PROVISIONAL REMEDIES Above SHOFY PDF

PROVREM & SCA Reviewer SHOFY NOTES 2018 – Daniel hofilena and Sharlaine Sy
PROVISIONAL REMEDIES
 Ancillary to principal action
 No principal action of preliminary attachment, except
 Receivership in Corporation or Banking Law
 Arbitration Law
 The Five provisional remedies. Are NOT an exclusive
 The Court which has jurisdiction to grant ProvRem is the court which has jurisdiction over the principal action
 ProvRem in Criminal Actions
 Can be availed of in so far as they are applicable (Rule 127)
 Always Provisional Remedies:
i) Preliminary attachment
ii) Temporary Restraining order
 Can be provisional remedy or main action
i) Preliminary injunction
ii) Receivership
iii) Replevin
iv) Support
 Court in the exercise of equity jurisdiction can grant provisional remedies not found in the RoC
 Such as to prevent unjust enrichment and to ensure restitution for no court shall decline to render judgment via silence of the laws (Reyes
v. Lim, 2003)
Preliminary Attachment Preliminary Injunction Receivership Replevin Support Pendente Lite

Purpose To Secure To enjoin or Stop (injunction) or to To Preserve To get back possession To support pending
require an act (mandatory injunction) litigation
Directed Real or Personal Property Party, court, agency, person (must be Property which is subject Covers only specific personal
Against parties to action) of proceeding property
Availed By Plaintiff or any proper party. Applicant who is entitled
Defendant when to support under the law
counterclaimant/cross-claimant.
When Availed
1. At the commencement of action 1. At any stage of action or
or 2. proceeding prior to judgment or
1. At any stage even 1. at the commencement of the 1. At the
2. at any time before entry of final order
after judgment is action or commencement of
judgment
final and executory 2. at any time before answer the proper action or
2. During the proceeding, or
pendency of an
appeal, the appellate
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court may allow an NOTE: Main action is for recovery 2. at any time prior
application for the of personal property to the judgment or
appointment of a final order
receiver to be filed in
and decided by the
court of origin
Where Availed 1. Court where action Pending 1. Court where action pending 1. Court where action 1. Family court
2. Court of Appeals 2. If pending in CA or SC- said pending 2. RTC/MTC in
3. Supreme Court court or ANY member thereof 2. If during pendency criminal cases
If RTC grants: effective only within of appeal – appellate 3. CA in appealed
its judicial region court cases
3. If pending in CA or
SC- said court or
ANY member
thereof
Grounds D-E-D-U-S-E-are EXCLUSIVE [SIC] C-A-M-I D-E-W-C-A-D Applicant is entitled to
support under the law
First Ground: (depart to defraud) Under Rules of Court:
First Ground (interest Requirements for issuance:
1. Action for recovery of amount of 1. Applicant entitled to relief
danger):
damages (except moral and demanded
exemplary) or property 2. Consists of restraining or 1. applicant is owner or entitled
2. Arising from law, contract, performing an act 1. Appearing in to possession of the property
QC,QD, delict 3. For a limited time or perpetually Verified application 2. particularly describing it
3. Against a Party about to depart 4. THAT: 2. party applying has an 3. wrongfully detained by the
from PH a. That such performance of interest in the adverse party,
4. Has intent to defraud creditors nonperformance during litigation property or fund 4. alleging the cause of
Second Ground: (estafa due to would PROBABLY work injustice 3. which is the subject detention according to the
fiduciary duty) to application OR of the action best of his knowledge,
1. Action for money or property b. That person is threatening or 4. such is in danger of information, and belief ;
EMBEZZLED or Fraudulently attempting to do some act in violation being lost, removed, 5. property has not been
misapplied or Converted of rights of applicant subject of the or materially injured distrained or taken [FELT]
2. By a public officer, officer of action and renders judgment a. tax assessment or
corporation, attorney, agent, ineffectual b. fine pursuant to
clerk, or anyone in a fiduciary Second Ground
law, or
capacity Under Jurisprudence: [SIC] (mortgage-in danger):
c. seized under a
3. in course of employment or 1. Clear and unmistakable right writ of execution
willful violation of duty 2. Right violated and invasion is 1. in an action by the or preliminary
Third Ground: (unlawfully taken material and substantial mortgagee for the attachment, or
property) 3. Urgent and permanent necessity foreclosure of a d. otherwise placed
1. Action to recover possession for writ to prevent great or mortgage under custodia
2. Property unjustly or fraudulently irreparable injury 2. property is in danger legis, or if so
taken or detained of being wasted or seized, that it is
3. When such has been concealed, dissipated or exempt from such
removed, disposed of materially injured, seizure or
4. To prevent it being found or 3. value is probably custody; and
taken by applicant or authorized insufficient to
person
Fourth Ground (disposed in fraud)
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1. Action against a party who discharge the 6. The actual market value of
removed or disposed property or mortgage debt, or the property.
about to 4. parties stipulated in
2. In fraud of creditors the contract of
mortgage;
Fifth Ground (Summons not served)
1. Against party who does not
Third Ground: After
reside or not found in PH OR
judgment (Preserve
summons served via publication
during appeal)
2. Tranquil: No need for fraud for
this ground.
Sixth Ground (enter in contract) 1. to preserve during
1. Against party in fraud in appeal, or
contracting or incurring the 2. to dispose of it
obligation or performing it. according to
2. Upon which action is brought judgment, or
3. Includes fraud in contracting and 3. to aid execution
in performance of obligation when the execution
has been returned
unsatisfied or
4. the judgment obligor
refuses to apply his
property for the
judgment,
5. or otherwise effect
judgment
Fourth Ground:
(convenient)
1. other cases it
appears
2. most convenient and
feasible means of
preserving,
administering, or
disposing of the
property in litigation.
Fifth ground under

Family code
1. if a spouse without
just case abandons or
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fails to comply with
obligations
2. aggrieved spouse
may file receivership
of community/conj
property
Bond for Yes. Yes: Yes: Yes: No Bond

application? 1. Applicant MUST execute bond. 1. Executed in favor of party to be 1. executed to the party 1. executed to the adverse party
2. Amount fixed by the court enjoined against whom the 2. double the value of the
3. To pay for all costs which may 2. Amount fixed by court application is property as stated in the
be adjudged AND 3. To pay for all damages such presented, affidavit
4. All damages which adverse party will sustain 2. amount to be fixed 3. To pay for the return of the
party may be entitled thereto by the court, property to the adverse party
3. To pay for all if such return be adjudged,
damages such party and for the payment to the
will sustain for adverse party of such sum as
appointment w/o he may recover from the
sufficient cause applicant in the action.
4. At any time, may
require additional
bond
Contents of 1. Bond executed by applicant 1. Verified application showing 1. Verified Petition 1. own affidavit or that of some 1. a verified
Application 2. Affidavit of applicant OR facts other person who personally application
someone who personally knows 2. Approved Bond knows the facts 2. filed by any party
facts 3. stating the grounds
a. Absent affidavit, but 4. financial conditions
with a verified of both parties, and
statement 5. accompanied by
incorporated in the affidavits,
complaint is sufficient depositions or other
3. State cause of action and grounds authentic
of attachment documents in
4. No other sufficient security for support thereof.
the claim 6. Adverse party has
5. Amount he seeks to recover is as 5 days to comment
much as the order above all legal which must be
counterclaims (WHAT) verified
Manner of Ex parte or upon motion to grant but to GR: Upon Hearing CONFLICTING Upon filing of affidavit and Hearing 3 days after
issuance dissolve must have notice and hearing E: see in comments authors: some say that approval of bond, court shall issue comment is filed or
there can be ex parte if in an order expiration of period
danger of being lost.
Contents of 1. Requiring sheriff to attach Refrain or do a particular act Order the appointment of 1. writ of replevin, describing 1. determine
Order property not exempt from one or more receiver the personal property provisionally the
execution pertinent facts,
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2. Enough to satisfy Applicant’s 2. requiring the sheriff 2. money to be paid
demand forthwith to take such provisionally
property into his custody
Counter Bond No execution if adverse party: Injunction can be dissolved: Can be discharged: Property can be returned at any None
1. makes deposit or does a  Upon filing of counter bond to Upon filing of bond to pay time before delivery to applicant:
bond in amount equal to answer for damages that the the applicant all damages
value OR applicant may suffer by denial he may suffer by reason
1. filing with the court where
APPROXIMATELY or dissolution of writ. of the acts, omissions, or
the action is pending
matching of property other matters specified in
2. executed to the applicant,
attached (exclusive of the application as ground
3. double the value of the
costs) or as stated in the for such appointment.
property as stated in the
order.
applicant's affidavit
2. After property has been
4. for the delivery thereof to the
attached
applicant, if such delivery be
3. Upon moving of discharge
adjudged, and for the
4. Needs due notice and
payment of such sum, to him
hearing
as may be recovered
5. Counter bond secures the
against the adverse party,
payment of the judgment
and by serving a copy of
such bond on the applicant.
Note: that in recovery from a counter
(5a)
bond can be had even AFTER
judgment has become executory (since
only execution) . But recovery from an
attachment bond be had only BEFORE
judgment (since damages
unliquidated) . (Excellent v. Visayan,
2015)
Effect of  Sufficient - discharges the  Sufficient - dissolved it  Sufficient -  Sufficient - can return the None
Counter Bond property in whole or in part  Insufficient – injunction resorted discharges receiver property (see conditions)
 Insufficient – need to file  Insufficient –
additional counter bond, fail to receiver appointed
do so, a new order of attachment
can be applied for.
 Does not waive any defect for
improper or irregular issuance.
 Liability of surety in attachment
bond still subsists (calderon v.
IAC)
Method of ICC IRC NCC  Filing of counter bond
discharge  Ground to deny: insufficiency of
On motion in court which action is application (i.e. amount of bond)
Discharged or Denied:
pending, No ex parte discharge  Ground to Object or Dissolve:
1. Post a counter-bond (attachment  File affidavits showing
must already be enforced) in there’s no reason for PI  Filing of counter
(other grounds) bond
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amount equal to value of subject  File counterbond and  The receiver may
matter of action affidavit (and undergo also be discharged if
2. Motion to set aside based on hearing) that party will it is shown that his
improper, irregular or suffer more damage than appointment was
excessive attachment; or bond applicant (rule on relative obtained without
insufficient or comparative sufficient cause. (4a)
a. Improper: grounds inconvenience/damage)  Upon motion or
not present motu proprio that
b. Irregular: wrong receivership no
process longer necessary
3. Certiorari based on GADLEJ
(R65): since interlocutory order.
Damages that When: Before the trial or before appeal is perfected, or before judgment becomes No claim for damages
can be executory. against petitioner
recovered from
improper, Method: with due notice and only upon hearing and included in judgment of
irregular or main case
excessive
attachment If judgment of appellate court favorable to party to whom attachment was
issued: claim damages sustained in appeal in APPELLATE COURT before
judgment becomes executory.
1. Wrongful attachment: actual damages

2. Malicious: actual, moral & exemplary
Attorney’s fees only when there’s moral or exemplary, except when party incurs
expenses to lift wrongfully issued writ
 Answers for damages in whatever stage as long sustained by reason of
attachment (Carlos v. Sandoval)
 If wrongful attachment, no need to prove bad faith.
 Procedural requirements:
 Always need notice and hearing
 Award of damages be included in judgment of main case
 If attachment bond is insufficient . may recover damages in same
action
 Manner of attaching the property; Requirements (same with preliminary injunction)
1. Executed by the Sheriff unless there is counter bond
2. Enforced only if there was prior or contemporaneous service of summons
3. application for attachment/PI
4. Affidavit of applicant
5. The bond
6. Order of attachment/PI
7. Writ of attachment
 No requirement of prior or contemporaneous service of summons if: (same with preliminary
injunction)
 If summons cannot be served personally or by substituted service DESPITE DILIGENT
efforts OR
 Defendant is resident but temporary absent OR
 Defendant is non-resident of PH OR
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 Action is in rem or quasi in rem
Notes on Preliminary Attachment

 3 stages of attachment  Effect of Attachment
 Court issues order of grant
 Writ of attachment issues  Remedies of third person whose property is subject to attachment
 Implementation of writ (only stage where jurisdiction over (CUMULATIVE) [ SHIT ]
defendant is acquired) 1. Terceria – merely execution of affidavit, not automatic
 Purely statutory and sheriff can choose not to accept it. Sheriff not bound
 Several writs may be issued at the same time to the sheriffs to keep the property unless attaching party produces a
of the courts of different judicial regions. bond.
 Contents of Sheriff’s return to be served to applicant 2. Invoke court’s authority and move for a summary hearing
 Full statement of proceedings on claim – motion to set aside levy on attachment. Note, if
in custodia legis, cannot be interfered upon by another
 Complete inventory
court.
 Any counter bond
3. Intervene in action – may be filed any time before
 Recording of the attached property rendition of judgment by trial court.
 Real Property. Growing crops or interest therein 4. File separate action to nullify attachment – action to
i) Filing in either Registry of deeds nullify levy with damages.
ii) the copy of order 5. HOWEVER: you cannot dissolve the writ of attachment
iii) Description of property on the ground that is the same as your cause of action
iv) Notice of such attachment since it is tantamount to resolving the case (i.e. say it is
v) Leaving a copy of order at occupant of property or his improperly attached because sale was not fraudulent when
agent your complaint’s main is the fraudulent sale)
vi) Register of deeds must index the attachment
 Personal Property – capable of manual deliver
 Satisfaction of Judgment
i) Taking it
 Pay judgment oblige the proceeds of all sales of perishable
ii) Keeping it safely in custody
property
iii) Issue receipt
 If there is balance, by selling real and personal (first)
 Stocks or Shares or interest in such
 By collecting from all persons having in possession of credits
i) Leaving with president or managing agent of
belonging to judgment obligor.
corporation
 Excess balance after satisfaction of judgment and expenses of
ii) A copy of the writ
proceedings
iii) Notice stating that the stock or interest is attached
 Return the property to judgement obligor
 Debits and credits (bank deposits, commissions,
 Deficient balance
royalties) and personal property NOT capable of
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manual delivery  Proceed with ordinary execution

i) Leaving a copy of writ  Recovery on Counter bond
ii) And notice that the debts are attached  Once judgment is executory
iii) To: person owing such debt, or having in possession  Surety will be bound to pay judgment oblige after NOTICE
or control of such. and SUMMARY hearing
 Interest in decedent of estate  If judgment is for party against whom attachment was issued
i) Serving a copy to executor or administrator or  All proceeds be delivered to him
representative of decedent
ii) Also be filed in office of clerk of court where estate is Riguerra notes:
being settled  Other instances where WPI is available to a mortgage even if there
iii) Notice served to Heirs/D/L are other securities available
 If in custodial egis  Mortgagee abandons security and pursues and ordinary action
i) Copy of writ in proper court of QJ agency for recovery
ii) Notice served upon custodian  In foreclosure proceedings if there is no sufficient property to
 NOTES: satisfy debt
 Always a provisional remedy  Extent of attachment
 Proceedings quasi in rem – but if defendant appears,  Only so much of the property in the Philippines of the party
becomes an in personam. against whom the writ is issued, not exempt from execution
 Rules are strictly construed in favor of defendant  INDISPENSABLE REQUIREMENT
 Kinds of attachment:  No levy be enforced (although it be granted) unless it is
 Preliminary attachment PRECEDED or CONTEMPORANEOUSLY accompanied by
i) Rule 57 service of summons.
 Garnishment  EXCEPTIONS [TINS[
i) Claim either property or money of adverse party in i) Resident but Temporary absent
hands of third person. ii) In rem or QiR
ii) Not actual seizure but impounds the property and iii) Non resident
maintains status quo. iv) Summons could not be served personally or substituted
iii) Should Garnishee be impleaded as party to case?  REMEDY if there is a writ before summons: File a motion to
No. All that is necessary is that garnishee has in discharge (lift) the attachment on the ground that it was
possession credits belonging to judgment debtor. No improperly effected (since it does not affect jurisdiction of
need for summon on him. court but the validity of enforcement of attachment) [Onate v.
 Levy on Execution Abrogar]
i) Part of the execution stage.  May adverse party move for lifting by depositing real property
ii) Available after judgment instead of a cash bond or a counter bond?
 Sequestration
i) For ill gotten wealth of Marcos. Akin to preliminary
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attachment or receivership  NO. Deposit only refers to cash. S5 requires the deposit of
 Counter bond notes: money was the word amount refers to a sum of money (Luzon
 For obtaining a lift of a writ or preliminary attachment v. Krishnan, 2015) [page 659]
 To secure payment of any judgment that attaching  The application for WPI must SUFFICIENTLY show the factual
creditor may recover from judgment circumstances and not just make a simple averment (2015 ,
 Attachment bond Watercraft v. Wolfe)
 For damages on account of illegal attachment  Length of attachment lien: shall subsist until the debt is paid or the
 Posted by attaching creditor sale is had under execution or until judgment is satisfied or
 Debts, credits ,personal property - All persons having in vacated.
possession of the property will be liable to the applicant for  Defendant may recover damages even if judgment is rendered in
such amount of attachment until delivery or transfer to clerk, favor of plaintiff if WPI was irregular or excessive.
sheriff, or proper officer.  Improper and Excessive attachment
 Estate of decedent – not impair power of executor, estate can  Damages may be recovered against attaching party or from
be distribute other property but the property attached be surety in a counterclaim or by way of motion and the action
delivered to sheriff. must be filed before appeal is perfected or judgment becomes
 Can a property in custodia legis be attached? executory.
i) Yes. File the writ with the proper court or QJ agency and  Awarded only after proper hearing
notice be served to custodian of such (page 657. Riguerra)  Liability of attaching party is NOT limited to the amount of
 Recovery upon counter-bond shall be resolved after notice and bond but the surety’s liability is.
summary hearing  If damages sustained pending appeal – file the claim in the
 Persons whose property is attached can be summoned in court appellate court
where action is pending  If damages sustained pending trial – file the claim in the trial
 Property attached can be sold court; cannot seek damages pending trial from the appellate
 On attachment and before entry of judgment: court.
i) Upon hearing and notice to parties  There is no need for the execution to be returned unsatisfied in
ii) Property is perishable OR for the interests of all parties order that the surety on the counterbond to be charged. It is
iii) Sold on public auction and proceeds deposit to court enough that the judgment has become final and executory.
 There can be a PARTIAL discharge of particular property
 If there is excess attachment, the court will order that the excess be
discharged
 If property is claimed by a third person
 Third person makes affidavit of his title and serves it to sheriff
and files a motion to intervene.
 Sheriff not be bound to keep the property unless the
ATTACHING party files a bond not less than value of
property.
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i) If there is disagreement as to value, court shall fix it.

ii) If attachment in favor of Republic, no bond is required
and actual damages done by sheriff be paid by National
Treasurer.
 Claim of damages for taking or keeping property
i) Enforced against bond
ii) Must be filed within 120 days from date of bond
 Sheriff is not liable for damages for taking and keeping if
bond has been filed
 Vindicating claim by 3rd party can be done in same or
separate action (note that in execution, only in separate) for
frivolous or spurious claim
i) Conversely, the judgment oblige may file an action for
damages against the 3rd party if the claim was done in a
frivolous manner in the same or separate action
Notes on Preliminary Injunction

1. Types: Riguerra Notes:
2. Preliminary injunction to prohibit: maintain status quo
3. Preliminary mandatory injunction: requires something to  Compare: A petition for prohibition is always a main action and
may seek the PROVREM of Injunction and is directed against a
be done to maintain status quo
tribunal or agency exercising MINISTERIAL, Judicial, or QJ
4. Restraining Order – issued to preserve status quo until
hearing on application for PI function.
5. Enforced only within jurisdiction of court  Compare: Mandamus is always a main action and can pray for
6. Only sampling evidence necessary PROVREM of preliminary mandatory injunction. Its purpose is to
7. 2 Kinds of TRO compel a ministerial duty. As opposed to PMI which is to restore
8. 72-hour TRO FROM issuance. the last, actual, peaceable, uncontested status.
a. Ground: matter of extreme urgency and applicant  Status quo ante order- equitable remedy to maintain status quo
will suffer grave injustice and irreparable injury ante which preceded the controversy (cannot order acts that
b. Issued by executive judge (multi-sala court) or will deviate from status quo ante). No bond is required and can
presiding judge (single sale) be issued even if the complaint does not make a case for a TRO
c. Serve summons and documents accordingly (megaworld v. Majestic, 2015) by its nature it does NOT require
the doing or undoing the act.
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d. Without hearing but Within 72 hours, conduct a  Examples where TRO/PI will NOT be granted due to law
summary hearing to determine whether it shall be  Collection of taxes under NIRC
extended  Labor dispute
e. Automatically expires but can be extended after  Government infrastructure projects but limited only to
hearing administrative acts involving facts or exercise of discretion in
f. Total effectivity is 20 days (72 hours, included) technical cases. If pure questions of law (i.e. violation of
9. 20-day TRO consti rights) can issue TRO. (Hernandez v. NPC, 2006)
a. Ground: great or irreparable injury
b. Issued by regular court judge after raffle  Asset privatization trust
c. Following service of complaint and summons  Agrarian reform
d. Also without notice and hearing (BUT SEE BORJA  Foreclosure by government financial institution unless 20% of
v. SALCEDO – NO MORE EX PARTE 20 day
TRO) arrears have been paid
e. Cannot be extended, automatically expires  Conservatorship, receivership, or liquidation under Central
10. BORJA v. SALCEDO: The Executive Judge shall then
summon the parties to a conference during which the case Bank act except via a petition for certiorari filed by majority
should be raffled in their presence. Before the lapse of the of capital stock holders within 10 days.
72 hours, the Presiding Judge to whom the case was raffled  Policy against issuance of injunctive writs by courts other than
shall then conduct a summary hearing to determine
whether the TRO can be extended for another period until the SC [i.e. SC cannot issue WPI] to enjoin an investigation
the application for preliminary injunction can be heard, conducted by the OMB is ineffective since it is encroachment of
which period shall in no case exceed 20 days including the
original 72 hours. power of the SC. (Carpio Morales v. CA. 2015)
11. Period of TROs if granted  A and B who have their adverse claims annotated and are in
12. Lower court: 20 days only, cannot extend possession of the land that was sold by a co-owner to a
13. CA: 60 days
14. SC: until further orders corporation can be issued a WPI. (Lukang v. Pagbilao, 2015)
15. SB/CTA/CA/RTC – must DECIDE within 6 months from  USE THIS ALWAYS IN YOUR ANALYSIS: the purpose of a
issuance. (no period stated)
WPI is to maintain or restore the status quo or last actual
16. Final injunction granted: perpetual restraint on party to
peaceable uncontested status. If it is not for this purpose, do not
continue acts, or confirm preliminary mandatory injunction
grant WPI.
17. Insufficiency of Bond:
a. By the applicant – injunction dissolved  Instance where applicant is EXEMPTED from filing an injunction
b. By the adverse party – Injunction be restored bond: citizen suit under clean air act upon prima facie of violation.
 Rules on Hearing
 When application for WPI or TRO included in complaint or  Preliminary injunction never issued without hearing and
initiatory pleading: notice
 If filed in multi-sala court: raffled only after notice and in  TRO: there must be a summary hearing and only when there
presence of adverse party. are exceptional circumstances can it be granted ex parte (see
 In any case, must be preceded or contemporaneously served 20 day and 72 hr TRO)
with summons with comply of complaint, affidavit, and bond  The effectivity period is INCLUSIVE of non-working days. A non
i) No contemporaneous service of summons working day is EXCLUDED (in counting) ONLY when the last
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 If there is no notice and hearing before a raffle is done, then day of the TRO falls on a non-working day. Then such TRO is
such is void (BAR 2001) still effective on next working day (BPI v. CA 2008)
 General RULE for a TRO  GR: no TRO can be extended for the SAME ground. But a new
 Acted only upon after summary hearing TRO can be issued based on a DIFFERENT ground (Regalado)
 That Conducted upon 24 hrs after sheriff’s return of service  A WPI is deemed dissolved upon dismissal of main case even if
and upon receipt of records such dismissal is appealed. REASON: full hearing on the merits
 NOTE: The period of hearing is 24 hours after the records are has been had in the case, no more need for PROVREM (Buyco v,
transmitted to the branch where it was raffled. Baraquia, 2009)
 A WPI or TRO can be MODIFIED if it appears that the extent of
such is too great.
Receivership
 Before entering upon his duties (oath + bond)  Requires 2 bonds
1. Applicant’s bonds
 the receiver shall be and 2. Receiver’s bond – can agree to dispense with
 shall file a bond, executed to such person and in such sum as
the court may direct (for faithful discharge of duties) [This is Riguerra Notes
called the receiver’s bond]  It is to preserve the property pendente lite
 A receiver is not an agent or representative of a party. He is an
 General powers of receiver. Subject to the control of the court in officer of the court.
which the action is pending:  A party to the action CANNOT be appointed as receiver
 to bring and defend, actions in his own name; (Alcantara v. Abbes 1963)
i) need leave of court that appointed him  VERY IMPORTANT Situation: action for sum of money and
ii) to file action or if action filed against him (CLARIFY learns that debtor is disposing of property. Can there be
THIS STATEMENT) receivership?
 to take and keep possession of the property in controversy;  NO receivership since a receiver may only be appointed over a
 to receive rents; to collect debts due to himself as receiver property that is SUBJECT of the action or proceeding. If
 to compound for and compromise the same; action is for a sum of money or unpaid credit and not to
 to make transfers; to pay outstanding debts; enforce a lien on specific property, no receivership (Bonaplata
 to divide the money and other property that shall remain v. Ambler)
among the persons legally entitled to it;  HOWEVER if there is JUDGMENT in such a case, and it
 and generally to do such acts respecting the property as the becomes final and executory under rules of execution, there
court may authorize. can be receivership.
 funds in the hands of a receiver may be invested
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i) only by order of the court and  Extra judicial foreclosure. GR: no receivership since it is NOT an
ii) written consent of all the parties action of the court UNLESS parties stipulate. (DBP v. Doyon)
 What actions by receiver that need Court approval?
 Liability for refusal or neglect to deliver property to receiver.  Investment of funds
upon reasonable demand:  Action filed or against the receiver
 punished for contempt AND  Entering into contract (pacific v. consolacion)
 shall be liable to the receiver for the money or the value of the
property and other things so refused AND
 damages
 Termination of receivership
 motu proprio or on motion of either party, determine it is no
longer necessary
 after due notice and hearing
 shall direct:
i) settlement of accounts
ii) delivery of property and funds
iii) Discharge the receiver
 Receiver gets reasonable compensation as court determines taken
from defeated party or as court orders.
Replevin
 Duty of the sheriff.  Return of papers. —report of sheriff on his proceedings, 10 days
 serve a copy thereof on the adverse party, after taking
 together with a copy of the application, affidavit and bond,  Judgment. — court will order delivery of the property to who is
and must forthwith take the property rightfully entitled thereto, along with damages and costs.
 If the property or any part thereof be concealed in a building
or enclosure, Riguerra Notes:
i) the sheriff must demand its delivery, and
ii) cause the building or enclosure to be broken open and take  COMPARE: Attachment does not necessitate delivery of the
the property into his possession. property to applicant unlike in replevin.
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 After possession must keep it in a secure place and deliver it  After filing of an answer, no more replevin just move for an
to party upon receiving fees and necessary expenses attachment.
 Availed only in actions covering personal property.
 Return of property  Outline of steps in a replevin
 adverse party objects to the sufficiency of the applicant's  File affidavit and bond
bond, or surety  Court issue writ of replevin
i) cannot immediately require the return of the property,  Sheriff serve a copy of order, application, and bond, affidavit
 he may, at any time before the delivery of the property to the (NOTE THAT nothing in rules says contemporaneous service
applicant, of summons unlike in attachment- pls double check standing
i) adverse party may require the return rule)
ii) by filing of counter bond (called a redelivery bond)  Adverse party can file a re-delivery bond
 Within 5 days, deliver to applicant if no objection by adverse
 Disposition of property by sheriff. — party or redelivery bond is insufficient
 If within five (5) days after the taking of the property by the  If property not delivered to applicant, return it to adverse party
sheriff  Prior demand is not a pre-condition in filing Replevin (Agner v.
 There is no objection or the counterbond was insufficient the BPI 2013)
property shall be delivered to the applicant.  NOTE in property: real property can be treated as personal
 If not delivered to the applicant, return it to the adverse party. property if there is a CHATTEL mortgage executed over it, hence
subject to replevin. (Makati leasing v. Textile)
 Proceedings where property claimed by third person (same as  Jurisdiction of court is determined by the amount of money claim
preliminary attachment) and NOT by amount of property seized (Fernandez v. ICB, 1999)
Support Pendente Lite

 Determination of Support:  Restitution
 probable outcome of the case  WHEN: judgment or final order of the court finds that the
 necessities of the applicant and person who has been providing support pendente lite is not
 the resources or means of the adverse party, and liable for such
 the terms of payment  AMOUNT: what was given PLUS legal interest from date of
 other circumstances payment
 Against whom: the person supported OR person legally
 Enforcement of order obliged to give the support.
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 fails to comply with an order  In case of failure of adverse party to comply, can issue a writ
 either motu proprio or upon motion; of execution, even in the absence of a final judgment
 issue an order of execution against him and
 Liable contempt. (6a) Riguerra Notes:
 Role of third person:  Procedure for granting
 There is failure to give support by the adverse party  File verified petition
 A third person may furnish support and obtain a writ of  A copy be served to adverse party, 5 days to comment
execution (after notice and hearing) for reimbursement  After comment, set for hearing in 3 days
 Court may make provisional determination and may grant
 Support in criminal cases. application – if application is denied then court will decide as
 If civil liability includes support for the offspring as a early as possible
consequence of the crime and  If adverse party fail to comply – writ of execution
 the civil aspect thereof has not been waived, reserved and  Order granting Support PL is NOT appealable since interlocutory
instituted prior to its filing,
 The application therefor may be filed successively by the
i) offended party,
ii) her parents,
iii) grandparents or
iv) guardian and the
v) State
Special Civil Actions
 What is an SCA
 Governed by Rules SPECIFIC to it + Rules of Court
 Not every SCA need to be based on a cause of action
 Joinder of causes of action shall not include SCA.
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Rule 62 Interpleader
Riguerra Notes:  Summons.
 Failure to file compulsory counterclaim is waiver  served upon the conflicting claimants,
 Pre-trial shall be conducted  together with a copy of the complaint and order.
 Writ of possession does not necessarily follow an adjudication  Motion to dismiss.
 Fees to be paid by applicant but entitled to lien on judgment award  WHEN: Within the time for filing an answer,
to reimburse him for fees since not a real party  WHAT: each claimant may file a motion to dismiss;
 Procedure for filing Grounds:
 Stakeholder files complaint i) impropriety of the interpleader OR
 For others to interplead with one another ii) Grounds in Rule 16.
 Summons be served on claimants  EFFECT of MTD:
 There can be a motion to dismiss filed i) The period to file the answer shall be tolled and
 Each claimant can also file an answer ii) if the motion is denied, the movant may file his
 Court determine rights answer within the remaining period, but which shall
 TRANQUIL: jurisdiction belongs to the RTC ONLY not be less than five (5) days in any event,
 Older cases say that it should depend on value of the property. reckoned from notice of denial. (n)
 Riguerra: when subject matter does not involve real/personal  Answer and other pleadings. —
property, it is only when it is incapable of pec. Estimation.  Each claimant answer in (15) days from service of the
 A filed interpleader to compel B & C to litigate. C was adjudged summons
to be entitled to goods in A’s warehouse. A filed claim for storage  serving a copy to other conflicting claimants
fees, C said that it was barred since it was not raised in i) they can file reply according to RoC
interpleader.  EFFECT OF FAILURE TO PLEAD
 No res judicata since the interpleader was not based on a cause i) the court may, on motion, declare him in default and
of action. ii) render judgment barring him from any claim in
Codals: respect to the subject matter.
 When interpleader proper.  The parties in an interpleader action may file
 There are conflicting claims upon the same subject counterclaims, cross-claims, third-party complaints and
matter responsive pleadings thereto
 Filed by:  Determination. —
i) who claims no interest or  After the pleadings filed, and pre-trial
ii) an interest which in whole or in part is not disputed  the court determine their respective rights and
by the claimants, adjudicate their several claims.
 (such disinterested entity) can compel claimants to  Docket and other lawful fees, costs and litigation expenses
interplead and litigate their several claims among as liens. —
themselves. (1a, R63)  The docket and other lawful fees paid by the party
 Order. who filed a complaint
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 Upon the filing of the complaint, court require the i)GR: shall constitute a lien or change upon the
conflicting claimants to interplead with one another. subject matter of the action
 If the interests of justice- the court may direct subject ii) E: court orders
matter be paid or delivered to the court.  NOTE: the conflicting claimants pay the docket fees. But
i) this section only pertains to the docket fees of the
INTERPLEADER suit and NOT the fees of the subject
matter.
Rule 63 Declaratory Relief

 Who may file petition. — Riguerra Notes
 2 scenarios:
 FIRST: Any person interested before breach or 1. Declaratory Relief – file with RTC
violation of a 2. Other Similar remedies – file depending on which court
i) deed, has jurisdiction
ii) will, a. Reformation
iii) contract or b. Quieting of title
c. Removal of cloud
iv) other written instrument, d. Consolidate ownership
 SECOND: whose rights are affected before breach or  Requisites for Declaratory Relief
1. Subject matter of controversy must be:
violation of a: a. Deed, will, contract or other written instrument
i) statute, b. Statute, EO, regulation or ordinance
ii) executive order or 2. Terms and validity are doubtful and require
iii) regulation, judicial construction
iv) ordinance, or 3. No breach yet
v) any other governmental regulation 4. Actual justiciable controversy or ripening of one
(1) WHERE: filed in appropriate RTC between adverse parties
5. Ripe for judicial determination
(2) FOR: construction or validity arising, and for a 6. Adequate relief not available elsewhere (admin remedies)
declaration of his rights or duties, thereunder.
 THIRD: An action for  Purpose:
1. Declare rights/duties
i) the reformation of an instrument, 2. Interpretation/construction
ii) to quiet title to real property or 3. Determination of validity
iii) remove clouds or  Can file a counterclaim, or execution
iv) consolidate ownership under NCC A.1607.  Enumeration of the subject matter of DR is exclusive. NOT
 Parties. PROPER SUBJECTS:
 All persons who have or claim any interest  Declaration of PH citizenship
 Hereditary rights
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i) which would be affected by the declaration  Court decision

 Moreover: no declaration shall prejudice the rights of  Orders of QJA
persons not parties to the action.  If there is a breach before DR – such order is VOID (tambunting
i) Unless provided for under these rules v. Baello, 2005)
 If validity of a statute, executive order or governmental  Which court has jurisdiction?
regulation,  Declaratory Relief:
 the Solicitor General shall be notified be heard i) RTC since incapable of pecuniary estimation
 If validity of a local government ordinance, ii) However (exceptional circumstance) if petition is FAR-
 the prosecutor or attorney of the local governmental REACHING. The SC may treat it as one for prohibition
unit involved be notified and be heard. and mandamus and may take jurisdiction (alliance v.
 But if alleged to be unconstitutional, MLE)
i) the Solicitor General shall also be notified and  Reformation: RTC
entitled to be heard.  Quieting of title:
 Court action discretionary. — i) GR: RTC
 ACTIONS for Reformation/Quieting/remove ii) E: if principal relief is to recovery TIP of real property
cloud/consolidate: Court should act. the action would depend on jurisdictional values.
 All other actions  Consolidation of Ownership: Depend on jurisdictional values
i) the court, motu proprio or upon motion,  Is there a cause of action in DR?
ii) may refuse to exercise the power  Yes but extended to a mere denial refusal, or challenge of an
iii) if not terminate the uncertainty or controversy or not uncertainty (multi v. Makati, 2006)
necessary  Petitioner can move for summary judgment in DR.
 Conversion into ordinary action.  If Under Article 26, par. 2 of the FC: remedy is to file a petition
 WHEN: before the final termination of the case, for authority to re-marry (republic v. orbecido,2005)
 WHAT: a breach or violation should take place,
 EFFECT: converted into an ordinary action, and the
parties shall be allowed to file such pleadings as may be
necessary or proper
RULE 64 Review of Judgments and Final Orders or Resolutions of the COMELEC and the COA
 Scope.  Order to comment. —
 review of judgments and final orders or resolutions of the  Order comment within 10 days: if sufficient
i) Commission on Elections and  Deny outright: i
ii) Commission on Audit. (n) i) Not sufficient in form or substance
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 Mode of review. — ii) Filed out of time or for delay

 brought to the Supreme Court on certiorari under Rule iii) Too unsubstantial
65, except as hereinafter provided.  Comments of respondents.
 FILED IN THE SC  (18) legible copies.
 Time to file petition. —  The original shall be accompanied by certified true
 File within 30 days from notice of judgment copies of such material portions
 Non-extendible period  No other pleading may be filed by any party unless
 Filing of MNT or MR, if allowed under rules of commission, required or allowed by the Court. (n)
shall interrupt period  Effect of filing. —
 May file within remaining period in which case shall not be  GR: not stay the execution of the judgment or final order
less then 5 days upon receipt of denial  UNLESS ordered by SC
 Submission for decision. —
 Docket and other lawful fees. —  Deemed for submission upon filing of comments or
 Pays fees and deposit P500 for costs expiration of period for such.
 Form and contents of petition. — Failure to do so is ground  UNLESS ordered for oral argument
for dismissal:
 The petition shall be verified and filed
 (18) legible copies. Riguerra Notes:
 R64: not original action but mode of review. Governed by rules
 name the aggrieved party as petitioner and shall join as under Rule 65
respondents the Commission  Basis of R64 is the constitution.
 state issues, grounds, arguments  NOTE that the judgments of the CSC are appealed to the CA via
Rule 43
 Findings of fact of the Commission supported by  An aggrieved party must first file an MR of resolution of a
substantial evidence shall be final and non-reviewable division to the Comelec en banc. This MR is jurisdictional.
 specific material dates (Esteves v. Sarmiento)
 contain a sworn certification against forum shopping
 proof of service to Commission concerned and on the
adverse party,
RULE 65 Certiorari, Prohibition and Mandamus

CODAL: Riguerra Notes:
Certiorari Prohibition Mandamus  Proper remedy when there is no statutory grant of appeal (since
Against tribunal, board, tribunal, tribunal, this is based on the Constitution)
officer board,  Not an appeal, it is a special action
 Concurrent Jurisdiction: Ordinarily filed with lower courts first,
and then SC
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board, officer, officer,  Grounds, definition

corporation, corporation,  Without jurisdiction – not have jurisdiction as to the subject
matter
person person  In excess of jurisdiction- has jurisdiction but issues an order
Matter judicial or judicial, ministerial which is beyond its power to do so (i.e. Manila RTC enjoin
quasi-judicial quasi- function or acts of Batangas RTC)
 GADLEJ: so patent and gross as to amount to an evasion of a
function judicial or exclusion of positive duty or refusal to perform a duty
ministerial another from  Issuance of a department order is a purely executive and
functions use and administrative function of the Secretary of Justice. Not a proper
subject of Rule 65 (Dacudao v. SoJ, 2013)
enjoyment of  Order of Sec of Finance and BIR commissioner to set aside a
a right or revenue regulation is an exercise of a Quasi Legislative power or
office to rule making powers and NOT subject of R65 (Clark v. Sec of
which the Finance, 2015)
 ERC in setting rules for electric cooperatives are NOT subject to
other is R65 (Rosales v. ERC, 2016)
entitled  TIP: GR for all other courts: before deciding, see if it is an
Damages No No Yes exercise of a QJ or QL power. IF QL or admin – not PROPER.
 BUT TAKE NOTE OF THE DIFFERENCE IN SC’s
Requisite 1. GADLEJ No Plain JURISDICTION.
2. No Plain speedy or speedy or  VERY IMPORTANT DOCTRINE:
adequate remedy adequate  In the exercise of the SC’s jurisdiction over petition for
remedy certiorari it may look into actions of tribunals etc. EVEN IF
NOT IN THE EXERCISE of QJ/Jud/Ministerial functions
Relief Nullify or set Desist from Command to (Villanueva v. JBC 2015)
aside or modify proceeding perform an act  This is due to the expanded power of the SC
order  However, even when an administrative agency does not
perform a judicial, quasi-judicial, or ministerial function, the
Accompanied 1. Verified petition Constitution mandates the exercise of judicial review when
by 2. Alleging the facts there is an allegation of grave abuse of discretion (De lima v.
3. Certified true copy of judgment or order Reues. 2016, Leonen) Referring to R65 the decisions of the
DoJ Sec to reverse the decisions of the Prosecutor note that
4. Certificate of non-forum shopping this case did not say that it was originally filed with SC (PLS
CLARIFY!)
 COMPARE: R64 with R45.
 R65 Requires an MR as a precondition, R45 does not.
 WHEN  R65, findings of fact by CA are NOT binding on SC. R45,
 Filed not later than 60 days from notice of judgment or denial facts are binding.
of MR or MNT,  R65 the lower courts are impleaded as respondents, in R45
 WHERE (concurrent jurisdiction-observe hierarchy of courts) they are not impleaded
 TO RTC: act or omission of MTC or corporation or board or  Writ of Kalikasan
officer over territorial area  No filing fees
 TO CA/SB: whether or not in aid of appellate jurisdiction  Can get a TPO
 TO CA: if act or omission of QJA  Substantial damage to environment affecting 2 or more
 EXCLUSIVELY TO COMELEC: in election cases involving province or cities
act or omission of MTC/RTC  Continuing mandamus
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 Respondents  Court retains jurisdiction (it can require you to submit reports
 WHO: etc.)
i) The persons interested in proceedings of the court if  Affects environmental rights and healthful ecology.
ii) AND public respondents It relates to acts of judges,  What are the exceptions that R65 is NOT a substitute for a lapsed
tribunal, board, QJA remedy of appeal
 Duty of private respondent: to appear and defend BOTH in their  Public policy
own behalf and in behalf of the public respondents  Broader interests of justice
 Costs of proceeding: charge to the private respondent and not  When the writs issued are null
the judge, court, QJA, board.  When question order is an oppressive exercise of judicial
 The public respondents although joined: authority
i) Shall not appear or file an answer unless directed by  Appeal not a plain, speedy remedy
Court where action is pending  The remedy of certiorari should first be filed with the CA in
ii) Included as nominal parties, if case is elevated to a higher observance of hierarchy of courts (St Martin Funeral v. NLRC)
court by either parties – shall not appear.  READ for BAR: Siguion Reyna v. Chionglo, 2016)
 Orders to Comment  Where RTC motu proprio directed SRMO to reimburse the
 If petition is sufficient: Respondent file comment within 10 estate – hence it became a party in interest even though it was
days. not a party to the case, certiorari was allowed.
 In petition before the CA/SC. S2 R56 shall be observed  GR: filing of MR is precondition for R65
 Before giving due course to the petition, the court may require  EXCEPTIONS
respondent to file a COMMENT AND NOT A MOTION TO i) Order is patent nullity
DISMISS. ii) Extreme urgency
 After comment is filed iii) Pure question of law
 The court may hear the case or require parties to submit a iv) Public interest
MEMORANDA. Then render judgment. v) The questions in the certiorari has been properly raised
 Dismissal of petition (motu propio or on motion): and argued in the court and was passed upon it.
 Patently without merit  SPECIAL REMEDIES
 for denial/approval of Rehabilitation plan in FRIA: Go to CA
 for delay via R65 within 15 days.
 too unsubstantial  For R65 for orders of RTC in local tax cases: go to CTA (City
 Effect of dismissal of petition under these 3 grounds: of Manila v. Gercia 2014)
i) court award in favor of respondent, treble costs (solidary  For orders setting aside a MTD: certiorari or prohibition
 A court in aid of its appellate jurisdiction has jurisdiction to
liability of petitioner and counsel) entertain certiorari. I.e. in election cases, COMELEC (Galang
ii) subject counsel to admin liability. v. Geronimo)
iii) May impose disciplinary action based on res ipsa loquitur  Mandamus is also available against a person who unlawfully
excludes another from the exercise of a right. But unlike a Quo
on erring lawyers. warranto, it is without usurping, intruding into or holding the
 Service and enforcement of orders office.
 A certified copy of judgment be served upon the court, tribunal  A mandamus may challenge a trial judge’s order of voluntary
etc. inhibition and where the VI was not grounded on a just and valid
 DISOBEDIENCE of the order = CONTEMPT cause (Pagoda v. Phil canning, 2005)
 Execution may issue for any damages or costs awarded  GR: must be filed not later than 60 days
according to S1 R39  EXCEPTIONS
 Expediting proceedings i) 60 days not apply if no judgment or order and what is
 Court where petition is filed being assailed is refusal to perform a ministerial act
 Can issue orders expediting proceeding ii) 10 days to restrain or set aside actions of the Monetary
 Injunctive relief board in conservatorship etc
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 GR: petition shall not interrupt proceedings of principal case iii) Motion for extension of time granted by the court where
i) E: petition is pending and not just the SC (see riguerra page
(1) Court where petition is filed can issue a TRO/WPI 753 for history) – CONTRA: De LEON book: only 2
The WPI/TRO is directed to the PUBLIC respondent grounds where Motion for extension of time can be
and such shall stop the proceedings granted, strong public interest and substantial justice
(2) If person been adjudges in DIRECT contempt, iv) 30 days if for CoA and COMELEC
execution of judgment be suspended.  R45 petition can be treated as R65 if prima facie there is showing
 ABSENT A TRO or upon its EXPIRATION: PROCEED with of GADLEJ from the allegations
the principal case within 10 days from filing of petition for  But if you file an R65 instead of a R45: Outright dismissal
certiorari with a higher court. (indoyon v. CA)
i) Failure to do so: ADMIN LIABILITY.  The subject for R65 are found on Sec. 1 R41 (see civpro reviewer)
but this is NOT exclusive enumeration.
 Verification is not fatal (Palma v. Galvez)
Rule 66 Quo Warranto

 How Commenced:  Effect of Judgement when there is Usurpation
 Verified Petition  If found guilty
 brought in the name of the Republic i) respondent be ousted and altogether excluded
 Against Whom: ii) the petitioner or relator, as the case may be, recover his
 (a) A person who usurps, unlawfully holds or exercises costs.
i) a public office, iii) Can also determine the respective rights in and to the
ii) position or (does this need to be public?) public office, position or franchise of all the parties
iii) franchise;  Rights of persons adjudged entitled to public office
 (b) A public officer  Person can take the office (after oath and bond)
i) Who acts which, by law, constitutes a ground  demand of the respondent all the books and papers from
(1) the forfeiture of his office; or respondent in relation to office
 (c) An association which i) Refusal to do so: Contempt (disobedience of order)
i) acts as a corporation  [riguerra: separate ] action against the respondent to recover
ii) without being legally incorporated or without lawful the damages sustained due to the usurpation. (15a)
authority so to act.  Limitations to Quo Warranto—
iii) NOTE: that this third situation falls under the OEJ of  Prescriptive Period for quo warranto : be commenced within
the Special commercial courts (AM 030303) one (1) year
 Who commences the action? i) after the cause of such ouster, or
 Solicitor General or a public prosecutor (name of republic) ii) the right of the petitioner to hold such office or position,
i) directed by the President OR arose,
ii) upon complaint OR  Prescriptive Period for damages due to QW: be commenced
within one (1) year after the entry of the judgment
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iii) good reason to believe that any case specified in the  Judgment for costs.
preceding section can be proved  the court may render judgment for costs against:
iv) WITH court permission at the request and upon the i) petitioner,
relation of another person ii) the relator, or
(1) Condition for iv: he may be required to deposit iii) the respondent, or the person or persons claiming to be a
indemnity for the expenses and costs corporation, or may apportion the costs,
 individual may commence (in his own name)
i) A person claiming to be entitled to a public office or Notes from Jurists/Riguerra:
position usurped or unlawfully held by another
ii) If determined that he is not entitled to the office,  If non-use of a franchise – proper action is Quo Warranto
petition is dismissed  Ombudsman decisions on dismissal of employee are executor
 Hearing, when required for application hence the person cannot question the capacity of the new person
 Action commenced by upon relation of another person appointed to position (PLEASE CHECK AND VERIFY FIRST!!)
 Respondent may oppose the petition  Sereno case: If SolGen files the petition, it has no prescription.
 NOTE: that the third situation falls under the OEJ of the SCC
 Contents of Petitions [association without lawful authority to act] asked in the 2011
 name of the person who claim to be entitled bar!
 averment of his right to the same
 Two classifications of QW:
 respondent is unlawfully in possession thereof.
 Compulsory or discretionary: when directed by the President
 Parties or upon complaint or has good reason to believe that can be
 All persons who claim to be entitled to the public office, established by proof
position or franchise (Indispensable or necessary?)  Brought in name or Republic or private individual: with
i) Their rights determined in the SAME action permission of the court upon request or relation of another
 Venue person.
 GR: SC, CA, RTC: exercising jurisdiction over territory  For damages, it must be in a separate action
where respondent resides.
 Doctrine of exhaustion of admin remedies do not apply in QW
i) E: When SolGen Commences action: only in RTC of
proceedings (Sison v. Pangramuyen)
MANILA; SC; CA
 Sandiganbayan has original jurisdiction in QW filed under
executive orders 1,2,14,14-A but this should be in aid of its
appellate jurisdiction (PD1606)
 Periods
 Court may reduce periods in the Rules for filing of pleadings
and other proceedings
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 Determination of rights may be given precedence over any

other civil matter.
Rule 67 Expropriation
---RULES---  Second Stage: Just Compensation (value of) Determined:
 as of the date of the taking of the property or the filing of the
 The complaint. complaint, whichever came first.
1. verified complaint state right and purpose  After rendition of order of expropriation (proceeding for
2. describe the real or personal property commissioner)
3. join as defendants i) court shall appoint not more than three (3) competent and
i) all persons owning or disinterested persons as commissioners [MANDATORY]
ii) claiming to own, or ii) Objection to appointment of commissioners filed within
iii) occupying, any part thereof or interest therein, 10 days from service – resolved within 30 days after
4. showing the separate interest of each defendant. receipt of ALL commissioners
5. AVERMENT THAT: iii) Commissioners shall take an oath
a. If the title appears to be in the although occupied by iv) Evidence may be introduced by either party before the
private individuals OR commissioners who are authorized to administer oaths
b. if the title is otherwise obscure or doubtful and cannot on hearings before them,
specify real owners v) commissioners shall, view and examine the property
sought to be expropriated, UNLESS stipulated by parities
 Entry of plaintiff upon depositing value with authorized vi) commissioners shall assess the consequential damages and
government depositary When can enter and posses:. consequential benefits
i) Upon the filing of the complaint or at any time thereafter vii) But in no case shall the consequential benefits assessed
and after due notice [NOT HEARING!] exceed the consequential damages assessed
ii) deposit an amount equivalent**  Report by Commissioners and judgment
(1) Real Property: assessed value for tax purpose i) make a full and accurate report
(2) Personal: Provisionally determined by court ii) such proceedings shall not be effectual until the court
iii) to be held by such bank subject to the orders of the court. shall have accepted their report and rendered judgment
iv) Manner: Be in Money OR certificate of deposit of a in accordance with their recommendations
government bank payable on demand iii) such report shall be filed within sixty (60) days from the
 Duty of Sheriff: promptly submit a report thereof to the court date the commissioners were notified of their appointment
with service of copies to the parties. iv) the clerk of the court shall serve copies thereof on all
 **NOTE: interested parties,
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i) in government infrastructure projects: government v) Objections filed by parties on report: within (10) days
shall immediately pay the owner 100% of the from service.
MARKET value (republic v. Gingoyon) vi) the court may, after hearing,
ii) for LGU: upon making deposit in proper court of 15% (1) accept the report and render judgment in accordance
of the Fair market value of the property based on therewith, or
current tax dec (2) for cause shown, it may recommit the same to the
commissioners or
 Defenses and objections. (3) it may set aside the report and appoint new
 Defendant has No Objection or Defense commissioners; or
i) file and serve a notice of appearance and a manifestation (4) it may accept the report in part and reject it in part
to that effect,  If there is Uncertain ownership; conflicting claims. —
 describing the property and his interest.  the court may order that the compensation for the property to
ii) entitled to notice of all proceedings be paid to the court
 For the benefit of the person adjudged in the same proceeding
 If a defendant has any objection to be entitled thereto.
i) serve his answer within the time stated in the summons.  Rights of plaintiff after judgment and payment.
 Describing the property and his interest.  Upon payment: the plaintiff shall have the right to enter and to
ii) adduce all his objections and defenses to the taking of his appropriate it.
property.  If the defendant and his counsel absent themselves from the
court, or decline to receive the amount tendered: deposited in
 No counterclaim, cross-claim or third-party complaint Court
shall be alleged or allowed in the answer or any  Costs
subsequent pleading.  COST OF PROCEEDINGS: The fees of the commissioners
etc.
 GR: waives all defenses and objections not so alleged  GR: All costs paid by plaintiff; Exceptions
i) E: in the interest of justice, may permit amendments to the (1) those of rival claimants litigating their claims
answer then ten (10) days from the filing (2) cost of appeal if taken by the owner of the property
and the judgment is affirmed
 Special Provision for trial of Just Compensation  The judgment entered in expropriation proceedings shall state
 whether or not a defendant has previously appeared or definitely:
answered, 1. by an adequate description, the particular property or
i) he may present evidence as to the amount of the interest
compensation to be paid for his property 2. nature of the public use or purpose for which it is
expropriated.
 Order of expropriation. Contents:
1. plaintiff has a lawful right to take the property
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2. for the public use or 3. If real estate: a certified copy of such judgment shall be
3. upon the payment of just compensation recorded in the registry of deeds of the place in which the
 Appeal of final order of expropriation property is situated.
 Can be appealed  Power of guardian in such proceedings. —
 But not prevent the court from determining just compensation  The guardian or guardian ad litem of a minor or incompetent,
 The right of the plaintiff to enter upon the property of the with court approval:
defendant and appropriate the same for public use or purpose i) may act for the minor or incompetent with respect to the
shall not be delayed by an appeal from the judgment property involved.
 Must file a notice of appeal and record of appeal within 30
days. Notes from Jurists/Riguerra:
 Appellate Court determines no right of expropriation:
 RTC be ordered to restore possession  Three kinds of Expropriations
 Plus damages by reason of possession  Done by National government: follow this rule
 When can plaintiff be permitted to dismiss or discontinue  Done by LGC: requirement is an ordinance before
proceeding: expropriation can be had
 Before rendition of final order of expropriation, for any  Done for Government Infrastructure projects: immediate
reason. payment of value based on current zonal value (NAIA case).
 After rendition of final order of expropriation only if court There is a separate law for this. [i.e. public utilities authorized
deems it just and equitable by their franchise]
 If there is no expropriation proceedings but only a complaint for
just compensation then do not follow the rules for the appointment
of the commissioners.
 Eminent Domain- power of the state
 Expropriation – the proceedings
 If proceedings are discontinued- person who has interest in
property has right to damages he incurred.
 Jurisdiction: RTC since incapable of pecuniary estimation
 Even if the title is in the name of the republic, an expropriation
proceeding can be had if it is OCCUPIED by PRIVATE
individuals or the title is obscure or doubtful.
 Cannot file a motion to dismiss, the defenses must be set forth in
the answer (Masikip v. Pasig, 2006)
 What is just compensation according to jurisprudence?
 DETERMINED WHEN: at time of takin or filing of
complaint (whichever is first) however, the landowner may be
26
entitled to interest, exemplary damages, and attorney fees

(DPWH v. Tecson, 2015)
 AMOUNT: Fair market value + (consequential damages –
consequential benefits)
 Inverse condemnation
 Action for recovery of just compensation filed by property
owner where the State/LGU/Utility takes private property
WITHOUT filing a complaint for expropriation (NPC v.
Makabangkit, 2011) HOT TIPS for 2017 bar.
 A plaintiff’s right to enter the property is NOT suspended by an
appeal from the judgment
Foreclosure of Real Estate Mortgage

 Complaint in action for foreclosure. Contents: Notes from jurists/Riguerra:
 set forth the date and due execution of the mortgage;
 the names and residences of the mortgagor and the mortgagee;  REM is an accessory contract
 description of the mortgaged property;  Foreclosure of REM can be done extrajudicially but there is need
 a statement of the date of the note or other documentary evidence for a special power of attorney annexed in deed of mortgage for
of the mortgagee to sell the land at public action. A mere agreement of
 amount claimed to be unpaid thereon; and extrajudicial foreclosure IS NOT VALID there must be an SPA!
 the names and residences of all persons having or claiming an (Baysa v. Plantilla, 2015)
interest in the property who shall be made defendants in the  EJF- has right of redemption one year from registration of
action. (1a) foreclosure sale
 Judgment on foreclosure for payment or sale. —  EJF done by a bank and the mortgagor is a juridical person,
 Order to be paid: the redemption period is 3 months after foreclosure sale or
i) the amount due to the plaintiff due to debt until its registration, whichever is earlier
ii) interest and  if bank foreclosed property, bank is automatically entitled to
iii) other charges as approved by the court, and possession
iv) costs,  Right of redemption in judicial foreclosure
 To whom paid: the court or to the judgment obligee  GR: No right of redemption:
 When:  E: in case of foreclosure by a bank, judicial or extrajudicial,
the mortgagor & junior mortgagee who was not impleaded has
1 year from registration of foreclosure.
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i) not less than ninety (90) days nor more than one hundred  Which court has jurisdiction? CONFLICTING VIEWS
twenty (120) days from the entry of judgment, (90 or  RIANO: RTC since incapable of pecuniary estimation
more until 120)  FERIA: Amount of mortgage debt be the basis
ii) in default of such payment, sold at public auction  RIGUERRA: only the value of the realty to be foreclosed,
 Sale of mortgaged property; effect. jurisdictional values shall be considered if RTC/MTC.
 If defendant fails to pay the amount of the judgment within the  Venue of foreclosure suit: where it is situated.
period (90 to 120 days)  VERY IMPORTANT: A junior encumbrance is a NECESSARY
 upon motion, party and not an indispensable party foreclosure can be hand
 property to be sold according Rule 39 and other regulations without impleading him.
 BUT not affect the rights of persons holding prior  However such party still has a RIGHT OF REDEMPTION
encumbrances upon the property or a part thereof, and which he may exercise within one year from registration of
when confirmed by an order of the court, also upon motion, it sale.
shall operate to divest the rights in the property of all the  IF he was included in the suit, then it will extinguish his right
parties to the action and to vest their rights in the of redemption and if there is any residue from the sale, he is
purchaser, entitled to it.
 subject to such rights of redemption as may be allowed by  The debtor who is not a mortgagor may be omitted from the action
law. (Soriano v. Enriquez)
 GR: Purchaser at the auction sale or last redemptioner  Conduct of foreclosure suit:
ENTITLED to Possession and may secure a writ of possession  upon complaint, summons shall be issued and served to the
 Upon the finality of the order of confirmation or upon the defendant who may file an answer
expiration of the period of redemption  judgment of foreclosure
 Exception: a third party is actually holding the same adversely  equity of redemption (90-120 day period)
to the judgment obligor (purchaser not entitled to possession i) if defendant pays, it will prevent auction sale
yet) ii) if defendant fails to pay, plaintiff file a MOTION for
 Disposition of proceeds of sale. — Paid in this order foreclosure sale
 costs of the sale iii) counted from date of entry of judgment on foreclosure
 proceeds be paid to the person foreclosing the mortgage,  Forecolsure sale at a public auction
 If there is Excess after paying off the mortgage  Order of confirmation via a motion of purchaser and will
i) the same shall be paid to junior encumbrancers divest the rights of all parties in the action
ii) Absent such, given to the mortgagor or his duly  Writ of possession – upon finality of order of redemption.
authorized agent, or to the person entitled to it. Cannot immediately take possession upon expiration of
 How sale to proceed in case the debt is not all due. redemption period. Must apply for writ, can be done EX
 Sale shall terminate as long as the amount due is paid. PARTE.
 Further sale be done as often as more becomes due for i) A transferee of he purchaser or winning bidder may
principal or interest and other valid charges, file an ex parte motion for issuance of a writ of
possession (Gallent. V. Velasquez, 2016)
28
 But if the property cannot be sold in portions without  Deficiency judgment if the proceeds are not enough plaintiff
prejudice to the parties, may file a motion to render a DJ and execution MAY ISSUE
i) the whole shall be ordered to be sold in the first instance, IMMEDIATELY
and the entire debt and costs shall be paid, and there will i) Note that the deficiency must be against the debtor, if the
be rebate of interest if proper mortgagor is a 3rd person he is liable only to extend of the
 Deficiency judgment. real property (Philtrust v. Echaus)
 If after the sale there be a balance due to the plaintiff  VERY IMPORTANT
 upon motion, shall render judgment against the defendant  An action for foreclosure of mortgage is QUASI in REM-
 And an execution shall be issued against the defendant for the hence summons via extraterritorial service is applicable
balance due, or when the remaining balance will be due.  HOWEVER: An action for deficiency judgment is IN
 Registration. — PERSONAM hence no extraterritorial service (must have
 Order be registered in the registry of deeds. personal/substituted)
 If no right of redemption exists- a new one issued in the  Appeal of order of foreclosure:
name of the purchaser.  RIGUERRA: 15 days notice of appeal (more correct)
 Where a right of redemption exists,  REGALADO: 30 days, record of appeal
i) the certificate of title in the name of the mortgagor shall
not be cancelled,
ii) but the certificate of sale and the order confirming the
sale shall be registered and a brief memorandum thereof
made by the registrar of deeds upon the certificate of title.
 Property is redeemed
i) registered with the registry of deeds, and a brief
memorandum thereof shall be made
 property is not redeemed
i) the final deed of sale executed shall be registered with the
registry of deeds;
ii) a new title issued in the name of the purchaser.
Section 8. Applicability of other provisions. — The provisions of

sections 31, 32 and 34 of Rule 39
 Sec 31 – court may restrain commission of waste on the property

 Sec 32 – Purchaser or redemptioner not entitled to receive rents
until expiration of period of redemption
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 Sec 34 – a purchaser who fails to get possession or was evicted is

entitled to recover price in the same or separate action.
Partition
 Complaint in action for partition of real estate.  The judgment and its effect; copy to be recorded in registry of
 the nature and extent of his title deeds.
 adequate description of the real estate of which partition is  actual partition - the judgment shall state definitely, by metes
demanded and and bounds and adequate description,
 joining as defendants all other persons interested in the  If the whole property: to vest in the party making the payment
property. (Indispensable parties!) the whole of the real estate free from any interest on the part
of the other parties to the action.
 Order for partition and partition by agreement thereunder. —  If the property is sold and the sale confirmed by the court: to
 Court shall order the partition of the real estate among all the vest the real estate in the purchaser or purchasers making the
parties in interest. payment or payments, free from the claims of any of the
 After the order, the parties may, if they are able to agree, parties to the action.
make the partition among themselves and the court just  A certified copy of the judgment recorded in the registry of
confirms the partition. deeds of the place in which the real estate is situated, (11a)
i) If there is failure to agree, court shall appoint not more
than 3 disinterested persons as commissioners to make  Neither paramount rights nor amicable partition affected by this
partition Rule. —
 All of these, recorded in the registry of deeds of the place in  Nothing in this Rule contained shall be construed so as to
which the property is situated. (2a) prejudice, defeat, or destroy the right or title of any person
 Appeal i) claiming the real estate involved by title OR
 A final order decreeing partition and accounting may be ii) by title paramount to the title of the parties OR
appealed iii) to prevent persons from making an amicable partition
without recourse to an action. (12a)
 Commissioners
 the commissioners shall take an oath and be filed in court  Partition of personal property. —
with the other proceedings in the case.  The provisions of this Rule shall apply to partitions of estates
 shall view and examine the real estate, after due notice to the composed of personal property
parties
 hear the parties as to their preference Notes from Riguerra:
30
 set apart the properties, considering the comparative value  GR Action for partition may be done AT ANY TIME
having due regard to the improvements, situation and quality  NOTE: if a prior suit was dismissed with prejudice due to
of the different parts thereof. (4a) failure to prosecute, it cannot operate as res judicata in a
 Commissioners shall make a report subsequent suit for partition since A 494 of NCC is
i) Filed with clerk of court – parties can object within 10 substantive (Quintos v. Nicolas 2014)
days from service  E: if a co-owner repudiates, the proper action is reconveyance
ii) Court may recommit, approve, reject, approve in part the of property
reports.  Which court has Jurisdiction?
 When can one of the co-owners take the property as a whole  GR: follow jurisdictional amounts
 WHEN: Parties cannot agree + cannot be divided without  E: if action is for annulment of deed of adjudication &
prejudice to the interests of the parties declaration of heirs – incapable of pecuniary estimation hence
 UPON: pays to the other parties such amount as the RTC (russel v. vestil) BUT SEE: Haguete v. Embudo saying
commissioners deem equitable jurisdictional amounts should be followed.
 HOWEVER: if one of the interested parties asks that the  A partition may also be done extrajudically via agreement of
property be sold instead of being so assigned- court shall order parties
it to be sold UNDER A PUBLIC SALE  Brief Outline of Procedure
 Accounting for rent and profits in action for partition. — 1. Complaint be filed setting forth his interest and
 a party shall recover from another his just share of rents and description of land
profits received by such other party 2. Order of partition after trial
 Included in the judgment 3. Partition by agreement – if parties agree and just get
approval of court
 Power of guardian in such proceedings 4. Partition by 3 commissioners – if parties do not agree (this
 The guardian or guardian ad litem of a minor or incompetent is mandatory)
may act for the minor with approval of court 5. Action of court which may adopt the report of
 Costs commissioners
 equitably tax and apportion between or among the parties
 Appeal of order of partition: record of appeal 30 days.
Forcible Entry and Unlawful Detainer

 Who may institute proceedings, and when. —  Prohibited pleadings and motions:
31
Forcible Entry Unlawful Detainer  1. Motion to dismiss the complaint except on the ground of
a person deprived of the 2 kinds of UD: lack of jurisdiction over the subject matter, or failure to
possession of any land or comply with section 12;
building by 1. RECOVERY OF  2. Motion for a bill of particulars;
POSSESSION FROM: a  3. Motion for new trial, or for reconsideration of a judgment,
1. force, lessor, vendor, vendee, or for reopening of trial;
2. intimidation, including assigns or other  4. Petition for relief from judgment;
3. threat, person against whom the  5. Motion for extension of time to file pleadings, affidavits or
4. strategy, or possession of any land or any other paper;
5. stealth building is unlawfully  6. Memoranda;
withheld  7. Petition for certiorari, mandamus, or prohibition against
MUST SHOW: Prior physical a. Prior demand any interlocutory order issued by the court;
possession AND unlawful NOT necessary  8. Motion to declare the defendant in default;
deprivation b. Must show  9. Dilatory motions for postponement;
UNLWAFUL  10. Reply;
withholding  11. Third-party complaints;
2. EJECT: a lessee after  12. Interventions. (19a, RSP)
failing to comply
conditions of lease  Preliminary injunction.
a. Demand is  May grant preliminary injunction,
necessary.  to prevent the defendant from committing further acts of
Because an dispossession against the plaintiff.
implied lease  Preliminary MANDATORY injunction
might have been  possessor deprived of his possession through forcible means
done  Upon motion
 from the filing of the complaint, present a motion in the
action for forcible entry or unlawful detainer for the issuance
within one (1) year after such within one (1) year after such of a writ of preliminary mandatory injunction to restore him in
unlawful deprivation unlawful deprivation from his possession. The court shall decide the motion within thirty
date of last demand (30) days from the filing thereof. (3a)
Allegations need not be express, sufficient if it can be inferred
from allegations of complaint (Madammu v. MTC)  Resolving defense of ownership. —
 the issue of ownership shall be resolved only to determine
 Action in MTC the issue of possession.
 Action may include:
i) UD or FE  Judgment. — contains
32
ii) Damages  restitution of the premises

iii) Costs  arrears of rent or as reasonable compensation for the use and
 REQUIREMENTS OF DEMAN Lessor to proceed against occupation of the premises
lessee only after demand; CONTENTS  attorney's fees and costs.
 only after demand to pay or comply with the conditions of the  If a counterclaim is established, the court shall render
lease AND to vacate AND judgment for the sum found in arrears from either party and
 lessee fails to comply therewith after fifteen (15) days in the award costs as justice requires. (6a)
case of land or five (5) days in the case of buildings.
 If notice cannot be made to lessee himself, by serving a written  The judgment
notice on person found in premises. (demand on lessee himself  conclusive with respect to the possession only and
need not be written, Jakihica v. Aquino)  not bind the title or affect the ownership of the land or
i) If pay OR vacate – not sufficient demand (Murga v. Chan) building.
 Summary procedure. — i) not bar an action between the same parties respecting
 GR: all actions for forcible entry and unlawful detainer, title
irrespective of the amount of damages or unpaid rentals
 EXCEPTION:  Appeal of the judgment
i) agricultural tenancy laws or  Where: RTC
ii) when the law otherwise expressly provides,  How Decided: basis of the entire record of the proceedings
and briefs/memoranda
 Pleadings allowed. — The only pleadings allowed to be filed are  Immediate execution of judgment; how to stay same. —
the  GR: execution shall issue immediately upon motion
 complaint,  STAYED BY:
 compulsory counterclaim and i) appeal has been perfected and
 cross-claim pleaded in the answer, and ii) files a sufficient supersedeas bond, and
 the answers thereto. All pleadings shall be verified. (3a, RSP) iii) Periodic deposits with the appellate court the amount
of rent due from time to time under the contract or,
 Dismissal by the court absent a contract, reasonable value of occupation of
 Can motu proprio dismiss premises (paid to the court or authorized depository
 If it appears from bank)
i) Complaint (1) Failure to make deposits on time – appellate court
ii) Evidenced attached upon motion shall order EXECUTION and restoration
 There are apparent grounds of possession
i) for the dismissal of a civil action OR (2) Deposits be made on or before 10th day of month or
ii) if there is a need for conciliation and such was not period
brought to conciliation (dismissal without prejudice and
can be revived after compliance)
33
 Answer  Supersedeas Bond MUST BE:

 Within ten (10) days from service of summons,
 GR: Affirmative and negative defenses not pleaded therein 1. approved by MTC
shall be deemed waived, 2. in favor of the plaintiff
i) except lack of jurisdiction over the subject matter. 3. The supersedeas bond shall be transmitted by the Municipal
 FAILURE TO ANSWER: the court, motu proprio or on Trial Court, with the papers, to the clerk of the Regional Trial
motion of the plaintiff, Court to which the action is appealed.
i) shall render judgment as may be warranted by the facts
alleged in the complaint  Should the defendant fail to make the payments above prescribed
ii) but limited to the prayer from time to time during the pendency of the appeal:
iii) court may reduce damages and attorney’s fees  the appellate court,
 Cross-claims and compulsory counterclaims  upon motion of the plaintiff, and upon proof of such failure,
 not asserted in the answer shall be considered barred.  shall order the execution of the judgment appealed from with
 answer to counterclaims or cross-claims shall be served and respect to the restoration of possession
filed within ten (10) days from service of the answer
 but such execution shall not be a bar to the appeal
 Preliminary conference taking its course
 thirty (30) days after the last answer is filed,
 The provisions of Rule 18 on pre-trial shall be applicable
 After the case is decided by the RTC; effects:
 Failure of the plaintiff to appear:
i) dismissal of his complaint.  any money paid to the court by the defendant for purposes of
ii) defendant who appears entitled to judgment on his the stay of execution shall be disposed accdg. to judgement
counterclaim  if defendant has been deprived of the lawful possession of
iii) All cross-claims shall be dismissed. due to execution of judgment by MTC,
i) damages for such deprivation of possession and
 sole defendant shall fail to appear: (as if there was failure to
ii) restoration of possession
answer)
i) shall render judgment as may be warranted by the facts iii) may be allowed the defendant in the judgment of the
Regional Trial Court disposing of the appeal. (8a)
alleged in the complaint
ii) BUT not apply where one of two or more defendants sued
under a common cause of action defense shall appear at  Preliminary mandatory injunction in case of appeal. —
the preliminary conference.  PROCEDURE
 GR: No postponement i) Upon motion of the plaintiff,
i) except for highly meritorious grounds and without ii) within ten (10) days from the perfection of the appeal to
prejudice to such sanctions on the movant. (n) the Regional Trial Court,
 Record of preliminary conference. — Within five (5) days  writ of preliminary mandatory injunction can issue; grounds:
after the termination, record the i) to restore the plaintiff in possession
i) amicable settlement ii) defendant's appeal is
34
ii) stipulations or admissions (1) frivolous or dilatory or

iii) Whether, on the basis of the pleadings and the (2) that the appeal of the plaintiff is prima
stipulations and admission made by the parties, judgment facie meritorious. (9a)
may be rendered without the need of further proceedings,
in which event the judgment shall be rendered within  Immediate execution on appeal to Court of Appeals or Supreme
thirty (30) days from issuance of the order; Court. — The judgment of the Regional Trial Court against
iv) material facts which remain converted; and the defendant shall be immediately executory.
v) Such other matters intended to expedite case  Question: is there a supersedeas bond provision that can stay
 Submission of affidavits and position papers. — Within ten this?
(10) days from receipt of the Record of Preliminary
Conference NOTES FROM RIGUERRA:
i) Reception of additional affidavits if required by courts,
within 10 days from receipt of order and judgment after
 An ejectment suit be cannot be resorted to resolve boundary
15 days.
disputes. It should be via accion publiciana/reivindicatoria (Javier
 Rendition of judgment. — Within thirty (30) days after receipt
of the affidavits and position papers, or the expiration of the v. De guzman 2015)
period.  An ejectment case is an action in personam (domagas v. Jensen)
and is binding only to party who is properly impleaded and
heard (Sunflower v. CA, 2003); EXCEPTIONS:
 Trespasser of squatter or agent of defendant
 Guest or occupant with permission of defendant
 Transferee pendente lite
 Sublessee
 Co-lessee
 Member of family or relative or privy of defendant
 To justify action for UD the plaintiff’s supposed acts of tolerance
must have been present from the start of possession. If the
possession was unlawful from the start, an action for UD is not
proper. For a UD to prosper it must be shown that possession
from lawful became unlawful. (Zacarias v. Anacay, 2014)
 What are the requirements of demand or notice for UD?
 Demand be made
 What is an implied new lease?
35
 It is a new lease which results at end of lease contract if lesee

enjoy rights for 15 days with acquiescence of lessor. (A
1682/1687/1670) <- no UD
 Permissive counter claim is NOT allowed by rules on summary
procedure.
 If the defendant fails to answer the court shall render motu
proprio or on motion a judgment based SOLELY on the facts
alleged and limited to what is prayed for. No need to consider
weight of evidence (Fairland v. Po, 2016)
 The prohibited MR is one that seeks reconsideration of a
judgment after trial on the merits. A dismissal order is not a
judgment of the merits hence can have MR (lucas v. fabros)
 Different types of injunction
 Preliminary prohibitive injunction – o prevent defendant from
committing further acts of disposition
 Preliminary mandatory injunction – to restore him his
poession.
 Preliminary mandatory injunction in case of appeal: upon
motion of plaintiff within 10 day the RTC can issue such to
restore plaintiff his possession if proven that defendant’s
appeal is dilatory or plaintiff’s appeal is meritorious.
 The period for rentals in arrears should start from the time of the
demand to vacate and NOT during period of tolerance (Proguard
v. Tormil 2014)
 The damages that can be recovered in a UD shall only be the fair
rental value or reasonable compensation of use of real property.
OTHER DAMAGES must be claimed in an ordinary action (Fellsilda
v. Villanueva)

Supersedeas bond Periodic deposit
Coves only rent damages and Covers reasonable rent for
costs fixed by MTC judgment use and occupation
36
Failure to file renders Failure to deposit (But with a

judgment immediately supersedeas bond posted) will
executory render the MTC judgment
executory only as to the
restoration of plaintiff’s
possession
Necessary even if defendant No need of defendant vacates
vacates premises
 The issuance of a writ of execution of an RTC due to its judgment
in an ejectment case is MINISTERIAL and not discretionary and
RTC can issue it even if an appeal has already been given due
course by the CA . (ATO v. CA, 2014.)
 It is well-settled that the sole issue in ejectment cases is physical
or material possession of the subject property, independent of
any claim of ownership by the parties.38 The argument of
ownership CANNOT be raised in a hearing for a motion for
execution.(Holy Trinity v. Abacan, 2013)
Rule 71 Contempt Direct Contempt Indirect Contempt

Grounds:  misbehavior in the presence of or so near a (a) Misbehavior of an officer of a court in the performance
court as to obstruct or interrupt the of his official duties or in his official transactions;
proceedings
 including disrespect toward the court, (b) Disobedience of or resistance to a lawful writ, process,
offensive personalities toward others, or order, or judgment of a court, including the act of a person
 refusal to be sworn or who, after being dispossessed or ejected from any real
property by the judgment or process of any court of
 to answer as a witness, or
competent jurisdiction, enters or attempts or induces
37
 to subscribe an affidavit or deposition when another to enter into or upon such real property, for the
lawfully required to do so purpose of executing acts of ownership or possession, or in
any manner disturbs the possession given to the person
adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the

processes or proceedings of a court not constituting direct
contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly,

to impede, obstruct, or degrade the administration of
justice;
(e) Assuming to be an attorney or an officer of a court, and

acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or

property in the custody of an officer by virtue of an order
or process of a court held by him.
Hearing? No Yes.
Procedure: summarily adjudged  If charge in writing has been filed
 opportunity given to comment (time fixed by court)
 and to be heard by himself or counsel
 The Court can still:
 Summon the respondent to court and
 May require him to be held in custody of court
Punishment RTC (or equivalent or higher rank): RTC (or equivalent or higher rank):
 fine not exceeding 2k or  a fine not exceeding thirty thousand pesos or
 imprisonment not exceeding ten (10) days, or  imprisonment not exceeding six (6) months, or both
both,
MTC: MTC:
38
 fine not exceeding 200 or  fine not exceeding five thousand pesos or
 imprisonment not exceeding one (1) day,  imprisonment not exceeding one (1) month, or both.
 If the contempt consists in the violation of a writ of injunction,

temporary restraining order or status quo order,
 make complete restitution to the party injured by such
violation of the property involved or such amount as may
be alleged and proved.
 the refusal or omission to do an act which is yet in the power
of the respondent to perform,
 he may be imprisoned by order of the court concerned
until he performs it
 The writ of execution, as in ordinary civil actions, shall issue

for the enforcement of a judgment imposing a fine unless the
court otherwise provides. (6a)
Remedy:  NO APPEAL  may be appealed to the proper court as in criminal cases.

 REMEDY: certiorari or prohibition.  Effect of Filing Remedy: Suspended execution provided that:
 files a bond fixed by the court which rendered the
 Effect of Filing Remedy: Suspended judgment and
execution provided that:  conditioned that he will abide by and perform the
 files a bond fixed by the court which judgment should the petition be decided against him. (2a)
rendered the judgment and
 conditioned that he will abide by and
perform the judgment should the petition
be decided against him. (2a)
Initiation of Court motu proprio 1. Motu proprio by court which offense was committed by an
proceeding order or any other formal charge
a. If it is issued motu proprio by the court there is no
need for separate proceedings. Especially if such
proceedings are commenced by a show cause
39
order – it cannot be heard separately from the

main case (Baculi v. Belen, 2012)
b. No verified petition required (Leonidas v, Supnet,
2003)
2. [if not initiated by court Motu proprio ] Via a verified
petition with supporting particulars; addt’l req:
a. certified true copies of documents or papers
b. the requirements for filing initiatory pleadings for
civil actions
c. if arose from action pending in court, petition
allege that fact but s shall still be docketed, heard
and decided separately UNLESS court orders
consolidation.
Filed where Court where offense committed  If committed against RTC or equivalent or higher rank OR
against officer appointed by it:
 Filed in such court
 If lower court
 Filed in RTC OR
 Such lower court and can be appealed to RTC
Special Notes:  Pending hearing; requirements for bail:

 respondent may be released from custody
 filing of a bond to ensure he appears in hearing.
For both  Proceeding when party released on bail fails to answer.
 issue another order of arrest or
 may order the bond for his appearance to be forfeited
i) measure of damages shall be the extent of the loss or injury sustained by the aggrieved party
ii) cost of proceedings
 If there is no aggrieved party,
i) the bond shall be liable and disposed of as in criminal cases.
 Court may release respondent
 may discharge him from imprisonment when it appears that public interest will not be prejudiced
 Contempt against quasi-judicial entities. —

 this Rule shall apply to contempt committed against persons, entities, bodies or agencies
40
i) exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have
adopted pursuant to authority granted to them by law to punish for contempt.
ii) The Regional Trial Court of the place wherein the contempt has been committed
(1) shall have jurisdiction over such charges as may be filed therefor. (n)
Riguerra Notes  Contempt Where contempt is committed against quasi-judicial entities, the filing of contempt charges in court is
observed only when there is no law granting contempt powers to these quasi-judicial entities. Under Section 12,
Rule 71 of the Rules of Court on Contempt, it is thus provided: Sec. 12. Contempt against quasi-judicial entities.-
Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or
agencies exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted
pursuant to authority granted to them by law to punish for contempt. The Regional Trial Court of the place wherein
the contempt has been committed shall have jurisdiction over such charges as may be filed therefor. (Trinidad vs.
Fama Realty, Inc., 792 SCRA 295, G.R. No. 203336 June 6, 2016, J. del Castillo)
 Note that the SRC empowers the SEC to punish for contempt
 A writ of execution is not directed to the defendant but to the sheriff, a defendant who refuses to vacate does
NOT therefore constitute indirect contempt. The proper procedure or remedy in this case is under Sec 10 © rule
39. (Lipata v. Tutaan) However if he was lawfully ejected but later on re-entered the property he can be held in
indirect contempt.
 Act of parking in judge’s parking slot absent malice or bad faith is NOT contempt (Inong v. Ibay)
 An NBI can issue a subpoena HOWEVER if a person disobeys such subpoena, he cannot be liable for contempt. The
reason is that a person who refuses to obey a subpoena is liable for indirect contempt ONLY IF it was ISSUED BY A
COURT or an agency with quasi-judicial powers. NBI is not such a body
41

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PROVREM & SCA Reviewer SHOFY NOTES 2018 – Daniel hofilena and Sharlaine Sy

Preliminary Attachment Preliminary Injunction Receivership Replevin Support Pendente Lite

Preliminary Attachment Preliminary Injunction Receivership Replevin Support Pendente Lite

Preliminary Attachment Preliminary Injunction Receivership Replevin Support Pendente Lite

Fifth ground under

Preliminary Attachment Preliminary Injunction Receivership Replevin Support Pendente Lite

Bond for Yes. Yes: Yes: Yes: No Bond

Preliminary Attachment Preliminary Injunction Receivership Replevin Support Pendente Lite

Preliminary Attachment Preliminary Injunction Receivership Replevin Support Pendente Lite

1. Wrongful attachment: actual damages

Preliminary Attachment Preliminary Injunction Receivership Replevin Support Pendente Lite

Notes on Preliminary Attachment

manual delivery  Proceed with ordinary execution

i) If there is disagreement as to value, court shall fix it.

Notes on Preliminary Injunction

Support Pendente Lite

Special Civil Actions

Rule 63 Declaratory Relief

i) which would be affected by the declaration  Court decision

 Mode of review. — ii) Filed out of time or for delay

RULE 65 Certiorari, Prohibition and Mandamus

board, officer, officer,  Grounds, definition

Rule 66 Quo Warranto

 Determination of rights may be given precedence over any

entitled to interest, exemplary damages, and attorney fees

Foreclosure of Real Estate Mortgage

Section 8. Applicability of other provisions. — The provisions of

 Sec 31 – court may restrain commission of waste on the property

 Sec 34 – a purchaser who fails to get possession or was evicted is

Forcible Entry and Unlawful Detainer

ii) Damages  restitution of the premises

 Answer  Supersedeas Bond MUST BE:

ii) stipulations or admissions (1) frivolous or dilatory or

 It is a new lease which results at end of lease contract if lesee

Failure to file renders Failure to deposit (But with a

Rule 71 Contempt Direct Contempt Indirect Contempt

(c) Any abuse of or any unlawful interference with the

(d) Any improper conduct tending, directly or indirectly,

(e) Assuming to be an attorney or an officer of a court, and

(f) Failure to obey a subpoena duly served;

(g) The rescue, or attempted rescue, of a person or

 If the contempt consists in the violation of a writ of injunction,

 The writ of execution, as in ordinary civil actions, shall issue

Remedy:  NO APPEAL  may be appealed to the proper court as in criminal cases.

order – it cannot be heard separately from the

Special Notes:  Pending hearing; requirements for bail:

 Contempt against quasi-judicial entities. —

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