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EIGHTH WEEK
FACTS:
THE FAMILY
Alberto Moreno, respondent (filed with the RTC of
1. Tribiana vs.Tribiana, G.R. No. 137359, Sept. 13, 2004
Caloocan a complaint against Hiyas Savings and
Loan Bank, Inc. his wife Remedios, the spouses Felipe
FACTS:
and Maria Owe and the Register of Deeds of
Caloocan City for cancellation of mortgage. He
Edwin and Lourdes are husband and wife who have
contended that he did not secure/ sign any loan
lived together since 1996, but formalized their union
from petitioner, or execute any contract of
on October 28, 1997. On April 30, 1998, Lourdes filed
mortgage in its favor; and his wife was acting in
a petition for habeas corpus before the RTC,
conspiracy with Hiyas and the spouses Owe, (who
claiming Edwin left their conjugal home with their
were benefited from the loan), made it appear that
daughter, Khriza Mae Tribiana. Edwin deprived
he signed the contract of mortgage and he could
Lourdes of lawful custody of Khriza, who was 1 year
not have executed the contract because he was
and 4 months old. Later, it was found that Khriza was
working abroad.
with Rosalina Tribiana, Edwin’s mother.
Hiyas filed a Motion to Dismiss on the ground that
Edwin moved to dismiss Lourdes’ petition on the
private respondent failed to comply with Article 151
ground that it did not allege that earnest efforts at a
of FC where it is provided that no suit between
compromise were made before its filing, following FC
members of the same family shall prosper unless it
151. On May 20, 1998, Lourdes filed her opposition to
should appear from the verified complaint or
Edwin’s motion by stating that there were prior failed
petition that earnest efforts toward a compromise
efforts at a compromise. Attached to Lourdes’
have been made, but that the same have failed.
opposition was a copy of the Certification to File
Petitioner contends that since the complaint does
Action from their barangay, dated May 1, 1998. On
not contain any fact or averment that earnest efforts
May 18, 1998, the RTC denied Edwin’s motion to
toward a compromise had been made prior to its
dismiss and reiterated a previous order requiring
institution, then the complaint should be dismissed
Edwin and Rosalina to bring Khriza to the RTC. Upon
for lack of cause of action.
denial of his motion for reconsideration, Edwin filed
with the CA a petition for prohibition and certiorari,
Moreno allegedly argues that in cases where one of
which was denied on July 2, 1998. Edwin’s motion for
the parties is not a member of the same family as
reconsideration was also denied by the CA.
contemplated under Art. 150 of FC failure to allege
in the complaint that earnest efforts toward a
ISSUE:
compromise had been made by the plaintiff before
filing the complaint is not a ground for a motion to
WoN the trial and appellate courts should have
dismiss. Alberto asserts that since three of the party-
dismissed the petition for habeas corpus on the
defendants are not members of his family the
ground of failure to comply with the condition
ground relied upon by Hiyas in its Motion to Dismiss is
precedent under FC 151
inapplicable RTC denied motion to dismiss. Court
agreed with plaintiff (Moreno). Petitioner filed a
RULING:
motion for partial reconsideration. RTC again denied
motion of partial reconsideration ruling that failure to
The trial and appellate courts’ resolutions were
allege in complaint that earnest effort towards a
affirmed.
compromise were made by plaintiff is not a ground
for motion to dismiss.
The petition for habeas corpus filed by Lourdes
indeed failed to allege that she resorted to
ISSUE:
compromise proceedings before filing the petition.
However, in her opposition to Edwin’s motion to
WON lack of earnest efforts toward a compromise is
dismiss, she attached a Barangay Certification to File
a ground for a motion to dismiss in suits between
Action. As Edwin did not dispute the authenticity of
husband and wife when other parties who are
the Barangay Certification and its contents, this
strangers to the family are involved in the suit.
established that the parties tried to compromise, but
were unsuccessful.
RULING:
Lourdes has complied with the condition precedent
YES. The instant petition should be dismissed.
under FC 151. A dismissal under Rule 16, Section 1 (j)
Petitioner failed to advance a satisfactory
is warranted only if there is a failure to comply with a
explanation as to its failure to comply with the
condition precedent. Given that the alleged defect
principle of judicial hierarchy. Article 151 of the
is a mere failure to allege compliance with a
Family Code provides as follows:
condition precedent, the proper solution is not an
No suit between members of the same family shall
outright dismissal of the action, but an amendment
prosper unless it should appear from the verified
under Rule 10, Section 1 of the 1997 Rules of
complaint or petition that earnest efforts toward a
Procedure.
compromise have been made, but that the same
have failed. If it is shown that no such efforts were in
fact made, the case must be dismissed. This rule shall
2. Hiyas Savings vs. Acuña, G.R. NO. 154132, August
not apply to cases which may not be the subject of
31, 2006
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compromise under the Civil Code. Hence, once a Whether or not the partition of the family home is
stranger becomes a party to a suit involving proper where one of the co-owners refuse to
members of the same family, the law no longer accede to such partition on the ground that a minor
makes it a condition precedent that earnest efforts beneficiary still resides in the said home.
be made towards a compromise before the action
can prosper. RULING:
The Court finds no specific, unique, or special
circumstance that would make the ruling in The law explicitly provides that occupancy of the
Magbaleta as well as in the abovementioned cases family home either by the owner thereof or by “any
inapplicable to suits involving a husband and his of its beneficiaries” must be actual. Actual
wife, as in the present case. In the first place, Article occupancy, however, need not be by the owner of
151 of the Family Code and Article 222 of the Civil the house specifically. Rather, the property may be
Code are clear that the provisions apply to suits occupied by the “beneficiaries” enumerated in
involving "members of the same family” under Article Article 154 of the Family Code, which may include
150 of the FC: the in-laws where the family home is constituted
jointly by the husband and wife. But the law
ART. 150. Family relations include those: (1) Between
definitely excludes maids and overseers. They are
husband and wife; (2) Between parents and
not the beneficiaries contemplated by the Code.
children; (3) Among other ascendants and
descendants; and (4) Among brothers and sisters, Article 154 of the Family Code enumerates who are
whether of the full or half blood and the beneficiaries of a family home: (1) The husband
and wife, or an unmarried person who is the head of
Article 217 of the Civil Code:
a family; and (2) Their parents, ascendants,
ART. 217. Family relations shall include those: (1)
descendants, brothers and sisters, whether the
Between husband and wife, (2) Between parent and
child; (3) Among other ascendants and their relationship be legitimate or illegitimate, who are
descendants, (4) Among brothers and sisters. living in the family home and who depend upon the
head of the family for legal support.
Suffice it to say that since the Court has ruled that
To be a beneficiary of the family home, three
the requirement under Article 151 of the Family Code
requisites must concur: (1) they must be among the
is applicable only in cases which are exclusively
relationships enumerated in Art. 154 of the Family
between or among members of the same family, it
Code; (2) they live in the family home; and (3) they
necessarily follows that the same may be invoked
are dependent for legal support upon the head of
only by a party who is a member of that same family.
the family.
FAMILY HOME
Moreover, Article 159 of the Family Code provides
1. Patricio vs. Dario, G.R. No. 170829, November 20, that the family home shall continue despite the
2006 death of one or both spouses or of the unmarried
head of the family for a period of 10 years or for as
FACTS: long as there is a minor beneficiary, and the heirs
Marcelino V. Dario died intestate. He was survived cannot partition the same unless the court finds
by his wife, petitioner Perla G. Patricio and their two compelling reasons therefor. This rule shall apply
sons, Marcelino Marc Dario and private respondent regardless of whoever owns the property or
Marcelino G. Dario III. Among the properties he left constituted the family home.
was a parcel of land with a residential house and a As to the first requisite, the beneficiaries of the family
pre-school building built thereon. Petitioner Perla, home are: (1) The husband and wife, or an
Marcelino Marc and, Marcelino III, extrajudicially unmarried person who is the head of a family; and
settled his estate (2) Their parents, ascendants, descendants, brothers
Thereafter, Perla and Marcelino Marc formally and sisters, whether the relationship be legitimate or
advised Marcelino III of their intention to partition the illegitimate. The term “descendants” contemplates
subject property and terminate the co-ownership. all descendants of the person or persons who
Private respondent refused to partition the property constituted the family home without distinction;
claiming that the subject property which is the family hence, it must necessarily include the grandchildren
home duly constituted by spouses Marcelino and and great grandchildren of the spouses who
Perla Dario cannot be partitioned while a minor constitute a family home.
beneficiary is still living therein namely, his 12-year- As to the second requisite, minor beneficiaries must
old son, the grandson of the decedent. He argued be actually living in the family home to avail of the
that as long as the minor is living in the family home, benefits derived from Art. 159. Marcelino Lorenzo R.
the same continues as such until the beneficiary Dario IV, also known as Ino, the son of private
becomes of age. Hence petitioner and Marcelino respondent and grandson of the decedent
Marc instituted an action for partition. Marcelino V. Dario, has been living in the family
ISSUE: home since 1994, or within 10 years from the death
of the decedent, hence, he satisfies the second
requisite.
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However, as to the third requisite, Marcelino Lorenzo ISSUE:


R. Dario IV cannot demand support from his paternal
Whether or not the house built inside the land is
grandmother if he has parents who are capable of
considered part of partition.
supporting him. The liability for legal support falls
primarily on Marcelino Lorenzo R. Dario IV’s parents, RULING:
especially his father, herein private respondent who
is the head of his immediate family. The law first No. Under Article 153 the family home continues to
imposes the obligation of legal support upon the be such and is exempt from execution, forced sale
shoulders of the parents, especially the father, and or attachment except as hereinafter provided and
only in their default is the obligation imposed on the to the extent of the value allowed by law. According
grandparents. Marcelino Lorenzo R. Dario IV is to Article 159 the family home shall continue despite
dependent on legal support not from his the death of one or both spouses or of the unmarried
grandmother, but from his father. head of the family for a period of ten years or for as
long as there is a minor beneficiary, and the heirs
Legal support has the following characteristics: (1) It cannot partition the same unless the court finds
is personal, based on family ties which bind the compelling reasons therefor. This rule shall apply
obligor and the obligee; (2) It is intransmissible; (3) It regardless of whoever owns the property or
cannot be renounced; (4) It cannot be constituted the family home.
compromised; (5) It is free from attachment or
execution; (6) It is reciprocal; (7) It is variable in 3. Modequillo v. Breva GR. No. 86355, 31 May 1990
amount.
FACTS:
2. VILMA G. ARRIOLA and ANTHONY RONALD G.
The sheriff levied on a parcel of residential land
ARRIOLA, Petitioners, vs. JOHN NABOR C. ARRIOLA,
located at Poblacion Malalag, Davao del Sur on July
Respondent.
1988, registered in the name of Jose Modequillo and
G.R. No. 177703, January 28, 2008 a parcel of agricultural land located at Dalagbong,
Bulacan, Malalag, Davao de Sur also registered in
DOCTRINE: "The purpose of Article 159 is to avert the the latter’s name.
disintegration of the family unit following the death
of its head. To this end, it preserves the family home A motion to quash was filed by the petitioner
as the physical symbol of family love, security and alleging that the residential land is where the family
unity by imposing the following restrictions on its home is built since 1969 prior the commencement of
partition: first, that the heirs cannot extra-judicially this case and as such is exempt from execution,
partition it for a period of 10 years from the death of forced sale or attachment under Article 152 and 153
one or both spouses or of the unmarried head of the except for liabilities mentioned in Article 155 thereof,
family, or for a longer period, if there is still a minor and that the judgment sought to be enforced
beneficiary residing therein; and second, that the against the family home is not one of those
heirs cannot judicially partition it during the aforesaid enumerated. With regard to the agricultural land, it
periods unless the court finds compelling reasons is alleged that it is still part of the public land and the
therefor. No compelling reason has been alleged by transfer in his favor by the original possessor and
the parties; nor has the RTC found any compelling applicant who was a member of a cultural minority.
reason to order the partition of the family home, The residential house in the present case became a
either by physical segregation or assignment to any family home by operation of law under Article 153.
of the heirs or through auction sale as suggested by
ISSUE:
the parties. "
WON the subject property is deemed to be a family
FACTS:
home in as much as it does not fall under the
The RTC rendered a decision ordering the partition of exemption from execution.
the parcel of land covered by TCT No 383714 (84191)
RULING:
left by Fidel S. Arriola to his heirs John Nabor C.
Arriola, Vilma G. Arriola and Anthony Ronald G. No. The subject property is deemed to be a family
Arriola in equal shares of one-third each. John Nabor home but it does not fall under the exemption from
Arriola proposed to sell it though public auction. execution of the money judgment aforecited.
Vilma and Anthony Ronald Arriola initially agreed
but refused to include in the auction the house Under Article 162 of the Family Code, it is provided
standing on the subject land. The respondent then that “the provisions of this Chapter shall also govern
filed a petition for certiorari and prayed that he be existing family residences insofar as said provisions
are applicable.” It does not mean that Articles 152
allowed to push through with the auction of the
subject land including the house built on it. The CA and 153 of said Code have a retroactive effect such
granted the petition and ordered the public auction that all existing family residences are deemed to
sale of the subject lot including the house built on it. have been constituted as family homes at the time
Petitioners filed a motion for reconsideration but the of their occupation prior to the effectivity of the
CA denied the said motion. Family Code and are exempt from execution for the
payment of obligations incurred before the
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effectivity of the Family Code. Article 162 simply therein that defendant-appellees refused to accept
means that all existing family residences at the time payment of the improvements as determined by the
of the effectivity of the Family Code, are considered court appointed Commissioner, thus, they should
family homes and are prospectively entitled to the now be ordered to remove said improvements at
benefits accorded to a family home under the their expense or if they refused, an Order of
Family Code. Article 162 does not state that the Demolition be issued.
provisions of Chapter 2, Title V have a retroactive
Petitioners insist that the property subject of the
effect.
controversy is a duly constituted family home which
The debt or liability which was the basis of the is not subject to execution, thus, they argue that the
judgment arose or was incurred at the time of the appellate tribunal erred in reversing the judgment of
vehicular accident on March 16, 1976 and the the trial court.
money judgment arising therefrom was rendered by
ISSUE:
the appellate court on January 29, 1988. Both
preceded the effectivity of the Family Code on Whether the subject property is a duly constituted
August 3, 1988. Therefore, this case does not fall family home which is not subject to execution.
under the exemptions from execution provided in
the Family Code. RULING:

As to the agricultural land, trial court correctly ruled NO.


that the levy to be made shall be on whatever rights
The petition lacks merit. It was already of judicial
the petitioner may have on the land.
notice that the improvements introduced by
4. G.R. No. 180587 March 20, 2009 petitioners on the litigated property are residential
houses not family homes. Belatedly interposing such
SIMEON CABANG, VIRGINIA CABANG and an extraneous issue at such a late stage of the
VENANCIO CABANG ALIAS "DONDON", Petitioners, proceeding is tantamount to interfering with and
vs. MR. & MRS. GUILLERMO BASAY, Respondents. varying the terms of the final and executory
judgment and a violation of respondents’ right to
FACTS:
due process.
Deceased Felix Odong was the registered owner of
The refusal, therefore, of the trial court to enforce the
Lot No. 7777, Ts- 222 located in Molave, Zamboanga
execution on the ground that the improvements
del Sur. However, Felix Odong and his heirs never
introduced on the litigated property are family
occupied nor took possession of the lot.
homes goes beyond the pale of what it had been
On June 16, 1987, plaintiff-appellants bought said expressly tasked to do, i.e. its ministerial duty of
real property from the heirs of Felix Odong for executing the judgment in accordance with its
P8,000.00. Consequently, OCT No. 0-2,768 was essential particulars. The foregoing factual, legal
cancelled and in its stead, Transfer Certificate of Title and jurisprudential scenario reduces the raising of
No. T-22,048 was issued on August 6, 1987 in the the issue of whether or not the improvements
name of plaintiff-appellants. The latter also did not introduced by petitioners are family homes into a
occupy the said property. mere afterthought.

Defendant-appellees, on the other hand, had been There can be no question that a family home is
in continuous, open, peaceful and adverse generally exempt from execution,26 provided it was
possession of the same parcel of land since 1956 up duly constituted as such. It is likewise a given that the
to the present. They were the awardees in the family home must be constituted on property owned
cadastral proceedings of Lot No. 7778 of the Molave by the persons constituting it. Indeed as pointed out
Townsite, Ts-222. During the said cadastral in Kelley, Jr. v. Planters Products, Inc.27 "[T]he family
proceedings, defendant-appellees claimed Lot No. home must be part of the properties of the absolute
7778 on the belief that the area they were actually community or the conjugal partnership, or of the
occupying was Lot No. 7778. exclusive properties of either spouse with the latter’s
consent, or on the property of the unmarried head
As it turned out, however, when the Municipality of
of the family."
Molave relocated the townsite lots in the area in
1992 as a big portion of Lot No. 7778 was used by the The family home must be established on the
government as a public road and as there were properties of (a) the absolute community, or (b) the
many discrepancies in the areas occupied, it was conjugal partnership, or (c) the exclusive property of
then discovered that defendant-appellees were either spouse with the consent of the other. It cannot
actually occupying Lot No. 7777. be established on property held in co-ownership with
third persons. However, it can be established partly
On June 23, 1992, plaintiff-appellants filed a
on community property, or conjugal property and
Complaint docketed as Civil Case No. 92-20-127 for
partly on the exclusive property of either spouse with
Recovery of Property against defendant-appellees.
the consent of the latter.
On June 18, 2002, plaintiff-appellants filed their
Manifestation and Motion for Execution alleging
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Therein lies the fatal flaw in the postulate of The general rule is that the family home is a real right
petitioners. For all their arguments to the contrary, which is gratuitous, inalienable and free from
the stark and immutable fact is that the property on attachment, constituted over the dwelling place
which their alleged family home stands is owned by and the land on which it is situated, which confers
respondents and the question of ownership had upon a particular family the right to enjoy such
been long laid to rest with the finality of the properties, which must remain with the person
appellate court’s judgment in CA-G.R. CV No. 55207. constituting it and his heirs. It cannot be seized by
creditors except in certain special cases.
Thus, petitioners’ continued stay on the subject land
is only by mere tolerance of respondents. The For the family home to be exempt from execution,
petition is DENIED. distinction must be made as to what law applies
based on when it was constituted and what
5. G.R. No. 185920 July 20, 2010
requirements must be complied with by the
JUANITA TRINIDAD RAMOS, ALMA RAMOS WORAK, judgment debtor or his successors claiming such
MANUEL T. RAMOS, JOSEFINA R. ROTHMAN, SONIA R. privilege. Hence, two sets of rules are applicable.
POST, ELVIRA P. MUNAR, and OFELIA R. LIM,
If the family home was constructed before the
Petitioners, vs. DANILO PANGILINAN, RODOLFO
effectivity of the Family Code or before August 3,
SUMANG, LUCRECIO BAUTISTA and ROLANDO
1988, then it must have been constituted either
ANTENOR, Respondents.
judicially or extra-judicially as provided under Articles
FACTS: 225, 229-231 and 233 of the Civil Code. Meanwhile,
extrajudicial constitution is governed by Articles 240
Respondents filed in 2003 a complaint for illegal to 242..
dismissal against E.M. Ramos Electric, Inc., a
company owned by Ernesto M. Ramos (Ramos), the On the other hand, for family homes constructed
patriarch of herein petitioners. The labor arbiter after the effectivity of the Family Code on August 3,
ordered Ramos and the company to pay the 1988, there is no need to constitute extra judicially or
respondents’ back-wages, separation pay, 13th judicially, and the exemption is effective from the
month pay & service incentive leave pay. time it was constituted and lasts as long as any of its
beneficiaries under Art. 154 actually resides therein.
The decision became final and executory so a writ Moreover, the family home should belong to the
of execution was issued which the Deputy Sheriff of absolute community or conjugal partnership, or if
the National Labor Relations Commission (NLRC) exclusively by one spouse, its constitution must have
implemented by levying a property in Ramos’ name been with consent of the other, and its value must
situated in Pandacan. not exceed certain amounts depending upon the
area where it is located. Further, the debts incurred
Alleging that the Pandacan property was the family
for which the exemption does not apply as provided
home, hence, exempt from execution to satisfy the
under Art. 155 for which the family home is made
judgment award, Ramos and the company moved
answerable must have been incurred after August 3,
to quash the writ of execution. Respondents argued
1988. In both instances, the claim for exemption must
that it is not the family home there being another
be proved.
one in Antipolo and that the Pandacan address is
actually the business address. The motion was In the present case, since petitioners claim that the
denied and the appeal was likewise denied by the family home was constituted prior to August 3, 1988,
NLRC. Ramos and the company appealed to the or as early as 1944, they must comply with the
Court of Appeals during the pendency of which procedure mandated by the Civil Code. There
Ramos died and was substituted by herein being absolutely no proof that the Pandacan
petitioners. property was judicially or extra judicially constituted
as the Ramos’ family home, the law protecting the
The appellate court, in denying petitioners’ appeal,
family home cannot apply thereby making the levy
held that the Pandacan property was not exempted
upon the Pandacan property valid.
from execution, for while “Article 153 of the Family
Code provides that the family home is deemed 6. G.R. No. 165950 August 11, 2010
constituted on a house and lot from the time it is
occupied as a family residence, it did not mean that EQUITABLE PCI BANK, INC., Petitioner, vs.
the article has a retroactive effect such that all OJ-MARK TRADING, INC. and SPOUSES OSCAR AND
existing family residences are deemed to have been EVANGELINE MARTINEZ, Respondents.
constituted as family homes at the time of their
FACTS:
occupation prior to the effectivity of the Family
Code.” Respondent-spouses Oscar and Evangeline Martinez
obtained loans from petitioner Equitable PCI Bank,
ISSUE:
Inc. in the aggregate amount of Four Million Forty-
Whether the levy upon the Pandacan property was Eight Thousand Eight Hundred Pesos (₱4,048,800.00).
valid.
As security for the said amount, a Real Estate
RULING: Yes. Mortgage (REM) was executed over a condominium
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unit in San Miguel Court, Valle Verde 5, Pasig City, We note that the claim of exemption under Art. 153
Metro Manila where the spouses are residing. of the Family Code, thereby raising issue on the
mortgaged condominium unit being a family home
Respondent Oscar Martinez signed the REM both as
and not corporate property, is entirely inconsistent
principal debtor and as President of the registered
with the clear contractual agreement of the REM.33
owner and third-party mortgagor, respondent OJ-
Assuming arguendo that the mortgaged
Mark Trading, Inc.
condominium unit constitutes respondents’ family
Respondent-spouses defaulted in the payment of home, the same will not exempt it from foreclosure
their outstanding loan obligation, which as of as Article 155 (3) of the same Code allows the
October 31, 2002 stood at ₱4,918,160.03.3 execution or forced sale of a family home "for debts
secured by mortgages on the premises before or
Consequently, petitioner initiated the extrajudicial after such constitution." Respondents thus failed to
foreclosure of the real estate mortgage by filing an show an ostensible right that needs protection of the
ex parte petition before the Office of the Executive injunctive writ. Clearly, the appellate court seriously
Judge, Regional Trial Court (RTC) of Pasig City.6 erred in sustaining the trial court’s orders granting
respondents’ application for preliminary injunction.
On January 23, 2003, respondents filed Civil Case No.
69294 for "Temporary Restraining Order (‘TRO’), Anent the grave and irreparable injury which
Injunction and Annulment of Extrajudicial respondents alleged they will suffer if no preliminary
Foreclosure Sale" in the RTC of Pasig City. injunction is issued, this Court has previously declared
that all is not lost for defaulting mortgagors whose
On January 27, 2003, the trial court granted a TRO
properties were foreclosed by creditors-mortgagees,
effective for twenty (20) days.
viz:
In their Complaint With Application for Temporary
In any case, petitioners will not be deprived
Restraining Order,7 respondents sought to enjoin the
outrightly of their property. Pursuant to Section 47 of
impending foreclosure sale alleging that the same
the General Banking Law of 2000, mortgagors who
was hasty, premature, unreasonable and
have judicially or extrajudicially sold their real
unwarranted, and also claiming defects in the
property for the full or partial payment of their
execution of the REM. It was further averred that the
obligation have the right to redeem the property
subject property is being used and occupied by
within one year after the sale. They can redeem their
respondent-spouses as a family home.
real estate by paying the amount due, with interest
ISSUE: rate specified, under the mortgage deed; as well as
all the costs and expenses incurred by the bank.
Whether the respondents have shown a clear legal
right to enjoin the foreclosure and public auction of Moreover, in extrajudicial foreclosures, petitioners
the third-party mortgagor’s property while the case have the right to receive any surplus in the selling
for annulment of REM on said property is being tried. price. This right was recognized in Sulit v. CA, in which
the Court held that "if the mortgagee is retaining
RULING: No.
more of the proceeds of the sale than he is entitled
Petitioner argued that the appellate court’s to, this fact alone will not affect the validity of the
conclusion that respondents possess proprietary right sale but simply gives the mortgagor a cause of
over the mortgaged property subject of foreclosure action to recover such surplus.34
is utterly baseless, for the following reasons: first, while 7. [G.R. No. 185064. January 16, 2012.]
the condominium unit is supposedly a family home,
it is admittedly owned by respondent corporation SPOUSES ARACELI OLIVA-DE MESA and ERNESTO
and not by the conjugal partnership or absolute S. DE MESA, petitioner, vs. SPOUSES CLAUDIO
community of respondent-spouses; and second, D. ACERO, JR. and MA. RUFINA D. ACERO, SHERIFF
even assuming that OJ-Mark Trading, Inc. is a family FELIXBERTO L. SAMONTE and REGISTRAR ALFREDO
corporation, respondents’ stance contravenes the SANTOS, respondents.
established rule that properties registered in the
DOCTRINE:
name of the corporation are owned by it as an entity
separate and distinct from its members or Rules on constitution of family homes, for purposes of
stockholders.12 exemption from execution:
Respondents claimed that the extrajudicial First, family residences constructed before the
foreclosure will cause grave injustice and irreparable effectivity of the Family Code or before August 3,
injury to respondent-spouses and their four (4) young 1988 must be constituted as a family home either
children because their family home, in which they judicially or extrajudicially in accordance with the
were residing since 1997, at least insofar as the provisions of the Civil Code in order to be exempt
unencumbered area in excess of 180.750 sq. m., is from execution;
exempt from forced sale or execution under Article
155 of the Family Code. Petitioner, on the other Second, family residences constructed after the
hand, will not suffer any loss if the foreclosure will not effectivity of the Family Code on August 3, 1988 are
proceed.16 automatically deemed to be family homes and thus
7

exempt from execution from the time it was purposes of satisfying the writ of execution. RTC
constituted and lasts as long as any of its dismissed the complaint. CA affirmed RTC’s decision.
beneficiaries actually resides therein;
ISSUE:
Third, family residences which were not judicially or
Whether or not the subject property, as a family
extrajudicially constituted as a family home prior to
home, may be subject to execution in this case.
the effectivity of the Family Code, but were existing
thereafter, are considered as family homes by HELD:
operation of law and are prospectively entitled to
the benefits accorded to a family home under the YES, the subject property is family home but is subject
Family Code. to execution. In general, the family home is exempt
from execution. However, the person claiming this
The settled rule is that the right to exemption or privilege must assert it at the time it was levied or
forced sale under Article 153 of the Family Code is a within a reasonable time thereafter.
personal privilege granted to the judgment debtor
and as such, it must be claimed not by the sheriff, but RATIO:
by the debtor himself before the sale of the property
For the family home to be exempt from execution,
at public auction. It is not sufficient that the person
distinction must be made as to what law applies
claiming exemption merely alleges that such
based on when it was constituted and what
property is a family home. This claim for exemption
requirements must be complied with by the
must be set up and proved to the Sheriff.
judgment debtor or his successors claiming such
FACTS: privilege.

Araceli De Mesa is married to Ernesto De Mesa. They The foregoing rules on constitution of family homes,
purchased a parcel of land located in for purposes of exemption from execution, could be
Meycauayan, Bulacan. A house was contracted in summarized as follows:
the said property, which became their family home.
First, family residences constructed before the
A year after, Arceli contracted a loan in the amount
effectivity of the Family Code or before August 3,
of P100,000 from Claudio Acero, which was secured
1988 must be constituted as a family home either
by a mortgage on the said parcel of land and house.
judicially or extrajudicially in accordance with the
Araceli issued a check for the payment of the loan.
provisions of the Civil Code in order to be exempt
When Acero presented the check to the bank it was
from execution;
dishonored because the checking account was
already closed. Acero demanded payment. Second, family residences constructed after the
However, Spouses De Mesa still failed to pay. Acero effectivity of the Family Code on August 3, 1988 are
filed a complaint for violation of B.P. 22 in the RTC. automatically deemed to be family homes and thus
The RTC acquitted the Spouses but ordered them to exempt from execution from the time it was
pay Acero P100,000 plus legal interest. A writ of constituted and lasts as long as any of its
execution was issued to levy on the said property. beneficiaries actually resides therein;

The house and lot was sold in the public auction and Third, family residences which were not judicially or
Acero was the highest bidder. Acero leased the extrajudicially constituted as a family home prior to
property to Juanito Oliva, who defaulted payment the effectivity of the Family Code, but were existing
for several years. Oliva contends that the Acero thereafter, are considered as family homes by
spouses are not the owners of the property. operation of law and are prospectively entitled to
the benefits accorded to a family home under the
The MTC rendered a Decision, giving due course to
Family Code.
Spouses Acero’s complaint and ordering the
Spouses De Mesa and Oliva to vacate the subject Here, the subject property became a family
property. Spouses De Mesa contend that they are residence sometime in January 1987 when Spouses
the rightful owners of the property. The MTC also De Mesa got married. There was no showing,
stated that from the time a Torrens title over the however, that the same was judicially or
subject property was issued in Claudio’s name up to extrajudicially constituted as a family home in
the time the complaint for ejectment was filed, the accordance with the provisions of the Civil Code.
petitioners never assailed the validity of the levy Still, when the Family Code took effect on August 3,
made by the Sheriff, the regularity of the public sale 1988, the subject property became a family home
that was conducted thereafter and the legitimacy by operation of law and was thus prospectively
of Acero’s Torrens title that was resultantly issued. exempt from execution. The petitioners were thus
correct in asserting that the subject property was a
Spouses De Mesa filed an action to nullify the TCT
family home.
issued to Acero. Spouses De Mesa contend that the
subject property is a family home, which is exempt Despite the fact that the subject property is a family
from execution under the Family Code and, thus, home and, thus, should have been exempt from
could not have been validly levied upon for execution, Spouses De Mesa should have asserted
the subject property being a family home and its
8

being exempted from execution at the time it was No, spouses Fortaleza’s argument that the subject
levied or within a reasonable time thereafter. They property is exempt from forced sale because it is a
are stopped from claiming the exemption of the family home deserves scant consideration. As a rule,
property from execution. the family home is exempt from execution, forced
sale or attachment. However, Article 155(3) of the
8. [G.R. No. 178288. August 15, 2012.] SPOUSES
Family Code explicitly allows the forced sale of a
CHARLIE FORTALEZA and OFELIA
family home "for debts secured by mortgages on the
FORTALEZA, petitioners, vs. SPOUSES RAUL LAPITAN
premises before or after such constitution." In this
and RONA LAPITAN, respondents.
case, there is no doubt that spouses Fortaleza
FACTS: voluntarily executed on January 28, 1998 a deed of
Real Estate Mortgage over the subject property
Spouses Charlie and Ofelia Fortaleza (spouses which was even notarized by their original counsel of
Fortaleza) obtained a loan from spouses Rolando record. And assuming that the property is exempt
and Amparo Lapitan (creditors) in the amount of from forced sale, spouses Fortaleza did not set up
P1.2 million subject to 34% interest per annum. As and prove to the Sheriff such exemption from forced
security, spouses Fortaleza executed on January 28, sale before it was sold at the public auction.
1998 a Deed of Real Estate Mortgage over their
residential house and lot and registered under TCT As elucidated in Honrado v. Court of Appeals:
No. T-412512. ςrνll
While it is true that the family home is constituted on
When spouses Fortaleza failed to pay the a house and lot from the time it is occupied as a
indebtedness including the interests and penalties, family residence and is exempt from execution or
the creditors applied for extrajudicial foreclosure of forced sale under Article 153 of the Family Code,
the Real Estate Mortgage. The public auction sale such claim for exemption should be set up and
was set on May 9, 2001. At the sale, the creditors son proved to the Sheriff before the sale of the property
Dr. Raul Lapitan and his wife Rona (spouses Lapitan) at public auction. Failure to do so would estop the
emerged as the highest bidders with the bid amount party from later claiming the exemption.
of P2.5 million. Then, they were issued a Certificate of
As this Court ruled in Gomez v. Gealone:
Sale which was registered and annotated at the
back of TCT No. T-412512. The one-year redemption Although the Rules of Court does not prescribe the
period expired without the spouses Fortaleza period within which to claim the exemption, the rule
redeeming the mortgage. Thus, spouses Lapitan is, nevertheless, well-settled that the right of
executed an affidavit of consolidation of ownership exemption is a personal privilege granted to the
on November 20, 2003 and caused the cancellation judgment debtor and as such, it must be claimed
of TCT No. T-412512 and the registration of the not by the sheriff, but by the debtor himself at the
subject property in their names under TCT No. T- time of the levy or within a reasonable period
535945 on February 4, 2004. Despite the foregoing, thereafter.
the spouses Fortaleza refused spouses Lapitan s
Certainly, reasonable time for purposes of the law on
formal demand to vacate and surrender possession
exemption does not mean a time after the
of the subject property.
expiration of the one-year period for a judgment
On August 27, 2004, spouses Lapitan filed an ex parte debtor to redeem the property. ςrνll
petition for the issuance of writ of possession as new
Equally without merit is spouses Fortaleza s reliance
registered owners of the subject property. In their
on the cases of Tolentino and De Los Reyes in
opposition, spouses Fortaleza questioned the validity
praying for the exercise of the right of redemption
of the real estate mortgage and the foreclosure sale.
even after the expiration of the one-year period. In
They argued that the mortgage was void because
Tolentino, we held that an action to redeem filed
the creditors bloated the principal amount by the
within the period of redemption, with a simultaneous
imposition of exorbitant interest. Spouses Fortaleza
deposit of the redemption money tendered to the
added that the foreclosure proceeding was invalid
sheriff, is equivalent to an offer to redeem and has
for non-compliance with the posting requirement.
the effect of preserving the right to redemption for
The RTC ordered the issuance of a writ of possession
future enforcement even beyond the one-year
explaining that it is a ministerial duty of the court
period. And in De Los Reyes, we allowed the
especially since the redemption period had expired
mortgagor to redeem the disputed property after
and a new title had already been issued in the name
finding that the tender of the redemption price to
of the spouses Lapitan, Spouses Fortaleza moved for
the sheriff was made within the one-year period and
reconsideration, claiming that the subject property is
for a sufficient amount.
their family home and is exempt from foreclosure
sale. The RTC denied their motion. CA affirmed. The circumstances in the present case are far
different. The spouses Fortaleza neither filed an
ISSUE:
action nor made a formal offer to redeem the
W/N the subject property is exempt from forced sale subject property accompanied by an actual and
because it is a family home simultaneous tender of payment. It is also undisputed
that they allowed the one-year period to lapse from
RULING:
9

the registration of the certificate of sale without and lot, as well as the cancellation of the title
redeeming the mortgage. For all intents and obtained by petitioners by virtue of the Deed. The
purposes, spouses Fortaleza have waived or RTC granted respondents' prayers and ordered the
abandoned their right of redemption. Register of Deeds of Batangas City to cancel TCT in
the name of defendants the Eulogios and to
Lastly, we agree with the CA that any question
reconstitute TCT as "family home" of the plaintiffs the
regarding the regularity and validity of the mortgage
Bell siblings and Sps. Bell.
or its foreclosure cannot be raised as a justification
for opposing the petition for the issuance of the writ However RTC declared Spouses Bell liable to
of possession. The said issues may be raised and petitioners in the amount of PI million plus 12% interest
determined only after the issuance of the writ of per annum.
possession. Indeed, "[t]he judge with whom an
On 9 June 2004 the RTC issued a Writ of Execution, as
application for writ of possession is filed need not
a result of which respondents' property covered by
look into the validity of the mortgage or the manner
the newly reconstituted TCT was levied on execution.
of its foreclosure." The writ issues as a matter of
Upon motion by respondents, the trial court, on 31
course. "The rationale for the rule is to allow the
August 2004, ordered the lifting of the writ of
purchaser to have possession of the foreclosed
execution on the ground that the property was a
property without delay, such possession being
family home.
founded on the right of ownership." To underscore
this mandate, Section 8 of Act No. 3135 gives the RTC issued on 25 November 2004 an Order directing
debtor-mortgagor the right to file a petition for the the issuance of a writ of execution. Consequently,
setting aside of the foreclosure sale and for the respondents filed before the CA a Supplemental
cancellation of a writ of possession in the same Petition with an urgent prayer for a temporary
proceedings where the writ was issued within 30 days restraining order.
after the purchaser-mortgagee was given
possession. The court’s decision thereon may be Respondents filed a Petition for Certiorari and
appealed by either party, but the order of possession Injunction before the CA docketed as 87531. CA
shall continue in effect during the pendency of the eventually enjoined the execution.
appeal.
On 09 February 2009,18 the CA denied petitioners'
"Clearly then, until the foreclosure sale of the Motion for Reconsideration. Hence, this Petition.
property in question is annulled by a court of
ISSUE:
competent jurisdiction, the issuance of a writ of
possession remains the ministerial duty of the trial Whether or not respondents' family home may be
court. The same is true with its implementation; sold on execution under Article 160 of the Family
otherwise, the writ will be a useless paper judgment Code.
a result inimical to the mandate of Act No. 3135 to
vest possession in the purchaser immediately." RULING:

9. [G.R. No. 186322. July 8, 2015.] ENRICO S. Respondents' family home cannot be sold on
execution under Article 160 of the Family Code.
EULOGIO and NATIVIDAD V.
EULOGIO, petitioners, vs. PATERNO C. BELL, SR., The family home is a real right that is gratuitous,
ROGELIA CALINGASAN-BELL, PATERNO WILLIAM inalienable and free from attachment.
BELL, JR., FLORENCE FELICIA VICTORIA BELL,
PATERNO FERDINAND BELL III, and PATERNO The great controlling purpose and policy of the
BENERAÑO BELL IV, respondents. Constitution is the protection or the preservation of
the homestead the dwelling place.
1. G.R. No. 186322, July 08, 2015 ENRICO S. EULOGIO
AND NATIVIDAD V. EULOGIO, Petitioners, v. PATERNO Re-litigating the issue of the value of respondents'
C. BELL, SR., ROGELIA CALINGASAN-BELL, PATERNO family home is barred by res judicata. Res judicata
WILLIAM BELL, JR., FLORENCE FELICIA VICTORIA BELL, (meaning, a "matter adjudged") is a fundamental
PATERNO FERDINAND BELL III, AND PATERNO principle of law that precludes parties from re-
BENERAÑO BELL IV, Respondents. litigating issues actually litigated and determined by
a prior and final judgment. Res judicata applies,
FACTS:
considering that the parties are litigating over the
Respondents the Bell siblings are the unmarried same property. Moreover, the same contentions
children of respondent Spouses Paterno C. Bell and and evidence advanced by the petitioners to
Rogelia Calingasan-Bell (Sps. Bell). In 1995, the Bell substantiate their claim over respondents' family
siblings lodged a Complaint docketed as Civil Case home have already been used to support their
No. 4581 at the (RTC) of Batangas City for annulment arguments in the main proceedings.
of documents, reconveyance, quieting of title and
10. ARRIOLA V. ARRIOLA G.R. NO. 177703, 28
damages against petitioners Enrico S. Eulogio and
JANUARY 2008
Natividad Eulogio (the Eulogios). The Complaint
sought the annulment of the contract of sale FACTS:
executed by Spouses Bell over their residential house
10

Fidel Arriola who married twice died and is survived


by his legal heirs: John Nabor Arriola (respondent),
his son with his first wife, and Vilma G. Arriola, his
second wife and his other son, Anthony Ronald
Arriola (petitioners). On February 16, 2004, the RTC
rendered a decision ordering the partition of the
parcel of land left by the decedent Fidel S. Arriola by
and among his heir John, Vilma and Anthony in
equal shares of one-third each without prejudice to
the rights of creditors or mortgagees thereon, if any.
However, the parties failed to agree on how to
divide the property and so the respondent proposed
to sell it through public auction. The petitioners
initially agreed but refused to include in the auction
the house standing on the subject land because it is
a family home.

ISSUE:

Whether or not the subject house is a family home.

RULING:

Yes. The subject house is a family home that it cannot


be sold through public auction.

Based on Article 152, the Family Home, constituted


jointly by the husband and wife or any an unmarried
head of the family is the dwelling house where they
and their family reside, and the land on which it is
situated.

Article 153, the Family Home is deemed constituted


on a house and lot from the time it is occupied as a
family residence. From the time of its constitution and
so long as any beneficiaries actually resides therein,
the family home continues to be such and is exempt
from execution, forced sale or attachment except
as hereinafter provided and to the extent of the
value allowed by law.

Article 159, the Family Home shall continue despite


the death of one or both spouses or of the unmarried
head of the family for a period of ten years or for as
long as there is a minor beneficiary, and the heirs
cannot partition the same unless the court finds
compelling reason.

Applying these concepts, the subject house as well


as the specific portion of the subject land on which
it stands is deemed constituted as a family home by
the deceased and the petitioner Vilma from the
moment that began occupying the same as a
family residence 20 years back. Therefor the house
cannot be forced to sale by the respondent
because family home is exempt on such sale.

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