REMEDIAL LAW REVIEW 2007
Case of BañezvsBañez; Santosvs COMELEC
Q: Again, what are the requirements of Execution Pending
Appeal?
A:
1. There must be a motion filed either in the court of origin if
the original record is still there or in the appellate court if
the same has already been transmitted and court of
origin has already lost its jurisdiction;
2. Based on the grounds of “good reason”;
3. The good reason must be stated in the special order.
In the case of Far East Bank vsToh Sr., the Supreme Court ruled
that old age constitutes good reason. But as you would see, the
counsel therein is no other than the First Gentleman Mike Arroyo.
While in Santosvs COMELEC, the Supreme Court held that avalid
exercise of the discretion to allow execution pending appeal
requires that it should be based upon good reasons to be stated in
a special order. The following constitute good reasons and a
combination of two or more of them will suffice to grant execution
pending appeal:
1.) Public interest involved or will of the electorate;
2.) The shortness of the remaining portion of the term of the
contested office; and
3.) The length of time that the election contest has been pending.
Q: To whom the Writ of Execution is directed?
A: To the Sheriff, not to the Clerk of Court. In the case of Quitalag,
the sheriff may be liable for contempt of court but not the parties
who did not comply with the Writ of Execution because precisely
the Writ of Execution is addressed to the sheriff.
Section 27, Rule 39
Q: If a Mercedes Benz was sold at auction to satisfy a judgment.
When it may redeem?
A: It cannot be redeemed because redemption applies only to
Real Property wherein a deed of sale was executed.
Q: What if the Judgment Obligee purchases the property, who may
redeem the property?
A:
1. The judgment obligor or his successor in interest; and
2. A redemptioner.
Q: Who is a redemptioner?
A: A creditor who has a lien by virtue of an attachment, judgment
or mortgage on which the property was sold, subsequent to the
lien under which the property was sold.
Q: Supposing one hectare of land was sold at public auction. The
Judgment obligee was the highest bidder. The judgment obligor
may redeem that. But in this example, who would the redemptioner
be? Under what lien is the property sold?
A: The property here is being sold under a lien of a judgment, but
more particularly, this is a sale on execution under Rule 39 as
distinguish from other sale from foreclosure or sale on attachment.
Supposing B is a redemptioner, what would be his lien be to make
it subsequent under which the property was sold? That will be your
number 5 question in your midterm exam. Give an example of
redemption by a redemptioner.
Q: May a property be sold only pursuant to a judgment? May a
property be sold, already auctioned,is it only pursuant to a
judgment?
A: Under Rule 57 Section 1, an attachment may be applied for at
the commencement of the auction
Supposing Mr. A filed a case against Mr. B for recovery of sum of
money for P10 million. If A want to secure a favorable judgment,
he will seek the attachment of the property. He will apply that at
the commencement of the action.
So if the action started in 1990, then it will not be finish in one year
time, chances are it will be finish in 10 to 15 years time. But since
you applied for attachment, it is already attached and the property
has become in legal custody because of the writ of preliminary
attachment. But it does not mean that this property can no longer
be legally dealt with.
Suppose the same property was subject of a mortgage or
judgment or even another attachment, all these lien are
subsequent to the lien under which the property will be sold if A
wins because if he does, he won’t avail of Rule 39 but rather Rule
57. The property is sold not on execution but on attachment.
Because of this, all other persons who dealt with the property
subsequent to the issuance of the Writ of Attachment are all
redemptioner.
Pag attachment kasi, it happens saumpisa pa langngkaso.
Pagtaposnayungkaso, you do not avail of attachment but rather
execution.
NOTE: So if the property was sold in execution, chances are there
will be “no redemptioner” Why? Who will deal with a property
which is already subject of a judgment? But if it was sold on a
mortgage prior to a judgment, the judgment oblige is a
redemptioner because his lien is subsequent to the lien under
which the property was sold.
Let us go now to the period, remember this only applies to Real
Properties.
Q: What is the period of redemption?
A: One (1) year from the registration of the certificate of sale
For example, the certificate of sale was registered onJanuary 1,
2000. The redemption period expires on December 31, 2000.
Period is reckoned not from judgment, not from execution, not
even from sale but from registration of the certificate of sale.
Q: What is the period within which a redemptioner may redeem the
property?
A: Sixty (60) days after the last redemption
Q: Let us say X is a redemptioner, at the auction sale, he was the
purchaser. He purchased it in January 5, 2000. If you count sixty
(60) days, roughly it will be on March 7, 2000. Suppose by May, Y
who is the judgment obligor would like to redeem it, could Y still
redeem it?
A: Yes, Y is the judgment obligor and he has one (1) year to
redeem it from the registration of the certificate of sale. May
palangeto eh.
Q: Supposing W, a redemptioner, would like to redeem it from X
who was the first purchaser, being a redemptioner, in May, can W
purchase that?
A: X purchased it from January 5, May nangayon, no more
because a redemptioner has only sixty (60) days from the last
redemption.
Q: Now suppose X redeems it on December 5 of the same year,
may it be redeem by W of January of the following year?
A: Even if it exceeds from the one (1) year period, if it is redeemed
from the last redemptioner, the sixty (60) day period prevails over
the one(1) year period. So even in January, W can still redeem it
because it is still within the sixty (60) day period from the last
redemption even if it exceeds the one (1) year period.
Q: How about Y, the judgment obligor, can he redeem it by
January even if it exceeds the one (1) year period to which he was
entitled to redeem?
REMEDIAL LAW REVIEW 2007
A: Yes, because if it is given the right to redeem within a period of
sixty (60) days to a redemptioner, the more reason you have to
give it to a judgment obligor even beyond the (1) year period
provided that the redemption is from a redemptioner.
Q: Suppose Y who is a judgment obligor in the auction sale,
purchase it in February 5, can the redemptioner redeem it from the
judgment obligor?
A: February 5, sixty (60) days therefrom. No, because the property
has returned to its owner. The owner of the property is the
judgment obligor. Pagbinilinang judgment obligor, there can be no
further redemption.
NOTE: In redemption, if the judgment obligor redeems it within the
one (1) year period, there can be no further redemption. But if it is
redeem by a redemptioner, there can be continuous redemption,
within the period of sixty (60) days even beyond the one (1) year
period. Rationale is the “with one (1) property, the law provides
payment as many obligation as possible”
Q: Now, how much shall be paid?
A: You have to distinguish it if he is a Judgment obligor or a
redemptioner. In the former, it includes the purchase price and all
other expenses plus one percent per month interest while in the
latter, purchase price and all other expenses plus two percent
interest because you only have a maximum period of two months
to redeem.
Q: What if after the property was sold it is not enough to satisfy the
judgment?
A:
1. First, ask for the examination of the judgment obligor;
2. Then ask for the examination of the obligor of the
judgment obligor because the obligor of the judgment
obligor may remit payment directly to the judgment oblige
without going through the judgment obligor.
3. Sale of ascertainable interest. Ditonamagtatapos remedy
na to.
Q: During the one (1) year period to redeem, yungmga rents,
income of property, to whom shall it belong?
A: Sa judgment obligor pa rin
Q: But how about the judgment oblige, what can he get out of it?
A: All these earnings will be added later on, in the meantime, you
do not take it from the judgment obligor.
Q: When will the purchaser take possession and ownership over
the property?
A: Upon the expiration of the period of redemption. How?
Consolidation of title na. You do not have to go to court anymore.
Pag may tao pa don, writ of possession tayo as held in the case of
Idolorvs CA. Once consolidated, taposna.
Remember, if the judgment obligor is the one who redeems the
property, he may immediately ask for consolidation because the
property has already returned to the original owner. But if the
purchaser is the redemptioner, he can have it consolidated only
after the one (1) year because of the right of the judgment obligor
to redeem the property within the period of one (1) year from
registration of the certificate of sale.
Section 46, Rule 39
Surety here is not only subsidiarily liable but also principally liable
provided that he is notified. And importante ditto eh yung notice sa
surety.
Section 47Rule 39
In relation to Motion to Dismiss. It is res judicata. Effect of
Domestic Judgment.
a) Action in Rem- it is conclusive upon the thing itself
b) Action in Personam- conclusive only upon the party
c) Conclusiveness of Judgment- it is a form of res judicata.
But as distinguished from bar by prior judgment, there is
no identity of cause of action in conclusiveness of
judgment.
Section 48 Rule 39
Foreign Judgment
In relation to Rule 76 and 77, re probate of a will allowed abroad.
To implement a foreign judgment, you have to file an action to
enforce a foreign judgment- the subject matter is the action.
Remember now the remedies that we have already discussed.
These are the following:
1. Motion to Dismiss;
2. Dismissal of Actions;
3. Demurrer to evidence;
4. Judgment on the pleadings;
5. Summary judgment;
6. Motion for New Trial and/ or Motion for Reconsideration;
7. Petition for Relief from Judgment/ Appeal
8. Appeal proper; and
9. Annulment of Judgment
RULE 40
This rule applies only to Inferior Courts. Remember our jurisdiction
under BP 129 as amended by RA 7691
NOTE: No judgment of the MTC/ Inferior Court go directly to the
Court of Appeals or Supreme Court. NEVER! As an exception to
the rule, when the MTC or inferior court exercises its “delegated
jurisdiction”. But if you would observe, this is not really an
exception because the MTC/ inferior court here is acting as an
RTC, hence its appeal is to the CA.
Q: When do we have delegated jurisdiction?
A: In cases of land registration and cadastral, the value of the
property involved does not exceed P100,000.00 and there being
no opposition.
There are two procedures involved in the Inferior courts; they are
the regular procedure and summary procedure. Remember that
we do not have summary procedure in the RTC. So whether the
Inferior court exercised regular or summary procedure, the same is
appealable to the RTC within the 15-day period in cases of regular
procedure, and 10-day period in cases of summary procedure,
counted from the notice or receipt of a copy of the judgment. From
therein, you file a notice of appeal or record of appeal as the case
maybe. Remember that MTC now can take cognizance of probate
proceedings whether testate of intestate, in cases of probate
proceeding there can be multiple appeals. In record of appeal, the
court does not automatically lose jurisdiction, it is only the subject
matter appealed from.
Q: Where does the appellant files the notice of appeal or record on
appeal?
A: It is filed before the inferior court/ MTC (court of origin)
Q: When does the appellate court acquire jurisdiction over the
case appealed from?
A: The appellate court acquires jurisdiction not only from the filing
of the notice of appeal or record on appeal, but upon payment of
the correct docket fees.
NOTE: The venue of transmittal of record is in the same region or
in the same district that of the court of origin. Upon receipt of the
REMEDIAL LAW REVIEW 2007
appellate court, the clerk of court gives notice to the parties that
the record has already been transmitted and the appellant, upon
receipt of such notice, shall submit a memorandum within 15 days.
Failure to submit such memorandum is a ground for the dismissal
of the appeal. On the otherhand, the appellee shall also be
required the same memorandum as required within the same
period. Upon submission, judgment may be rendered.
Rule 41 section 39 is important and said rule also applies to
Rule 40.
Q: When does the court of origin loses jurisdiction over the case?
When is appeal perfected?
A: In cases of Notice of Appeal or record on appeal, upon the filing
thereof in due time, as to the appellant. The court loses jurisdiction
over the case upon the filing of notice of appeal or record on
appeal, as the case may be, and expiration of the period to appeal
of the other parties.
Section 8 of Rule 40 is also important. Bagong provision to.
Dati, when the Inferior court dismisses the case on the ground of
lack of jurisdiction over the subject matter and on appeal it was
affirmed by the RTC, it will be dismiss without prejudice of re filing
the case, hence double docket fee. Now, the RTC will
automatically assume jurisdiction if it has jurisdiction. The
distinction between the first and second paragraph under the said
section is the reception of evidence.
RULE 41
It speaks of Judgment or Final order of the RTC exercising original
jurisdiction appealed to the Court of Appeals.
Section 2 provides us for the Modes of Appeal:
1.) Ordinary Appeal under Rule 41
2.) Petition for Review under Rule 42. The RTC here is acting in
its appellate jurisdiction. It was appealed to the RTC then to
the CA by petition for review.
3.) Review on certiorari under Rule 45
Both in petition for review and review on certiorari, you can ask for
extension of time to file the same. In these three cases, all
emanated from the RTC.
Q: Again, when is appeal perfected? When the court doeslose
jurisdiction?
A: Rule 41 Section 9
Q: What are not appealable?
A: Just familiarize yourself with the enumeration provided for in the
rules. The common ground under section 1 is that if you allow
appeal on this matter, there will be no end to litigation.
Upon perfection of appeal, the clerk of court of the RTC transmits
the record but he must ascertain the same that it is complete.
Remember the Domingo Neypes doctrine, Fresh day rule
applies also to Rule 41 upon denial of the Motion for New trial or
reconsideration.
Remember again, no decision of the inferior court can be
brought directly to the Court of Appeals or Supreme Court
unless the MTC is exercising its delegated jurisdiction.
Q: How again do you make an appeal here?
A: By filing a notice of appeal or record on appeal. Notice of
Appeal is not required in multiple appeals, only in cases of record
on appeal where every order of the court is appealable. Record on
appeal is also applicable to inferior courts and the court loses
jurisdiction only as to the subject matter of the appeal, as to the
other issues, the same will continue to be heard by the court of
origin.
NOTE: Section 8 Rule 40 is not applicable to the RTC. But Section
9 of Rule 41 is applicable both as to the MTC and RTC.
Q: When is appeal perfected? Supposing in a case, Mr. X file a
motion for reconsideration, Mr. Y filed a Motion for New Trial and Z
filed a notice of appeal.
A: Appeal is not perfected to Mr. X and Mr. Y because they did not
file a notice of appeal. Appeal is perfected only as to Z, upon the
filing of notice of appeal in due time, appeal as to Z is perfected.
What is “in due time”? Within 15 days from notice or receipt of
judgment.
Q: Will appeal be ever be perfected to X and Y?
A: Yes, only when they file a notice of appeal in due time.
Q: What if a motion for new trial or reconsideration is denied, when
will they file?
A: Remember the fresh day rule, within 15 days from notice of
denial. That is your Domingo Neypes doctrine.
Q: When does the court lose jurisdiction?
A: Upon perfection of appeal AND expiration of the period to file
an appeal as to the others.
Q: Upon appeal, can A now file a motion for execution pending
appeal with the trial court?
A: Yes, under Rule 39 Section 2 in relation to Rule 41 section 9, a
motion for execution pending appeal will be allowed upon motion
with notice to the adverse party, as long as the original record has
not been transmitted to the CA.
Q: By what authority?
A: Under the residual jurisdiction.
Q: When the record has already been transmitted, where will you
file?
A: To the Court of appeals, but note, the CA can NEVER issue writ
of execution but only an order directing the Trial court to issue a
writ of execution.
It is incumbent now for the clerk of court of the RTC to transmit the
record to the CA and therefrom, the duty shifts to the clerk of court
of the CA.
Q: Rule 40 vs Rule 41
A: Under Rule 40, the appellant files a memorandum upon receipt
of the notice of the order of the court directing him to file the same
within 15 days from receipt. A memorandum is a summary of what
transpired in the trial court and does not require a format. Under
rule 41, appellant files an appellant’s brief and the appellee an
appellee’s brief within the period of 45 days and thereafter an
appellant’s reply brief (discretionary) within the same period. The
Briefs are mandatory and non compliance of which is a ground for
the dismissal of an appeal as provided for in Rule 50 Section (f).
The substance of the appellant’s brief is the arguments, discussion
in the assignment of errors.
NOTE: If you are using the record of the case, you do not use your
personal record but rather the record on the appellate court.
REMEDIAL LAW REVIEW 2007
Just remember that Rules 41, 44 and 50 are related to each other.
RULE 42
The Regional Trial Court here is acting or exercising its appellate
jurisdiction. The case started from the MTC, appealed to the RTC
and a petition for review with the CA. Examples are cases of
Unlawful detainer and forcible entry.
Appeal here is by petition for review; distinguish the same from
certiorari under Rule 45. Under Rule 42, it is similar to an original
complaint. Errors committed by the Trial Court (MTC) and also by
the Appellate Court (RTC). You do not file a notice of appeal or
record on appeal here, what you file is a petition for review. It also
requires payment of the correct docket fees. Upon the receipt of
the Petition for Review, the Court of Appeals may either grant or
dismiss the petition on the ground of:
1. Not meritorious;
2. Filed manifestly for delay; or
3. Issues raised therein is not that substantial which requires
consideration of the court.
If it is granted, it will require the parties to file a comment, not a
motion to dismiss.
RULE 43
Remember that walang CTA dyan
Just remember the five (5) bodies, CA, CTA, COA, COMELEC and
Sandiganbayan.
In the Civil Service Commission, the appeal is brought to the CA.
In the National Labor Relations Commission, the appeal is brought
to the CA under Rule 65. If you would recall, there is no really
appeal from the decision of the NLRC, but because of the St.
Martin Funeral Homes case, as reiterated in the case of
Rubberworld, appeal may now be made to the CA but not as an
ordinary appeal, it is under Rule 65. What is peculiar about the
said rule is that you can raise pure question of facts.
In the cases cognizable by the HLURB, the same maybe filed
before the HLURB arbiter. In case of an appeal, it can be made to
the HLURB Commissioner, then appeal to the Office of the
President. The decision of the Officer of the President is
appealable to the CA.
In the cases cognizable by the DARAB, appeal to the secretary.
You need not make an appeal to the Office of the President since
it can be argued that the Secretary is the alter ego of the
President. Then from there, you appeal to the CA.
RULE 45
Section 1 provides that it limits only to three (3) tribunals:
1) Sandiganbayan;
2) Court of Appeals;
3) Regional Trial Court; and
4) Any other body authorized by law.
Issues raised therein are only pure questions of law.
Q: Do not confuse this with Rule 65. Most Bar questions, they
asked you to distinguish Rule 45 from Rule 65. The two may be
distinguish:
A:
1. Under Rule 45, it is a mode of appeal while in Rule 65 it
is a special civil action;
2. Under Rule 45, it needs to comply with the requirements
of an appeal, you do not change the parties involved
therein and you have 15 days to make an appeal from
notice of the judgment or order. While under Rule 65, this
is a separate action, hence it need not comply with the
requirements of an appeal. The parties herein is the court
or officer or tribunal and you have 60 days to file a
petition for certiorari from notice of the judgment.
Q: Is it necessary for the court to acquire jurisdiction over the
person of the parties?
A: In the case of the petitioner, the Supreme Court acquires
jurisdiction over his person upon the filing of the petition while in
the case of the respondent, the court acquires jurisdiction over his
person upon receipt of the order directing him to file a comment.
Q: Suppose the petition is dismiss, is it necessary to acquire
jurisdiction over the personof the respondent?
A: Yes, otherwise the dismissal order will not be effective upon the
respondent over which the court did not acquire jurisdiction.
Q: What do you raise here?
A: Only pure questions of law. If what was raised was facts and
law, the Supreme Court must dismiss it.
NOTE: In the Court of Appeals, what can be raised are pure
questions of fact and law or questions of fact only. In the Supreme
Court, questions of law only without facts because the Supreme
Court is not a trier of facts and is not suppose to scrutinize and
accept evidence.
RULE 46
Original cases filed. Concurrent Jurisdiction. Certiorari Prohibition
and Mandamus, as well as quo warranto and annulment of
judgment of the RTC is originally filed to the CA. But remember,
even if it’s concurrent, you do not have the option, you still have to
apply the hierarchy of courts.
RULE 47
Annulment of Judgment, this is your last remedy available. It refers
to judgment or final order of the RTC. It is exclusively cognizable
by the CA.
Q: Suppose B filed a case for a sum of money in the MTC against
A. A decision was rendered in favor of the latter. No motion for
new trial, no motion for reconsideration and no appeal was taken
therefrom. There is extrinsic fraud. He filed an annulment of
judgment, where will he file it?
A: Not with the CA but to the RTC. Remember, walangdidiretso
from MTC to CA or SC.
Q: What are the grounds for the annulment of judgment?
A:
1. Extrinsic Fraud (prescriptive period is 4 years from the
discovery of fraud);
2. Lack of Jurisdiction (no prescriptive period but may be limited
to estoppel and laches)
Q: Who is the defendant here?
A: The Principal defendant here is the RTC but you have to
implead the private respondent as a necessary party. Even if the
principal defendant is the tribunal, it should not take active
participation in the case.
Q: What is the effect?
A: If it is grounded on extrinsic fraud, the court may grant a new
trial. If it is based on lack of jurisdiction, it is without prejudice of
refilling the case.
RULE 48
Preliminary Conference here is at any time.
RULE 50
Read Section 1
RULE 52
REMEDIAL LAW REVIEW 2007
Motion for Reconsideration, same ground with Rule 37. Filed only
with the CA.
RULE 53
New Trial based only on Newly Discovered Evidence. Why? The
CA now can receive evidence unlike before.
RULE 55
Summons
RULE 56
Amended already, no more automatic appeal.
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 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
meronganak) 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.
REMEDIAL LAW REVIEW 2007
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 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.
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, ibibigayng sheriff sa applicant after 5 days if
there is no redelivery bond is filed. But in the case of preliminary
attachment, kukuninniyayan 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.
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
REMEDIAL LAW REVIEW 2007
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, quasi-contracts, 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: Anoyungmga 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, 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 P100,000.00D.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.
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 sabinatin, who are these persons who may be served
summons through publication? Alayandiyan. 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).
Sabinatin, 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. Sabinatin, hindi. Ang explanation diyan is that in the
application for the writ of preliminary attachment, there are three
stages. Yung unahindi mo kailanganng 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 canbe issued ex parte. But ditolangsa
issuance. Peropaghawaknayanng sheriff, iimplementnaniya 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 nakalagaydiyan, prior or
contemporaneous. Prior is Mangila case. Contemporaneous
sabaynangpag implement ng writ of preliminary attachment ang
service of summons.
REMEDIAL LAW REVIEW 2007
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.
Kasidito mo langmakikitayansa Rule 57. Because in Rules 58-61,
the bond answers for damages. While in Rule 57, the bond
answers for judgment. Ano'ngibigsabihin 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 bapuro 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. Tignanniyo, sinoanghihinging 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?
Siyempresi 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.
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 pinagkaibabayun? Siyempreibayun.
Yung cash deposit, peranayun. 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. Walangiba.
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 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. KasiyungSection 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.
Parehorinyansa Replevin, Section 7 of Rule 60 and Section 16 of
Rule 39.
REMEDIAL LAW REVIEW 2007
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.
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.
Madalingintindihinitongayon, these are always in the papers.
Ngayon, maramingmgapulitikoanghinahabol 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 pwedeyun.
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.
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. Tatandaanniyo 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: Anobaang multi-sala court?
A: There is only one RTC Manila. But there are many salas, RTC
Branches 45-48, etc. Quezon Citymarami din yun. Yan
angtinatawagna multi-sala. Pag 2 nayan, multi-salanayan.
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
nadapat. 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, walana.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
angipapadalamunang 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
REMEDIAL LAW REVIEW 2007
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: KasiditosaPilipinas, ordinarily non-working day ang Saturday
and Sunday. So hindipwedeng 48 hours bakakasipumatak dun sa
Saturday or Sunday. Kaya 72 hours because it is 3 days,
kahityunpumasokngfridaynghapon, papatakyunnglunes. O and a principal action. Although it can happen that receivership is
pagbinigay yang ngsaturday, papatak pa din yannglunes.
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 pagna issue
ang TRO for 20 days, wait ka nalang after that period. That's why
it's not that long because it is really to be threshed out 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.
RULE 59 RECEIVERSHIP
When we talked about receivership it is both a provisional remedy
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
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
REMEDIAL LAW REVIEW 2007
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 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 yanpwede but now pwedena. 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 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…nakawditonakawdoon…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 bakalalolangnawala and
lahat.
REMEDIAL LAW REVIEW 2007
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 custodialegis, 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 hindinaigagrantng
court, kaya it must be before the answer because it is an
immediate remedy.
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
kasibakayung property e ginagamitnang 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.
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
ditonaman 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, ditosa 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?
REMEDIAL LAW REVIEW 2007
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. Ditonamansa 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.
again be attached. But in the case of levy, levy on attachment who
is …. the first attaching creditor. Kung may sobraibabalik 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.

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.

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 3 rd party claimant
unless the applicant puts up another bond. So thrice nalahat, 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.

Ditonaman 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 pwedeyung 2 angibigay.

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 custodialegis.
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 kinuhana, peropwede mo pang iattach without delivery
because in attachment you also take but first right sa replevin, di
mo napwedekuninyun. 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 attached for a debt worth 1m, it can
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.
REMEDIAL LAW REVIEW 2007
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? Panggasulinapo. Ilanbakotse mo? Walapo.
Nanghihiramlangakongkotse. Ilangtaonnabaanganak mo? 3
months old po. Anobaanggatasnya? Breast fed po? Sabihinng
court di mo kailanganng 50k angkailangan mo lang e
malunggay…LOL. Paramayroonggatas, and you are only feeding
milk to your son… o bakanaman may pinapadodo ka pang
ibadyan…LOL. Provisional lang to, kya the court may grant 5k a
month provisional remedy.
Note: That this provisional remedy shall depend upon the
capacity, etoang 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, yunbaangibabalik?
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.
Mongononvs CA 495 or 496 or 497 SCRA
De Asis doctrine
Support never becomes final, so resjudicata 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 resjudicata. SC ruled that there is no resjudicata 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.
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 comment.
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
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.
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.
EternalGardenvs 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.
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.
Peropagdatingng 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.
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
REMEDIAL LAW REVIEW 2007
the MNLF. So he filed for declaration of relief, but the action has of law
not yet terminated it is already 2001, by 2001 the action must be Judgment To annul/void To cease Order to do
converted into what? Into either unlawful detainer or forcible entry judgment or and desist but may
as the case may be or for recovery accion publiciana. final order award
damages
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 Let us now discuss these:
make a judgment. Q: We do not have any problem in the aggrieved parties. How
about the respondents?
Q: When is it not bound to make a judgment? A: In prohibition you add the person and the corporation and
A: When there will be no finality in the resolution of the rights and remember that this used to be under the jurisdiction of the SEC,
privileges but this is no longer true. How about this person? This is not
ordinary individual person but a person exercising quasi judicial
Manhattan Bank New York function. Remember that quasi judicial bodies as we have studied
MBNY is a trustee of a will and one of the named devisee in the does not belong to the judiciary and a lot of them falls under the
will filed an action for declaratory relief without asking the court to executive branch of the government and that includes the NLRC.
determine who are the compulsory heirs and what are their The NLRC is not a judicial body but it exercises quasi judicial
specific rights under the will. The petitioner did not implead the functions.
compulsory heirs, the court refused to render judgment because
even if it did it will not finished or end the controversy. UP Board of Regents vsTailan
Board was considered as a body exercising discretionary function,
in effect quasi judicial. Even in an administrative bodies, a school
RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OF board, when it rules that a student is not entitled to be enrolled in
THE COMELEC AND COA said school due to some grounds.
Remember that Rule 64 cross refer you to Rule 65 so we do not
have to discuss Rule 64 Lapid vs Laurea
Requirement of certiorari
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 Q: Give example of lack of jurisdiction?
65 there is no specific agency. In the former the petition should be A: Tribunal, body, board or officer has no authority to decide the
filed 30 days from receipt of notice while in the latter it is filed 60 case. Example MTC rendered a judgment on an issue which the
days from notice. In the former it is solely cognizable only by the subject is not capable of pecuniary estimation.
SC while in the latter there is concurrent jurisdiction between SC,
CA, RTC and even Sandiganbayan but in the case of the latter the Russel vs Vestil
only limitation being is it should only be in aid of its appellate
jurisdiction. 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
RULE 65 CERTIORARI, PROHIBITION, AND MANDAMUS correctible by an appeal, while error of jurisdiction is correctible by
certiorari.
Rule 65 Certiorari Prohibition Mandamus
Petitioner Any aggrieved Same same Q: Give example of excess of jurisdiction?
(Plaintiff) party A: Here the court has jurisdiction but it exceeded its authority.
Respondent T–B–O Tribunal, T–B–O–P Example is when MTC in a case of reckless imprudence resulting
Board, –C to homicide rendered a judgment of conviction of 20 yrs
Officer, imprisonment. This is clearly excess of jurisdiction.
Person,
Corporation Before amendment in summary procedure, attorneys fees are
Grounds 1. Lack of Same 1. Neglect in limited to 20k walanayanngayon. So if a court grants more than
jurisdiction the 20k as attorneys fees under the old law it is clearly excess of
2. Excess of performance jurisdiction. Under the new law it may be grave abuse of discretion
jurisdiction of the act but not anymore excess of jurisdiction.
3. Grave abuse enjoined by
of discretion the law Court penalizes lawyer in the amount of 20k for direct contempt for
amounting to 2. Unlawfully coming late. Maximum penalty is 20k so no excess of jurisdiction
lack of excludes the but maybe grave abuse of discretion.
jurisdiction enjoyment of
an office or Q: What is grave abuse of jurisdiction amounting to lack of
franchise jurisdiction?
Functions of Judicial/quasi Same + Same as A: It is a capricious or whimsical exercise of judgment and
respondents judicial ministerial prohibition despotic or arbitrary exercise thereof.
functions functions
(discretionary) Certiorari is always questioned in the bar or at least it is always
Conditions 1. No appeal Same mentioned. So if you are asked a question about certiorari and you
2. No plain, do not know whether it is excess of jurisdiction or grave abuse of
speedy, jurisdiction amounting to lack of jurisdiction, just remember 4
adequate adjectives – whimsical, capricious, despotic and arbitrary. When
remedy in the you see any of these words, it is grave abuse of discretion
ordinary course because in all jurisprudence involving certiorari, these are the
REMEDIAL LAW REVIEW 2007
words often used by the SC. But there may be a case wherein it
does not use the specific words, kayadapatalamnyoang meaning
and synonyms of these terms.
Q: When is it capricious? How about whimsical? Despotic?
Arbitrary?
A:
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 rinyankahit 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. Angmalimitmongmabasa 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
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 kasipwede pa rinna 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, tuloytuloy pa rinangkaso. 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.
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
REMEDIAL LAW REVIEW 2007
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 65because 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.
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.
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.
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
REMEDIAL LAW REVIEW 2007
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.
Pagwalanangpakinabang, ipamigay mo nakagayangasawa 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.
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
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 foreclosureabsolute 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.
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
REMEDIAL LAW REVIEW 2007
submitted to the court on which a judgment of partition is made.

Q: Who prepares a project of partition? RULE 70

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: What are the 3 kinds of action involving recovery of property?
A:
1. accionpubliciana - right of possession
2. accionreinvindicatoria - recovery of ownership with
possession as an attribute of ownership
3. accioninterdictal - 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: If the parties still does not agree, what should commissioner Q: Doctrine in Javellosa V. CA
do? A: Distinction between Unlawful detainer (UD) and Forcible Entry
A: Assignment - identical to buying out. (FE)
NOTE:Even if only one of the co-owners objects, no assignment
UNLAWFUL DETAINER FORCIBLE ENTRY
Q: What then should the court do? Possession was lawful at the Possession is illegal from the
A: Sell the property and the proceeds distributed among and beginning and became illegal beginning
between co-owners. This is the last resort. thereafter
There is a need to establish There is no need to establish
prior possession prior possession
Illegal detention of the property Deprivation of the right of
Q: May a sale be objected to? On what ground? possession of property
A: Yes sale may be objected to if it will not redound to the benefit There is a need for demand No need for a demand
of the co-owners. Action must be filed from period Action must be filed 1 year
NOTE: Commissioner should give report, however such is not of 1 year from the last demand from accrual of action
binding upon the court. Possession was acquired by Not applicable
force, threat, intimidation or
Q: What does judgment of partition include? stealth
A: It includes payment of the cost of accounting and damages.
Q: Who are the aggrieved parties?
Q: Doctrine of Heirs of Teves V. CA A: Vendor, vendee, lessor or any other person deprived of
A: Any activity that puts an end to indivision is a case of partition. 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.

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 theamount for the use and occupancy of the
REMEDIAL LAW REVIEW 2007
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
RULE 71
Q: What is the amount for use and occupancy?
A: Payment of rental during the pendency of the appeal. Q: What is contempt?
A: Upfront or defiance, act against dignity, integrity and justice of
Q: How much? the court
A: Same as supersedeas bond.
Q: What are the two kinds?
Q: Where do you file notice of appeal? A:
A: In the municipal trial court 1. Direct Contempt
Done in the presence of or so near a judge that disrupted
Q: Where do you file supersedeas bond? proceedings.
A: In the municipal trial court 2. Indirect Contempt

Q: Where do you file amount for use and occupancy? Q: What are the remedies of a person cited in contempt?
A: In the appellate court A:
Direct Contempt
Q: When? File a petition for certiorari and not an appeal because the
A:General rule on or before the 10th day of each succeeding judgment is only interlocutory
month. For example the rent due for the month of april should be Indirect Contempt
paid on or before May 10. 1. File an appeal
Exception: When payment of rental must be paid in advance in 2. Post a bond
accordance with the contract.
NOTE: Non-compliance with even one month would render the Q: Doctrine in the case of Yasay V. Recto
judgment immediately executory. A: Supreme Court said that the power of contempt must be used
in preventive manner and not in vindictive manner. The distinction
Q: Both Sec. 19 and Sec 21 speak of immediately executory between civil and criminal contempt was also abolished.
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.