PRESCRIPTION; MORTGAGE

Real estate mortgage ANNULLED and principal

obligation stands.

Ten (10) years

WRIT OF POSSESSION

OPTIONS (3) ; CR

Waive the mortgage and claim entire debt from

the estate of the MR
Forclose the mortgage judicially and file
ordinary claim for deficiency
Rely on the mortgage; forclose the same before
prescription w/o right to file claim for deficienty

PROCEDURE; ISSUANCE OF WRIT

EQUITY OF REDEMPTION

Right of the MR to redeem property after default

to perform conditions of the mortgage BUT
before the sale of property

Right of the MR to repurchase the property after

confirmation of sale w/n one (1) year from
registration of sale

OFFER TO REPURCHASE; NOT WAIVER OF

THE RIGHT TO QUESTION THE SALE

Only an intention to avoid further litigation and

the same in the nature of compromise
OBJECTIVE: pay the debt and redeem the
property

Foreclosure and public auction sale of the

property is NULL AND VOID and ME did not
acquire valid title

DEMAND; PRE-REQUISITE OF FORECLOSURE

Foreclosure is valid only when the DR is in

default in the payment of his obligation
If demand was made and DR still did not pay,
DR already in default and foreclosure is proper

Buyer becomes the absolute owner of the

property if not redeemed within one (1) year
after registration of sale

EFFECT OF FORECLOSURE SALE; AMOUNT

DEMANDED IS OVERSTATED

The foreclosure sale is nullified REASON:

amount being excessive

DR may, w/n 30 days, petition that the sale be

set aside and the writ of possession cancelled
specifying the damage he suffered because the
mortgage was not violated or the sale is not in
accordance with the provision

THIRD PARTY NOT PRIVY TO THE DR IS IN

POSSESSION OF PROPERTY; EFFECT

May be ejected only after given the opportunity

to be heard; afford 3rd party due process

ISSUANCE OF WRIT OF POSSESSION DESPITE

PENDENCY OF AN ACTION TO QUIET TITLE

If demand was not made and load is not yet final

and demandable, foreclosure is premature

RIGHT OF THE BUYER; PROPERTY NOT

REDEEM

Purchaser may apply for an ex parte motion for

issuance of a writ of possession and upon
approval of bond, the court may issue a writ of
posession
Issuance of writ is ministerial ABSOLUTE? No,
if it work injustice because the petitioner might
not be entitled to the same; adverse to third
person

SETTING ASIDE OF SALE AND WRIT OF

POSSESSION

NON-POSTING OF NOTICE, EFFECT

Within one (1) year redemption period upon

filing of bond
After lapse of redemption period w/o need of a
bond

NB

RIGHT OF REDEMPTION

An order whereby the sheriff is commanded to

place a person in possession of real or personal
property

May proceed independently of the action to

quiet title. The order for issuance or writ cannot
prejudice the outcome of the action for quieting
of title

TRUST
SALE THROUH AN AGENT; SPA REQUIRED

Authority must be in writing, otherwise sale is

void. Void sale not subject to ratification.

SPA necessary in lease of property to another

person for more than one (1) year.

Absent a valid revocation, SPA continues to

have force and effect against 3rd person

SPA shall be registered witht RD. Any

revocation shall also be registered.

TRUST RELATIONSHIP; CONCEPT

Registration with the RD; a sworn statement

containing description of land, name of
registered owner and reference number of the
title
Shall not affect the purchaser for value and in
good faith before registration.

Trust is a fiduciary relationship with respect to

property which involves duties imposed upon
the holder of the title of the property to deal with
it for the benefit of another.

INVOLUNTARY DEALINGS

TRUSTOR person who establishes a trust

WHAT IS ATTACHMENT

TRUSTEE person whom confidence is

reposed as regards property for the benefit of
another

BENEFICIARY person for whose benefit the

trust has been created

Either EXPRESS (written) or IMPLIED (by

operation of law)

CONSTRUCTIVE TRUST person holding

title to property is subject to an equitable duty to
convey to another on the ground that he would
be unjustly enrich if he were permitted to retain
it. REASON: acquired through fraud, duress,
undue influence or mistake or through breach
RESULTING TRUST a person make a
disposition of property under circumstances
which raise an inference that he does not intend
that the person holding the property should have
the beneficial interest over the property (one
who pays for a thing intends a beneficial interest
therein for himself)

PRESCRIPTIVE
PERIOD;
ACTION
FOR
RECONVEYANCE OF PROPERTY BASED ON
IMPLIED OR CONSTRUCTIVE TRUST

Ten (10) years. Starts from the date of

registration of deed or date of issuance of
certificate of title

ATTACHMENT; HOW REGISTERED

Filed and registered in the RD

Contains the reference number of the certificate

of title

Restraining order, injunction, mandamus issued

by the court shall be entered and registered on
the certificate of title, free of charge

NON-RECORDING OF WRIT OF ATTACHMENT;

EFFECT

It shall not be entered on the the certificate but

only a memorandum with the words in trust or
upon condition and by a reference number to
the instrument creating the same.

Anytime before entry of judgment, plaintiff may

attached the property in the following cases.
- In an action to recover possession of property
unjustly or fraudulent taken or property has been
concealed, removed or disposed to prevent its
being found;

Trustee cannot acquire by prescription

ownership unless he repudiates/refuses the trust
(express and resulting trust) evidence is clear;
refusal made known to beneficiary (cestui que
trust); performed unequivocal acts of
repudiation amounting to ouster of the
beneficiary

TRUST; HOW RECORDED

Not an encumbrance on the attached property or

as a ground for decreeing the annulment of the
sale of the property at the request of another
creditor

INSTANCES WHEN WRIT OF ATTACHMENT

MAY ISSUE

NB

Legal process of seizing another's property in

accordance with a writ or judicial order for the
purpose of security satisfaction of a judgment
yet to be rendered. (intended to create or
preserve the right)

-Action against a party guilty of fraud in

contracting the debt;
-Action against a party who has removed or
disposed of his property with intent to defraud
his CRs
HOW ATTACHMENT IS DISCHARGED

By counterbond or
The same was improperly issued or
Bond is insufficient

If instrument creating a trust to sell, such power

shall be stated in the certificate of title by the
words with power to sell.
IMPLIED TRUST; HOW REGISTERED

DISSOLUTION OF AN ATTACHMENT; EFFECT

The released property becomes free and no

longer liable to the results of the proceeding in
which it was attached.

ADVERSE CLAIM; MEANING

Claim adverse to the title of the registered owner

of the property

PURPOSE

To apprise 3rd persons that there is a controversy

over the owner of the land and to preserve and
protect the right of the adverse claimant during
pendency of the controversy.

Effective for a period of 30 days from the date

of registration

REQUISITES OF ADVERSE CLAIM

his alleged right or interest;

how such right is acquired;
description of the land
number of the certificate of title

NB

Statement must be signed and sworn to before a

notary public or officer authorized to administer
oath
Claimant must state his residence or place where
notices may be served.
EFFECT OF FORECLOSURE retroacts to the
date of registration of the mortgage

IF AN ATTACHMENT IS REGISTERED AND THE

DUPLICATE CERTIFICATE OF TITLE IS NOT
PRESENTED
DURING
REGISTRATION,
REGISTRAR MUST:

Within 36 hours;
Send notice by mail to registered owner, stating
that such paper has been registered
To produce the duplicate certificate (so memo of
the attached may be made)

NB
If the owner refuses to comply, the RD shall report the
matter to the court; the court may order the owner to
produce the certificate of title