMINARY ATTACHMENT Provisional remedy: Preliminary Attachment Principal action: recovery of either real or personal property Memorize Section 1 (the grounds) of Rule 57. Remember, you will appreciate Rule 57 had you understood Rule 39 because there are cross-references between these provisions. Section 7 of Rule 57 you will find out that that is also practically the same or similar provision in Section 9-11 of Rule 39. Section 16 in Rule 39 is Section 14 Rule 57, and Section 7 Rule 60 (Replevin). Try to analyze it, pare-pareho. The 3rd party claimant will simply execute an affidavit. The sheriff will not be bound to hold it but deliver it to the 3rd party claimant. Yang v. Valdez (was given in the bar about 5 years ago) - the 5 day period of redelivery bond. You have now to distinguish a bond from a counter bond. Later on, remember that it is different from a supersedeas bond which you have studied and under Settlement of Estate. Here, we are dealing with bond and counter bond. Bond is required of the applicant. Counter bond is required of the person against whom the application was filed. Deposit can be cash either on the part of the plaintiff or the defendant as the case may be. Q: Take note of Section 1. When can you file or apply for a writ of preliminary attachment? A: It says there at the commencement of the action or at any time before entry of judgment. Q: Bakit? Why should you not apply for a writ of preliminary attachment when judgment has already been entered? A: Because your remedy is not attachment but your remedy is execution under Rule 39. Remember when we were discussing Section 27-29 of Rule 39 (regarding redemption and redemptioner), so that when a property was sold on attachment, there are possible redemptioners because Section 1 says at the commencement of the action, you already apply for the issuance of the writ of preliminary attachment. And if the writ is issued and implemented, the sheriff, to whom the writ is addressed, takes actual custody of the property if it is capable of manual delivery. In the case of replevin, ibibigay ng sheriff sa applicant after 5 days if there is no redelivery bond is filed. But in the case of preliminary attachment, kukunin niya yan for safe keeping. And it will only be sold after judgment is rendered in favor of the plaintiff (applicant). Q: Once a property has been replevined and again it was attached, is it still valid? A: Yes. once the property is replevined it can still be attached. But if the property is attached it cannot be replevined. Because in attachment, you may not take possession but in replevin you have to take possession. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

Q: A 3rd party can deal with the property that has been attached. Suppose it was mortgaged with a bank after it has been attached, is it possible? A: Yes. The mortgage becomes a lien subsequent to the lien under which the property was sold if ever the plaintiff wins in the case. You cannot just attach right and left if there is no ground. That is why let me emphasize Section 3 of Rule 57. 1. There must be a valid cause of action. Because preliminary attachment is only provisional so if the cause of action is invalid, the preliminary attachment is also invalid. 2. There must be a valid ground among the 6 enumerated grounds under Section 1. 3. There must be no other security. Or if ever there is, the security is not sufficient. 4. The order must be equivalent to the sum for which you are asking. NOTE: These 4 requirements must be contained in an affidavit. So your affidavit is pro forma or insufficient if it does not allege these 4 basic requirements as enumerated under Section 3. Aside from that affidavit of merits, bond must accompany it. Q: What do you notice in the grounds under Section 1? A: Yung first three, it is a kind of action. Yung last three, it is the party involved. First action, it is an action for specific amount of money and damages other than moral and exemplary damages on an action arising from law, contracts, quasicontracts, delicts, quasi-delicts against a party who is about to abscond in fraud of creditors. Q: Why other that moral and exemplary damages? A: There is no basis. The basis must be personal, wounded feelings etc. Q: Ano yung mga requirements niyan? A: 1. Your actions should be for sum of money and damages, other than moral and exemplary damages. 2. Your cause of action is based on a law, contract, quasi-contract, delict, or quasi-delict. 3. It must be directed against a party who is to depart from the Philippines with intent to defraud. Second action, an action also for recovery. But look at the defendant here, the defendant is a public officer, officer of a corporation, attorney, factor, broker, agent, or clerk. In other words there must be a fiduciary relationship between the applicant and the respondent. Third action, recovery of possession, this time, against a party who removed, ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 disposed, or does not disclose it, or who hid these properties. Q: What is then a common denominator here? A: There is an element of FRAUD. When you go to paragraphs d, e, and f the phraseology is different. It is against a party this time, not anymore to the kind of action but to the kind of person who is a party defendant. In paragraph d, a person who is guilty again of fraud in contracting a debt or obligation upon which the action is brought or in the performance thereof. Javellana v. D.O. Plaza Enterprises, Inc., L-28297, March 30, 1970 illustrates the rule prior to the 1997 Rules of Court. Facts of this case: There was a simple sale of property, let's say the purchase price was P100, 000.00 D.O. Plaza paid 50% and the balance was secured with postdated checks. Plaza took possession of the property sold. Later on, the checks, which were in payment of the obligation contracted, bounced. It all bounced. An action for sum of money was filed with prayer of preliminary attachment using that the respondent was guilty of fraud in contracting its obligation. When it reached the Supreme Court, the SC said no. Preliminary attachment must be discharged because there was no fraud in contracting the obligation but there was fraud in the performance thereof. And at that time, wala pa yung term na in the performance thereof. Hence, the defendant here won in the sense that the preliminary attachment was invalid. That is why when they amended the 1997 Rules of Court, using the case of D.O. Plaza, they included it in the present rules. Paragraph e, is one against a party who tries to dispose the property again in fraud of creditors. SC case: So here is a businessman who was engaged in buying and selling. So when he owed somebody a sum of money, that somebody filed a case against this businessman and applied for a writ of preliminary attachment on the ground that the businessman was disposing his property in fraud of creditors. The SC said NO. He is disposing his property in line of his business precisely he is in buy and sell. If he does not dispose his property, how will he ever be able to pay you. The attachment was invalid. Another SC case: Wherein the businessman who had a sari-sari store. A case was filed against him for a sum of money and a writ of preliminary attachment was applied for. The SC said YES, the writ of preliminary attachment was validly issued because there was disposal of the property in fraud of creditors. Even if the disposal was made in line of his business, the SC held that the disposal was made at midnight and through the backdoor. So there is fraud.

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REMEDIAL LAW REVIEW 2007

NOTE: Paragraph f is peculiar because it speaks about his situation or residence. So in this instance, any person who left the country and temporarily reside there, you file an action and you can apply for a writ of preliminary attachment. But take note of the last phrase there and those who may be served by publication. So you cross-refer that to Section 15-17 of Rule 14 on Summons, who must be served through publication. It applies only on actions in rem or quasi in rem. Actions which are strictly in personam, summons by publication is not allowed. One of the objectives of a writ of preliminary attachment is to convert an action which is strictly in personam to an action quasi in rem. Once you convert it, then you can now serve summons through publication. Q: In writ of preliminary attachment, there are three stages: A: 1. Application. Together with the application is the order granting the application. 2. Issuance of the order or the writ of preliminary attachment. 3. Implementation or execution of the writ of preliminary attachment. NOTE: The first two stages may be done ex parte. But the last stage must always be with prior or contemporaneous service of summons. Hence that applied, you can avail of paragraph f of Section 1 of Rule 57 in converting the action in to an action in rem. Because the writ of preliminary attachment can be issued even without service of summons. In paragraph f, nakalagay dun that if a person cannot be found in the Philippines or is temporarily residing out of the Philippines, then that can be a ground for asking the court to issue the writ of preliminary attachment. But we said, it says there further, and all those persons who may be served summons through publication. But sabi natin, who are these persons who may be served summons through publication? Ala yan diyan. So you go back to Section 15-17 of Rule 14, Extra-territorial service. But we said that even if summons by publication is allowed, that is only in cases where the action is not strictly in personam (quasi in rem). Sabi natin, so contradictory apparently. Why? Because you are asking precisely for a writ of preliminary attachment on that ground but you cannot serve summons to a person if your action is strictly in personam. Sabi natin, hindi. Ang explanation diyan is that in the application for the writ of preliminary attachment, there are three stages. Yung una hindi mo kailangan ng summons. So you can already apply, on the basis that the defendant is outside of the country. You apply irrespective whether the summons can be issued or not because it can be issued ex parte. But dito lang sa issuance. Pero pag hawak na yan ng sheriff, iimplement na niya under Section 7, levy on attachment, hindi ka pwede mag levy on attachment if the court has not acquired jurisdiction over the person of the defendant. Kaya nakalagay diyan, prior or contemporaneous. Prior is Mangila case. Contemporaneous sabay na ng pag implement ng writ of ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 preliminary attachment ang service of summons. When the property has been attached, it does not mean that the property is already yours. You have to wait for the judgment before you can dispose of the property either by public auction or possess it as owner. Q: Suppose the plaintiff loses under Section 20, what will answer for damages? A: The bond will answer for damages.

NOTE: This is the peculiarity of rule 57. Unlike all other bonds which answer only for damages, it is only in Rule 57 will the bond answer for the judgment. So you underline the word judgment. Kasi dito mo lang makikita yan sa Rule 57. Because in Rules 58-61, the bond answers for damages. While in Rule 57, the bond answers for judgment. Ano'ng ibig sabihin nun? Sometimes damages can be separated from judgment. But in most instances hindi. Let's say defendant is ordered to pay P20,000 as principal obligation and damages of P10,000, so hiwalay. In other cases the bond or counter bond only answers for the P10,000. But in preliminary attachment, the bond or counter bond answers for the P30,000, judgment and damages. Do not be misled therefore by cross-references to Section 20 by the other rules. Do you notice that? di ba puro cross-references. Section 8 of Rule 58, Section 9 of Rule 59, and Section 10, Rule 60 cross-refer to Section 20, Rule 57. The cross-reference is correct but the difference is that the bond and counter bond in all these provisional remedies answer only for damages. But in writ of preliminary attachment because of its precedent section which is Section 19, which answers for any judgment. Q: How do you discharge the writ of preliminary attachment? A: So the writ of preliminary attachment has already been issued or served as the case may be. At any stage, you can always discharge the writ. Under Sections 5, 12, and 13. These are important sections. Read that and you will note the differences. Q: What is the difference between Section 5 and Section 12? A: Apparently, there is no difference. But if you try to analyze it, there is a difference. The means to discharge are the same which is either a cash deposit or counter bond, which you find in Section 5. If you go to Section 12, pareho din ang means which is a cash deposit or a counter bond. Tignan niyo, sino ang hihingi ng discharge of the writ? Siyempre that party against whom the writ was issued. A is the plaintiff and B is the defendant. If A applies for preliminary attachment and it was issued, who seeks for the discharge? Siyempre si B. Is it possible that A, in an instance, may also seek the discharge of the writ? Ordinarily no, but if B as a counterclaim, which is permissive, B will ask for a writ of preliminary attachment against A. Thus A may also seek the discharge the writ. A can file for a counter bond. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

Section 5 speaks of a cash deposit or a counter bond. The counter bond will answer for the judgment. The cash deposit will also answer for the judgment, May pinagkaiba ba yun? Siyempre iba yun. Yung cash deposit, pera na yun. But businessmen don't usually do that. What they do is through surety. And this is an instance where surety is automatically impleaded without the requisite service of summons in acquiring jurisdiction over the person of the defendant. The difference is, in Section 5, the writ has not been implemented but it is already issued. In the case of Section 12, the writ has already been implemented and custody of the property sought to be attached is already in the hands of the sheriff. The property is already in custodia legis. Regardless in what stage, whether the writ was just issued but not yet implemented or is contemporaneously implemented, the defendant can immediately file for a counter bond. The counter bond, in effect, automatically discharges the writ. Section 13, another means of discharging the writ by filing a motion in court questioning the propriety or regularity of the issuance of the writ. Whether the writ has already been implemented or not, you can avail of Section 13. Q: What are some grounds of irregularity in the issuance? A: Insufficiency of the bond. Remember that the requirement for the issuance are affidavit and bond. So if the affidavit for example did not contain the required statement as provided for in Section 3 of Rule 57, then that is an irregularity. Or it contains but it was untruthful. It was a lie, then it is irregular. Or suppose the bond which was filed was very insufficient. There was a claim for P20M and the bond was only P1M. So, the issuance of the writ is irregular and improper. Or it was issued by the court on the ground not specifically stated in Section 1 of Rule 57. Because the 6 grounds there are EXCLUSIVE. Wala ng iba. Remedies are Sections 5, 12 and 13. These are the means to discharge the writ of preliminary attachment. Q: Can one avail of Section 12 and avail again Section 13 in the same case? A: Yes, it can happen. If I was a businessman and a case was filed against me and a writ of preliminary attachment was issued against my sari sari store, and the writ is implemented, I cannot proceed with my business because it is already in custodia legis. I cannot start selling this because the property which has been attached is reserved for judgment. Remedy? I immediately file a counter bond, and the writ is automatically discharged. So i can again continue in selling my merchandise. Meanwhile when there was no writ anymore, I'll file a motion before ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 the court claiming that the issuance was improper and irregular. I'm not praying anymore for the discharge of the writ but rather for the discharge of the counter bond. So answer is YES. One can avail both 12 and 13. Q: How about Sections 13 and 5? A: Hindi. Kasi yung Section 5 before the implementation. I was saying, it is possible that the applicant loses in the case. It is not a guarantee that when you ask for a writ of preliminary attachment, you will win in the case. Even if you win in the case, but you may lose in your application for the writ of preliminary attachment. Q: How can this happen? A: It can happen in such a way that during the proceeding, it was established that the issuance of the writ was irregular and improper. And what does the rule provide? The rule provides that if this happens right there and then before entry of judgment, you already have to file for damages. You cannot file that after entry of judgment because you are considered to have waived your right. And remember Section 46 of Rule 39, you can file now a case against the surety even without impleading the principal. In like manner, provided there is notice, you can go after the surety if it is a counter bond or surety bond. Q: How about a 3rd party claim, which you find in Section 14 of Rule 57? A: If there is a 3rd party claim, the same provision as you find in Section 16 of Rule 39 applies. The 3rd party claimant executes an affidavit, gives it to the sheriff and then the sheriff will deliver back the property, which has been attached, to the 3rd party claimant unless the applicant secures the sheriff with another bond. Pareho rin yan sa Replevin, Section 7 of Rule 60 and Section 16 of Rule 39. NOTE: Common error of the students think that since the 3rd party claimant files his claim, then the 3rd party claimant should file for the bond. Atty. Brondial corrects that it is not. The applicant for the writ who should file the bond without prejudice, of course, to a filing a case against the 3rd party claimant who filed a 3rd party claim frivolously and fraudulently. And that case can be threshed out in the same action or even in a separate action.

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REMEDIAL LAW REVIEW 2007

RULE 58 PRELIMINARY INJUNCTION Provisional Remedy: Preliminary injunction Principal Action: Injunction We said you find an action for injunction in Section 4 in Rule 39. But seldom will you find an action filed specifically for injunction only. It is coupled always with other causes of action. Like damages, or recovery of property with injunction and prayer for preliminary injunction and TRO. Q: When do you apply? A: We said any court has jurisdiction over injunctive relief. It is often said that SC has no jurisdiction over an action for injunction. Of course not, in the sense you do not file an original action with the SC. But if your action is certiorari which is cognizable by the SC, you can ask for injunction. Madaling intindihin ito ngayon, these are always in the papers. Ngayon, maraming mga pulitiko ang hinahabol at dinidismiss, kaya they are all filing injunctive relief. They are praying for annulment of the order of dismissal or cancellation of the order of dismissal with prayer for injunction and writ of preliminary injunction. Where do they go? To the CA because the defendant here is the DILG. So pwede yun. While injunction can be availed of in any court, including the SC, but if you read cases and statements to the effect that you cannot file for an action for injunction to the SC it is because it is not a court of original jurisdiction over this action except certiorari, prohibition, mandamus, quo warranto, habeas corpus. Q: What are the requirements in order for a party to file an injunction with prayer for preliminary injunction? A: This basic requirement is a right of the applicant. 1. First requirement: The applicant must have a right. This right must be actual, existing and valid and not just an inchoate right or a right not in esse (substantial). Example of an inchoate right is the property of your parents. And you claim to be an heir. You are not entitled to the property unless your parents die. Your right to the property is just inchoate. 2. Second requirement: There must be a violation of that right or threatened violation. So the violation may not be actual. It can only be a threat and you can already seek protection through injunction. 3. Third requirement: The violation or threatened violation will result in irreparable damage and injuries. Take note of these three fundamental requirements. Example is the Idolor case. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

NOTE: Preliminary injunction is preparatory to injunction. TRO is preparatory to preliminary injunction. And within that TRO is the 72 hour period of the TRO. Tatandaan niyo to a. Preliminary injunction has no time frame. After trial that can become permanent. But remember that a preliminary injunction is a provisional remedy attached to injunction. So when a preliminary injunction has become permanent, it means that you already won the case of injunction. But not the TRO, because the TRO is preparatory to preliminary injunction. That is why there is a time frame in the TRO which is 20 days in cases of the RTC and MTC and 60 days of CA. Q: The requirement is verified application and bond, when do you apply for this? A: You apply for preliminary injunction at any time in the course of the action even at the commencement of the action or anytime thereafter but before judgment. Q: Preliminary injunctions are of 2 kinds: A: Prohibitory injunction or mandatory preliminary injunction. In prohibitory injunction, you seek to maintain the status quo. In mandatory injunction, you seek to return to the status quo. Let me illustrate: Suppose when you go home tonight, you found your home without electricity because it has been cut by MERALCO for non-payment of your electric bill. So you want a return to the status quo, so you file for a mandatory injunction, mandating the MERALCO to return electricity to your residence. Suppose when you arrived at home what you got was a notice of disconnection, may ilaw pa kayo. The notice of disconnection is a warning. It is a threat of a violation of your right or violation of your contract. So what do you file? Prohibitory injunction, you seek to maintain the status quo of having lights in your house. Q: Can you get injunctive relief ex parte? A: In no way. It must always be after hearing. You cannot get injunctive relief ex parte. I would like to emphasize there as to where you are applying because this has always been a case for discussion. If you apply for the writ for injunctive relief before a multi-sala court, there are 2 notices necessary for issuance of the writ of preliminary injunction. Q: Ano ba ang multi-sala court? A: There is only one RTC Manila. But there are many salas, RTC Branches 4548, etc. Quezon City marami din yun. Yan ang tinatawag na multi-sala. Pag 2 na yan, multi-sala na yan.

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REMEDIAL LAW REVIEW 2007

The rules provide that when you apply for injunctive relief before a multi-sala court, the executive judge, even before hearing the case, must give notice of raffle. Raffle pa lang, may notice na dapat. So that if there is no notice of the raffle date, it is already violative of the due process clause of the constitution. Kung single sala, wala na. Ang notice mo ay notice of hearing because hearing is mandatory. But if it is in Metro Manila or if it is a multi-sala court, 2 notices, Notice of raffle and notice of hearing. So ang ipapadala munang notice is when is the raffle date and your failure to attend after notice, you waive your right to be present at the raffle. And then later on is notice of hearing. During the hearing, the applicant should present evidence and the defendant should present his evidence. Ordinarily, what is given is TRO. This TRO, if it is issued by the RTC or MTC, is good only for 20 days. Upon expiration, it cannot be renewed. It is grave abuse of discretion on the part of the court to extend even upon agreement of the parties cannot and should not be extended. In the case of the CA, it is 60 days. Q: Where do you count the 20 day or 60 day period as the case may be? A: From issuance. I would like to find out, that every TRO cannot be granted ex parte except on a very urgent matter where the hearing can be done summarily. In the case of a TRO which is good for 72 hours, this time from notice. Q: Why 72 hours? A: Kasi dito sa Pilipinas, ordinarily non-working day ang Saturday and Sunday. So hindi pwedeng 48 hours baka kasi pumatak dun sa Saturday or Sunday. Kaya 72 hours because it is 3 days, kahit yun pumasok ng friday ng hapon, papatak yun ng lunes. O pag binigay yang ng saturday, papatak pa din yan ng lunes. If the court continues your 72 hour TRO to a full 20 day TRO, the 72 hours will be included in the 20 days. This time counted from the issuance of the TRO of the 72 hours. Q: Why 20 days? A: It is because this is roughly 3 weeks. And within a 3 week period, the court must hear whether or not to grant the writ of preliminary injunction. The court is a very busy body and you cannot set it for hearing immediately because there are other cases filed before it. Q: How do you discharge the writ? A: You cannot discharge the writ through a counter bond. The only way is to question the propriety or regularity of the issuance. But even then, chances are it will just be denied. Kaya pag na issue ang TRO for 20 days, wait ka na lang after that period. That's why it's not that long because it is really to be threshed out ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 whether there was violation of the right, whether it will cause irreparable damage or injury. Any action, if there is a violation of a right, you can ask for injunctive relief. How about damages, you are cross-referred to Section 20 of Rule 57. But the bond here answers only for damages.

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REMEDIAL LAW REVIEW 2007

RULE 59 RECEIVERSHIP When we talked about receivership it is both a provisional remedy and a principal action. Although it can happen that receivership is attached as a provisional remedy to an action for a recovery. Q: What is the principal action for receivership? A: If the receivership is used as a provisional remedy, the principal action here is for recovery of property whether real or personal. Q: What would be the jurisdiction? A: Jurisdiction shall depend upon the principal action. It can be taken cognizance by the inferior court or the regional trial court. You cannot file it to the Court of Appeals or the Supreme Court. You only file original actions in the SC or CA in a very peculiar actions and we already know that when we studied jurisdictions. Concurrent jurisdictions like certiorari, prohibition, mandamus, quo warranto, habeas corpus. Q: If you file an annulment of judgment of the MTC, where will you file it? A: We do not apply Rule 47 because it is for the order of the Regional Trial Court, we apply the general rule that no actions on appeal can go to the CA or SC because it is a judgment of MTC. RTC has jurisdiction even though it is annulment of judgment. If receivership can be taken cognizance depending on the principal action, but if the principal action is receivership itself since receivership may be the principal action. While preliminary injunction can never be the principal action, what is the principal action there is injunction. In receivership it may be a principal action or provisional remedy. If it is a provisional action it must attached to a principal action which is recovery. But unlike attachment, Sec. 1 Rule 57, states the grounds for attachment. Sec. 1 Rule 59 also gives the different kinds of instances where you can apply for receivership. Q: What are these instances? A: Sec. 1 Rule 59 a. When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; b. When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; c. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise carry the judgment into effect; d. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. Q: What is the purpose or the reason for assigning or appointing a receiver in these instances? A: It is for the preservation, administration or disposal of the property. Note: You must be logical in your analysis. Why do we have to preserve the property? If the property is already there, why do you have to preserve it? Because it is not being preserve. It is in danger of being loss, dissipated, damage or the value is being diminished. If such reason does not exist, you cannot ask for receivership. In administration, the value may be diminished hence the need for receiver to retain the value of the property or the property is supposed to be disposed but it is disposed irregularly. Even a mortgagee can file for a receivership because the property being mortgaged is in danger of being loss, dissipated, destroyed or the value diminished. Q: How do you apply for receivership? Procedure for receivership? A: File an application for appointment of a receiver which is ordinarily a verified petition. Q: What do you mean by a verified petition? A: When you talk about verified petition it simply means that the petition must be under oath. Verified under oath. Q: When do you apply? A: From the commencement of the action even after appeal because the property is still in danger of being loss, dissipated, destroyed or its value diminished. Q: Where do you apply? Is it in the appellate court or trial court? A: Amendment of the rule, the appellate court may allow the application to be filed in and decided by the court of origin and the appointed receiver of the court of origin has control over the property under receivership. Sec. 1 Rule 59 last paragraph. This amendment is exceptional because under Sec. 9 Rule 41 perfection and loss of jurisdiction. The court of origin has no more jurisdiction over the ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 action but still the court of origin can still appoint a receiver, this is the reason why it is exceptional. If you look at the 1960 rule which was amended by the 1997 rules of court hindi pa yan pwede but now pwede na. because the rationale there is what is actually appealed is not the subject matter of receivership but the principal action, here it is merely a provisional remedy. Sir does not totally agree with that because as said earlier receivership may be a provisional remedy or a principal action, so if it is a principal action definitely it is appealed there. The real reason there is that it is in the exercise of its residual jurisdiction. Q: What are the requirements? A: Affidavit and bond. Q: What constitutes the affidavit? A: The affidavit here pertains to the affidavit of merits, same as Rule 57 Sec. 3 requirements but different grounds. It is a mandatory requirement for receivership. Q: Who should file the bond? A: The applicant and the receiver shall file the bond. An applicants bond and a receivers bond because the applicant may not be appointed as the receiver. As much as possible, a party to the case should not be appointed as receiver, if you are the applicant it does not follow that you will be appointed as the receiver. Because these are 2 different bonds they must undergo 2 different things. The applicants bond answer for the damages caused by the applicant while the receivers bond answer for the damages caused by the receiver. Q: What happens if the applicant is appointed as the receiver himself? Does he file 2 bonds? A: Yes, that’s why you do not limit yourself to replevin where the bond is twice the value of the property. It can also happen here that 1 person files 2 kinds of bonds although not necessarily the value of the property because here just like attachment it is with the discretion of the court. The court may only require his bond not necessarily an amount equal to the value of the property but in replevin the rules specifically provide that the bond must be twice the value of the property. Here not necessarily, pero 2 pa rin, one coming from the applicant and another from the receiver, so if the applicant was appointed as the receiver he files 2 bonds. One as an applicant and another as receiver. Q: If the 2 requirements are complied with, the affidavit and bond, the court shall issue an order appointing a receiver, so what are the duties and responsibilities of a receiver? A: Sec. 6 Rule 59 a receiver shall have the power to bring and defend actions in his own name; to take and keep possession of the property in controversy; to receive rents; to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of the same; to make transfers; to pay outstanding debts; to divide money and other property that shall remain among the persons ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 legally entitled to receive the same. However, funds in the hands of the receiver may only be invested only upon order of the court and upon written consent of all the parties to the action. No action may be filed by or against a receiver without the leave of the court which appointed him. Q: Can a receiver be sue or be sued? How is it related to Sec. 1 Rule 3? A: Yes, cross referring it to Rule 3 Sec. 1 who may be a party? A party is one who may be benefited or prejudiced by the suit. A receiver shall not be damage or prejudiced by the suit nor benefited thereto. He is not a party in interest, so why can he sue and be sued? Because he will fall under an entity authorized by law just like an executor or administrator, he has no interest on the estate so he is not a party in interest actually. But he is authorized, he has what we call legal standing. Q: An order of receivership or appointing a receiver will take over and must have possession of the property, if necessary these properties refer to everything under litigation including books of accounts and everything. They are also obliged to deliver or surrender do not comply what should the receiver do? A: He can ask the court to cite him for contempt. Q: How receivership is terminated? A: When there is no more reason for its existence it has to be terminated. Therefore if the properties subject of receivership is no longer in danger of being wasted, lost, damage, injured or value dissipated then receivership will terminate. One common example here is when a corporation who is now in the stages of winding up its affairs. During that time, the stock holders usually…nakaw dito nakaw doon…usually the better solution is for the appointment of a receiver. A receiver is not necessarily an individual person, it may also be a corporation. Banko Pilipino for example, it was placed by receivership by the Sentral Bank. The problem was that the receiver assigned was more corrupt than the stock holders before the termination of the receivership he left for the States and stayed there permanently bringing with him all the assets of Banko Pilipino. It took Banko Pilipino more than 20 years to recover. That is why the receiver is also obliged to give a report, a return or an accounting of his duties and responsibilities to the court otherwise before you know it baka lalo lang nawala and lahat.

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Rule 60 Replevin Q: What is the principal action? A: Recovery of possession of PERSONAL property Q: Which court has jurisdiction? A: MTC or RTC depending upon the value of the property because technically replevin is only a provisional remedy. Note: only receivership may only be a principal action but replevin will always be a provisional remedy. Q: What are the grounds for application of replevin? A: Sec. 2 a. That the applicant is he owner of the property claimed, particularly describing it, or is entitled to the possession thereof; b. That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; c. That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and d. That actual market value of the property is stated in the affidavit. Q: If A sold a lot to B, then B caused the titling of the property fraudulently in his favor can A ask for recovery of the property being entitled to the recovery of the property? A: No, because replevin only applies to personal property. The other provisional remedies we studied so far, you apply for the provisional remedy from the commencement of the action or before judgment and even after judgment in the case of receivership. But in replevin it should be availed of before answer. Q: Why should replevin can only be availed of before answer? Why would an answer disqualify an application for replevin? After answer it cannot be applied for anymore, why? A: When an answer is filed issues are joined and because issues are joined, the court already knows whether the applicant is entitled to the ownership or possession. So hindi na igagrant ng court, kaya it must be before the answer because it is an immediate remedy.

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REMEDIAL LAW REVIEW 2007

Q: To whom the writ of replevin addressed? What should he do after issuance of writ? A: To the sheriff, and after issuance of the writ of replevin he shall take actual possession of the property for safe keeping. Note: In attachment the taking of the property is for the purpose of awaiting for the final judgment, here in replevin the reason for the taking of the actual possession of the property is for safe keeping. Q: How long should the sheriff hold in possession of said property? A: Only 5 days, after said period he must deliver said property to the applicant. Q: So the defendant must object? If he does not object, what happens? A: Yes, it requires an objection. If such objection is not made the possession of the property shall be given to the applicant. Q: How do you discharge the writ of replevin? A: By filing a counter bond which is called redelivery bond within the period of 5 days. And within that period if the writ of replevin is intended to be discharge the defendant must file a counter bond which is also known as redelivery bond. If the defendant puts up a redelivery bond then the sheriff is now required to return the property to the person to whom he got it. But if the defendant fails to put a redelivery bond then the sheriff will deliver it to the applicant. Remember that this is only a provisional remedy, the principal action is recovery of possession of personal property. Later on, in the principal action you can thresh out ownership as the basis for the recovery of possession. Therefore possession becomes an effect of ownership. If he is only entitled for possession, pwede pa rin. Yang vs Valdez The 5 day period is mandatory, even if you put up a redelivery bond but beyond the 5 day period it will not have the effect intended for. Note: This is the shortest period wherein the sheriff have custody of the property, in attachment from application which may be from the commencement of the action until final judgment which may last for 10 years. Here, you may even file for receivership kasi baka yung property e ginagamit na ng sheriff. And usually you do not assign the sheriff or the clerk of court as a receiver. It is even advisable not to assign a party to the case as a receiver. Q: How much the bond be? A: Twice the value of the property.

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REMEDIAL LAW REVIEW 2007 Q: If the defendant objects on the ground of insufficiency of the bond or to the validity or capacity of the surety, what happens now? A: Sec. 5 Rule 60. Then the court must ask the applicant to satisfy the insufficiency of the bond, and only when the order comes out and there is still no satisfaction of the insufficiency of the bond then the property shall be delivered to the person to whom it was taken by the sheriff. Q: What are the requirements? A: Affidavit and bond. We said in receivership that it can happen that there is 2 bond if the applicant is appointed at the same time as the receiver. In replevin it can be thrice. Q: Give the circumstance wherein it can happen? A: If there is a 3rd party claimant. Note: We’ve studied 3rd party claim in Rule 39 execution, 3rd party claim in attachment and again here in replevin. Sec. 16, 14 dito naman 7. The same provision, meaning if a 3rd party claims ownership or entitlement of possession of the property subject of replevin then the applicant must file another bond which is not less than the value of the property. So 3 na. This is without prejudice to a possible action for damages filed against the 3rd party claimant if the 3rd party claimant’s claim is found to be frivolous or fraudulent. Where do you file it? Either in the same action or a separate action for damages. In attachment if you file for damages Sec. 20 Rule 57 you have to do it before entry of judgment, dito sa replevin it can be file in a separate action. You should know the distinctions between the different provisional remedies, they are different, one from another. Q: If there is already a writ of replevin and the sheriff already took possession of the property and given it to the applicant, how can it be discharged? A: Q: How do you discharge a writ of attachment? A: Sec. 5, 12, 13 Rule 57. Sec. 13 is by motion, Sec. 5 is by counterbond. Dito naman sa replevin may equivalent for that, a counterbond also or by redelivery bond, how much is the redelivery bond? Equal to the bond therefore twice the value of the property also. Or you question the propriety or regularity of the issuance. Q: What are the possible grounds there? A: That there is no basis, or there is no entitlement of ownership or possession of the property. Then the writ can be discharged. But the immediate way to discharged it is thru a redelivery bond which is equal to the value of the bond which is twice the value of the property. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

Yung 3rd party claim, the same provision yun, the same application. In other words, thru an affidavit furnishing the same to the sheriff, the sheriff is entitled to deliver it to the 3rd party claimant unless the applicant puts up another bond. So thrice na lahat, the value of the property. Do you recall the peculiarity in what we studied in the writ of execution? Under Rule 39, when there is a 3rd party claim, during the auction sale, even if the purchaser is the judgment obligee he has to pay. Ordinarily, the judgment obligee, if he is the purchaser during an auction sale pursuant to an execution he does not have to pay. But if there is a 3rd party claim, then he has to pay. Why? Because precisely the ownership is in question. Dito naman delivery until you put up another bond equivalent to the value of the property. While the property now is in the hands of the applicant, the main action should proceed and what should be the judgment? Important to. Orosa case Sec. 9 only in the alternative. Hindi pwede yung 2 ang ibigay. Q: What are the alternative decisions here? A: It is either give the property or pay the value. The best example of replevin is buying a car. But most buyers don’t buy in cash almost everyone is buying thru installment. Here you are not the owner yet, when the car is given to you, you execute a mortgage, mortgaging the same car to the seller. Read the contract, it always has a clause in default, if it says there that if you default for example 2 months of payment, the seller will have the right to foreclose the mortgage judicially or extrajudicially. Here, the foreclosure will always carry a prayer for replevin and the seller is willing to pay twice as much as the value of the property because the bond is not a cash bond but merely a surety. Once they foreclose they get the car, complying with all the requirements. Once they recover it after the case, the same car shall be resold. Replevin as well as attachment is known as custodia legis. Property which has been attached can no longer be the subject of replevin, but a property replevined can be the subject of attachment minus/less delivery. Note parehong may delivery, pag replevin kinuha na, pero pwede mo pang iattach without delivery because in attachment you also take but first right sa replevin, di mo na pwede kunin yun. But you can attach, because attachment simply furnish him with the copy of the order. So ano ka? Subsequent lien holder ka dun. The attaching creditor shall be a subsequent lien holder. Replevin replevin no… attachment attachment yes why? Because it depends upon the value, if the value of the property for example a 100 square meter property in makati worth 2m and it was ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 attached for a debt worth 1m, it can again be attached. But in the case of levy, levy on attachment who is …. the first attaching creditor. Kung may sobra ibabalik dun sa may owner. And you can even be a redemptioner there because you are a subsequent attaching creditor. So if there are 2 attachment, the 2nd attaching creditor is or maybe a redemptioner if the property is sold thru levy in attachment.

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REMEDIAL LAW REVIEW 2007 RULE 61 SUPPORT PENDENTE LITE Q: What is the principal action? A: Support, support pendent lite being a provisional remedy cannot stand alone, it must be attached to a principal action which is an action for support. Q: Which court has jurisdiction? A: The court which has jurisdiction over the principal action. RTC Q: Why RTC? Can it be MTC? A: Because the subject of support is not capable of pecuniary estimation so only cognizable by the RTC. The amount asked or prayed in the action of support is immaterial because the issue here is whether or not the applicant is entitled to support. Q: Is there any exception to the rule? Are there circumstances wherein support pendent lite can be taken cognizance by the MTC or inferior courts? A: Yes, in criminal cases because support pendent lite which attaches to support can be filed together with the criminal case because in criminal procedure it is now provided that once you filed a criminal case the civil aspect is deemed instituted with it. Q: What are exceptions to that? A: Reservation, prior institution. Q: The usual case of an unwed mother goes to court and ask support for the child. When can she file it? A: From the commencement of the action or at anytime prior to final judgment. Q: Then the court must take immediate action on the provisional remedy of support pendent lite. What does the court do? A: The court shall issue an order directing the respondent to file a comment within 5 days. And with or without comment, hearing must be held by the court. The hearing here is for the provisional remedy. (parang injunction, it cannot be granted without a hearing. In preliminary attachment pwede, kasi it can be granted ex parte but it cannot be implemented without prior or comtemporaneous service of summons). If he failed to appear, court grant an order of support pendent lite, here it is only provisional. An unwed mother living in the squatters area in Tondo asked the court for support and asked to be granted provisional support to her only child in the amount of 50k a month. The court will ask why 50k? Panggasulina po. Ilan ba kotse mo? Wala po. Nanghihiram lang ako ng kotse. Ilang taon na ba ang anak mo? 3 months old po. Ano ba ang gatas nya? Breast fed po? Sabihin ng court di mo kailangan ng 50k ang kailangan mo lang e malunggay…LOL. Para mayroong gatas, and you are only feeding milk to your son… o baka naman may ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 pinapadodo ka pang iba dyan…LOL. Provisional lang to, kya the court may grant 5k a month provisional remedy. Note: That this provisional remedy shall depend upon the capacity, eto ang very wide discretion ng court. Capacity ng person who will give support. Q: Suppose the respondent does not comply, what should the court do? A: The court shall issue an order to execute As we have studied under the Rule 39, only final order or judgment may be executed. Then why should it be executed? In fact, this is an interlocutory order like an appointment of a receiver, it is not appealable only subject to certiorari if there is a ground. Q: If these is merely an interlocutory order, why should it be executed? A: The rule so provides that this is the only instance where an interlocutory order may be executed. That provisional remedy of support pendent lite can be subject of a writ of execution. It is a very exceptional character. It is an exception to the rule that only a final and executory order may be executed. Q: Mother was granted 10k a month, in the process the main action is being heard which is support proper to make the support pendente lite support already. Suppose the respondent was able to establish that he is not liable to give support because he was able to prove that he was not the father. What happens now? A: Court shall order the return of the paid amount with payment of legal interest from the dates of actual payment, without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give support. Should the recipient fail to reimburse the amounts, the person who provided the same may seek reimbursement in a separate action from the person legally obliged to give such support. Q: What happens to the provisional remedy which has already been granted, yun ba ang ibabalik? A: Q: If the applicant cannot return the support granted then what happens? A: She cannot be forced nor be imprisoned for that. But the respondent may seek reimbursement in a separate action to the person legally obliged to give support. Note: 2 remedies restitution and reimbursement plus damages.

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REMEDIAL LAW REVIEW 2007 Mongonon vs CA 495 or 496 or 497 SCRA De Asis doctrine Support never becomes final, so res judicata does not apply. Because if granted 10k by court as support (not just pendent lite) may judgment na for support. You can always go back to court and asked for increase or decrease of support because it depends upon the capacity of respondent and needs of recipient. In the De Asis case, the parties thereto made a compromise and later on the other party filed another case for support. The respondent alleged that the compromise judgment is immediately executory and there is res judicata. SC ruled that there is no res judicata in support, it is never final. People vs Manahan Acknowledgment must be distinguish and separated from support. If the defendant is married, under that doctrine, he may be forced to give support but not to acknowledge the child. The rationale there is in the Family Code because it would introduce bad blood in the family. Sir: Doesn’t like that doctrine, he should be forced to acknowledge the child. It is his fault so why should not he acknowledge.

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REMEDIAL LAW REVIEW 2007 SPECIAL CIVIL ACTIONS Q: What is so special about special civil actions? Why are they called special civil actions? A: Because each particular civil actions are governed by their own special rules. Ordinary rules of court does not apply to them but is only suppletory in character. For example some special civil actions have no summons, the court acquire jurisdiction over the respondent in a different manner but in ordinary actions summons is mandatory. Like in certiorari, there is no issuance of summons there, the court acquire jurisdiction by the issuance of order to file a commnent. Distinguish Rule 65 with Rule 45 In special civil actions in Rule 65 it says there that the tribunal, body, board, officer, corporation are only nominal parties and under regulations now of the SC, circulars, the tribunal, corporations under or impleaded as respondent are not suppose to appear and not suppose to file pleadings, let the private respondents do that for them. That is why in certiorari, you say petition for certiorari Juan De la Cruz vs RTC branch 45 manila then name of respondent. The principal respondent there is the tribunal court or bodies, but they become nominal in the process. Q: Name the special civil actions? A: 1. Rule 62 Interpleader 2. Rule 63 Declaratory Relief and Similar Remedies 3. Rule 64 Review of judgments and final orders or resolutions of the COMELEC and COA 4. Rule 65 Certiorari, Prohibition and Mandamus 5. Rule 66 Quo Warranto 6. Rule 67 Expropriation 7. Rule 68 Foreclosure of Real Estate Mortgage 8. Rule 69 Partition 9. Rule 70 Forcible Entry and Unlawful Detainer 10. Rule 71 Contempt

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REMEDIAL LAW REVIEW 2007 RULE 62 INTERPLEADER Q: Which court has jurisdiction in an action for interpleader? A: It may be taken cognizance by MTC or RTC. It depends upon the subject matter of the interpleader. Q: Why does it depend upon the subject matter? What can be the subject matter of an interpleader? A: Property whether real or personal may be the subject matter of an interpleader, aside from that performance of an obligation may also be the subject matter of an interpleader. Note: Performance of the obligation cannot be filed in the MTC because it is incapable of pecuniary estimation which is only cognizable by the RTC. Performance of an obligation amounts to specific performance which is not capable of pecuniary estimation. For example you found a wallet, you surrender it to the dean, upon opening of the wallet it was found to contain a check worth 350k payable to cash. A,B,C, and D alleges ownership. The dean has no other choice but to file an action for interpleader because there are 4 different claimants. Another example is A and B are lessor and lessee over an apartment unit. At the end of the contract of lease A would like to surrender the premises to B, but C and D came forward and said they are entitled to that. A now does not know to whom to deliver, therefore A should file an interpleader. Example of obligation, to paint, sculpt, perform. Q: How do you distinguish now interpleader from intervention? A: Interpleader is a special civil action while intervention is an ancillary action. In the former there can be no single defendant, there must be at least 2 defendants while in intervention there can be 1 defendant. In the former there is no action yet while in the latter there is already a pending action. Note: If you are asked to make a distinction do not define one and period because you are not stating a distinction at all. Q: After an action of interpleader is filed, what happens next? A: The court shall order the respondents to file their answer. Note: This is the only rule where there is a section for a motion to dismiss. Defenses and objections, that is what is meant there. After filing an answer and once the issues are joined then you go to the regular rules of court which is you go to pretrial then trial.

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REMEDIAL LAW REVIEW 2007 Q: What should the judgment be by the court in an interpleader case? A: The judgment shall be a declaration as to who is entitled or who is the legitimate or entitled to the real or personal property or of the performance of the obligation. Wakwak golf case Interpleader is a compulsory counterclaim. When Tan filed a case against Wakwak knowing already that there is another claimant, it could have and it should have filed a compulsory counterclaim of interpleader. For not doing so, it is considered that it had waived its right to any action against the defendant. Q: Can there be a compulsory intervention? A: Yes it can happen. Eternal Garden vs IAC Court may order that the subject matter be paid or delivered to court. And the person who filed the interpleader having no interest over the subject matter should be ordered by the court to do so. So if you have an action for interpleader you should ask the court to deposit. Q: What if the action is for the performance of an act, can you ask for its deposit? A: No, the person who is obliged to perform will not stay there. It is only applicable to real or personal property.

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REMEDIAL LAW REVIEW 2007 RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES Q: Which court has jurisdiction over declaratory relief? A: RTC has original and exclusive jurisdiction because the subject matter is not capable of pecuniary estimation. Note: The real declaratory relief is stated in the first paragraph of Sec. 1 Rule 63, the 2nd paragraph which pertains to reformation of instrument or quieting of title is not declaratory relief it is similar remedies. The 2nd paragraph was added there to give life to certain provisions of the Civil Code which has no corresponding procedural aspect. It is even misplaced, it should fall under ordinary action. Q: What’s the venue? A: If personal action, where the plaintiffs or respondents resides at the option of the plaintiff. Q: What is the subject matter? A: Any contract, will, deed, or other instruments or whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation. Q: What is the condition? What is the peculiarity there? A: Before breach of contract or violation of the statute. If there is already violation in the contract or statute then declaratory relief is no longer applicable. Meralco vs Philippine Consumers 374 SCRA There was a PD by Marcos reducing the Tariff rate of electricity from 5% to 2% and then the Phil. Consumers Foundation Inc. wanted that the 3% reduction be given to the consumers. The BOE denied it. It was never appealed so the order of BOE became final and executory. 5 years after PCFI filed an action for declaratory relief. SC dismissed it because the PD has long been breached already. The doctrine here is that you cannot file an action for declaratory relief if there is already breach. Example Makati issued an ordinance banning smoking even on the street effective on Dec. 20, 2008. Before Dec. 20, 2008 arrives you have the right to file an action for declaratory relief. Pero pagdating ng Dec. 20 no more, because once Dec. 20 arrives there is a reasonable presumption that there is already a violation. Q: Suppose you’ve already filed an action before breach, then pending action there is already breach, then what happens? A: Then the action shall be converted into an ordinary action. Q: How do you convert the action? A: File a motion to amend action with leave of court. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 Q: Example a regulation of a school was issued stating that by the school year 2008-2009 starting June tuition fees shall be raised by 120%. There was already a circular to that effect. Declaratory relief was filed, pending action June 2008 came. The increase was already collected from the students so you convert your action for declaratory relief to what kind of action? A: Convert is to collection of sum of money. A and B are lessor and lessee of a property. And the contract of lease is for a period of 10 years from year 1990 to year 2000. In 1995 the land was overrun by MNLF and so the lessee left the property. 4 years thereafter, in 1999 the MNLF was driven away by the military so B returned to the premises. He files for an action of declaratory relief asking the court to determine whether the contract will expire 2000 or 2004. why? Because he was not able to avail of the 4 year period when it was under the possession of the MNLF. So he filed for declaration of relief, but the action has not yet terminated it is already 2001, by 2001 the action must be converted into what? Into either unlawful detainer or forcible entry as the case may be or for recovery accion publiciana. Q: Is the court bound to make a judgment in an action of declaratory relief? A: No, another peculiarity here is that the court is not bound to make a judgment. Q: When is it not bound to make a judgment? A: When there will be no finality in the resolution of the rights and privileges Manhattan Bank New York MBNY is a trustee of a will and one of the named devisee in the will filed an action for declaratory relief without asking the court to determine who are the compulsory heirs and what are their specific rights under the will. The petitioner did not implead the compulsory heirs, the court refused to render judgment because even if it did it will not finished or end the controversy. RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OF THE COMELEC AND COA Remember that Rule 64 cross refer you to Rule 65 so we do not have to discuss Rule 64 Q: What is the difference between Rule 64 and Rule 65? A: In Rule 64 it only applies to COA and COMELEC while in Rule 65 there is no specific agency. In the former the petition should be filed 30 days from receipt of notice while in the latter it is filed 60 days from notice. In the former it is solely cognizable only by the SC while in the latter there is concurrent jurisdiction between SC, CA, RTC and even Sandiganbayan but in the case of the latter the only limitation being is it should only be in aid of its appellate jurisdiction.

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REMEDIAL LAW REVIEW 2007 RULE 65 CERTIORARI, PROHIBITION, AND MANDAMUS Rule 65 Petitioner (Plaintiff) Respondent

Certiorari Any aggrieved party T–B–O

Grounds

1. Lack of jurisdiction 2. Excess of jurisdiction 3. Grave abuse of discretion amounting to lack of jurisdiction Judicial/quasi judicial functions (discretionary) 1. No appeal 2. No plain, speedy, adequate remedy in the ordinary course of law To annul/void judgment or final order

Functions of respondents Conditions

Judgment

Prohibition Same Tribunal, Board, Officer, Person, Corporation Same

Mandamus same T–B–O–P–C

1. Neglect in the performance of the act enjoined by the law 2. Unlawfully excludes the enjoyment of an office or franchise Same + ministerial Same as functions prohibition Same

To cease and desist

Order to do but may award damages

Let us now discuss these: Q: We do not have any problem in the aggrieved parties. How about the respondents? A: In prohibition you add the person and the corporation and remember that this used to be under the jurisdiction of the SEC, but this is no longer true. How about this person? This is not ordinary individual person but a person exercising quasi judicial function. Remember that quasi judicial bodies as we have studied does not belong to the judiciary and a lot of them falls under the executive branch of the government and that includes the NLRC. The NLRC is not a judicial body but it exercises quasi judicial functions. UP Board of Regents vs Tailan Board was considered as a body exercising discretionary function, in effect quasi judicial. Even in an administrative bodies, a school board, when it rules that a student is not entitled to be enrolled in said school due to some grounds. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 Lapid vs Laurea Requirement of certiorari Q: Give example of lack of jurisdiction? A: Tribunal, body, board or officer has no authority to decide the case. Example MTC rendered a judgment on an issue which the subject is not capable of pecuniary estimation. Russel vs Vestil Note: Under Rule 45 which is a mode of appeal, the body there acted with jurisdiction that is why the ground cannot be any of the 3 because it is a mode of appeal. It is called errors in judgment. Under Rule 65 it is errors of jurisdiction. Errors of judgment are correctible by an appeal, while error of jurisdiction is correctible by certiorari. Q: Give example of excess of jurisdiction? A: Here the court has jurisdiction but it exceeded its authority. Example is when MTC in a case of reckless imprudence resulting to homicide rendered a judgment of conviction of 20 yrs imprisonment. This is clearly excess of jurisdiction. Before amendment in summary procedure, attorneys fees are limited to 20k wala na yan ngayon. So if a court grants more than 20k as attorneys fees under the old law it is clearly excess of jurisdiction. Under the new law it may be grave abuse of discretion but not anymore excess of jurisdiction. Court penalizes lawyer in the amount of 20k for direct contempt for coming late. Maximum penalty is 20k so no excess of jurisdiction but maybe grave abuse of discretion. Q: What is grave abuse of jurisdiction amounting to lack of jurisdiction? A: It is a capricious or whimsical exercise of judgment and despotic or arbitrary exercise thereof. Certiorari is always questioned in the bar or at least it is always mentioned. So if you are asked a question about certiorari and you do not know whether it is excess of jurisdiction or grave abuse of jurisdiction amounting to lack of jurisdiction, just remember 4 adjectives – whimsical, capricious, despotic and arbitrary. When you see any of these words, it is grave abuse of discretion because in all jurisprudence involving certiorari, these are the words often used by the SC. But there may be a case wherein it does not use the specific words, kaya dapat alam nyo ang meaning and synonyms of these terms. Q: When is it capricious? How about whimsical? Despotic? Arbitrary? A: ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 Note: That the word capricious and whimsical always go together. You will not find one without the other. It means it is only based on whim, there is no need, no necessity. It is unreasonable. Arbitrary naman is no basis, unwarranted, baseless, the law does not provide. Despotic on the other hand is when it is done out of passion, out of revenge, out of hatred or out of love. Remember despotic pa rin yan kahit out of love. Relationships, maraming jurisprudence dyan, kaya lawyers always file motion for inhibition. Q: Give example of grave abuse of discretion? A: In filing a motion to quash grounded on double jeopardy and in your motion you attached the judgment of conviction of your client. Very clear he has been convicted already. Court denied motion stating yes you have been convicted of rape of my daughter but it is still denied. Why? Because I have 2 more daughters….LOL. Note: In all of these grounds – lack of jurisdiction, excess of jurisdiction, grave abuse of discretion. Ang malimit mong mabasa is grave abuse of discretion kasi very clear pag excess of jurisdiction and lack of jurisdiction. It is important that you must establish the existence of whimsical, capricious, despotic or arbitrary. If you cannot establish that then the court should deny it because it would then be an error of judgment and not error of jurisdiction. The remedy would be wrong. And at the time of said judgment the case would be final and executory because the right to appeal is lost because the period for filing an appeal has already lapse. Note: That certiorari does not stop the running of the period of appeal. Note: Discuss mandamus with quo warranto because of the similarities between the 2. Q: Let us now go to functions of the respondent. In Certiorari the functions are judicial and quasi judicial function. Now, what is judicial function? A: Q: The distinction lies in the root of its power since both exercises the same power which is the power to hear and determine a case, so what is the root of its authority? A: In judicial function the root of its power comes from the judiciary itself while in quasi judicial function the roots of its power comes from the legislative or the executive department. Note: Do not confuse it to discretionary or ministerial functions

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REMEDIAL LAW REVIEW 2007 Q: How do you distinguish one from the other? A: In ministerial, the court is left without the choice but to grant it if all the rules and requirements are complied with, while in discretionary it may deny or grant but within the parameters, it cannot go beyond said parameters. Example is giving penalty of 6 years 1 day to 12 years. The court has discretion what specific penalty to give but it must be within said period depending upon certain circumstance. Note: That the grounds in prohibition is the same even if the function is merely ministerial kasi pwede pa rin na whimsical, capricious, despotic or arbitrary. But which is clearer? Yung discretionary function sa certiorari because it is very clear because of the parameter in discretionary. So if it exceeds the parameter clearly grave abuse of discretion amounting to lack of jurisdiction (????). Conditions are that there must be no appeal and there is no other plain, speedy, adequate remedy in the ordinary course of law. Q: Why no appeal? A: Generally, certiorari cannot be a substitute for an appeal. Remember this, madaming ramifications to. If appealable, no certiorari, as a general rule, so why go to certiorari? Because it is not appealable. Example of those which are not appealable are interlocutory orders. Decisions in labor cases, does not allow appeal so your remedy is certiorari. Why no appeal again? Because you could have appealed but you did not, you have now lost your right to appeal. But these time the loss of appeal here is not due to any others fault but your own. If it is your own fault, you cannot apply for certiorari. You loss your right to appeal not because of your own fault. Example lawyers fault, although the general rule is fault of lawyer is also fault of client, but there are exceptions there like Rule 38 Sec 1 Relief from judgment; Sec. 2 Rule 38 Relief from denial of appeal. You left for abroad while pending case, lawyer received decision but he did not notify you. When you return it can be excused. The other condition, no plain, speedy, or adequate remedy in the course of law, in other words you could have filed a motion for reconsideration or you could have appealed because it is still available, but appeal or MR are not speedy or adequate remedy in the ordinary course of law. Example motion to quash was denied, may appeal dun, pero certiorari is the better rule, why? Because if you saw appeal, tuloy tuloy pa rin ang kaso. You cannot desist from proceeding the case, are you going to subject, are you going to endanger the client to be convicted later on? So instead of an appeal or MR then you go to certiorari where the other court will immediately strike down the resolution.

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REMEDIAL LAW REVIEW 2007 Q: What is the character of Rule 65 as distinguished from rule 45? A: Rule 65 is a special civil action while rule 45 is a mode of appeal. The ground for filing an appeal under Rule 45 is error of judgment which can either be: 1. Insufficiency of evidence 2. Judgment is not according to the facts 3. Damages awarded is contrary to law The ground for filing certiorari under Rule 65 is error of jurisdiction which can either be: 1. Lack of jurisdiction 2. Excess of jurisdiction 3. Grave abuse of discretion amounting to lack or excess of jurisdiction. Q: What are the grounds for filing of an action for prohibition? A: Same grounds with certiorari. Q: What are the grounds for filing an action for mandamus? A: 1. Neglect in the performance of duty imposed by law 2. Exclusion from enjoyment of an office Q: Doctrine in the case of Lapid V. Laurea A: 1. Requirement preparatory to the filing of petition for certiorari General Rule: Filing of a motion for reconsideration is mandatory to give the tribunal a chance to correct itself Exception: Purely questions of law which raises questions of error of jurisdiction 2. Specific dates must be stated as to when the judgment was rendered, when notice of judgment was received, filing of Motion for reconsideration and receipt of order with respect to the denial or grant of the motion. Q: What is the period for filing of certiorari? A: Period of 60 days from receipt of copy of judgment. Q: Does the Neypes doctrine or fresh day rule apply? A: The jurisprudence does not specifically provide that it should likewise apply to Rule 65 because it speaks only of appeal. However according to a noted professor, the fresh day rule applies both to Rules 45 and 65 unless a new jurisprudence would otherwise provide. NOTE: There was an old SC circular which provides that the 60 day period includes the filing of a Motion for Reconsideration. However, in 2005 there was a new circular which states that the old circular does not apply to Rule 65 so the 60 day period is counted from the notice of receipt of denial of the motion for reconsideration. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

Q: Doctrine of UP Board of Regeants Case A: In mandamus rights must be very, very clear so that if the right is doubtful, mandamus will not lie. Q: Distinguish mandamus from quo warranto. For example: Mayor Atienza has a city attorney which is Atty. X whom he replaced with Atty. Y with no valid reason. Against whom may Atty. X file mandamus and against whom may he file quo warranto? A: Atty. X can file mandamus against Mayor Atienza because by the latter's act he was excluded from the enjoyment of his office. Atty. X can file quo warranto against Atty. Y because he is a usurper of Atty. X's office.

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REMEDIAL LAW REVIEW 2007 RULE 66 QUO WARRANTO Q: What is the doctrine in the Mendoza Case? A: Quo warranto is directed against the person and not against the office. Also plaintiff is not entitled to backwages. Q: Who initiates Quo warranto? A: Office of the Solicitor General, public prosecutors and relators. Q: Who are relators? A: Private citizen who is entitled to the office. Classic Example: Ninoy cannot file quo warranto against Marcos so his remedy was to file prohibition. He did not succeed. He succeeded in the tarmac when he died. What is the moral of the story? Whatever you cannot do living, you might succeed in death. Q: Example 4 candidate for councilor filed a quo warranto against 8 elected counsilors of Manila. The court dismissed the case. Why? A: It is a rule that in filing quo warranto the person filing should be entitled to the position. So in this case it was dismissed because how can 4 people fill up the position of 8 councilors. Q: Jurisdiction? A: Concurrent SC, CA or RTC but never in Sandiganbayan except in aid of appellate jurisdiction Q: What does in aid of appellate jurisdiction mean? A: When the appeal was made to the Sandiganbayan from MTC or RTC in cases of publice officials whose salary grade is below 27 Q: Tuason Case A: Certiorari will only lie against tribunal exercising judicial/quasi-judicial function.

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REMEDIAL LAW REVIEW 2007 RULE 67 EXPROPRIATION Q: Who exercises jurisdiction? A: The RTC because the action is not capable of pecuniary estimation. The value of the property being only incidental to the case. (Russel V. Vestil, Brgy San Roque V. Heirs of Pastor) Q: Venue? A: Where the property is located. Q: Who are the parties who may expropriate? A: LGU's, government instrumentalities however a resolution authorizing expropriation must first be passed. Q: Rule 67 is procedural. What is the substantive law which provides for expropriation? A: The 1987 Constitution Q: What properties are involved? A: Any kind of property, whether real or personal Q: What does taking mean? A: Taking includes not just actual taking but also diminution/deprivation of benefits Q: What does for public use mean? A: It means that the purpose for taking would ultimately redound to the general welfare of the people Q: May a law be passed authorizing the city of Manila to expropriate a portion of UST? May the compensation be by way of exchange of property? A: No there can be no compensation by way of exchange of property because the determination of Just compensation is a judicial function. Q: What is the remedy of the owner of the property? A: 1. Mandamus 2. Quo warranto Q: Which should be preferred, ownership or utility? A: At first glance it would seem that ownership must be preferred but in reality it is utility because nature made it so that you own only what you need and dispose of the things that you don't use. Pag wala nang pakinabang, ipamigay mo na kagaya ng asawa mo. Q: What is the formula for computing just compensation? A: Just Compensation = Fair Market Value plus Consequential damages minus consequential benefit which should not be more than consequential damages. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

Q: What are the 2 parts of expropriation? A: The first stage is to determine whether or not the property can be devoted to public use. Second stage, determination of the just compensation. NOTE: Plaintiff upon deposit of the amount may enter the property Q: Where should the deposit be made? A: court or reputable bank Q: How much should the deposit be? A: Assessed value of the property Q: Who determines Just compensation? A: Determination of just compensation is a judicial function so there can be no compensation by agreement. Q: Appointment of Commissioner A: Not more than 3 Men of Integrity Q: What is the effect of the report of the commissioner? A: The report is not binding upon the court Q: NPC case A: Apparent conflict under Sec. 1 Rule 17 and Sec. 2 Rule 67 Q: Doctrine in the City of Manila V. Serrano A: Expropriation should be a final recourse

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REMEDIAL LAW REVIEW 2007 RULE 68 JUDICIAL FORECLOSURE Q: Application? A: Applicable to both real estate and chattel mortgages. Q: What does judicial foreclosure mean? A: It has passed through court process. Q: What should be filed? A: Verified complaint of foreclosure absolute necessity to the mortgage Q: Who should be included? A: All parties who have interest over the property subordinate to that of the mortgagor. Q: If a party interested is not impleaded what is the effect? A: He is not affected by loss of equity of redemption. Q: What is the object of foreclosure A: Property Q: Can a property mortgaged may still be attached? A: Yes Q: Distinguish right of redemption from equity of redemption. A: Right of redemption is the 1 year period from registration of certificate of sale given to a person to redeem the property. Equity of redemption is a right given to persons with interest within 90 days and not more than 120 days from entry of judgment to redeem the property. Q: What is order of confirmation? A: Confirmation of the sale of the property. Q: Deficiency judgment A: By filing a motion for deficiency judgment.

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REMEDIAL LAW REVIEW 2007 RULE 69 PARTITION Q: What is the object of partition? A: To assign property. Q: Jurisdiction A: RTC because the case is not capable of pecuniary estimation. Q: What are the stages in partition? A: 1. Determination of the existence of co-ownership - absence of which partition is unavailable 2. Determination of who are entitled and what properties to be distributed NOTE: Each stage is final and appealable Q: What kind of appeal? A: By record of appeal because the action calls for multiple appeals. Q: What is a project of partition? A: Agreement between and among the parties in partition which is submitted to the court on which a judgment of partition is made. Q: Who prepares a project of partition? A: Any of the co-owners Q: Who are the parties in an action for partition? A: Plaintiff - co-owner Defendant - all other co-owners as indispensable parties Q: What is the effect of the approval of the project? A: Approval is equivalent to judgment of partition. Q: If no project is agreed upon what should the court do? A: Appoint a commissioner and the commissioner would make and submit a project of partition. Q: If the parties still does not agree, what should commissioner do? A: Assignment - identical to buying out. NOTE: Even if only one of the co-owners objects, no assignment Q: What then should the court do? A: Sell the property and the proceeds distributed among and between coowners. This is the last resort.

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REMEDIAL LAW REVIEW 2007 Q: May a sale be objected to? On what ground? A: Yes sale may be objected to if it will not redound to the benefit of the coowners. NOTE: Commissioner should give report, however such is not binding upon the court. Q: What does judgment of partition include? A: It includes payment of the cost of accounting and damages. Q: Doctrine of Heirs of Teves V. CA A: Any activity that puts an end to indivision is a case of partition.

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REMEDIAL LAW REVIEW 2007 RULE 70 Q: What are the 3 kinds of action involving recovery of property? A: 1. accion publiciana - right of possession 2. accion reinvindicatoria - recovery of ownership with possession as an attribute of ownership 3. accion interdictal - possession de facto a. forcible entry b. unlawful detainer i. governed by rule 70 ii. in case of agricultural property/land governed by the civil code Q: Doctrine in Javellosa V. CA A: Distinction between Unlawful detainer (UD) and Forcible Entry (FE) UNLAWFUL DETAINER Possession was lawful at the beginning and became illegal thereafter There is a need to establish prior possession Illegal detention of the property

FORCIBLE ENTRY Possession is illegal from the beginning

There is no need to establish prior possession Deprivation of the right of possession of property There is a need for demand No need for a demand Action must be filed from period of 1 Action must be filed 1 year from year from the last demand accrual of action Possession was acquired by force, Not applicable threat, intimidation or stealth Q: Who are the aggrieved parties? A: Vendor, vendee, lessor or any other person deprived of possession Q: Is the lessee included? A: Generally no because the lessee is assumed to be in possession. He may be included under those other persons deprived of possession. Q: In ejectment the only issue is possession de facto. Can you raise the issue of ownership? If so what is the effect? A: It will not divest the court of its jurisdiction. The court shall resolve the issue of ownership only to resolve the issue of possession. Resolution as to ownership in ejectment cases is only provisional. NOTE: Old rule prior to BP 129 provides that if issue of ownership is raised, the court is divested of its jurisdiction.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 Q: A is the lessor and B is the lessee who was not able to pay rentals for several months. A filed a case of unlawful detainer against B. Judgment was rendered in favor of B. Is the judgment in favor of B immediately executory? A: No because he was already in possession of the property. Q: What is immediately executory in the judgment as provided under sec.19? A: The return of the property. Restoration or restitution to the one who is entitled to possession. Q: How is execution stayed? A: Requisites for stay of execution 1. Perfection of appeal by filing a notice of appeal 2. Supersedeas bond 3. Deposit of the amount for the use and occupancy of the premises Q: What is a supersedeas bond? A: Unpaid rentals. If there are no unpaid rentals there is no supercedeas bond. Q: How much is the supersedeas bond? A: 1. In accordance with judgment 2. If there is no judgment, in accordance with the contract 3. In the absence of contract, according to what was paid as rentals Q: What is the amount for use and occupancy? A: Payment of rental during the pendency of the appeal. Q: How much? A: Same as supersedeas bond. Q: Where do you file notice of appeal? A: In the municipal trial court Q: Where do you file supersedeas bond? A: In the municipal trial court Q: Where do you file amount for use and occupancy? A: In the appellate court Q: When? A: General rule on or before the 10th day of each succeeding month. For example the rent due for the month of april should be paid on or before May 10. Exception: When payment of rental must be paid in advance in accordance with the contract. NOTE: Non-compliance with even one month would render the judgment immediately executory. ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

Q: Both Sec. 19 and Sec 21 speak of immediately executory judgment. How is Sec. 21 different from section 19? A: Section 21 speaks of the judgment of the appellate court and such judgment cannot be stayed except when defendant filed injunction. Q: How about sec. 15 and sec. 20? A: Sec 15 applies to Trial Court while Sec 20 applies to the appellate court. Injunctive relief is available to both in order to stop defendant's act of dispossession Q: Doctrine in Refugia Case A: Motion for reconsideration is a prohibited pleading only in the MTC under summary procedure. When the case has already been appealed to the RTC, MR is already allowed.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007 RULE 71 Q: What is contempt? A: Upfront or defiance, act against dignity, integrity and justice of the court Q: What are the two kinds? A: 1. Direct Contempt Done in the presence of or so near a judge that disrupted proceedings. 2. Indirect Contempt Q: What are the remedies of a person cited in contempt? A: Direct Contempt File a petition for certiorari and not an appeal because the judgment is only interlocutory Indirect Contempt 1. File an appeal 2. Post a bond Q: Doctrine in the case of Yasay V. Recto A: Supreme Court said that the power of contempt must be used in preventive manner and not in vindictive manner. The distinction between civil and criminal contempt was also abolished.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

REMEDIAL LAW REVIEW 2007

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED