Special Civil Actions

ATENEO CENTRAL BAR OPERATIONS 2007

Rem ed ial Law Law SUMMER REVIEWER

SPECIAL CIVIL ACTIONS

SPECIAL CIVIL ACTIONS INITIATED BY COMPLAINTS Interpleader Expropriation

Foreclosure of Real Estate Mortgage Partition Forcible Entry and Unlawful Detainer

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

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

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

DISTINCTION BETWEEN INTERPLEADER AND INTERVENTION INTERPLEADER INTERVENTION An original action Ancillary action Presupposes that plaintiff Proper in any of the four has no interest in the situations: person having subject matter of the a) legal interest in the action OR has an interest matter in litigation, or b) therein in whole or in part success of either of the which is not disputed by parties, or c) an interest the other parties. against both; or d) is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. (Rule 19 Sec 1) Defendants are sued Defendants are original precisely to interplead parties to the pending them suits Section 1. When interpleader proper 

REQUISITES IN AN INTERPLEADER ACTION 1. Conflicting claims upon the same subject matter are, or may be made, against the plaintiff who claims no interest in the subject matter or an interest (in whole or in part) which is not disputed by the claimants. OR 2. There are two or more claimants to the fund or thing in dispute through separate and different interests. The claims must be adverse before relief can be granted and the parties sought to be interpleaded must be in a position to make effective claims. 3. The subject matter (fund, thing or duty) over which the parties assert adverse claims must be one and the same and derived from the same source. WHEN TO FILE AN INTERPLEADER An action in interpleader should be filed within a reasonable time after a dispute has arisen without waiting to be sued by either if the contending claimants. Otherwise he may be barred by laches or undue delay. Section 2. Order  Section 3. Summons  Section 4. Motion to dismiss 

 —Ad vise vise rs: rs: Atty. Tranq Hea d: Mary Eliz Tranq uil Salv Salv ad or III ; Hea Elizab ab eth M. Belmo Belmo nte, Renee Renee Lynn C. Mic iano, Ma . Cec illia illia G. Und erstud erstud ies: ies: Neliz Natividad ; Und Neliza Mac apa yag , Benjamin Benjamin C. Yan Yan —

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GROUNDS FOR MOTION TO DISMISS: 1. on the ground of impropriety of the interpleader action; or 2. other appropriate grounds specified in rule 16. (Rule 62, Sec 4) Section 5. Answer and other pleadings  The court may, on motion, declare him in i n default and thereafter render judgment barring him from any claim in respect to the subject subj ect matter The parties may file counterclaims, cross-claims, third party complaints and responsive pleadings thereto. Wack Wack Golf v. Won 70 SCRA 165 (1976)  A defendant may file a counterclaim for  interpleader against the plaintiff and a third party also  claiming the subject matter of the suit. Section 6. Determination  Section 7. Docket and other lawful fees, costs of  litigation and expenses as liens 

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES PURPOSE OF DECLARATORY RELIEF The purpose is to ask the court to make a proper interpretation of a written instrument (deed, will, contract, or any other written instrument) or a statute, executive order, ordinance, or other governmental regulation. It also adjudicates the legal rights, duties, or status of parties. Purpose is NOT to ask for injunction, execution or other relief beyond the adjudication of the legal rights which are the subject of controversy between the parties. The relief is confined to the actual controversy within the court’s jurisdiction. QuickTime™ and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr

A third-party complaint isto see improper are needed this picture. when the main case is a special civil action for declaratory relief since the court is confined merely to the interpretation of the terms of the contract.

DISTINCTIONS BETWEEN ORDINARY ACTION AND ACTION FOR DECLARATORY RELIEF ORDINARY ACTION DECLARATORY RELIEF Writ of execution is Writ of execution is not available available There is a breach or There is no breach or violation of a right violation of a right Grounds for dismissal –  Grounds for dismissal Rule 16 a. rule 16 b. additional ground –  where the decision of the court would not terminate the uncertainty or controversy, or where the declaration is not necessary or proper under the circumstances SIMILAR REMEDIES WHICH MAY BE BROUGHT UNDER RULE 63 1. Action for Reformation of an Instrument; 2. To quiet title to real property or remove clouds therefrom; 3. Consolidate ownership under Article 1607. nd  (Sec 1, 2  paragraph, Rule 63 ) A procedural distinction between the two remedies is nd that in the actions falling under the 2 paragraph, the court is bound to render judgment, whereas in actions falling under the first paragraph, the court may refuse to exercise the power to declare rights and construe instruments. ( Sec. 5, Rule 63 ) Section 1. Who may file petition 

WHO MAY FILE THE PETITION Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation. WHEN TO FILE PETITION Before breach or violation of a right under a deed, will, contract or other written instrument, or under a statute or ordinance. The concept of a cause of action as “an act or omission by which a person violates the right of another” under ordinary civil action does not apply. In declaratory relief, there must be NO breach or violation of the instrument or statute involved.

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REQUISITES OF ACTION FOR DECLARATORY RELIEF 1. The SUBJECT MATTER of the controversy must be a deed, will, contract or other written instrument, statute, executive order, regulation or ordinance 2. the terms of the said documents and the validity thereof are DOUBTFUL and require  judicial construction 3. there must have have been NO BREACH of the documents in question 4. there must be an actual controversy or the “RIPENING SEEDS” between persons whose interests are adverse 5. the issue must must be ripe for JUDICIAL DETERMINATION 6. ADEQUATE RELIEF is not available

e. those determinative of the issues rather than the construction of definite status, right or relation f. where the terms of the assailed ordinance are not ambiguous or of doubtful meaning g. where the contract or statute subject of the case had been breached h. When the purpose of the action is merely to seek an advisory opinion from from the court on a moot question (enumerations from Feria, p. 437)

Section 2. Parties 

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND THE COA Section 1. Scope 

PARTIES All persons who have a claim or interest which would be affected by the declaration.

SUBJECT MATTER Judgments and final orders or resolutions of the COMELEC and the COA.

A declaration shall not, except as otherwise provided in the rules, prejudice the rights of persons not parties to the action. ( Sec. 2, Rule 63 )

Section 2. Mode of review 

Section 3. Notice on Solicitor General  Section 4. Local government ordinances  Section 5. Court action discretionary 

COURT HAS DISCRETION TO REFUSE TO GRANT DECLARATORY RELIEF WHEN: 1. the decision will not terminate the uncertainty or controversy giving right to the action 2. the declaration is not necessary necessary or proper under the circumstances Section 6. Conversion into ordinary action 

WHEN CONVERSION TO ORDINARY APPEALS IS PROPER: If after filing of petition for declaratory relief but before the rendition of judgment, a breach or violation of the instrument or statute occurs, then the same may be QuickTime™ and a TIFF (Uncompressed) (Uncompress ed) decompressor decompresso r converted into an ordinary action. ( Sec. 6, Rule 63 ) are needed to see this picture. WHEN ACTION FOR DECLARATORY RELIEF WILL NOT LIE: a. action to obtain obtain a judicial declaration of citizenship b. action to establish illegitimate filiation and actions to determine hereditary rights c. the subject of the action is a court decision d. action is to to resolve a political question

The petition may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except otherwise provided. The order to comment under Sec. 6, Rule 64 in case the Supreme Court finds the petition sufficient in form and substance, is equivalent to summons in ordinary civil action. Section 3. Time to file petition  Thirty (30) days from notice of judgment or final order or resolution sought to be reviewed. Filing of motion for new trial or reconsideration shall interrupt the period. If the motion is denied, petition must be filed within the remaining period but not less than 5 days in any event reckoned from notice of denial.

RULE 64 Must be filed within 30 days from notice of  judgment or resolution If MR is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days

RULE 65 Must be filed within 60 days from notice of  judgment or resolution If MR is denied, he aggrieved party will have another 60 days within which to file the petition counted from the notice of denial

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Section 5. Form and contents of petition  a) Petition shall be verified and filed filed in 18 legible copies; b) Petition shall name the aggrieved party as petitioner and join as respondents the Commission concerned and the person(s) interested in sustaining the judgment, final order, or resolution a quo. c) Petition shall state the facts with certainty, present the issues involved clearly, set forth the grounds and brief arguments relied upon, and pray for judgment annulling or modifying the question judgment, order or resolution. d) Petition shall be accompanied by clearly legible duplicate original or certified true copy of the of the questioned judgment, order or resolution, together with certified true copes of material portions of the record as are referred to therein, and other relevant and pertinent documents. e) Petition shall state the specific material dates showing that it was filed within the period fixed. f) Petition shall contain a sworn certification of non-forum shopping g) Petition shall be accompanied by proof of service of a copy thereon on the Commission concerned and on the adverse party, and of the timely payment of docket and other lawful fees. Failure of petitioner to comply with any of the above shall be sufficient ground for dismissal of the petition. Section 6. Order to comment  Section 7. Comment of respondent  (a) 18 copies (b) no other pleadings may be filed by any party unless required or allowed by the court Section 8. Effect of filing 

RULE 65 CERTIORARI, PROHIBITION, AND MANDAMUS AN ORIGINAL ACTION FOR CERTIORARI, PROHIBITION AND MANDAMUS IS AN INDEPENDENT ACTION. AS SUCH: a. it does not interrupt the course of the principal action b. it does not affect the running of the reglementary periods involved in the proceedings c. it does not stay the execution execution of the judgment, judgment, unless a TRO or writ of preliminary injunction is issued CERTIORARI Directed against an entity or person exercising  judicial or quasi judicial functions.

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

Purpose is to annul or nullify a proceeding

Filing of a petition for certiorari shall not stay the execution of judgment, final order or resolution sought to be reviewed,QuickTime™ unlessandthe Supreme Court a TIFF (Uncompressed) (Uncompress ed) decompressor decompresso r shall direct otherwise upon such terms as it may are needed to see this picture. deem just. Under this rule, petitioner may apply for a restraining order and preliminary injunction from the Supreme Court to stay the execution of judgment or final order or resolution sought to be reviewed.

Covers discretionary acts

This remedy is corrective – to correct

PROHIBITION Directed against an entity or person exercising  judicial, quasi judicial, or ministerial functions Entity or person is alleged to have acted: (1) without  jurisdiction; (2) in excess of jurisdiction; or (3) with grave abuse of discretion amounting to lack or excess of jurisdiction Purpose is to have respondent desist from further proceeding

Covers discretionary and ministerial acts This remedy is preventive and negative

MANDAMUS Directed against an entity or person exercising ministerial functions

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

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

This remedy is affirmative or positive (if the

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usurpation of  jurisdiction

 – to restrain or prevent usurpation or  jurisdiction

performance of a duty is ordered) or it is negative (if a person is ordered to desist from excluding another from a right or office.

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

APPEAL BY CERTIORARI UNDER RULE 45 Appellate court can only review questions or errors of law decided or committed by the lower court

Only question is whether or not respondent has acted without or in excess of jurisdiction or with grave abuse of discretion Parties: Petitioner is the Parties: appellant as aggrieved party; petitioner; appellee as Respondent is the respondent tribunal or officer exercising judicial function Writ of certiorari issues Appeal brings up for for correction of errors of review errors of judgment  jurisdiction only or grave committed by the court in QuickTime™ and a abuse of discretion the exercise of its TIFF (Uncompressed) decompresso decompressorr are needed to s ee this picture. amounting to lack or  jurisdiction amounting to excess of jurisdiction nothing more than an error or judgment.

REQUISITES FOR ISSUANCE OF WRIT OF CERTIORARI 1. Tribunal, board, or officer officer exercises judicial or quasi-judicial functions;

2. Tribunal, board or officer officer has acted without or in excess of jurisdiction or with grave abuse of discretion; and 3. There is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.

GRAVE ABUSE OF DISCRETION This occurs when an act of a court or tribunal was performed in a capricious or whimsical exercise of  judgment which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.

WHEN CERTIORARI MAY BE INVOKED: a. An appeal does not lie; b. The right to appeal having been lost with or without the appellant’s negligence, the court has no jurisdiction to issue the order or the decision which is the subject matter of the remedy. MOTION FOR RECONSIDERATION IN COURT OF ORIGINAL PROCEEDING NECESSARY BEFORE INVOKING PETITION FOR CERTIORARI EXCEPTIONS 1. Where a Motion Motion for Reconsideration would be useless 2. Where the issue raised is one purely of law; 3. Where public interest is involved; 4. In case of urgency; urgency; 5. Where question of jurisdiction was squarely raised, submitted to and met and decided by the lower court; and 6. Where the order is a patent nullity. 7. Where the petitioner has been deprived of due process Section 2. Petition for prohibition 

PROHIBITION Legal remedy available to prevent inferior courts, or other tribunals, corporations, boards, officers, or persons, from usurping or exercising a jurisdiction with which they have not been vested by law, to prevent the unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice.

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DISTINCTION BETWEEN INJUNCTION INJUNCTION Directed only to the party litigants, without in any manner interfering with the court

PROHIBITION AND PROHIBITION Directed to court itself, commanding it to cease from the exercise of a  jurisdiction to which it has no legal claim

REQUISITES OF PROHIBITION 1. There must be a controversy 2. Respondent is exercising judicial, quasi judicial or ministerial functions 3. Respondents acted without or in excess of its   jurisdiction, or acted with grave abuse of discretion; 4. There must be no appeal or other plain, speedy and adequate remedy. Section 3. Petition for mandamus 

MANDAMUS- Command issuing from a court of law of competent jurisdiction, in the name of the state or sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law. Purpose of Mandamus Mandamus is employed to compel the performance, when refused, of a ministerial duty, and NOT a discretionary duty. It is available to compel action, when refused, in matters involving judgment and discretion, but NOT to direction action in one way or another. It does not lie to require anyone to fulfill a contractual obligation or to compel a course of conduct, nor to control or review the exercise of discretion. GROUNDS FOR MANDAMUS 1. When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law QuickTime™ and a TIFF enjoins (Uncompressed) (Uncompress ed) decompressor specifically asdecompresso a dutyr resulting from are needed to see this picture. office, trust, or station. 2. When any tribunal, corporation, board, officer, or person unlawfully excludes another from the use and enjoyment of a right or office to which the other is entitled.

REQUISITES OF MANDAMUS: 1. There must be a clear legal right or duty

2. Act to be performed must be within the powers of the respondent to perform such that if the writ of mandamus was issued, he can comply with it, or else the essence will be defeated. 3. Respondent must be exercising a ministerial duty – a duty which is absolute and imperative, and involves merely its execution. 4. Duty or act to be performed performed must be existing   – a correlative right will be denied if not performed by the respondents 5. No appeal or other plain, speedy and adequate remedy in the ordinary course of law.

Discretionary Act and Ministerial Act Distinguished DISCRETIONARY ACT MINISTERIAL ACT The power or right One which an officer or conferred upon them by tribunal performs in a law acting officially given state of facts, in a under certain prescribed manner, in circumstances, obedience to the mandate according to the of legal authority, without dictates of their own regard to or the exercise of  judgment or conscience his own judgment upon the and not controlled by propriety or impropriety of the judgment or the act done. Nothing is conscience of others. left to the discretion of the person who must perform. GENERAL RULE: Mandamus will not issue when administrative remedies are still available EXCEPTIONS: 1) If party is in estoppel – If he has led the other party to believe that immediate judicial recourse is available and acceptable. 2) Where pure questions of law are raised.

Mandamus and Quo Warranto Distinguished MANDAMUS QUO WARRANTO When the respondent When respondent claims unlawfully excludes the any right to the office and petitioner from an office usurps, intrudes into, or to which the latter is unlawfully holds it against entitled without usurping, the petitioner. intruding into, or unlawfully holding the office. Both remedies may be combined with one another.

Mandamus and Injunction Distinguished MANDAMUS INJUNCTION Page 120 of 289

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Remedial To set in motion and to compel action (active) Motion to Dismiss –Rules 16 and 17

Preventive To restrain motion or to enforce inaction (conservative) Additional ground for Motion to Dismiss – Rule 58 Section 6

Section 4. Where and when petition filed 

FOR CERTIORARI, PROHIBITION, AND MANDAMUS 1. When petition filed : Not later than sixty (60) days from notice of judgment, order, or resolution. In case a motion for reconsideration or new trial is timely filed, the 60 days shall be counted from notice of the denial of said motion. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days.

Private Respondent – To appear and defend, both in his behalf and in behalf of the public respondent(s) affected by the proceedings. Public Respondent – Shall NOT appear in or file an answer or comment to the petition or any pleading therein, unless otherwise specifically directed by the court. They are included in the petition only as nominal parties. JURISDICTIONAL QUESTIONS - questions having to do with an indifferent disregard of law, arbitrariness, and caprice or omission to weight pertinent consideration, a decision arrived at without rational deliberation, as distinguished from questions that require digging into the merits and unearthing errors of judgment which is the office on the hand of review under Rule 45 of the Rules. Section 5. Respondents and costs in certain  cases  Section 6. Order to comment 

2. Where petition filed:

Section 7. Expediting proceedings; injunctive  relief 

Supreme Court; or

Section 8. Proceedings after comment is filed 

Regional Trial Court exercising jurisdiction over the territorial area – if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person; or

If the petition is not sufficient in form and in substance, the court may dismiss it outright The court may dismiss the petition after the filing and consideration of the comment without holding a hearing or requiring the admission of memoranda

Court of Appeals – whether or not in the aid of its appellate jurisdiction, and unless otherwise provided, in its exclusive jurisdiction when it involves the acts or omissions of a quasi-judicial agency; or

It is not mandatory on the court to receive evidence and hear the petition

Sandiganbayan – if it is in aid of its appellate  jurisdiction

Section 9. Service and enforcement of order or   judgment 

3. Respondents: QuickTime™ and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr are needed to see this picture.

Public Respondents   – the judge, court, quasi judicial agency, tribunal, corporation, board, officer or persons whose acts or omissions are questioned Private Respondents – person(s) interested in sustaining the proceedings in the court. 4. Duty of Respondents:

RULE 66 QUO WARRANTO Quo Warranto under Rule 66 Distinguished from Quo Warranto under Omnibus Election Code RULE 66 OMNIBUS ELECTION CODE Basis is that occupant is Challenge rights of a disqualified from holding person to hold office on office by reason of the ground of ineligibility or disloyalty irregularities in the Page 121 of 289

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If successful, respondent is ousted but petitioner shall not automatically assume the office vacated

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

conduct of the election Successful protestant will assume office if he had obtained plurality of valid votes

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

Section 2. When Solicitor General or Public  Prosecutor must commence commence an action  Section 3. When Solicitor General or Public  Prosecutor must commence an action with  permission of the court  Section 4. When hearing had on application for  permission to commence action  Section 5. When an individual may commence  action 

WHO COMMENCES THE ACTION

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

Section 1. Action by government against  individuals 

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

1. The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof. (mandatory quo warranto) 2. The Solicitor General or a public prosecutor may, with the permission of court, bring an action at the request and upon the relation of another person. (discretionary quo warranto) 3. A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may also bring an action, in his own name. Section 6. Parties and Contents of Petition 

PETITIONER – Name of the person who claims to be entitled thereto, with an averment of his right to the same and that the respondent is unlawfully in possession thereof. Petitioner must show that he is entitled to office held by respondent, not merely that he has a preferential right to be appointed. Section 7. Venue:  (c) Supreme Court (d) Court of Appeals (e) Regional Trial Court exercising jurisdiction over the territorial are where the respondent or any of the respondents resides (f) Regional Trial Court in the City of Manila, CA, or SC – When Solgen commences the action

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Section 8. Period for pleadings and proceedings  may be reduced; action given precedence 

Section 1. The complaint 

CONTENTS OF VERIFIED COMPLAINT Section 9. Judgment Where Usurpation Found  That Respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may, recover his costs. Such further judgment may be rendered determining the respective rights in the public office, position or franchise of all the parties to the action, as justice requires.

1. right and purpose of expropriation 2. description of the real and personal property sought to be expropriated 3. all persons owning or claiming to own or occupying any part or interest 4. if the the property property to be expropriated expropriated is in the name of the Republic of the Philippines, an averment to that effect shall be made

Section 10. Rights of Persons Adjudged Entitled  En titled  to Office; delivery of books and papers; damages 

GENERAL RULE: All properties can be expropriated EXCEPTIONS: 1. Money 2. Choses in action

If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office, he may, after taking the oath of office and executing any official bond required by law:

Section 2. Entry of plaintiff upon depositing value  with authorized government depositary 

1. take upon himself the execution of the office; 2. may immediately thereafter demand all all the books and papers in the respondent’s custody or control appertaining to the office to which the judgment relates; and 3. May bring an action against the the respondent respondent to recover damages sustained by such persons by reason of usurpation. Section 11. Limitations  Action must be commenced within 1 year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose. An action for damages in accordance with Sec. 10 should be commenced within 1 year after the entry of the judgment establishing petitioner’s right to the office in question. Section 12. Judgment for costs  QuickTime™ and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr are needed to see this picture.

RULE 67 EXPROPRIATION

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

PURPOSE OF DEPOSIT: 1. provide damages if the court finds that that plaintiff has no right to expropriate 2. advance payment for just compensation Section 3. Defenses and objections 

If the defendant has no objection: 1. file and serve a notice of appearance and manifestation to that effect 2. thereafter, he shall be entitled to notice notice of all proceedings If defendant has an objection : he must file his answer within the time provided for in the summons No counterclaim, cross-claim or third party complaint shall be alleged or allowed in the answer or subsequent pleading Section 5. Ascertainment of compensation  commissioners  Section 6. Proceedings by commissioners  Section 7. Report by commissioners and   judgment thereupon  Section 8. Action upon commissioner’s report 

2 STAGES OF EXPROPRIATION:

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a. Determination of plaintiff’s plaintiff’s authority to exercise the power of eminent domain and the propriety of its exercise - A final order sustaining the right to expropriate is appealable, but the appeal does not prevent the court from determining the just compensation to be paid

b. Determination Determina tion of the just compensation for the property sought to be taken . Formula for the determination of just compensation: JC=FMV+CD-CB If CB is less than CD, then JC=FMV Where: JC=Just compensation

2. If real property, upon compensation and registration

payment

of

just

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

FMV=Fair market value CD=consequential damages

RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE

CB=consequential benefits

When plaintiff can take possession of property pending litigation Plaintiff can enter or take possession of the real property upon DEPOSIT with the authorized government depositary an amount equal to ASSESSED VALUE of property.

JUDICIAL FORECLOSURE - requires court intervention - There is only an equity of redemption - Governed by Rule 68

EXTRAJUDICIAL FORECLOSURE - does not require court intervention - Right of redemption exists - Governed by Act 3135

Section 1. Complaint in action for foreclosure  If personal property, its value will be PROVISIONALLY ASCERTAINED and amount to be deposited fixed by the court.

Foreclosure is initiated by a COMPLAINT.

CONTENTS OF THE COMPLAINT Defendant, if he objects, must file his ANSWER within time stated in theQuickTime™ summons. No counterclaim, and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr cross-claim or third party complaint is are needed to see this picture. allowed. Section 10. Rights of plaintiff after judgment and  payment 

When title is vested in expropriation: 1. If personal property, upon payment of just compensation

1. the date and due execution of the mortgage 2. its assignments, if any 3. names and residences residences of the mortgagor and the mortgagee 4. description of the mortgage property 5. statement of the date of the note or other documentary evidence of the obligation secured by the mortgage 6. amount claimed to be unpaid thereon 7. names and residences of all persons persons having having or claiming interest in the property Page 124 of 289

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subordinate to the holder of the mortgage all of whom shall be made defendants in the action Section 2. Judgment on foreclosure 

If upon trial, the court finds the facts set forth in the complaint to be true, it shall: 1.

2.

Ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs AND Render judgment for the sum so found due and order that the same be paid to the court or to judgment obligee i. within a period of not less than 90 days nor more than 120 days from entry of judgment ii. in default of such payment: such property shall be sold at public auction to satisfy the judgment.

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

divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law.

Section 3. sale or mortgage of property; effect  QuickTime™ and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr are needed to see this picture.

RULE 39 No need to confirm sale

RULE 38 Need to confirm sale

Section 4. Disposition of proceeds of sale 

b. when there is balance or residue, after paying the mortgage debt, the same shall be paid to junior encumbrancers in the order of priority as ascertained by the court c. if no junior encumbrancers, the residue goes to mortgagor/duly authorized agent or person entitled to it Section 5. How sale to proceed in case the debt is  not all due  If debt not all due, as soon as sufficient portion of property has been sold to pay amount due and costs, the sale shall terminate. Otherwise, court may, on motion, order more to be sold as often as more becomes due. BUT if property cannot be sold in portions, one single sale and the entire debt and costs shall be paid, and where rebate is proper, rebate must be made. Section 5. How sale to proceed in case the debt is  not all due  If debt not all due, as soon as sufficient portion of property has been sold to pay amount due and costs, the sale shall terminate. Otherwise, court may, on motion, order more to be sold as often as more becomes due. BUT if property cannot be sold in portions, one single sale and the entire debt and costs shall be paid, and where rebate is proper, rebate must be made. Section 6. Deficiency judgment  Court, upon motion, shall render judgment against the defendant for any balance for which, by the record of the case, he may be personally liable to the plaintiff.

If balance is all due at the time of the rendition of the   judgment: execution may issue immediately. Otherwise: plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment.

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

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JUDGMENT OF FORECLOSURE Action quasi in rem

DEFICIENCY JUDGMENT Action in personam

Section 7. Registration 

Registration a) If no right of redemption, certificate certificate of title of mortgagor is cancelled, new one issued to purchaser b) If with right of redemption, certificate of title of mortgagor is not cancelled, but certificate of sale and order confirming the sale is registered with brief memorandum made by RD upon the certificate of title. c) If property property redeemed, deed of redemption is registered with RD and brief memorandum on certificate of title is made . d) If not redeemed, final deed of sale registered with RD, certificate of title of mortgagor is cancelled and new one issued to purchaser EQUITY OF RIGHT OF REDEMPTION REDEMPTION Right of the defendant Right of the debtor, debtor, his mortgagor to extinguish successor in interest or the mortgage and retain any judicial creditor or ownership of the property  judgment creditor of said by paying the debt within debtor or any person 90-120 days after the having a lien on the entry of judgment or even property subsequent to after the foreclosure sale the mortgage or deed of but prior to confirmation trust under which the property is sold to redeem the property within 1 year from the registration of the Sheriff’s certificate of foreclosure title Governed by Rule 68 Governed by Rule 39, Sections 29-31 Period is 90-120 days Period is within 1 year after entry of or even from the registration of after the foreclosure sale the Sheriff’s certificate of QuickTime™ and a but prior to confirmation foreclosure title TIFF (Uncompressed) decompresso decompressorr are needed to see this picture.

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

Right of Redemption GENERAL RULE In judicial foreclosure, there is NO RIGHT OF REDEMPTION. EXCEPTION In case of judicial (as well as extrajudicial) foreclosure of any mortgage on real estate in favor of a BANK, QUASI BANK or TRUST ENTITY, mortgagor is granted right of redemption to be exercised WITHIN ONE YEAR after sale of real estate.

Provisional Remedies Available to Mortgagee in Case of Foreclosure 1. Preliminary attachment of properties of the debtor not covered by the mortgage; 2. receivership of mortgaged property Section 8. Applicability of other provisions 

RULE 69 PARTITION PARTITION The process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in the property. KINDS OF PARTITION 1. Judicial-procedure governed by Rule 69 2. Extrajudicial-no court intervention is required Section 1. Complaint in action for partition of real  estate 

Initiated Through a Complaint a) by a person having the the RIGHT RIGHT to COMPEL PARTITION; b) setting forth the NATURE and EXTENT of his TITLE; c) and an adequate description of the real estate; d) joining as as defendants all other persons interested in the property. PARTIES a) All co-owners are indispensable parties b) Creditors or assignees of co-owners may intervene and object to a partition effected

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without their concurrence. But they cannot impugn a partition already executed, unless: 1. there has been fraud, or 2. in case it was made notwithstanding notwithstanding a formal opposition presented to prevent it.

Two Stages of Partition a) Determination of whether or not a COOWNERSHIP EXISTS, and partition is proper Ends in either a) declaration that plaintiff is not entitled to partition because no coownership exists or partition is legally prohibited; or b) a judgment that coownership exists and partition is proper b) Second stage commences when the parties are unable to agree upon the partition directed by the court. In that case, 3 commissioners are called. 

May also deal with the rendition of the accounting and its approval by the court

When Partition Made GENERAL RULE It can be made anytime and the right to demand partition is imprescriptible.

or sums ordered by the court

payment

If the property is sold and the sale is confirmed by the court

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

interest on the part of the other parties to the action To vest the real estate in the purchaser/s making the payment/s, free from the claims of any of the parties to the action

Section 3. Commissioners to make partition when  all parties fail to agree  Section 4. Oath and duties of commissioners  Section 5. Assignment or sale of real estate by  commissioners 

EXCEPTION If a co-owner asserts adverse title to the property in which case the period of prescription runs from such time of assertion of adverse title.

If real estate cannot be divided without prejudice to parties’ interest, court may: 1. ASSIGN it to ONE of the parties PROVIDED he pays to the other parties an amount deemed equitable by the commissioners; or 2. SELL it if ONE of the parties asks that the property be sold instead of being so assigned.

Section 2. Order of partition, and partition by  agreement thereunder 

Section 6. Report of commissioners, proceedings  not binding until confirmed 

If actual partition of property is made

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

CONTENTS OF EFFECT OF JUDGMENT JUDGMENT The judgment To vest in shall state each party to definitely, by the action, in metes and severalty the bounds and portion of the adequate estate description, the assigned to particular portion him QuickTime™ and a TIFF (Uncompressed) decompressor ofarethe estate needed to see thi s picture. assigned to each party The judgment To vest in the shall state the fact party making of such payment the payment and the the whole or assignment of the part of the real real estate to the estate free party making the from any

Section 7. Action of the court upon  commissioner’s report  Section 8. Accounting for rents and profits in  action for partition  Section 9. Power of guardian in such proceedings  Section 10. Costs and expenses to be taxed and  collected  Section 11. The judgment and its effects; copy to  be recorded in the registry of deeds  Section 12. neither paramount rights nor  amicable partition affected by this Rule  Section 13. Partition of personal property 

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RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER FORCIBLE ENTRY Possession of land is unlawful from the beginning due to force, intimidation, threat, strategy or stealth No requirement of previous demand for defendant to vacate premises Plaintiff must prove that he was in prior physical possession until he was deprived thereof by defendant 1-year period counted from date of actual entry or when plaintiff learned thereof.

UNLAWFUL DETAINER Possession of defendant is inceptively lawful but becomes illegal by reason of termination of right of possession Demand is jurisdictional

Unlawful detainer : 1. from the the date of the last demand to vacate in case of non-payment of rent or noncompliance with the conditions of the lease; 2. from the the date of the notice to quit, in case of a tacit renewal of the lease; 3. from the the date of the revocation of the permit in case of occupancy on mere tolerance or under a temporary permit. Section 2. Lessor to proceed against lessee only  after demand 

Plaintiff need not have been in prior physical possession

Demand may either be: 1. to pay and vacate; or 2. to comply with the conditions of the lease and vacate.

1-year period from date of last demand

When Prior Demand in Unlawful Detainer Not Required 1. When purpose of action is to terminate terminate lease because of expiry of term and not because of failure to pay rental or to comply with terms of lease contract; 2. Purpose of suit is not for ejectment but for enforcement of terms of contract; 3. When defendant is not a tenant but a pure intruder.

Section 1. Who may institute proceedings and  when 

THREE KINDS OF ACTION FOR RECOVERY OF POSSESSION ACCION ACCION ACCION INTERDICTAL PUBLICIANA REIVINDICATORIA Summary A plenary An action for the action for the action for the recovery of recovery of recovery of ownership, which physical the real right necessarily possession of possession includes the where the when the recovery of dispossession dispossession possession has not lasted has lasted for for more than more than 1 1 year year MTC only RTC if value RTC if value of of property property exceeds exceeds P20,000.00, or P20,000.00, P50,000.00 in or P50,000.00 Metro Manila QuickTime™ and a in Metro TIFF (Uncompressed) decompresso decompressorr are needed to see this picture. Manila

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

Demand In all other cases, there must be a demand: a) To pay or to comply with the conditions of the lease; AND b) To vacate by written notice on the person in the premises or by posting such notice on the premises if no person is found thereon and this is a condition precedent to the filing of the case; ORAL demand is not permitted. c) If demand is in the alternative (pay OR vacate), this is NOT the demand contemplated by the Rules. How Demand is Made 1. Personally 2. Posting it at the premises if no person is found thereon 3. Substituted service 4. Registered mail 5. Section 3. Summary procedure  Section 4. Pleadings allowed  1. Complaint 2. Compulsory counterclaim 3. Cross-claim Page 128 of 289

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4. Answers thereto Section 5. Action on complaint  Court may dismiss the case outright if any ground for dismissal of a civil action is apparent or issue summons if no ground is apparent. Section 6. Answer 

When Filed Must be file within 10 days from service of summons.

3. Motion for for new trial, or for reconsideration reconsideration of a judgment, or for reopening of trial; 4. Petition for relief from judgment; 5. Motion for for extension extension of time to file pleadings, affidavits or any other paper; 6. Memoranda; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply; 11. Third-party complaints; 12. Interventions

Answer to counterclaims and cross-claims shall be served and filed within 10 days from service of the answer in which they are pleaded

Section 14. Affidavits 

Section 7. Effect of failure to answer 

Section 15. Preliminary injunction 

Effect of Failure to Answer The court will, motu proprio or on motion, render  judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed therein.

Plaintiff may ask for preliminary injunction within 5 days from filing of the complaint Section 16. Resolving defense of ownership  Involves provisional determination of ownership only.

Section 8. Preliminary conference; appearance of  the parties  Preliminary conference held not later than 30 days after the last answer is filed.

Section 17. Judgment 

If plaintiff fails to appear, the complaint shall be dismissed and the counterclaims and cross-claims dismissed.

Azcuna Jr. v. CA (G.R. No. 116665 March 20, 1996)  The court can award damages provided said  damage refers only to: (1) the fair rental value of the  property; (2) rent in arrears; and (3) liquidated  damages since they are part of the contract.

If defendant fails to appear, the plaintiff shall be entitled to judgment.

De Laureano v. Adil 72 SCRA 148 (1976)  Attorney’s fees cannot be considered damages.

Section 9. Record of preliminary conference 

Section 18. Judgment conclusive only on  possession; not conclusive in actions involving  title or ownership 

Section 10. Submission of affidavits and position  papers  Section 11. Period for rendition of judgment  Section 12. Referral forQuickTime™ conciliation  and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr are needed to see this picture.

Section 13. Prohibited motions and pleadings 

Prohibited Motions and Pleadings 1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with section 12; 2. Motion for a bill of particulars;

Section 19. Immediate execution of judgment, how to stay the same 

GENERAL RULE Judgment against the defendant is immediately executory. EXCEPTION When the following concur: 1. the defendant files an appeal; 2. defendant files a sufficient supersedeas bond to pay the rents, damages and costs accruing down to the time of judgment appealed from; and Page 129 of 289

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3. defendant deposits with the court the amount of rent due from time to time under the contract, or in the absence of a contract, the reasonable value of the use and occupation of the premises on or before the 10th day of each succeeding month or period.

SUPERSEDEAS BOND To stay execution of judgment against defendant, he must perfect an appeal and file a supersedeas bond to pay the rents, damages and costs accruing down to the time appealed from and DEPOSIT with appellate court the AMOUNT OF RENT due from time to time if with contract. If without contract, deposit with RTC the REASONABLE VALUE for the use and occupation of the premises. If defendant fails to make these payments from time to time during pendency of the appeal, appellate court, upon plaintiff’s motion, shall order the execution of judgment appealed from with respect to the restoration of possession.

Ejectment Suit Not Suspended or Barred by the Following Actions: 1. Injunction 2. Consignation of rentals 3. Accion publiciana 4. Writ of possession case 5. Quieting of title 6. Specific performance with damages 7. Reformation of instrument 8. Reconveyance of property or accion reivindicatoria 9. annulment of sale, of title, or document (enumeration from Feria, p. 615 ) Section 20. Preliminary mandatory injunction in  case of appeal  Section 21. Immediate execution on appeal to  Court of Appeals or Supreme Court 

RULE 71 CONTEMPT

QuickTime™ and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr are needed to see this picture.

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

DIRECT CONTEMPT

INDIRECT CONTEMPT

Committed in the Not committed in the presence of or so near a presence of the court court or judge Punished summarily Punished only after without hearing hearing – complaint in No appeal may be taken writing or motion or party but the party adjudged in or order of court requiring contempt may avail person to appear and himself of actions of explain, opportunity to certiorari or prohibition appear and show cause. which shall stay the execution of the   judgment, provided a bond fixed by the court is filed Remedy is certiorari or Remedy is appeal prohibition Certiorari/prohibition Immediately executory suspends execution unless a bond is filed provided there is a bond

CRIMINAL CONTEMPT Purpose is to vindicate public security

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

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

Section 1. Direct contempt punished summarily 

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

GROUNDS FOR INDIRECT CONTEMPT 1. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;

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2. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court 3. Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt 4. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; 5. Assuming to be an attorney or an officer of a court, and acting as such without authority; 6. Failure to obey a subpoena duly served; 7. The rescue, or attempted attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. Section 4. How proceedings commenced 

How Proceedings Commenced 1. An order or formal formal charge by the court requiring the respondent to show cause why he should not be punished for contempt; or 2. A verified petition charging indirect contempt with supporting particulars and certified true copies of the necessary documents and papers. Section 5. Where charge to be filed  Section 6. Hearing, release on bail  Section 7. Punishment for indirect contempt  Section 8. Imprisonment until order obeyed  Section 9. proceedings when party released on  bail fails to answer  Section 10. Court may release respondent  Section 11. review of final judgment or final  order; bond for stay  The judgment against the person adjudged to be in contempt is immediately executory and can be stopped only by filing a bond. QuickTime™ and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr are needed to see this picture.

Section 12. Contempt against quasi-judicial  entities  Rule 71 applies suppletorily to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions. The RTC of the place where the contempt was committed shall have  jurisdiction over such charges.

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