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PROVISIONAL REMEDIES

We are now on provisional remedies from Rule 57 - 61. So there are 5 provisional remedies. Just
remember the word AIRRS.
Rule 57- Preliminary Attachment
Rule 58- Preliminary Injunction
Rule 59- Receivership
Rule 60- Replevin
Rule 61- Support pendente lite
Nature of Provisional Remedies
Since they are for the time being,
- They do not have particular goals for themselves
- No final end to itself; the objective is separate and distinct from the principal action
- It cannot stand alone and dependent
- They are contingent
But if you are asked, don't say attachment as a provisional remedy but rather it is preliminary attachment.
Don't say injunction as a provisional remedy but rather preliminary injunction. As to receivership, yes it
is both an action and a provisional remedy. Technically, it is not the receivership which is the provisional
remedy but rather appointment of a receiver because in receivership it is also a kind of action. And then
you have replevin or delivery of possession of personal property. And then finally you have support
pendente lite. Support is not a provisional remedy but it is support pendente lite which is a provisional
remedy.
Now, let me give you a bird's eye view of these provisional remedies.
First, again because they are provisional, they cannot stand alone. Being provisional remedies, they are
dependent, contingent, or adhere to a principal action; so that you cannot find an action for preliminary
attachment. It must always be adhered to the principal action.
CHARACTERISTICS OF PROVISIONAL REMEDIES
A. PRINCIPAL ACTIONS
Q: Because of that, what are the principal actions to which these provisional remedies attach?
A:
1.) As to preliminary attachment, the principal action is recovery of real or personal property
(RECOVERY ACTIONS). If you try to look at Section 1 Rule 57, you will find out that all the
actions there are for recovery of either real or personal property.
a. Can you recover ones status through the filing of a preliminary attachment? No, unless
you join causes of action under Rule 2 Section 6.
b. Can you join Annulment and sum of money case? No because they are of different
jurisdiction.
2.) As to preliminary injunction, the principal action is injunction although these seldom find, in actual
practice, an action for injunction because it always goes with some other actions. Like for example
specific performance and injunction plus damages with prayer of preliminary injunction. Is there an
action which is injunction? Yes. Under Section 4 of Rule 39.
3.) As to receivership, receivership is the principal action. The provisional remedy is appointment of a
receiver. If you go and look at Section 4 of Rule 39, you will see that receivership is an action.
4.) As to replevin, the principal action is immediate recovery of personal property. In replevin, a
foreclosure on mortgage is possible.
5.) As to support pendente lite, the principal action is support.
B. JURISDICTION
Q: Which court has jurisdiction over these provisional remedies?
A: General answer is because they are contingent, that court which has jurisdiction over the principal

action also has jurisdiction over these provisional remedies. This is precisely because they adhere to the
principal action.
What about for the case of an INJUNCTION, what court will have jurisdiction? It is of concurrent
jurisdiction which is basically governed by limitations as to (1) hierarchy of courts; and (2)
transcendental importance. SC can have jurisdiction over the same since SC is not governed by the rules.
But let us be more specific, because prior to the 1997 Rules of Court injunction, for example, is
cognizable only by the RTC. But with RA 7691 (expansion of the jurisdiction of the lower courts) and
looking at Rule 70 (Sections 15 and 19, all about injunction), therefore under the present rules, the
preliminary injunction is now cognizable by the inferior courts. Before the effectivity of the 1997 Rules,
that was applied also by jurisprudence only on unlawful detainer. But now it applies to both unlawful
detainer and forcible entry as is specifically provided under Rule 70.
Q: How about support pendente lite which adheres to an action for support?
A: Remember that it cannot be taken cognizance of by the inferior courts because support is an action
which is incapable of pecuniary estimation. Therefore, support pendente lite is only cognizable by the
RTC because support to which it adheres is incapable of pecuniary estimation. Exception: In (1) criminal
cases. Because the present rules on criminal procedure speaks that once a criminal case is filed, the civil
aspect is deemed instituted with it under Rule 111. Hence, if the action is criminal in nature but
cognizable by the inferior court and the prosecution includes the civil action for support, then support
pendente lite can be taken cognizance of by the inferior courts. Example: A (1.a) complaint for seduction
which is cognizable by the inferior courts. And together with that you pray for the acknowledgment of the
child (suppose there is a child) and you pray for support pendente lite. In this instance the support
pendente lite is taken cognizance of the inferior courts.
In Receivership: both inferior courts and RTC.
In Replevin: both inferior courts and RTC.
In Injunction: both inferior courts and RTC.
In Attachment: both inferior courts and RTC depending now on the principal action to which the
provisional remedy attaches.
C. REQUIREMENTS
Q: What are the requirements in applying for these provisional remedies attaching to the principal action?
A:
1.) In case of preliminary attachment, what is required is the affidavit and bond.
2.) In case of preliminary injunction, the requirement is a bond and a verified petition.
3.) In case of receivership, also a bond and verified petition.
4.) In case of replevin, affidavit and bond.
5.) In case of support pendente lite, only a verified application. No bond.
Note: An affidavit here is an affidavit of merits which explains your application for provisional remedies
sought for.
D. PROCEDURE OF GRANTING
Q: Can the writ of provisional remedies be granted ex parte? No, there should always be notice and
hearing. Exception, The application for writ of preliminary attachment
Q: How do you secure, aside from these requirements, the writs for these provisional remedies?
A:
1.) In case of preliminary attachment, you may secure it ex parte. Although the writ cannot be
implemented ex parte but it can be issued ex parte.
2.) In case of preliminary injunction, as a general rule you cannot secure it ex parte under Section 5,
Rule 58, although in cases of urgency, that injunctive relief for a period of 72 hours can be granted

summarily (meron pa din notice and hearing for due process). That is how stringent in applying for
injunctive relief. (However, an amendatory Circular of SC, A.M. No. 07-07-12-SC dated
December 4, 2007 provides that the one which precedes the writ of preliminary attachment can
now be granted ex parte, say, TROs granted for 20 days and 72 hours)
3.) In replevin, you cannot get it ex parte.
4.) In support pendente lite, there is a peculiar provision under Section 2 (Rule 61) wherein the
respondent, within a period of 5 days from notice, is bound to file his comment. And if he does not
file his comment, the case will be heard on the application only (Section 3) within 3 days.
Q: Once the writ is granted or issued, how do you discharge the writ?
A:
1.) In case of preliminary attachment, it may be discharged under Sections 5, 12 and 13 of Rule 57. Cash
deposit or counter bond (Sections 5 and 12) or a motion questioning the propriety or regularity of the
issuance of the writ (Section 13).
2.) In case of preliminary injunction, it cannot be discharge it by a bond neither if it be granted by a
bond, although bond is required but a counter bond does not discharge a writ of preliminary
injunction.
3.) The same thing with replevin and receivership, you cannot discharge it with a bond. You have to file a
motion questioning the propriety or regularity of the issuance of the writ.
4.) In support pendente lite, there is no bond. If the judgment is in favor of the respondent, the support
pendente lite must also be discharged because it has no basis to stand with.
E. DAMAGES
Q: Are damages claimable when one asked for a writ of remedy?
A: Yes. It includes support. Under Rule 57 Section 20. You can cross refer this to other provisional
remedies.
Q: When can you apply for the writ?
Shortest timeframe within which to apply? REPLEVIN
Longest timeframe within which to apply? RECEIVERSHIP, because even after the judgment, the same
can still be sought for.
F. JUDGMENT
Q: Can judgment becomes final?
A: The executory character is always there. But in support pendente lite, it is an interlocutory order, but
still subject to a writ of execution.

RULE 57
PRELIMINARY ATTACHMENT
Provisional remedy: Preliminary Attachment
Principal action: Recovery of either real or personal property
Distinguish it from Writ of Execution (5)
1. Writ of Execution is provided for under Rule 39 while Writ of Preliminary Attachment is provided
for under Rule 57.
2. Writ of Execution is sought for after the judgment has become final and executory while Writ of
Preliminary Attachment may be granted even at the commencement of the action.
3. Writ of Execution does not involve a bond for it to be granted while Writ of Preliminary
Attachment, a bond is required.
4. Writ of Execution is a remedy after judgment pursuant to a civil action while Writ of preliminary
attachment is a provisional remedy.
5. Writ of Execution cannot be discharged or lifted, in a way while Writ of preliminary attachment
can be discharged or lifted.
Memorize Section 1 (the grounds) of Rule 57. Remember, you will appreciate Rule 57 had you
understood Rule 39 because there are cross-references between these provisions. Section 7 of Rule 57 you

will find out that that is also practically the same or similar provision in Section 9-11 of Rule 39. Section
16 in Rule 39 is Section 14 Rule 57, and Section 7 Rule 60 (Replevin). Try to analyze it, pare-pareho. The
3rd party claimant will simply execute an affidavit. The sheriff will not be bound to hold it but deliver it
to the 3rd party claimant. Yang v. Valdez (was given in the bar about 5 years ago) - the 5 day period of
redelivery bond. You have now to distinguish a bond from a counter bond. Later on, remember that it is
different from a supersedeas bond which you have studied and under Settlement of Estate. Here, we are
dealing with bond and counter bond. Bond is required of the applicant. Counter bond is required of
the person against whom the application was filed. Deposit can be cash either on the part of the
plaintiff or the defendant as the case may be.
Q: What is the purpose of Preliminary Attachment? It is for the satisfaction of judgment which is sought
through an implementation of the writ of execution.
Section 1. Grounds upon which attachment may issue.
At the commencement of the action or at any time before entry of judgment, a plaintiff or
any proper party may have the property of the adverse party attached as security for
the satisfaction of any judgment xxx

Q: What is the unwritten purpose? It is to coerce the defendant to come into settlement.
3rd purpose: If court acquire jurisdiction over defendant ask writ and attach the property then the court can
acquire jurisdiction over the defendants property.
Property Attached: Becomes property under Custodia Legis.
Q: Take note of Section 1. When can you file or apply for a writ of preliminary attachment?
A: It says there at the commencement of the action or at any time before entry of judgment.
What is entry of judgment? It is the time when the decision has become final and executory evidenced
by an actual recording of the dispositive portion of the case by the Clerk of Court which in a way is
subject to the mercy of the Clerk of Court.
Q: Why? Why should you not apply for a writ of preliminary attachment when judgment has already
been entered?
A: Because your remedy is not attachment but is execution under Rule 39. Remember when we were
discussing Section 27-29 of Rule 39 (regarding redemption and redemptioner), so that when a property
was sold on attachment, there are possible redemptioners because Section 1 says at the commencement of
the action, you already apply for the issuance of the writ of preliminary attachment. And if the writ is
issued and implemented, the sheriff, to whom the writ is addressed, takes actual custody of the property if
it is capable of manual delivery. In the case of replevin, ibibigay ng sheriff sa applicant after 5 days if
there is no redelivery bond is filed. But in the case of preliminary attachment, kukunin niya yan for safe
keeping. And it will only be sold after judgment is rendered in favor of the plaintiff (applicant).
Q: Once a property has been replevined and again it was attached, is it still valid?
A: Yes. Once the property is replevined it can still be attached. But if the property is attached it cannot be
replevined. Because in attachment, you may not take possession but in replevin you have to take
possession.
Q: A 3rd party can deal with the property that has been attached. Suppose it was mortgaged with a bank
after it has been attached, is it possible?
A: Yes. The mortgage becomes a lien subsequent to the lien under which the property was sold if ever the
plaintiff wins in the case.
Requirements
You cannot just attach right and left if there is no ground. That is why let me emphasize Section 3 of Rule
57.
Sec. 3. Affidavit and bond required.
An order of attachment shall be granted only when it appears by the affidavit of the
applicant, or of some other person who personally knows the facts, that a sufficient cause
of action exists, that the case is one of those mentioned in section 1 hereof, that
there is no other sufficient security for the claim sought to be enforced by the
action, and that the amount due to the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as the sum for which the

order is granted above all legal counterclaims. The affidavit, and the bond required by
the next succeeding section, must be duly filed with the court before the order issues.

1. There must be a valid cause of action. Because preliminary attachment is only provisional so if the
cause of action is invalid, the preliminary attachment is also invalid.
2. There must be a valid ground among the 6 enumerated grounds under Section 1.
3. There must be no other security. Or if ever there is, the security is not sufficient.
4. The order must be equivalent to the sum for which you are asking.
a. E.g. When the obligation is worth 5Million, and the order is at least 5 Million, but the
property is secured by other obligation, such requirement here pertaining to the order is of
first priority.
NOTE: These 4 requirements must be contained in an affidavit. So your affidavit is pro forma or
insufficient if it does not allege these 4 basic requirements as enumerated under Section 3. Aside from that
affidavit of merits, bond must accompany it.
Q: What do you notice in the grounds under Section 1?
(a) In an action for the recovery of a specified amount of money or damages, other than
moral and exemplary, on a cause of action arising from law, contract, quasi-contract,
delict or quasi-delict against a party who is about to depart from the Philippines
which intent to defraud his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or
converted to his own use by a public officer, or an officer of a corporation, or an
attorney, factor, broker agent, or clerk, in the course of his employment as such, or
by other person in a fiduciary capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken,
detained or converted, when the property, or any part thereof, has been concealed,
removed, or disposed of to prevent its being found or taken by the applicant or an
authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is brought, or in the performance
thereof;
(e) In an action against a party who has removed or disposed of his property, or is
about to do so, with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in the Philippines,
or on whom summons may be served by publication.

A: Yung first three, it is a kind of action. Yung last three, it is the party involved.
(1) First action, it is an action for specific amount of money and damages other than moral and exemplary
damages on an action arising from law, contracts, quasi-contracts, delicts, quasi-delicts against a party
who is about to abscond in fraud of creditors.
Q: Why other that moral and exemplary damages?
A: There is no basis. The basis must be personal, wounded feelings etc.
Q: Ano yung mga requirements niyan?
A:
1. Your actions should be for sum of money and damages, other than moral and exemplary damages.
2. Your cause of action is based on a law, contract, quasi-contract, delict, or quasi-delict.
3. It must be directed against a party who is to depart from the Philippines with intent to defraud.
(2) Second action, an action also for recovery. But look at the defendant here, the defendant is a public
officer, officer of a corporation, attorney, factor, broker, agent, or clerk. In other words there must be a
fiduciary relationship between the applicant and the respondent. E.g. No fiduciary relation between
guardian and ward.
(3) Third action, recovery of possession, this time, against a party who removed, disposed, or does not
disclose it, or who hid these properties.
Q: What is then a common denominator here?
A: There is an element of FRAUD.

When you go to paragraphs d, e, and f the phraseology is different. It is against a party this time, not
anymore to the kind of action but to the kind of person who is a party defendant.
(4, 5 and 6) In paragraph d, a person who is guilty again of fraud in contracting a debt or obligation upon
which the action is brought or in the performance thereof.
Javellana v. D.O. Plaza Enterprises, Inc ., L-28297, March 30, 1970 illustrates the rule prior to the 1997
Rules of Court.
Facts of this case: There was a simple sale of property, let's say the purchase price was P100, 000.00
D.O. Plaza paid 50% and the balance was secured with postdated checks. Plaza took possession of the
property sold. Later on, the checks, which were in payment of the obligation contracted, bounced. It all
bounced. An action for sum of money was filed with prayer of preliminary attachment using that the
respondent was guilty of fraud in contracting its obligation. When it reached the Supreme Court, the SC
said no. Preliminary attachment must be discharged because there was no fraud in contracting the
obligation but there was fraud in the performance thereof. And at that time, wala pa yung term na in the
performance thereof. Hence, the defendant here won in the sense that the preliminary attachment was
invalid.
That is why when they amended the 1997 Rules of Court, using the case of D.O. Plaza, they
included it in the present rules.
Paragraph e, is one against a party who tries to dispose the property again in fraud of creditors.
SC case: So here is a businessman who was engaged in buying and selling. So when he owed somebody
a sum of money, that somebody filed a case against this businessman and applied for a writ of preliminary
attachment on the ground that the businessman was disposing his property in fraud of creditors. The SC
said NO. He is disposing his property in line of his business precisely he is in buy and sell. If he does not
dispose his property, how will he ever be able to pay you. The attachment was invalid.
Another SC case: Wherein the businessman who had a sari-sari store. A case was filed against him for a
sum of money and a writ of preliminary attachment was applied for. The SC said YES, the writ of
preliminary attachment was validly issued because there was disposal of the property in fraud of
creditors. Even if the disposal was made in line of his business, the SC held that the disposal was made at
midnight and through the backdoor. So there is fraud.
NOTE: Paragraph f is peculiar because it speaks about his situation or residence. So in this instance, any
person who left the country and temporarily reside there, you file an action and you can apply for a writ
of preliminary attachment. But take note of the last phrase there and those who may be served by
publication. So you cross-refer that to Section 15-17 of Rule 14 on Summons, who must be served
through publication. It applies only on actions in rem or quasi in rem. Actions which are strictly in
personam, summons by publication is not allowed.
Sec. 14. Service upon defendant whose identity or whereabouts are unknown.
In any action where the defendant is designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry,
service may, by leave of court, be effected upon him by publication in a newspaper of
general circulation and in such places and for such time as the court may order.
Sec. 15. Extraterritorial service.
When the defendant does not reside and is not found in the Philippines, and the action
affects the personal status of the plaintiff or relates to, or the subject of which is, property
within the Philippines, in which the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the defendant has been attached
within the Philippines, service may, by leave of court, be effected out of the Philippines by
personal service as under section 6; or by publication in a newspaper of general circulation
in such places and for such time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered mail to the last known address
of the defendant, or in any other manner the court may deem sufficient. Any order granting
such leave shall specify a reasonable time, which shall not be less than sixty (60) days after
notice, within which the defendant must answer.

Sec. 16. Residents temporarily out of the Philippines.


When any action is commenced against a defendant who ordinarily resides within the
Philippines, but who is temporarily out of it, service may, by leave of court, be also effected
out of the Philippines, as under the preceding section.

One of the objectives of a writ of preliminary attachment is to convert an action which is strictly in
personam to an action quasi in rem. Once you convert it, then you can now serve summons through
publication. SALE ON ATTACHMENT there is no need to go through motion for writ of execution.
Q: In writ of preliminary attachment, there are three stages:
A:
1. Application. Together with the application is the order granting the application.
2. Issuance of the order or the writ of preliminary attachment.
3. Implementation or execution of the writ of preliminary attachment.
NOTE: The first two stages may be done ex parte. But the last stage must always be with prior or
contemporaneous service of summons. Hence that applied, you can avail of paragraph f of Section 1 of
Rule 57 in converting the action in to an action in rem because the writ of preliminary attachment can be
issued even without service of summons.
In paragraph f, nakalagay dun that if a person cannot be found in the Philippines or is temporarily residing
out of the Philippines, then that can be a ground for asking the court to issue the writ of preliminary
attachment. But we said, it says there further, and all those persons who may be served summons
through publication. But sabi natin, who are these persons who may be served summons through
publication? Ala yan diyan. So you go back to Section 15-17 of Rule 14, Extra-territorial service. But we
said that even if summons by publication is allowed, that is only in cases where the action is not strictly in
personam (quasi in rem). Sabi natin, so contradictory apparently. Why? Because you are asking precisely
for a writ of preliminary attachment on that ground but you cannot serve summons to a person if your
action is strictly in personam. Sabi natin, hindi. Ang explanation diyan is that in the application for the
writ of preliminary attachment, there are three stages. Yung una hindi mo kailangan ng summons. So
you can already apply, on the basis that the defendant is outside of the country. You apply irrespective
whether the summons can be issued or not because it can be issued ex parte. But dito lang sa issuance.
Pero pag hawak na yan ng sheriff, iimplement na niya under Section 7, levy on attachment, hindi ka
pwede mag levy on attachment if the court has not acquired jurisdiction over the person of the defendant.
Kaya nakalagay diyan, prior or contemporaneous. Prior is Mangila case. Contemporaneous sabay na ng
pag implement ng writ of preliminary attachment ang service of summons.
When the property has been attached, it does not mean that the property is already yours. You have to
wait for the judgment before you can dispose of the property either by public auction or possess it as
owner.
Q: Suppose the plaintiff loses under Section 20, what will answer for damages?
A: The bond will answer for damages.
Sec. 20. Claim for damages on account of improper, irregular or excessive
attachment.
An application for damages on account of improper, irregular or excessive attachment
must be filed before the trial or before the trial or before appeal is perfected or before the
judgment becomes executory, with due notice to the attaching party and his surety or
sureties, setting forth the facts showing his right to damages and the amount thereof. Such
damages may be awarded only after proper hearing and shall be included in the judgment
on the main case.
If the judgment of the appellate court be favorable to the party against whom the
attachment was issued, he must claim damages sustained during the pendency of the
appeal by filing an application in the appellate court, with notice to the party in whose favor
the attachment was issued or his surety or sureties, before the judgment of the appellate
court becomes executory. The appellate court may allow the application to be heard and
decided by the trial court.
Nothing herein contained shall prevent the party against whom the attachment
was issued from recovering in the same action the damages awarded to him from
any property of the attaching party not exempt from execution should the bond or deposit
given by the latter be insufficient or fail to fully satisfy the award.

NOTE: This is the peculiarity of Rule 57. Unlike all other bonds which answer only for damages, it is
only in Rule 57 will the bond answer for the judgment. So you underline the word judgment. Kasi dito
mo lang makikita yan sa Rule 57. Because in Rules 58-61, the bond answers for damages. While in Rule
57, the bond answers for judgment. Ano'ng ibig sabihin nun? Sometimes damages can be separated from
judgment. But in most instances hindi, damages can be part of the judgment. Let's say defendant is
ordered to pay P20,000 as principal obligation and damages of P10,000, so hiwalay. In other cases the
bond or counter bond only answers for the P10,000. But in preliminary attachment, the bond or counter
bond answers for the P30,000, judgment and damages.
When can party apply for damages under Rule 57? It is before entry because the case is always
appealable.
Do not be misled therefore by cross-references to Section 20 by the other rules. Do you notice that? di ba
puro cross-references. Section 8 of Rule 58, Section 9 of Rule 59, and Section 10, Rule 60 cross-refer to
Section 20, Rule 57. The cross-reference is correct but the difference is that the bond and counter bond in
all these provisional remedies answer only for damages. But in writ of preliminary attachment because of
its precedent section which is Section 19, which answers for any judgment.
Rule 58 Sec. 8. Judgment to include damages against party and sureties.
At the trial, the amount of damages to be awarded to either party, upon the bond of the
adverse party, shall be claimed, ascertained, and awarded under the same procedure
prescribed in section 20 of Rule 57.
Rule 59 Sec. 9. Judgment to include recovery against sureties.
The amount, if any, to be awarded to any party upon any bond filed in accordance with the
provisions of this Rule, shall be claimed, ascertained, and granted under the same procedure
prescribed in section 20 of Rule 57.
Rule 60 Sec. 10. Judgment to include recovery against sureties.
The amount, if any, to be awarded to any party upon any bond filed in accordance with the
provisions of this Rule, shall be claimed, ascertained, and granted under the same procedure
as prescribed in section 20 of Rule 57.

Once there is a writ, these are the ways attachment may be done: Sec 7, 8 , 9, 10 cross-refer this to
Rule 39 (levy on execution). These all depend on what is sought to be attached.
Sec. 7. Attachment of real and personal property; recording thereof.
Real and personal property shall be attached by the sheriff executing the writ in
the following manner:
(a) Real property, or growing crops thereon, or any interest therein, standing upon the record
of the registry of deed of the province in the name of the party against whom attachment is
issued, or not appearing at all upon such records, or belonging to the party against whom
attachment is issued and held by any other person, or standing on the records of the
registry of deeds in the name of any other person, by filing with the registry of deeds a copy
of the order, together with a description of the property attached, and a notice that it is
attached, or that such real property and any interest therein held by or standing in the name
of such other person are attached, and by leaving a copy of such order, description, and
notice with the occupant of the property, if any, or with such other person or his agent if
found within the province. Where the property has been brought under the operation of
either the Land Registration Act or the Property Registration Decree, the notice shall contain
a reference to the number of the certificate of title, the volume and page in the registration
book where the certificate is registered, and the registered owner or owners thereof.
The registrar of deed must index attachments filed under this section in the names of the
applicant, the adverse party, or the person by whom the property is held or in whose name
it stands in the records. If the attachment is not claimed on the entire area of the land
covered by the certificate of title, a description sufficiently accurate for the identification of
the land or interest to be affected shall be included in the registration of such attachment;
(b) Personal property capable of manual delivery, by taking and safely keeping it in his
custody, after issuing the corresponding receipt therefor;

(c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by


leaving with the president or managing agent thereof, a copy of the writ, and a notice
stating that the stock or interest of the party against whom the attachment is issued is
attached in pursuance of such writ;
(d) Debts and credits, including bank deposits, financial interest, royalties, commissions, and
other personal property not capable of manual delivery, by leaving with the person owing
such debts, or having in his possession or under his control, such credits or other personal
property, or with his agent, a copy of the writ, and notice that the debts owing by him to the
party against whom attachment is issued, and the credits and other personal property in his
possession, or under his control, belonging to said party, are attached in pursuance of such
writ;
(e) The interest of the party whom attachment is issued in property belonging to the estate
of the decedent, wether as heir, legatee, or devisee, by serving the executor or
administrator or other personal representative of the decedent with a copy of the writ and
notice that said interest is attached. A copy of said writ of attachment and of said notice
shall also be filed in the office of the clerk of the court in which said estate is being settled
and served upon the heir, legatee or devisee concerned.
If the property sought to be attached is in custodia legis, a copy of the writ of attachment
shall be filed with the proper court or quasi-judicial agency, and notice of the attachment
served upon the custodian of such property.
Sec. 8. Effect of attachment of debts, credits and all other similar personal
property.
All persons having in their possession or under their control any credits or other similar
personal property belonging to the party against whom attachment is issued, or owing any
debts to him, at the time of service upon them of the copy of the writ of attachment and
notice as provided in the last preceding section, shall be liable to the applicant for the
amount of such credits, debts or other similar personal property, until the attachment is
discharged, or any judgment recovered by him is satisfied, unless such property is delivered
or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court
issuing the attachment.
Sec. 9. Effect of attachment of interest in property belonging to the estate of a
decedent.
The attachment of the interest of an heir, legatee, or devisee in the property belonging to
the estate of a decedent shall not impair the power of the executor, administrator, or other
personal representative of the decedent over such property for the purpose of
administration. Such personal representative, however, shall report the attachment to the
court when any petition for distribution is filed, and in the order made upon such petition,
distribution may be awarded to such heir, legatee, or devisee, but the property attached
shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir,
legatee, or devisee, or any person claiming under him.

Note: If what is sought to be attached is the interest of a person.


- What you attach here is the INTEREST and not the share
General Rule: Interest becomes is Custodia Legis
Qualification: Should not impair rights
Can the executor dispose the property? Yes, but has to report to the court because it may prejudice other
person in interest of the property.
Sec. 10. Examination of party whose property is attached and persons indebted to
him or controlling his property; delivery of property to sheriff.
Any person owing debts to the party whose property is attached or having in his possession
or under his control any credit or other personal property belonging to such party, may be
required to attend before the court in which the action is pending, or before a commissioner
appointed by the court, and be examine on oath respecting the same. The party whose
property is attached may also be required to attend for the purpose of giving information
respecting his property, and may be examined on oath. The court may, after such
examination, order personal property capable of manual delivery belonging to him, in the
possession of the person so required to attend before the court, to be delivered to the clerk
of the court or sheriff on such terms as may be just, having reference to any lien thereon or
claim against the same, to await the judgment in the action.

Q: How do you discharge the writ of preliminary attachment?

A: So the writ of preliminary attachment has already been issued or served as the case may be. At any
stage, you can always discharge the writ. Under Sections 5, 12, and 13. These are important sections.
Read that and you will note the differences.
Q: Can the defendant attach the property of the plaintiff?
A: YES by counter-claim, permissive
Sec. 5. Manner of attaching property.
The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to
await judgment and execution in the action, only so much of the property in the Philippines
of the party against whom the writ is issued, not exempt from execution, as may be
sufficient to satisfy the applicant's demand, unless the former makes a deposit
with the court from which the writ is issued, or gives a counterbond executed to
the applicant, in an amount equal to the bond fixed by the court in the order of
attachment or to the value of the property to be attached, exclusive of costs. No
levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced
unless it is preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the application for attachment, the
applicant's affidavit and bond, and the order and writ of attachment, on the defendant within
the Philippines.
The requirement of prior or contemporaneous service of summons shall not apply
where the summons could not be served personally or by substituted service
despite diligent efforts, or the defendant is a resident of the Philippines
temporarily absent therefrom, or the defendant is a non-resident of the
Philippines, or the action is one in rem or quasi in rem.
Sec. 12. Discharge of attachment upon giving counterbond.
After a writ of attachment has been enforced, the party whose property has been
attached, or the person appearing on his behalf, may move for the discharge of the
attachment wholly or in part on the security given. The court shall, after due notice and
hearing, order the discharge of the attachment if the movant makes a cash deposit, or files a
counter-bond executed to the attaching party with the clerk of the court where the
application is made, in an amount equal to that fixed by the court in the order of
attachment, exclusive of costs. But if the attachment is sought to be discharged with respect
to a particular property, the counter-bond shall be equal to the value of that property as
determined by the court. In either case, the cash deposit or the counter-bond shall secure
the payment of any judgment that the attaching party may recover in the action. A notice of
the deposit shall forth with be served on the attaching party. Upon the discharge of an
attachment in accordance with the provisions of this section, the property attached, or the
proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the
counter-bond, or to the person appearing on his behalf, the deposit or counter-bond
aforesaid standing in place of the property so released. Should such counter-bond for any
reason to be found to be or become insufficient, and the party furnishing the same fail to file
an additional counter-bond, the attaching party may apply for a new order of attachment.
Sec. 13. Discharge of attachment on other grounds.
The party whose property has been ordered attached may file a motion with the court in
which the action is pending, before or after levy or even after the release of the
attached property, for an order to set aside or discharged the attachment on the ground
that the same was improperly or irregularly issued or enforced, or that the bond is
insufficient. If the attachment is excessive, the discharge shall be limited to the excess.
If the motion be made on affidavits on the part of the movant but not otherwise, the
attaching party may oppose the motion by counter-affidavits or other evidence in addition to
that on which the attachment was made. After due notice and hearing, the court shall order
the setting aside or the corresponding discharge of the attachment if it appears that it
was improperly or irregularly issued or enforced, or that the bond is insufficient,
or that the attachment is excessive, and the defect is not cured forthwith.

Q: What is the difference between Section 5 and Section 12?


A: Apparently, there is no difference. But if you try to analyze it, there is a difference. The means to
discharge are the same which is either a cash deposit or counter bond, which you find in Section 5. If you
go to Section 12, pareho din ang means which is a cash deposit or a counter bond. Tignan niyo, sino ang

hihingi ng discharge of the writ? Siyempre that party against whom the writ was issued. A is the plaintiff
and B is the defendant. If A applies for preliminary attachment and it was issued, who seeks for the
discharge? Siyempre si B. Is it possible that A, in an instance, may also seek the discharge of the writ?
Ordinarily no, but if B as a counterclaim, which is permissive, B will ask for a writ of preliminary
attachment against A. Thus A may also seek the discharge the writ. A can file for a counter bond.
Section 5 speaks of a cash deposit or a counter bond. The counter bond will answer for the judgment. The
cash deposit will also answer for the judgment, May pinagkaiba ba yun? Siyempre iba yun. Yung cash
deposit, pera na yun. But businessmen don't usually do that. What they do is through surety. And this is an
instance where surety is automatically impleaded without the requisite service of summons in acquiring
jurisdiction over the person of the defendant.
The difference is, in Section 5, the writ has not been implemented but it is already issued. In the case of
Section 12, the writ has already been implemented and custody of the property sought to be attached is
already in the hands of the sheriff. The property is already in custodia legis.
Regardless in what stage, whether the writ was just issued but not yet implemented or is
contemporaneously implemented, the defendant can immediately file for a counter bond. The counter
bond, in effect, automatically discharges the writ.
Section 13, another means of discharging the writ by filing a motion in court questioning the propriety or
regularity of the issuance of the writ. Whether the writ has already been implemented or not, you can
avail of Section 13.
Q: What are some grounds of irregularity in the issuance?
A: Insufficiency of the bond. Remember that the requirement for the issuance are affidavit and bond. So
if the affidavit for example did not contain the required statement as provided for in Section 3 of Rule 57,
then that is an irregularity. Or it contains but it was untruthful. It was a lie, then it is irregular.
Or suppose the bond which was filed was very insufficient. There was a claim for P20M and the bond
was only P1M. So, the issuance of the writ is irregular and improper.
Or it was issued by the court on the ground not specifically stated in Section 1 of Rule 57. Because the 6
grounds there are EXCLUSIVE. Wala ng iba.
Remedies are Sections 5, 12 and 13. These are the means to discharge the writ of preliminary attachment.
Q: Can one avail of Section 12 and avail again Section 13 in the same case?
A: Yes, it can happen. If I was a businessman and a case was filed against me and a writ of preliminary
attachment was issued against my sari sari store, and the writ is implemented, I cannot proceed with my
business because it is already in custodia legis. I cannot start selling this because the property which has
been attached is reserved for judgment. Remedy? I immediately file a counter bond, and the writ is
automatically discharged. So i can again continue in selling my merchandise. Meanwhile when there was
no writ anymore, I'll file a motion before the court claiming that the issuance was improper and irregular.
I'm not praying anymore for the discharge of the writ but rather for the discharge of the counter bond. So
answer is YES. One can avail both 12 and 13.
Q: How about Sections 13 and 5?
A: Hindi. Kasi yung Section 5 before the implementation.
I was saying, it is possible that the applicant loses in the case. It is not a guarantee that when you ask for a
writ of preliminary attachment, you will win in the case. Even if you win in the case, but you may lose in
your application for the writ of preliminary attachment.
Q: How can this happen?
A: It can happen in such a way that during the proceeding, it was established that the issuance of the writ
was irregular and improper. And what does the rule provide? The rule provides that if this happens right
there and then before entry of judgment, you already have to file for damages. You cannot file that after
entry of judgment because you are considered to have waived your right. And remember Section 46 of

Rule 39, you can file now a case against the surety even without impleading the principal. In like manner,
provided there is notice, you can go after the surety if it is a counter bond or surety bond.
Q: What is the effect of the writ that is lifted? Torres vs. Satsatin and Chuidian vs. Sandiganbayan.
Q: How about a 3rd party claim, which you find in Section 14 of Rule 57?
A: If there is a 3rd party claim, the same provision as you find in Section 16 of Rule 39 applies. The 3rd
party claimant executes an affidavit, gives it to the sheriff and then the sheriff will deliver back the
property, which has been attached, to the 3rd party claimant unless the applicant secures the sheriff with
another bond. Pareho rin yan sa Replevin, Section 7 of Rule 60 and Section 16 of Rule 39.
NOTE: Common error of the students think that since the 3rd party claimant files his claim, then the 3rd
party claimant should file for the bond. Atty. Brondial corrects that it is not. The applicant for the writ
who should file the bond without prejudice, of course, to a filing a case against the 3rd party claimant
who filed a 3rd party claim frivolously and fraudulently. And that case can be threshed out in the same
action or even in a separate action.

RULE 58
PRELIMINARY INJUNCTION
Provisional Remedy: Preliminary injunction
Principal Action: Injunction
We said you will find an action for injunction in Section 4 in Rule 39. (Rule 39 Sec. 4. Judgments
not stayed by appeal.
Judgments in actions for injunction, receivership, accounting and support, and such other
judgments as are now or may hereafter be declared to be immediately executory, shall be
enforceable after their rendition and shall not be stayed by an appeal taken therefrom,
unless otherwise ordered by the trial court. Xxx)

But seldom will you find an action filed specifically for injunction only. It is coupled always with other
causes of action. Like damages, or recovery of property with injunction and prayer for preliminary
injunction and TRO.
Q: When do you apply?
A: We said any court has jurisdiction over injunctive relief. It is often said that SC has no jurisdiction
over an action for injunction. Of course not, in the sense you do not file an original action with the SC.
But if your action is certiorari which is cognizable by the SC, you can ask for injunction.
Madaling intindihin ito ngayon, these are always in the papers. Ngayon, maraming mga pulitiko ang
hinahabol at dinidismiss, kaya they are all filing injunctive relief. They are praying for annulment of the
order of dismissal or cancellation of the order of dismissal with prayer for injunction and writ of
preliminary injunction. Where do they go? To the CA because the defendant here is the DILG. So pwede
yun.
While injunction can be availed of in any court, including the SC, but if you read cases and statements to
the effect that you cannot file for an action for injunction to the SC it is because it is not a court of
original jurisdiction over this action except certiorari, prohibition, mandamus, quo warranto, habeas
corpus.
Q: What are the requirements in order for a party to file an injunction with prayer for preliminary
injunction?
A: This basic requirement is a right of the applicant.
1. First requirement: The applicant must have a right. This right must be actual, existing and valid
and not just an inchoate right or a right not in esse (substantial).
Example of an inchoate right is the property of your parents. And you claim to be an heir. You are
not entitled to the property unless your parents die. Your right to the property is just inchoate.
2. Second requirement: There must be a violation of that right or threatened violation. So the
violation may not be actual. It can only be a threat and you can already seek protection through
injunction.
3. Third requirement: The violation or threatened violation will result in irreparable damage and

injuries.
Sec. 3. Grounds for issuance of preliminary injunction.
A preliminary injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the act or acts complained of, or in
requiring the performance of an act or acts, either for a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts complained of
during the litigation would probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual.

Take note of these three fundamental requirements.


Example is the Idolor case.
NOTE: Preliminary injunction is preparatory to injunction. TRO is preparatory to preliminary injunction.
And within that TRO is the 72 hour period of the TRO. Tatandaan niyo to.
Preliminary injunction has no time frame. After trial that can become permanent. But remember that a
preliminary injunction is a provisional remedy attached to injunction. So when a preliminary injunction
has become permanent, it means that you already won the case of injunction. But not the TRO, because
the TRO is preparatory to preliminary injunction. That is why there is a time frame in the TRO which
is 20 days in cases of the RTC and MTC and 60 days of CA.
Q: The requirement is verified application and bond, when do you apply for this?
A: You apply for preliminary injunction at any time in the course of the action even at the commencement
of the action or anytime thereafter but before judgment.
Q: Preliminary injunctions are of 2 kinds:
A: Prohibitory injunction or mandatory preliminary injunction.
In prohibitory injunction, you seek to maintain the status quo. In mandatory injunction, you seek to
return to the status quo.
Let me illustrate: Suppose when you go home tonight, you found your home without electricity because
it has been cut by MERALCO for non-payment of your electric bill. So you want a return to the status
quo, so you file for a mandatory injunction, mandating the MERALCO to return electricity to your
residence.
Suppose when you arrived at home what you got was a notice of disconnection, may ilaw pa kayo. The
notice of disconnection is a warning. It is a threat of a violation of your right or violation of your contract.
So what do you file? Prohibitory injunction, you seek to maintain the status quo of having lights in your
house.
Status Quo Last peaceful undisturbed situation
Q: Can you get injunctive relief ex parte?
A: In no way. It must always be after hearing. You cannot get injunctive relief ex parte. I would like to
emphasize there as to where you are applying because this has always been a case for discussion. If you
apply for the writ for injunctive relief before a multi-sala court, there are 2 notices necessary for issuance
of the writ of preliminary injunction.
Q: Ano ba ang multi-sala court?
A: There is only one RTC Manila. But there are many salas, RTC Branches 45-48, etc. Quezon City
marami din yun. Yan ang tinatawag na multi-sala. Pag 2 na yan, multi-sala na yan.
The rules provide that when you apply for injunctive relief before a multi-sala court, the executive judge,
even before hearing the case, must give notice of raffle. Raffle pa lang, may notice na dapat. So that if

there is no notice of the raffle date, it is already violative of the due process clause of the constitution.
Kung single sala, wala na. Ang notice mo ay notice of hearing because hearing is mandatory. But if it is in
Metro Manila or if it is a multi-sala court, 2 notices, Notice of raffle and notice of hearing. So ang
ipapadala munang notice is when is the raffle date and your failure to attend after notice, you waive your
right to be present at the raffle. And then later on is notice of hearing.
During the hearing, the applicant should present evidence and the defendant should present his evidence.
Ordinarily, what is given is TRO. This TRO, if it is issued by the RTC or MTC, is good only for 20 days.
Upon expiration, it cannot be renewed. It is grave abuse of discretion on the part of the court to extend
even upon agreement of the parties cannot and should not be extended. In the case of the CA, it is 60
days.
Q: Where do you count the 20 day or 60 day period as the case may be?
A: From issuance.
I would like to find out, that every TRO cannot be granted ex parte except on a very urgent matter where
the hearing can be done summarily. In the case of a TRO which is good for 72 hours, this time from
notice.
Q: Why 72 hours?
A: Kasi dito sa Pilipinas, ordinarily non-working day ang Saturday and Sunday. So hindi pwedeng 48
hours baka kasi pumatak dun sa Saturday or Sunday. Kaya 72 hours because it is 3 days, kahit yun
pumasok ng friday ng hapon, papatak yun ng lunes. O pag binigay yang ng saturday, papatak pa din yan
ng lunes.
If the court continues your 72 hour TRO to a full 20 day TRO, the 72 hours will be included in the 20
days. This time counted from the issuance of the TRO of the 72 hours.
Q: Why 20 days?
A: It is because this is roughly 3 weeks. And within a 3 week period, the court must hear whether or not
to grant the writ of preliminary injunction. The court is a very busy body and you cannot set it for hearing
immediately because there are other cases filed before it.
Latest development: A.M. No. 07-7-12-SC, which now provides for an ex parte granting of TRO,
whether 72 hours or 20 days, in single or multi-sala. The 20 days herein is inclusive of 72 hours or 3
days. Such TRO time CANNOT BE EXTENDED. 70 hours begins to run from issuance while 20
days begins to run from notice. This new circular is not prejudice to the court still demanding hearing
since this pertains to courts prerogative. If the SC issues a TRO, its time frame is indefinite.
Q: How do you discharge the writ?
A: You cannot discharge the writ through a counter bond. The only way is to question the propriety or
regularity of the issuance. But even then, chances are it will just be denied. Kaya pag na issue ang TRO
for 20 days, wait ka na lang after that period. That's why it's not that long because it is really to be
threshed out whether there was violation of the right, whether it will cause irreparable damage or injury.
Any action, if there is a violation of a right, you can ask for injunctive relief.
Sec. 6. Grounds for objection to, or for motion of dissolution of, injunction or
restraining order.
The application for injunction or restraining order may be denied, upon a showing of its
insufficiency. The injunction or restraining order may also be denied, or, if granted, may be
dissolved, on other grounds upon affidavits of the party or person enjoined, which may be
opposed by the applicant also by affidavits. It may further be denied, or, if granted, may be
dissolved, if it appears after hearing that although the applicant is entitled to the injunction
or restraining order, the issuance or continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while the applicant can be fully
compensated for such damages as he may suffer, and the former files a bond in an amount
fixed by the court conditioned that he will pay all damages which the applicant may suffer
by the denial or the dissolution of the injunction or restraining order. If it appears that the

extent of the preliminary injunction or restraining order granted is too great, it may be
modified.

How about damages, you are cross-referred to Section 20 of Rule 57. But the bond here answers only for
damages, supra.
Illustrations (Case Discussion)
AGUSTINO vs. REAL
- 2nd TRO was issued and brought up to SC.
Why?
- 1st TRO was issued during the pendency of the action (pendent lite)
- 2nd TRO was brought up to the SC because Agustino was already proclaimed
LAGROSAS CASE
- Bristol-Myers asked for the release of the TRO Bond
- Sec 5 counter-bond in Preliminary Attachment = does not only answer for damages they also
answer for judgment but in other counter-bond, it only answers for damages.

RULE 59
RECEIVERSHIP
When we talked about receivership it is both a provisional remedy and a principal action. Although it can
happen that receivership is attached as a provisional remedy to an action for a recovery.
Q: What is the principal action for receivership?
A: If the receivership is used as a provisional remedy, the principal action here is for recovery of property
whether real or personal.
Q: What would be the jurisdiction?
A: Jurisdiction shall depend upon the principal action. It can be taken cognizance by the inferior court or
the regional trial court. You cannot file it to the Court of Appeals or the Supreme Court. You only file
original actions in the SC or CA in a very peculiar actions and we already know that when we studied
jurisdictions. Concurrent jurisdictions like certiorari, prohibition, mandamus, quo warranto, habeas
corpus.
Q: If you file an annulment of judgment of the MTC, where will you file it?
A: We do not apply Rule 47 because it is for the order of the Regional Trial Court, we apply the general
rule that no actions on appeal can go to the CA or SC because it is a judgment of MTC. RTC has
jurisdiction even though it is annulment of judgment.
If receivership can be taken cognizance depending on the principal action, but if the principal action is
receivership itself since receivership may be the principal action. While preliminary injunction can never
be the principal action, what is the principal action there is injunction. In receivership it may be a
principal action or provisional remedy. If it is a provisional action it must attached to a principal action
which is recovery. But unlike attachment, Sec. 1 Rule 57, states the grounds for attachment. Sec. 1 Rule
59 also gives the different kinds of instances where you can apply for receivership.
Section 1. Appointment of receiver.
Upon a verified application, one or more receivers of the property subject of the action or
proceeding may be appointed by the court where the action is pending, or by the Court of
Appeals or by the Supreme Court, or a member thereof, in the following cases:
(a) When it appears from the verified application, and such other proof as the court may
require, that the party applying for the appointment of a receiver has an interest in the
property or fund which is the subject of the action or proceeding, and that such property or
fund is in danger of being lost, removed, or materially injured unless a receiver be appointed
to administer and preserve it;
(b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the
property is in danger of being wasted or dissipated or materially injured, and that its value is
probably insufficient to discharge the mortgage debt, or that the parties have so stipulated
in the contract of mortgage;
(c) After judgment, to preserve the property during the pendency of an appeal, or to dispose
of it according to the judgment, or to aid execution when the execution has been returned

unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the
judgment, or otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the property in
litigation.
During the pendency of an appeal, the appellate court may allow an application for the
appointment of a receiver to be filed in and decided by the court of origin and the receiver
appointed to be subject to the control of said court.

Q: What are these instances?


A: Sec. 1 Rule 59
a. When it appears from the verified application, and such other proof as the court may require,
that the party applying for the appointment of a receiver has an interest in the property or
fund which is the subject of the action or proceeding, and that such property or fund is in
danger of being lost, removed, or materially injured unless a receiver be appointed to
administer and preserve it;
b. When it appears in an action by the mortgagee for the foreclosure of a mortgage that the
property is in danger of being wasted or dissipated or materially injured, and that its value is
probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in
the contract of mortgage;
c. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it
according to the judgment, or to aid execution when the execution has been returned
unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the
judgment, or otherwise carry the judgment into effect;
d. Whenever in other cases it appears that the appointment of a receiver is the most convenient
and feasible means of preserving, administering, or disposing of the property in litigation.
Q: What is the purpose or the reason for assigning or appointing a receiver in these instances?
A: It is for the preservation, administration or disposal of the property.
Note: You must be logical in your analysis. Why do we have to preserve the property? If the property is
already there, why do you have to preserve it? Because it is not being preserve. It is in danger of being
loss, dissipated, damage or the value is being diminished. If such reason does not exist, you cannot ask for
receivership. In administration, the value may be diminished hence the need for receiver to retain the
value of the property or the property is supposed to be disposed but it is disposed irregularly.
Even a mortgagee can file for a receivership because the property being mortgaged is in danger of being
loss, dissipated, destroyed or the value diminished.
Q: How do you apply for receivership? Procedure for receivership?
A: File an application for appointment of a receiver which is ordinarily a verified petition.
Q: What do you mean by a verified petition?
A: When you talk about verified petition it simply means that the petition must be under oath. Verified
meaning under oath.
Q: When do you apply?
A: From the commencement of the action even after appeal because the property is still in danger of
being loss, dissipated, destroyed or its value diminished.
Q: Where do you apply? Is it in the appellate court or trial court?
A: Amendment of the rule, the appellate court may allow the application to be filed in and decided by the
court of origin and the appointed receiver of the court of origin has control over the property under
receivership. Sec.1 Rule 59 last paragraph.
This amendment is exceptional because under Sec. 9 Rule 41 perfection and loss of jurisdiction. The court
of origin has no more jurisdiction over the action but still the court of origin can still appoint a receiver,
this is the reason why it is exceptional. If you look at the 1960 rule which was amended by the 1997 rules
of court hindi pa yan pwede but now pwede na. because the rationale there is what is actually appealed is
not the subject matter of receivership but the principal action, here it is merely a provisional remedy. Sir
does not totally agree with that because as said earlier receivership may be a provisional remedy or a

principal action, so if it is a principal action definitely it is appealed there. The real reason there is that
it is in the exercise of its residual jurisdiction.
Q: What are the requirements?
A: Affidavit and bond.
Q: What constitutes the affidavit?
A: The affidavit here pertains to the affidavit of merits, same as Rule 57 Sec. 3 requirements but different
grounds. It is a mandatory requirement for receivership.
Q: Who should file the bond?
A: The applicant and the receiver shall file the bond. An applicants bond and a receivers bond because
the applicant may not be appointed as the receiver. As much as possible, a party to the case should not be
appointed as receiver, if you are the applicant it does not follow that you will be appointed as the receiver.
Because these are 2 different bonds they must undergo 2 different things. The applicants bond answer for
the damages caused by the applicant while the receivers bond answer for the damages caused by the
receiver. Possible damaged could be incurred by the subject, if that is the case.
Q: What happens if the applicant is appointed as the receiver himself? Does he file 2 bonds?
A: Yes, thats why you do not limit yourself to replevin where the bond is twice the value of the property.
It can also happen here that 1 person files 2 kinds of bonds although not necessarily the value of the
property because here just like attachment it is with the discretion of the court. The court may only
require his bond not necessarily an amount equal to the value of the property but in replevin the rules
specifically provide that the bond must be twice the value of the property. Here not necessarily, pero 2 pa
rin, one coming from the applicant and another from the receiver, so if the applicant was appointed as the
receiver he files 2 bonds. One as an applicant and another as receiver. But the bond of the applicant if
also the receiver may be dispensed with.
Q: If the 2 requirements are complied with, the affidavit and bond, the court shall issue an order
appointing a receiver, so what are the duties and responsibilities of a receiver?
Sec. 6. General powers of receiver.
Subject to the control of the court in which the action or proceeding is pending, a receiver
shall have the power to bring and defend, in such capacity, actions in his own name; to take
and keep possession of the property in controversy; to receive rents; to collect debts due to
himself as receiver or to the fund, property, estate, person, or corporation of which he is the
receiver; to compound for and compromise the same; to make transfers; to pay outstanding
debts; to divide the money and other property that shall remain among the persons legally
entitled to receive the same; and generally to do such acts respecting the property as the
court may authorize. However, funds in the hands of a receiver may be invested only by
order of the court upon the written consent of all the parties to the action.
No action may be filed by or against a receiver without leave of the court which appointed
him.

A: Sec. 6 Rule 59 a receiver shall have the power to bring and defend actions in his own name; to take
and keep possession of the property in controversy; to receive rents; to collect debts due to himself as
receiver or to the fund, property, estate, person, or corporation of the same; to make transfers; to pay
outstanding debts; to divide money and other property that shall remain among the persons legally
entitled to receive the same. However, funds in the hands of the receiver may only be invested only upon
order of the court and upon written consent of all the parties to the action. No action may be filed by or
against a receiver without the leave of the court which appointed him.
Q: Can a receiver be sue or be sued? How is it related to Sec. 1 Rule 3?
A: Yes, cross referring it to Rule 3 Sec. 1 who may be a party? A party is one who may be benefited or
prejudiced by the suit. A receiver shall not be damage or prejudiced by the suit nor benefited thereto. He
is not a party in interest, so why can he sue and be sued? Because he will fall under an entity authorized
by law just like an executor or administrator, he has no interest on the estate so he is not a party in interest
actually. But he is authorized, he has what we call legal standing.

Q: An order of receivership or appointing a receiver will take over and must have possession of the
property, if necessary these properties refer to everything under litigation including books of accounts and
everything. They are also obliged to deliver or surrender do not comply what should the receiver do?
A: He can ask the court to cite him for contempt.
Q: How receivership is terminated?
A: When there is no more reason for its existence it has to be terminated. Therefore if the properties
subject of receivership is no longer in danger of being wasted, lost, damage, injured or value dissipated
then receivership will terminate.
One common example here is when a corporation who is now in the stages of winding up its affairs.
During that time, the stock holders usuallynakaw dito nakaw doonusually the better solution is for
the appointment of a receiver. A receiver is not necessarily an individual person, it may also be a
corporation. Banko Pilipino for example, it was placed by receivership by the Sentral Bank. The problem
was that the receiver assigned was more corrupt than the stock holders before the termination of the
receivership he left for the States and stayed there permanently bringing with him all the assets of Banko
Pilipino. It took Banko Pilipino more than 20 years to recover. That is why the receiver is also obliged to
give a report, a return or an accounting of his duties and responsibilities to the court otherwise before you
know it baka lalo lang nawala and lahat.

Rule 60
Replevin
Q: What is the principal action?
A: Recovery of possession of PERSONAL property
Q: Which court has jurisdiction?
A: MTC or RTC depending upon the value of the property because technically replevin is only a
provisional remedy.
Note: Only receivership may only be a principal action but replevin will always be a provisional remedy.
Q: What are the grounds for application of replevin?
A: Sec. 2
a. That the applicant is he owner of the property claimed, particularly describing it, or is entitled
to the possession (holding of a thing and enjoyment of a right) thereof;
b. That the property is wrongfully detained by the adverse party, alleging the cause of detention
thereof according to the best of his knowledge, information, and belief;
c. That the property has not been distrained or taken for a tax assessment or a fine pursuant to
law, or seized under a writ of execution or preliminary attachment, or otherwise placed under
custodia legis, or if so seized, that it is exempt from such seizure or custody; and
d. That actual market value of the property is stated in the affidavit.
Q: If A sold a lot to B, then B caused the titling of the property fraudulently in his favor can A ask for
recovery of the property being entitled to the recovery of the property?
A: No, because replevin only applies to personal property.
The other provisional remedies we studied so far, you apply for the provisional remedy from the
commencement of the action or before judgment and even after judgment in the case of receivership. But
in replevin it should be availed of before answer.
Q: Why should replevin can only be availed of before answer? Why would an answer disqualify an
application for replevin? After answer it cannot be applied for anymore, why?
A: When an answer is filed issues are joined and because issues are joined, the court already knows
whether the applicant is entitled to the ownership or possession. So hindi na igagrant ng court, kaya it
must be before the answer because it is an immediate remedy.
Q: To whom the writ of replevin addressed? What should he do after issuance of writ?

A: To the sheriff, and after issuance of the writ of replevin he shall take actual possession of the property
for safe keeping. The property will not be in custodia legis.
Note: In attachment the taking of the property is for the purpose of awaiting for the final judgment, here
in replevin the reason for the taking of the actual possession of the property is for safe keeping.
Q: How long should the sheriff hold in possession of said property?
A: Only 5 days, after said period he must deliver said property to the applicant.
Q: So the defendant must object? If he does not object, what happens?
A: Yes, it requires an objection. If such objection is not made the possession of the property shall be given
to the applicant.
Q: How do you discharge the writ of replevin?
A: By filing a counter bond which is called redelivery bond within the period of 5 days. And within that
period if the writ of replevin is intended to be discharge the defendant must file a counter bond which is
also known as redelivery bond. If the defendant puts up a redelivery bond then the sheriff is now required
to return the property to the person to whom he got it. But if the defendant fails to put a redelivery bond
then the sheriff will deliver it to the applicant.
Remember that this is only a provisional remedy, the principal action is recovery of possession of
personal property. Later on, in the principal action you can thresh out ownership as the basis for the
recovery of possession. Therefore possession becomes an effect of ownership. If he is only entitled for
possession, pwede pa rin.
Yang vs Valdez
The 5 day period is mandatory, even if you put up a redelivery bond but beyond the 5 day period it will
not have the effect intended for.
Note: This is the shortest period wherein the sheriff has custody of the property, in attachment from
application which may be from the commencement of the action until final judgment which may last for
10 years. Here, you may even file for receivership kasi baka yung property e ginagamit na ng sheriff. And
usually you do not assign the sheriff or the clerk of court as a receiver. It is even advisable not to assign a
party to the case as a receiver.
Q: How much the bond be?
A: Twice the value of the property covering for the value of the property and the damages inflicted upon
the mortgagor.
Q: If the defendant objects on the ground of insufficiency of the bond or to the validity or capacity of the
surety, what happens now?
A: Sec. 5 Rule 60. Then the court must ask the applicant to satisfy the insufficiency of the bond, and only
when the order comes out and there is still no satisfaction of the insufficiency of the bond then the
property shall be delivered to the person to whom it was taken by the sheriff.
Q: What are the requirements?
A: Affidavit and bond.
We said in receivership that it can happen that there is 2 bond if the applicant is appointed at the same
time as the receiver. In replevin it can be thrice.
Q: Give the circumstance wherein it can happen?
A: If there is a 3rd party claimant.
Note: Weve studied 3rd party claim in Rule 39 execution, 3rd party claim in attachment and again here in
replevin. Sec. 16, 14 dito naman 7. The same provision, meaning if a 3 rd party claims ownership or
entitlement of possession of the property subject of replevin then the applicant must file another bond
which is not less than the value of the property. So 3 na. This is without prejudice to a possible action for

damages filed against the 3rd party claimant if the 3rd party claimants claim is found to be frivolous or
fraudulent. Where do you file it? Either in the same action or a separate action for damages.
In attachment if you file for damages Sec. 20 Rule 57 you have to do it before entry of judgment, dito sa
replevin it can be file in a separate action. You should know the distinctions between the different
provisional remedies, they are different, one from another. In execution of judgment, it is the judgment
obligee that has apply for the sale on execution and normally is the purchaser EXCEPT (1) if there are
claims under Rule 86 Section 8, (2) third party claim. Do you recall the peculiarity in what we studied in
the writ of execution? Under Rule 39, when there is a 3rd party claim, during the auction sale, even if the
purchaser is the judgment obligee he has to pay. Ordinarily, the judgment obligee, if he is the purchaser
during an auction sale pursuant to an execution he does not have to pay. But if there is a 3 rd party claim,
then he has to pay. Why? Because precisely the ownership is in question.
Q: If there is already a writ of replevin and the sheriff already took possession of the property and given it
to the applicant, how can it be discharged?
A: You can question the sufficiency of the bond.
Q: How do you discharge a writ of attachment?
A: Sec. 5, 12, 13 Rule 57. Sec. 13 is by motion, Sec. 5 is by counterbond. Dito naman sa replevin may
equivalent for that, a counterbond also or by redelivery bond, how much is the redelivery bond? Equal to
the bond therefore twice the value of the property also. Or you question the propriety or regularity of the
issuance.
Q: What are the possible grounds there?
A: That there is no basis, or there is no entitlement of ownership or possession of the property. Then the
writ can be discharged. But the immediate way to discharged it is thru a redelivery bond which is equal to
the value of the bond which is twice the value of the property.
Yung 3rd party claim, the same provision yun, the same application. In other words, thru an affidavit
furnishing the same to the sheriff, the sheriff is entitled to deliver it to the 3 rd party claimant unless the
applicant puts up another bond. So thrice na lahat, the value of the property.
Dito naman delivery until you put up another bond equivalent to the value of the property.
While the property now is in the hands of the applicant, the main action should proceed and what should
be the judgment? Important to. Orosa case Sec. 9 only in the alternative. Hindi pwede yung 2 ang ibigay.
Sec. 9. Judgment.
After trial of the issues, the court shall determine who has the right of possession to and the
value of the property and shall render judgment in the alternative for the delivery
thereof to the party entitled to the same, or for its value in case delivery cannot
be made, and also for such damages as either party may prove, with costs.

Q: What are the alternative decisions here?


A: It is either give the property or pay the value.
The best example of replevin is buying a car. But most buyers dont buy in cash almost everyone is
buying thru installment. Here you are not the owner yet, when the car is given to you, you execute a
mortgage, mortgaging the same car to the seller. Read the contract, it always has a clause in default, if it
says there that if you default for example 2 months of payment, the seller will have the right to foreclose
the mortgage judicially or extrajudicially. Here, the foreclosure will always carry a prayer for replevin and
the seller is willing to pay twice as much as the value of the property because the bond is not a cash bond
but merely a surety. Once they foreclose they get the car, complying with all the requirements. Once they
recover it after the case, the same car shall be resold.
Replevin as well as attachment is known as custodia legis. Property which has been attached can no
longer be the subject of replevin, but a property replevined can be the subject of attachment minus/less
delivery. Note parehong may delivery, pag replevin kinuha na, pero pwede mo pang iattach without
delivery because in attachment you also take but first right sa replevin, di mo na pwede kunin yun. But
you can attach, because attachment simply furnish him with the copy of the order. So ano ka? Subsequent

lien holder ka dun. The attaching creditor shall be a subsequent lien holder. Replevin replevin no
attachment attachment yes why? Because it depends upon the value, if the value of the property for
example a 100 square meter property in makati worth 2m and it was attached for a debt worth 1m, it can
again be attached. But in the case of levy, levy on attachment who is . the first attaching creditor. Kung
may sobra ibabalik dun sa may owner. And you can even be a redemptioner there because you are a
subsequent attaching creditor. So if there are 2 attachment, the 2 nd attaching creditor is or maybe a
redemptioner if the property is sold thru levy in attachment.
ASTORGA vs. SMART
- Can be brought before a regular court even if there is a pending case in another tribunal
- Not an employer-employee relationship but a creditor-debtor relationship

RULE 61
SUPPORT PENDENTE LITE
Q: What is the principal action?
A: Support, support pendent lite being a provisional remedy cannot stand alone, it must be attached to a
principal action which is an action for support.
Q: Which court has jurisdiction?
A: The court which has jurisdiction over the principal action. RTC
Q: Why RTC? Can it be MTC?
A: Because the subject of support is not capable of pecuniary estimation so only cognizable by the RTC.
The amount asked or prayed in the action of support is immaterial because the issue here is whether or not
the applicant is entitled to support.
Q: Is there any exception to the rule? Are there circumstances wherein support pendent lite can be taken
cognizance by the MTC or inferior courts?
A: Yes, in criminal cases because support pendent lite which attaches to support can be filed together
with the criminal case because in criminal procedure it is now provided that once you filed a criminal
case the civil aspect is deemed instituted with it.
Q: What are exceptions to the exception?
A: Reservation, prior institution.
Q: The usual case of an unwed mother goes to court and ask support for the child. When can she file it?
A: From the commencement of the action or at anytime prior to final judgment.
Q: Then the court must take immediate action on the provisional remedy of support pendent lite. What
does the court do?
A: The court shall issue an order directing the respondent to file a comment within 5 days. And with or
without comment, hearing must be held by the court. The hearing here is for the provisional remedy.
(parang injunction, it cannot be granted without a hearing. In preliminary attachment pwede, kasi it can be
granted ex parte but it cannot be implemented without prior or comtemporaneous service of summons). If
he failed to appear, court grant an order of support pendent lite, here it is only provisional.
An unwed mother living in the squatters area in Tondo asked the court for support and asked to be granted
provisional support to her only child in the amount of 50k a month. The court will ask why 50k?
Panggasulina po. Ilan ba kotse mo? Wala po. Nanghihiram lang ako ng kotse. Ilang taon na ba ang anak
mo? 3 months old po. Ano ba ang gatas nya? Breast fed po? Sabihin ng court di mo kailangan ng 50k ang
kailangan mo lang e malunggayLOL. Para mayroong gatas, and you are only feeding milk to your
son o baka naman may pinapadodo ka pang iba dyanLOL. Provisional lang to, kya the court may
grant 5k a month provisional remedy.
MONTEFALCON vs. VASQUEZ
Why is there a case against paternity and not maternity?
What if a woman did not acknowledge the child, can you go to court and file acknowledgement of the

woman to a child?
Is there a prohibition under law for a father to file against the mother? NO. Solomonic wisdom.
- What was the evidence of Montefalcon against Vasquez?
Certificate of LIVE BIRTH signed by Vasquez.
-There is joinder of causes of action in Montefalcon Case.
Q: Can an acknowledgement and support be joined? Requirements?
Section 5 RULE 2
a. Compliance on Joinder of Parties
b. Joinder must not include Special Civil Action
c. Where cause of action are between same parties but pertain to different venue or
jurisdiction, joinder may be allowed in RTC provided one of the cause of action falls within
the jurisdiction of said court and venue lies therein
d. Where the claims in all cause of actions are principally for the recovery of money, the
aggregate amount claimed shall be the test of jurisdiction.
Note: That this provisional remedy shall depend upon the capacity, eto ang very wide discretion ng court.
Capacity ng person who will give support.
Doctrine on PEOPLE vs. MANAHAN
- One cannot be forced to acknowledge a child if the man is already married
- RATIONALE: it goes against the sanctity of marriage
SY CASE
- Can be forced to support
- Support is not based merely on relationship but based on necessity.
Q: When does support becomes DEMANDABLE?
- Art. 203. From the time the person who has receive the same needs it for maintenance
Only when needs arises
- A judicial or extra-judicial demand is necessary
Q: In an action for support, what is sought to be established?
1. Capacity of the person to give support and
2. Need of the recipient for the support
DE ASIS CASE:
- Peculiar characteristics that makes the judgment for support NOT FINAL.
Q: Why is the judgment in support not subject to Res Judicata?
A: Because it never becomes FINAL.
- PECULIARITY PRECEDES RES JUDICATA
4 CHARACTERISTICS OF RULE 61:
1. Decision or Judgment for support NEVER BECOMES FINAL
2. Even if it is not final, this order/ judgment is SUBJECT TO WRIT OF EXECUTION
3. NON-PARTY TO A CASE CAN BE CHARGED TO SUPPORT
** Reimbursement may be availed in a separate action
MONTEFALCON vs. VASQUEZ
RESTITUTION if by mistake, Montefalcon will have to restitute Vasquez
REIMBURSEMENT w/o PREJUDICE if Vasquez did not support but his mother or father
Why? Because the court has no jurisdiction over the 3rd party
4. NO BOND is required TO BE POSTED
Why? Because no damage is involved
Q: Suppose the respondent does not comply, what should the court do?
A: The court shall issue an order to execute

As we have studied under the Rule 39, only final order or judgment may be executed. Then why should it
be executed? In fact, this is an interlocutory order like an appointment of a receiver, it is not appealable
only subject to certiorari if there is a ground.
Q: If these is merely an interlocutory order, why should it be executed?
A: The rule so provides that this is the only instance where an interlocutory order may be executed. That
provisional remedy of support pendent lite can be subject of a writ of execution. It is a very exceptional
character. It is an exception to the rule that only a final and executory order may be executed.
Q: Mother was granted 10k a month, in the process the main action is being heard which is support
proper to make the support pendente lite support already. Suppose the respondent was able to establish
that he is not liable to give support because he was able to prove that he was not the father. What happens
now?
A: Court shall order the return of the paid amount with payment of legal interest from the dates of actual
payment, without prejudice to the right of the recipient to obtain reimbursement in a separate action from
the person legally obliged to give support. Should the recipient fail to reimburse the amounts, the person
who provided the same may seek reimbursement in a separate action from the person legally obliged to
give such support.
Q: If the applicant cannot return the support granted then what happens?
A: She cannot be forced nor be imprisoned for that. But the respondent may seek reimbursement in a
separate action to the person legally obliged to give support.
Q: Supposed Vasquez was adjudged to give support for 10K/month, interlocutory subject, while giving
the SPL, the main action continues, for 1 year Vasquez has already given 120K, then the court now
decides that Montefalcon is not entitled to the SPL, what happened to the 120k?
A: RESTITUTION can be demanded of Montefalcon by Vasquez but Montefalcon can ask for
reimbursement from the real father. Vasquez can also file a separate action to the real father.
Note: 2 remedies restitution and reimbursement plus damages.
Mongonon vs CA 495 or 496 or 497 SCRA
De Asis doctrine
Support never becomes final, so res judicata does not apply. Because if granted 10k by court as support
(not just pendent lite) may judgment na for support. You can always go back to court and asked for
increase or decrease of support because it depends upon the capacity of respondent and needs of recipient.
In the De Asis case, the parties thereto made a compromise and later on the other party filed another case
for support. The respondent alleged that the compromise judgment is immediately executory and there is
res judicata. SC ruled that there is no res judicata in support, it is never final.
People vs. Manahan
Acknowledgment must be distinguish and separated from support. If the defendant is married, under that
doctrine, he may be forced to give support but not to acknowledge the child. The rationale there is in the
Family Code because it would introduce bad blood in the family.
Sir: Doesnt like that doctrine, he should be forced to acknowledge the child. It is his fault so why should
not he acknowledge.
Sec. 7 Restitution. Is it inequitable/ unfair?
- Is good faith a defense here for Montefalcon?
What is the Rationale behind?
Not an unfair treatment, rather this is a recognition that any person or a amn or woman can
improve oneself, in other words, that there is no permanency in a situation
That acknowledgement that the woman will not forever be in that status or situation. this
is the rationale why the judgment never becomes final.
DUAL ISSUE: Need of Recipient and Capacity to Give
LIM vs. LIM
- Are grandparents liable for support?

Only when parents are NOT ABLE to support their children and the grandparents are VERY
MUCH CAPABLE then the GP are liable to give support
SC: while the grandchildren can receive support, the daughter-in-law cannot receive support

SUPPORT not only limited too daily sustenance of a child


-not also limited to minor children especially if its a matter of education

SPECIAL CIVIL ACTIONS


Q: What is so special about special civil actions? Why are they called special civil actions?
A: Because each particular civil actions are governed by their own special rules. Ordinary rules of court
does not apply to them but is only suppletory in character. For example some special civil actions have no
summons, the court acquire jurisdiction over the respondent in a different manner but in ordinary actions
summons is mandatory. Like in certiorari, there is no issuance of summons there, the court acquire
jurisdiction by the issuance of order to file a commnent.
Distinguish Rule 65 with Rule 45
In special civil actions in Rule 65 it says there that the tribunal, body, board, officer, corporation are only
nominal parties and under regulations now of the SC, circulars, the tribunal, corporations under or
impleaded as respondent are not suppose to appear and not suppose to file pleadings, let the private
respondents do that for them.
That is why in certiorari, you say petition for certiorari Juan De la Cruz vs RTC branch 45 manila then
name of respondent. The principal respondent there is the tribunal court or bodies, but they become
nominal in the process.
Q: Name the special civil actions?
A:
1. Rule 62 Interpleader
2. Rule 63 Declaratory Relief and Similar Remedies
3. Rule 64 Review of judgments and final orders or resolutions of the COMELEC and COA
4. Rule 65 Certiorari, Prohibition and Mandamus
5. Rule 66 Quo Warranto
6. Rule 67 Expropriation
7. Rule 68 Foreclosure of Real Estate Mortgage
8. Rule 69 Partition
9. Rule 70 Forcible Entry and Unlawful Detainer
10. Rule 71 Contempt
In case of conflict what would prevail? Special Civil Actions or General Civil Actions? Special civil
actions.
How does the court acquire jurisdiction over the defendant on certiorari because theres no summons?
Not by virtue of summons because its not required but upon receipt directing him to file a comment.
How will the respondent be covered by the decision of the court?
Only upon SERVICE OF THE ORDER or JUDGMENT the court acquired jurisdiction over the person.
PECULIARITY: Court of Limited Jurisdiction e.g. Rule 70
- To issue the matter of possession
Venue Rule 66; Quo- warranto
- Must be the resident of respondent
- Tied up with Rule 4, general rule is in Rule 4 Section 4.

RULE 62
INTERPLEADER
Q: Which court has jurisdiction in an action for interpleader?
A: It may be taken cognizance by MTC or RTC. It depends upon the subject matter of the interpleader.
Q: Why does it depend upon the subject matter? What can be the subject matter of an interpleader?

A: Property whether real or personal may be the subject matter of an interpleader, aside from that
performance of an obligation may also be the subject matter of an interpleader.
Note: Performance of the obligation cannot be filed in the MTC because it is incapable of pecuniary
estimation which is only cognizable by the RTC. Performance of an obligation amounts to specific
performance which is not capable of pecuniary estimation.
For example you found a wallet, you surrender it to the dean, upon opening of the wallet it was found to
contain a check worth 350k payable to cash. A,B,C, and D alleges ownership. The dean has no other
choice but to file an action for interpleader because there are 4 different claimants. Another example is A
and B are lessor and lessee over an apartment unit. At the end of the contract of lease A would like to
surrender the premises to B, but C and D came forward and said they are entitled to that. A now does not
know to whom to deliver, therefore A should file an interpleader. Example of obligation, to paint, sculpt,
perform.
Q: A deposited 1M to the bank and died. 3 claimants over the deposit.
1 entitled to the settlement of the estate.
2- assigned to one.
3 donated prior to death
A: File with the RTC because issue is not the amount of action but to the performance of obligation.
Q: How do you distinguish now interpleader from intervention?
INTERPLEADER (Rule 62)
INTERVENTION (Rule 19)
Original action
Ancillary action
No pending case
Dependent action
There must be at least 2 defendants
One defendant
Refers to a confliction claims over a subject Presupposes that there is an existing pending
matter
action
A: Interpleader is a special civil action while intervention is an ancillary action. In the former there can be
no single defendant, there must be at least 2 defendants while in intervention there can be 1 defendant. In
the former there is no action yet while in the latter there is already a pending action.
Note: If you are asked to make a distinction do not define one and period because you are not stating a
distinction at all.
Q: After an action of interpleader is filed, what happens next?
A: The court shall order the respondents to file their answer.
Note: This is the only rule where there is a section for a motion to dismiss. Defenses and objections, that
is what is meant there.
After filing an answer and once the issues are joined then you go to the regular rules of court which is you
go to pretrial then trial.
Q: What should the judgment be by the court in an interpleader case?
A: The judgment shall be a declaration as to who is entitled or who is the legitimate or entitled to the real
or personal property or of the performance of the obligation.
ETERNAL GARDENS CASE
- Mission entered a joint venture with eternal-memorial garden
- 60/40 40% mission; 60% eternal
- Maysilo Estate claimed ownership over the property
Give me the 40% of the proceeds from the sale
- Jurisdiction is determined by the amount
SC: when you file an action for interpleader you have to give up the 20M since you supposedly have no
interest
- ***plaintiff has no interest over the subject matter and may be asked by the court to deposit such

WACK-WACK GOLF CLUB CASE


- One claimant- deed of assignment
- Other claimant by judgment
DOCTRINE: interpleader did not push through. Interpleader is a compulsive counterclaim.
compulsory counterclaim is deemed waived if not interposed. BASIS: Sec2 Rule9
- It cannot exist without a complaint
GEN RULE: A compulsory counterclaim or a cross-claim not set up shall be barred.
Is this absolute? No.
EXCEPTION: Sec 10 Rule 11 1. Inadvertence, 2. Excusable negligence, 3. Oversight
- You can still amend the complain or interpose the interpleader
PARISHCA vs. DIZON
- Lease of apartments from Dizon
- Non-payment ejectment
- DEFENSE: problem to whom payment should be made, squabble in the management
SC: Not a valid defense. You have 2 remedies:
1. JUDICIAL CONSIGNATION &
2. INTERPLEADER
Q: What if the action is for the performance of an act, can you ask for its deposit?
A: No, the person who is obliged to perform will not stay there. It is only applicable to real or personal
property.

RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Q: Which court has jurisdiction over declaratory relief?
A: RTC has original and exclusive jurisdiction because the subject matter is not capable of pecuniary
estimation.
Note: The real declaratory relief is stated in the first paragraph of Sec. 1 Rule 63, the 2nd paragraph
which pertains to reformation of instrument or quieting of title is not declaratory relief it is similar
remedies. The 2nd paragraph was added there to give life to certain provisions of the Civil Code which has
no corresponding procedural aspect. It is even misplaced, it should fall under ordinary action.
Note: Annulment of title to/ possession of JURISDICTION DETRMINED BY ASSESSES VALUE OF
THE PROPERTY.
- Already capable of pecuniary estimation
Q: Whats the venue?
A: If personal action, where the plaintiffs or respondents resides at the option of the plaintiff.
Q: What are the subject matter?
A: Any contract, will, deed, or other instruments or whose rights are affected by a statute, executive order
or regulation, ordinance or any other governmental regulation.
Q: What is the condition? What is the peculiarity there?
A: Before breach of contract or violation of the statute. If there is already violation in the contract or
statute then declaratory relief is no longer applicable.
Meralco vs Philippine Consumers 374 SCRA
There was a PD by Marcos reducing the Tariff rate of electricity from 5% to 2% and then the Phil.
Consumers Foundation Inc. wanted that the 3% reduction be given to the consumers. The BOE denied it.
It was never appealed so the order of BOE became final and executory. 5 years after PCFI filed an action
for declaratory relief. SC dismissed it because the PD has long been breached already. The doctrine here
is that you cannot file an action for declaratory relief if there is already breach.

Example Makati issued an ordinance banning smoking even on the street effective on Dec. 20, 2008.
Before Dec. 20, 2008 arrives you have the right to file an action for declaratory relief. Pero pagdating ng
Dec. 20 no more, because once Dec. 20 arrives there is a reasonable presumption that there is already a
violation.
Q: Suppose youve already filed an action before breach, then pending action there is already breach,
then what happens?
A: Then the action shall be converted into an ordinary action.
Note: Rule 63 provides when an action for DECLARATORY RELIEF in the course of proceeding when
breached, can be converted into ordinary action.
e.g. A leaves B a land for 4 years, 2010 2014. On 2002, Ondoy happened and property was destroyed
but A says, we are going to repair and the repair lasted for 2 years. B then files a DECLARATORY
RELIEF, what action: to clarify regarding the term or period in the contract? 2004 to 2006?
interpretation.
During pendency, term has reached, so theres already a breach as it is already 2004, so B converts now
the Declaratory Relief to Ordinary Action. What Action? To ask for exhaustion to define the term
Q: How do you convert the action?
A: File a motion to amend action with leave of court.
- RULE 10 SUPPLEMENTAL PLEADING
Q: Example a regulation of a school was issued stating that by the school year 2008-2009 starting June
tuition fees shall be raised by 120%. There was already a circular to that effect. Declaratory relief was
filed, pending action June 2008 came. The increase was already collected from the students so you
convert your action for declaratory relief to what kind of action?
A: Convert is to collection of sum of money.
A and B are lessor and lessee of a property. And the contract of lease is for a period of 10 years from year
1990 to year 2000. In 1995 the land was overrun by MNLF and so the lessee left the property. 4 years
thereafter, in 1999 the MNLF was driven away by the military so B returned to the premises. He files for
an action of declaratory relief asking the court to determine whether the contract will expire 2000 or
2004. why? Because he was not able to avail of the 4 year period when it was under the possession of the
MNLF. So he filed for declaration of relief, but the action has not yet terminated it is already 2001, by
2001 the action must be converted into what? Into either unlawful detainer or forcible entry as the case
may be or for recovery accion publiciana.
Q: Is the court bound to make a judgment in an action of declaratory relief?
A: No, another peculiarity here is that the court is not bound to make a judgment. Rule 63 Section 5.
Declaratory Relief judge is not required to render judgment on the ground of
-When judgment will not resolve or necessary under the circumstances
-When judgment will not resolve the issues involve
Q: When is it not bound to make a judgment?
A: When there will be no finality in the resolution of the rights and privileges
Manhattan Bank New York
MBNY is a trustee of a will and one of the named devisee in the will filed an action for declaratory relief
without asking the court to determine who are the compulsory heirs and what are their specific rights
under the will. The petitioner did not implead the compulsory heirs, the court refused to render judgment
because even if it did it will not finished or end the controversy.
CASE DISCUSSIONS AND DOCTRINES:
Which court has jurisdiction over DECLARATORY RELIEF? RTC has exclusive and original
jurisdiction
But in the case of REYES vs. ORTIZ
SC: must not be brought before us because it is RTC who has exclusive and original jurisdiction unless
EXCEPTION:
1. Unless there is COMPELLING REASONS concurrent jurisdictions

2. SC: action you filed is not DECLARATORY RELIEF. It is not proper.


a) Rule 63 has 2 kinds of action:
a. 1st par proper DECLARATORY RELIEF
b. b. 2nd par ordinary action
VELARDE CASE:
Under what kind of DECLARATORY RELIEF? SECOND.
Who is the head of the Social Justice System? Samson Alcantara. SJS is a political party
- SJS filed against the petitioners a declaratory relief before the RTC seeking the interpretation of
several constitutional provision the separation of church and state and a declaratory judgment on the
constitutionality of the acts of religious leaders endorsing a candidate for an elective office or
requiring the members of their flock to vote for a specific candidate
- RTC Judge: failed/violated Rule 36 sec 1 because he only gave an opinion
ESSENTIAL REQUISITES:
1. There is justiciable controversy
2. There is controversy between persons whose interests are adverse interest
3. The party seeking the relief has a legal interest in the controversy
4. The issue is ripe for judicial determination
-

If not one of these requirements can be found in the case then it is PRE-MATURE

JUSTICIABLE CONTROVERSY refers to an existing case / controversy that is appropriate or ripe for
judicial determination, not one that is conjectural or mere anticipation.
-

No Cause of Action yet in declaratory relief.

Basic Fundamental BASIS: BEFORE BREACH


Q: What is the PECULIARITY when assailing constitutionality of a law under DECLARATORY
RELIEF?
A: NOTICE TO THE SOLICITOR GENERAL or DOJ thru the office of the prosecutor
REPUBLIC vs. ORBECIDO
Why did it fall under DECLARATORY RELIEF?
Because it falls under the 2nd form because a statute is asked to be explained
During the probate of the will
- SUBJECT: allowance or disallowance extrinsic validity
- You can ask for DECLARATORY RELIEF to interpret provisions
Can a court order be the subject of a DECLARATORY RELIEF?
- NO. because there is a remedy for it which is Motion for CLARIFICATORY of judgment. This is
provided for in the case of Reyes vs. Ortiz.
Dont understand citizenship, can it be a subject of DECLARATORY RELIEF?
- NO. Because it is NOT A JUSTICIABLE QUESTION, it is a political question.
2 forms of DECLARATORY RELIEF:
2nd paragraph of Sec 1 of Rule 63 is it a declaratory relief?
NOT a DECLARATORY RELIEF, it was added to give to life to certain provisions of the Civil
Code which has no corresponding procedural aspect.
It pertains to reformation of instrument/ consolidation of title or quieting of title
MALANA CASE
- Action filed: quieting of title
- Prayer: for the respondent to vacate
- RTC: dismissed petitioners complaint on the ground of lack of jurisdiction based on RA7691

ISSUE: W/N dismissal of the case w/c law/= or statute would apply in this situation
JUDICIAL ISSUE
- SC HELD: Unlawful detainer: Jurisdiction is determined by the ASSESSED VALUE of the property
QUIETING OF TITLE are actions involving to or possession of property and jurisdiction is determined
by the assessed value of property. Even in the case of Barangay San Roque vs. Pastor, rescission of
contract, partition and foreclosure are considered as actions incapable of pecuniary estimation.
2nd par sec 1 Rule 63 may
PHIL OIL EXPLORATION CASE
Doctrine:
- An ACCION PUBLICIANA (recovery of plenary possession) is not necessarily cognizable in RTC
- if it involves title to/ possession to property which is accion publiciana, what determines jurisdiction
is the assessed value of the property
- Accion interdictal and Accion Reivindicatoria are cognizable in MTC
REYES CASE: what is the improvement in this decision?
- Listing is EXCLUSIVE! Under section 1 paragraph 1 of Rule 63

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OF THE


COMELEC AND COA
Remember that Rule 64 cross refer you to Rule 65 so we do not have to discuss Rule 64
Q: What is the difference between Rule 64 and Rule 65?
A: In Rule 64 it only applies to COA and COMELEC while in Rule 65 there is no specific agency. In the
former the petition should be filed 30 days from receipt of notice while in the latter it is filed 60 days
from notice. In the former it is solely cognizable only by the SC while in the latter there is concurrent
jurisdiction between SC, CA, RTC and even Sandiganbayan but in the case of the latter the only
limitation being is it should only be in aid of its appellate jurisdiction.
What are the decisions exclusively cognizable by SC?
- CA, SANDIGANBAYAN, COA, COMELEC, & CTA
Will the NEYPES DOCTRINE apply?
- This is the FRESH PERIOD RULE
Will this apply on Rule 64/ 65?
It will not apply in Rule 12 ( Bill of Particulars), 16 (motion to dismiss), and in Rule 64
Rules 12, 16 and 64 only have balance of the period but not less than 5 days
In Rule 65? NO IT WILL NOT APPLY.
Will it apply in Criminal Cases? YES IT APPLIES. YU vs. TATAD (Feb. 9, 2011 case)
Section 3 of Rule 41

RULE 65
CERTIORARI, PROHIBITION, AND MANDAMUS
Rule 65
Petitioner (Plaintiff)
Respondent

Certiorari
Any aggrieved party
TBO

Grounds

1. Lack of jurisdiction
2. Excess of
jurisdiction
3. Grave abuse of

Prohibition
Same
Tribunal, Board,
Officer, Person,
Corporation
Same

Mandamus
same
TBOPC
1. Neglect in the
performance of the act
enjoined by the law
2. Unlawfully

discretion amounting
to lack of jurisdiction
Functions of
respondents
Conditions

Judgment

Judicial/quasi judicial
functions
(discretionary)
1. No appeal
2. No plain, speedy,
adequate remedy in
the ordinary course of
law
To annul/void
judgment or final
order

Same + ministerial
functions

excludes the
enjoyment of an office
or franchise
Same as prohibition

Same

To cease and desist

Order to do but may


award damages

Q: We do not have any problem in the aggrieved parties. How about the respondents?
A: In prohibition you add the person and the corporation and remember that this used to be under the
jurisdiction of the SEC, but this is no longer true. How about this person? This is not ordinary individual
person but a person exercising quasi judicial function. Remember that quasi judicial bodies as we have
studied do not belong to the judiciary and a lot of them falls under the executive branch of the
government and that includes the NLRC. The NLRC is not a judicial body but it exercises quasi judicial
functions.
GENERAL RULE: An executing officer cannot be for certiorari, because he is performing an
executive function.
EXCEPTION: Tuazon vs. Register of Deeds of Caloocan City.
TUAZON CASE:
- Marcos declared that the TALA estate
- People were not able to pay Carmel, so the title was voided by a presidential decree
- SC asked the Sol Gen to file a comment.
- SOL GEN: The kind of action you file is wrong, you file certiorari instead, because this is only
directed to a judicial / quasi-judicial function. So certiorari is not the proper remedy.
Doctrine: It was a USURPATION of judicial function and can be struck down by certiorari.
UP Board of Regents vs. Ligot-Teylan
Board was considered as a body exercising discretionary function, in effect quasi judicial. Even in an
administrative bodies, a school board, when it rules that a student is not entitled to be enrolled in said
school due to some grounds.
Lapid vs Laurea
Requirements of certiorari
Q: Give example of lack of jurisdiction?
A: Tribunal, body, board or officer has no authority to decide the case. Example MTC rendered a
judgment on an issue which the subject is not capable of pecuniary estimation.
Russel vs Vestil
Note: Under Rule 45 which is a mode of appeal, the body there acted with jurisdiction that is why the
ground cannot be any of the 3 because it is a mode of appeal. It is called errors in judgment. Under Rule
65 it is errors of jurisdiction. Errors of judgment are correctible by an appeal, while error of jurisdiction is
correctible by certiorari.
Q: Give example of excess of jurisdiction?
A: Here the court has jurisdiction but it exceeded its authority. Example is when MTC in a case of
reckless imprudence resulting to homicide rendered a judgment of conviction of 20 yrs imprisonment.
This is clearly excess of jurisdiction.

Before amendment in summary procedure, attorneys fees are limited to 20k wala na yan ngayon. So if a
court grants more than 20k as attorneys fees under the old law it is clearly excess of jurisdiction. Under
the new law it may be grave abuse of discretion but not anymore excess of jurisdiction.
Court penalizes lawyer in the amount of 20k for direct contempt for coming late. Maximum penalty is
20k so no excess of jurisdiction but maybe grave abuse of discretion.
Q: What is grave abuse of jurisdiction amounting to lack of jurisdiction?
A: It is a capricious or whimsical exercise of judgment and despotic or arbitrary exercise thereof.
Certiorari is always questioned in the bar or at least it is always mentioned. So if you are asked a question
about certiorari and you do not know whether it is excess of jurisdiction or grave abuse of jurisdiction
amounting to lack of jurisdiction, just remember 4 adjectives whimsical, capricious, despotic and
arbitrary. When you see any of these words, it is grave abuse of discretion because in all jurisprudence
involving certiorari, these are the words often used by the SC. But there may be a case wherein it does not
use the specific words, kaya dapat alam nyo ang meaning and synonyms of these terms.
Q: When is it capricious? How about whimsical? Despotic? Arbitrary?
Note: That the word capricious and whimsical always go together. You will not find one without the
other. It means it is only based on whim, there is no need, no necessity. It is unreasonable.
Arbitrary naman is no basis, unwarranted, baseless, the law does not provide. Despotic on the other hand
is when it is done out of passion, out of revenge, out of hatred or out of love. Remember despotic pa rin
yan kahit out of love. Relationships, maraming jurisprudence dyan, kaya lawyers always file motion for
inhibition.
Q: Give example of grave abuse of discretion?
A: In filing a motion to quash grounded on double jeopardy and in your motion you attached the
judgment of conviction of your client. Very clear he has been convicted already. Court denied motion
stating yes you have been convicted of rape of my daughter but it is still denied. Why? Because I have 2
more daughters.LOL.
Note: In all of these grounds lack of jurisdiction, excess of jurisdiction, grave abuse of discretion. Ang
malimit mong mabasa is grave abuse of discretion kasi very clear pag excess of jurisdiction and lack of
jurisdiction.
It is important that you must establish the existence of whimsical, capricious, despotic or arbitrary. If you
cannot establish that then the court should deny it because it would then be an error of judgment and not
error of jurisdiction. The remedy would be wrong. And at the time of said judgment the case would be
final and executory because the right to appeal is lost because the period for filing an appeal has already
lapse.
Note: That certiorari does not stop the running of the period of appeal.
Note: Discuss mandamus with quo warranto because of the similarities between the 2.
Q: Let us now go to functions of the respondent. In Certiorari the functions are judicial and quasi judicial
function. Now, what is judicial function?
A: It is pursuant to the judicial power of courts under Section 1 of Article 8 of the Constitution.
Q: The distinction lies in the root of its power since both exercises the same power which is the power to
hear and determine a case, so what is the root of its authority?
A: In judicial function the root of its power comes from the judiciary itself while in quasi judicial
function the roots of its power comes from the legislative or the executive department.
Note: Do not confuse it to discretionary or ministerial functions
Q: How do you distinguish one from the other?
A: In ministerial, the court is left without the choice but to grant it if all the rules and requirements are
complied with, while in discretionary it may deny or grant but within the parameters, it cannot go beyond

said parameters. Example is giving penalty of 6 years 1 day to 12 years. The court has discretion what
specific penalty to give but it must be within said period depending upon certain circumstance.
Note: That the grounds in prohibition is the same even if the function is merely ministerial kasi pwede pa
rin na whimsical, capricious, despotic or arbitrary. But which is clearer? Yung discretionary function sa
certiorari because it is very clear because of the parameter in discretionary. So if it exceeds the parameter
clearly grave abuse of discretion amounting to lack of jurisdiction.
Conditions are that there must be no appeal and there is no other plain, speedy, adequate remedy in the
ordinary course of law.
Q: Why no appeal?
A: Because it cannot be appealed.
Generally, certiorari cannot be a substitute for an appeal. Remember this, madaming ramifications to. If
appealable, no certiorari, as a general rule, so why go to certiorari? Because it is not appealable. Example
of those which are not appealable are interlocutory orders. Decisions in labor cases, does not allow appeal
so your remedy is certiorari. Why no appeal again? Because you could have appealed but you did not, you
have now lost your right to appeal. But these time the loss of appeal here is not due to any others fault but
your own. If it is your own fault, you cannot apply for certiorari. You loss your right to appeal not because
of your own fault. Example lawyers fault, although the general rule is fault of lawyer is also fault of
client, but there are exceptions there like Rule 38 Sec 1 Relief from judgment; Sec. 2 Rule 38 Relief from
denial of appeal. You left for abroad while pending case, lawyer received decision but he did not notify
you. When you return it can be excused.
The other condition, no plain, speedy, or adequate remedy in the course of law, in other words you could
have filed a motion for reconsideration or you could have appealed because it is still available, but appeal
or MR are not speedy or adequate remedy in the ordinary course of law. Example motion to quash was
denied, may appeal dun, pero certiorari is the better rule, why? Because if you saw appeal, tuloy tuloy pa
rin ang kaso. You cannot desist from proceeding the case, are you going to subject, are you going to
endanger the client to be convicted later on? So instead of an appeal or MR then you go to certiorari
where the other court will immediately strike down the resolution.
Q: What is the character of Rule 65 as distinguished from rule 45?
A: Rule 65 is a special civil action while rule 45 is a mode of appeal.
The ground for filing an appeal under Rule 45 is error of judgment which can either be:
1. Insufficiency of evidence
2. Judgment is not according to the facts
3. Damages awarded is contrary to law
The ground for filing certiorari under Rule 65 is error of jurisdiction which can either be:
1. Lack of jurisdiction
2. Excess of jurisdiction
3. Grave abuse of discretion amounting to lack or excess of jurisdiction.
Q: What are the grounds for filing of an action for prohibition?
A: Same grounds with certiorari.
Q: What are the grounds for filing an action for mandamus?
A:
1. Neglect in the performance of duty imposed by law
2. Exclusion from enjoyment of an office
Q: Doctrine in the case of Lapid vs. Laurea
1. Requirement preparatory to the filing of petition for certiorari
General Rule: Filing of a motion for reconsideration is mandatory to give the tribunal a chance
to correct itself
Exception: Purely questions of law which raises questions of error of jurisdiction

2. Specific dates must be stated as to when the judgment was rendered, when notice of judgment
was received, filing of Motion for reconsideration and receipt of order with respect to the denial
or grant of the motion.
Q: What is the period for filing of certiorari?
A: Period of 60 days from receipt of copy of judgment.
Q: Does the Neypes doctrine or fresh day rule apply?
A: The jurisprudence does not specifically provide that it should likewise apply to Rule 65 because it
speaks only of appeal. However according to a noted professor, the fresh day rule applies both to Rules 45
and 65 unless a new jurisprudence would otherwise provide.
NOTE: There was an old SC circular which provides that the 60 day period includes the filing of a
Motion for Reconsideration. However, in 2005 there was a new circular which states that the old circular
does not apply to Rule 65 so the 60 day period is counted from the notice of receipt of denial of the
motion for reconsideration.
Q: Doctrine of UP Board of Regeants Case
A: In mandamus rights must be very, very clear so that if the right is doubtful, mandamus will not lie.
Q: Distinguish mandamus from quo warranto. For example: Mayor Atienza has a city attorney which is
Atty. X whom he replaced with Atty. Y with no valid reason. Against whom may Atty. X file mandamus
and against whom may he file quo warranto?
A: Atty. X can file mandamus against Mayor Atienza because by the latter's act he was excluded from the
enjoyment of his office. Atty. X can file quo warranto against Atty. Y because he is a usurper of Atty. X's
office.
Discussions
Q: A files a case for a sum of money against B, for 250,000 in RTC and rendered a judgment. REMEDY?
Cause judge lacks jurisdiction
A: Petition for appeal.
Note: Certiorari and Appeal mutually exclusive
- 2 different remedies.
- Certiorari is a special civil action directed only when the grounds are lack of jurisdiction, excess of
jurisdiction and grave abuse of discretion.
Error of Jurisdicition (before judgment) CERTIORARI
Error of judgment APPEAL
** CERTIORARI does NOT STOP the running of the period of the period of appeal
Certiorari against a discretionary function
Prohibition discretionary + ministerial
Mandamus ministerial only
DISCRETIONARY
It may deny or grant but within parameters

MANDAMUS
Court is left without the choice but to grant
e.g. writ of execution does not acquire
jurisdiction

UP CASE
- RTC Judge issues a TRO
Why NO Appeal?
Because certiorari cannot be a substitute for an appeal
Because subject matter is NOT APPEALABLE e.g. Interlocutory order
In what instances appeal is available, but nonetheless certiorari is available?
When appeal is NOT AN ADEQUATE REMEDY in the ordinary course of law

Why not Adequate?


Because in the process the party will SUFFER irreparable damage
MATERIAL DATE RULE SECURITY BANK vs. AEROSPACE UNIVERSITY
- In every petition for certiorari or prohibition it requires that you should allege in petition:
a. When did you receive a copy of judgment
b. When did you file your MR
c. When did you receive copy of the order denying MR
- If not allege, ground for dismissal
- 60 days from notice of the judgment denying for new trial and motion for reconsideration
Note: Section 8 Rule 65 (2nd par.) must memorize! Grounds for dismissal for petition
Section 8:
Xxx The court may dismiss the petition, if it finds the same patently without merit or prosecuted
manifestly for delay or if the questions raised therein are too unsubstantial to require consideration.
xxx
These grounds are also seen in Rule 45 Section 5 and Rule 47 Section 5 in which the court can dismiss
the case motu proprio.

RULE 66
QUO WARRANTO
DEFINE quo warranto? It means by what right or authority.
Object/ Subject Matter: USURPATION of public office, franchise or public position
Section 1. Action by Government against individuals. An action for the usurpation of a
public office, position or franchise may be commenced by a verified petition brought in the
name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority so to act.

WHICH COURT HAS JURISDICTION? RTC in concurrence with SC, CA or RTC but never in
Sandiganbayan except in aid of appellate jurisdiction
Section 5 Article 8 (first 2 paragraph)
- Jurisdiction of SC (par A) sec 5 Art 8
Original jurisdiction over cases involving
RA 7691 RTC and CA has jurisdiction
What principles involved in concurrence of jurisdiction?
a. Hierarchy of courts
b. Not a trier of facts
c. Principle of transcendental importance if it is with transcendental importance you can file it
with SC or CA
Section 7. Venue. An action under the preceding six sections can be brought only in the
Supreme Court, the Court of Appeals, or in the Regional Trial Court exercising jurisdiction
over the territorial area where the respondent or any of the respondents resides, but when
the Solicitor General commences the action, it may be brought in a Regional Trial Court in
the City of Manila, in the Court of Appeals, or in the Supreme Court.

Venue for Quo Warranto?


Any of the parties where residing
If the venue was agreed upon, pwede?
No. Go back to the principle of venue in Rule 4.

Quo Warranto is a PERSONAL ACTION.


- Venue of the action must be filed in the place of respondent
Who is the Plaintiff?
- Solicitor General or Republic of the Philippines WHY?
It is because the subject matter is a PUBLIC OFFICE.
Section 2. When Solicitor General or public prosecutor must commence action. The
Solicitor General or a public prosecutor, when directed by the President of the
Philippines, or when upon complaint or otherwise he has good reason to believe that any
case specified in the preceding section can be established by proof, must commence such
action.

Q: Who initiates Quo warranto?


A: Office of the Solicitor General, public prosecutors and relators.
Q: Who are relators?
A: Private citizen who is entitled to the office.
Classic Example: Ninoy cannot file quo warranto against Marcos so his remedy was to file prohibition.
He did not succeed. He succeeded in the tarmac when he died. What is the moral of the story? Whatever
you cannot do living, you might succeed in death.
Q: Example 4 candidate for councilor filed a quo warranto against 8 elected counsilors of Manila. The
court dismissed the case. Why?
A: It is a rule that in filing quo warranto the person filing should be entitled to the position. So in this case
it was dismissed because how can 4 people fill up the position of 8 councilors.
Section 2 SG is mandated to file
Section 3 discretionary on the part of the SG or DOJ
When Mandatory?
- If DIRECTED BY THE PRESIDENT of the PHILIPPINES
When Discretionary?
- If REQUESTED by the RELATOR
A RELATOR is a person exercising office
Section 3. When Solicitor General or public prosecutor may commence action with
permission of court. The Solicitor General or a public prosecutor may, with the permission
of the court in which the action is to be commenced, bring such an action at the request and
upon the relation of another person; but in such case the officer bringing it may first require
an indemnity for the expenses and costs of the action in an amount approved by and to be
deposited in the court by the person at whose request and upon whose relation the same is
brought.

Can a private person file a case for Quo Warranto? When? Sec 5?
- Can file if he has a claim or an entitlement to the office, not ONLY public office BUT ALSO
franchise or grantee
- One must have a claim to the office
Section 5. When an individual may commence such an action. A person claiming to be
entitled to a public office or position usurped or unlawfully held or exercised by another may
bring an action therefor in his own name.

Can you file a Quo Warranto against a Senator?


- YES under Omnibus Election Code.
2 Kinds of Petition:
1. Rule 66 only APPOINTED OFFICER
2. Omnibus Election Code directed to 2 kinds of public office:

a. Elective Office
b. Appointed Office
ELECTION PROTEST
-

Is a contest between the defeated and


winning candidates on the ground of
FRAUD or IRREGULARITIES in the
casting or counting of the ballots or in
the preparation of the returns

QUO WARRANTO under Omnibus


Election Code
- Raises in issue the LOYALTY or
INELIGIBILITY of the winning
candidate
- It is a proceeding to UNSEAT the
RESPONDENT from office but not
necessarily to install the petitioner in his
place
- Once you oust, you should replace

What is the Prescriptive period?


- It must be filed within 1 year from the accrual of the action of Usurpation. After the entry of the
judgment, prescriptive period will not begin to run if you filed an appeal.
Section 11. Limitations. Nothing contained in this Rule shall be construed to authorize an
action against a public officer or employee for his ouster from office unless the same be
commenced within one (1) year after the cause of such ouster, or the right of the
petitioner to hold such office or position, arose, nor to authorize an action for
damages in accordance with the provisions of the next preceding section unless the same be
commenced within one (1) year after the entry of the judgment establishing the petitioner's
right to the office in question.

Can you claim for damages?


- Yes but it is not together with the Petition for Quo Warranto, it must be pursued 1 year from entry of
judgment.
What composes the JUDGMENT?
- Respondent will be ousted from the office. Plaintiff will then take over and will be entitled to the
records of the office
Section 6. Parties and contents of petition against usurpation. When the action is against
a person for usurping a public office, position or franchise, the petition shall set forth the
name of the person who claim to be entitled thereto, if any, with an averment of his right to
the same and that the respondent is unlawfully in possession thereof. All persons who claim
to be entitled to the public office, position or franchise may be made parties, and their
respective rights to such public office, position or franchise determined, in the same action.
Section 9. Judgment where usurpation found. When the respondent is found guilty of
usurping into, intruding into, or unlawfully holding or exercising a public office, position or
franchise, judgment shall be rendered that such respondent be ousted and altogether
excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs.
Such further judgment may be rendered determining the respective rights in and to the
public office, position or franchise of all the parties to the action as justice requires.
Section 10. Rights of persons adjudged entitled to public office; delivery of books and
papers; damages. If judgment be rendered in favor of the person averred in the complaint
to be entitled to the public office he may, after taking the oath of office and executing any
official bond required by law, take upon himself the execution of the office, and may
immediately thereafter demand of the respondent all the books and papers in the
respondent's custody or control appertaining to the office to which the judgment relates. If
the respondent refuses or neglects to deliver any book or paper pursuant to such demand,
he may be punished for contempt as having disobeyed a lawful order of the court. The
person adjudged entitled to the office may also bring action against the respondent to
recover the damages sustained by such person by reason of the usurpation.

If he does not comply? CONTEMPT IN PROCEEDING and Mandamus case against him.
MENDOZA vs. ALLAS
- personal actions may only be implemented against parties to a case

DOCTRINE: A judgment in quo warranto doesnt bind the respondents successor in office, even though
such successor may trace his title to the same source.
What judgment can you implement to a non-party?
Action in personam/ in rem
Q: What is the doctrine in the Mendoza Case?
A: Quo warranto is directed against the person and not against the office. Also plaintiff is not entitled to
backwages.
What is the doctrine in the case of Calleja vs. Panday?
It is opposite with the case of Mendoza in a way that backwages are not allowed to be claimed since
salaries of public officers are public funds; hence, cannot be transferred from one to another. But this can
only be done through an appropriation, otherwise, it amounts to malversation of public funds.

RULE 67
EXPROPRIATION
Q: What is the right? If expropriation is the procedure, what is the right to be implemented?
A: Right of Imminent Domain. The Power of Imminent Domain provided in the Constitution Article 3
Section 9.
Q: Rule 67 is procedural. What is the substantive law which provides for expropriation?
A: The 1987 Constitution
Q: Property? What does it pertain to?
A: Real or Personal PROPERTY.
Q: How about taking, meaning?
A: Not just actual taking but also diminution or deprivation of use.
DIMINUTION OF USE when the thing cannot be used after or is useless already
NAPOCOR CASE
- It is tied up with Rule 17 section 1 filed by Plaintiff for the dismissal of the action through notice
- sec 1 notice to dismiss this must be FILED BEFORE ANSWER
- sec 2 motion to dismiss; dismissal limited only to dismissal AFTER ANSWER IS SERVED
- NAPOCOR filed notice of dismissal for the 2nd expropriation
- POBRE :You cannot ask for dismissal as you have already started
- Napocor Contended: Why should we pay, we are availing of Rule 17 Section 1. Nobody is prejudiced.
- SC: No property shall be taken for public use or utility without just payment
Sec 1 Rule 17 = does not apply in expropriation
(Section 3) even before defendant should file defenses and objections
- DOCTRINE: regarding taking; concept of taking
Concept of Utility
1. You only retain what you need and throw those become useless
- Comes before ownership
2. We only appropriate those which are useful
FORMULA FOR JUST COMPENSATION
JC = FMV (Fair Market Value means the price that the seller is willing to sell and the price that the
buyer is willing to buy or the price agreed upon between the seller and the buyer with the prevailing
market price) + Consequential Damages Consequential Benefit
FMV = price agreed upon with the prevailing market value
CD = lost from the proceeds of the property
CB = amount that the owner can benefit; conceptual; should not be more than CD
Who is computing?
- 3 commissioners
Determination of Just Compensation?

Commissioners 3 and they should be mean of competent and disinterested persons and are men of
probity and integrity.
Section 5. Ascertainment of compensation. Upon the rendition of the order of
expropriation, the court shall appoint not more than three (3) competent and disinterested
persons as commissioners to ascertain and report to the court the just compensation for the
property sought to be taken. The order of appointment shall designate the time and place of
the first session of the hearing to be held by the commissioners and specify the time within
which their report shall be submitted to the court.
Copies of the order shall be served on the parties. Objections to the appointment of any of
the commissioners shall be filed with the court within ten (10) days from service, and shall
be resolved within thirty (30) days after all the commissioners shall have received copies of
the objections.

The Land Bank of the Philippines is the government depositary as of this moment.
2 STAGES OF EXPRORPIATION:
1. Whether property can be devoted to public use
2. Determination of Just compensation
**if CB will exceed CD, the owner might get nothing out of the property
Q: Which court has jurisdiction of expropriation case?
A: RTC because it is not capable of pecuniary estimation. Even as early as the case of Barangay San
Roque vs. Heirs of Pastor, actions for expropriation, foreclosure and partition are not capable of
pecuniary estimation, hence under the RTC.
Q: Who exercises jurisdiction?
A: The RTC because the action is not capable of pecuniary estimation. The value of the property being
only incidental to the case. (Russel V. Vestil, Brgy San Roque V. Heirs of Pastor)
BASIS: Value of the property being only incidental to the case.
What kind of action? Real action.
Q: Venue?
A: Where the property is located
Q: Plaintiff?
A: LGU, Government Instrumentalities like GOCCs and LGUs. However a resolution authorizing
expropriation must first be passed.
Q: Defendants?
A: Not only Owners, but Occupants of the properties or anyone who has interest in the property.
In ABAD CASE = cannot take over
- Upon filing of expropriation which would affect residents in the area, the unlawful detainer case is
suspended for a maximum of one year.
- SUSPENSION MTC case suspended upon the filing of expropriation BUT WITH CONDITION:
Tenants should still pay the rents or deposit it to the court not exceeding 1 year
- SC: Issue raised but did not comply
Q: Who determines the rent?
A: Still within the judicial function and it is never a legislative function
Q: After deposit?
1st ORDER OF CONDEMNATION interlocutory or final?
FINAL but APPEALABLE
Ordinary appeal = by Record of Appeal
Why? Because it is a final order and record on appeal is a multiple appeal
E.g. settlement of estates

GENERAL RULE: Once expropriation is reached, the determination of the just compensation depends
on the assessed value which is equivalent to 15% of the FMV of the property that must be deposited, for
LGU to take possession of the expropriated property.
Section 2. Entry of plaintiff upon depositing value with authorized government depositary.
Upon the filing of the complaint or at any time thereafter and after due notice to the
defendant, the plaintiff shall have the right to take or enter upon the possession of the real
property involved if he deposits with the authorized government depositary an
amount equivalent to the assessed value of the property for purposes of taxation
to be held by such bank subject to the orders of the court. Such deposit shall be in money,
unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a
government bank of the Republic of the Philippines payable on demand to the authorized
government depositary.
If personal property is involved, its value shall be provisionally ascertained and the amount
to be deposited shall be promptly fixed by the court.
After such deposit is made the court shall order the sheriff or other proper officer to
forthwith place the plaintiff in possession of the property involved and promptly submit a
report thereof to the court with service of copies to the parties.

EXCEPTION: Asias Emerging Dragon = regarding deposit, with respect to properties for infrastructure
projects under RA 8974, which must require 100% of FMV deposit.
2nd TAKES POSSESSION
3rd JUST COMPENSATION
-

In Rule 67 & 69 Rule 32 becomes mandatory because it is provided for

Q: What is the nature of the work of the commissioner after appointed by the court?
A: They are allowed to receive evidence, hear testimonies. They dont render judgment but they will
ONLY FILE A REPORT. The report then will be given to the judge.
Report is NOT conclusive and binding. Court has OPTION to:
a. To adopt or not the report
b. May modify the report
c. Remand it back
Section 7. Report by commissioners and judgment thereupon. The court may order the
commissioners to report when any particular portion of the real estate shall have been
passed upon by them, and may render judgment upon such partial report, and direct the
commissioners to proceed with their work as to subsequent portions of the property sought
to be expropriated, and may from time to time so deal with such property. The
commissioners shall make a full and accurate report to the court of all their proceedings,
and such proceedings shall not be effectual until the court shall have accepted their report
and rendered judgment in accordance with their recommendations. Except as otherwise
expressly ordered by the court, such report shall be filed within sixty (60) days from the date
the commissioners were notified of their appointment, which time may be extended in the
discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies
thereof on all interested parties, with notice that they are allowed ten (10) days within which
to file objections to the findings of the report, if they so desire. (7a)
Section 8. Action upon commissioners' report. Upon the expiration of the period of ten
(10) days referred to in the preceding section, or even before the expiration of such period
but after all the interested parties have filed their objections to the report or their statement
of agreement therewith, the court may, after hearing, accept the report and render
judgment in accordance therewith, or, for cause shown, it may recommit the same to the
commissioners for further report of facts, or it may set aside the report and appoint new
commissioners; or it may accept the report in part and reject it in part and it may make such
order or render such judgment as shall secure to the plaintiff the property essential to the
exercise of his right of expropriation, and to the defendant just compensation for the
property so taken.

Expropriation is NOT reclamation


- Expropriation is not a mode of acquiring title while Reclamation is a mode of acquiring title
- It is granted by any instrumentality of the state
Q: What does for public use mean?

A: It means that the purpose for taking would ultimately redound to the general welfare of the people
Q: May a law be passed authorizing the city of Manila to expropriate a portion of UST? May the
compensation be by way of exchange of property?
A: No there can be no compensation by way of exchange of property because the determination of Just
compensation is a judicial function.
Q: What is the remedy of the owner of the property?
A:
1. Mandamus
2. Quo warranto
Q: Which should be preferred, ownership or utility?
A: At first glance it would seem that ownership must be preferred but in reality it is utility because nature
made it so that you own only what you need and dispose of the things that you don't use. Pag wala nang
pakinabang, ipamigay mo na kagaya ng asawa mo.
Q: Doctrine in the City of Manila V. Serrano
A: Expropriation should be a final recourse

RULE 68
JUDICIAL FORECLOSURE
Foreclosure has 2 KINDS:
a. Judicial Rule 68
b. Extrajudicial RA 3135
Sec 1 of Rule 68 says about parties
What court has jurisdiction?
RTC real action, where properties is located
Plaintiff? Mortgagee
***Mortagagee holder of mortgage
- Does not have to be owner/ possessor of the property
Defendant? Mortgagor and under ***LAST SENTENCE OF RULE 68 all persons whose rights are
subordinate to that of the holder of mortagagor must be impleaded
***SUBORDINATE to Mortgagor: MUST BE IMPLEADED FOR ORDER OF CONFIRMATION TO
HAVE EFFECT IN THEM:
a. 2nd mortgagee
b. Attaching creditor
c. Possessor of the property
Redemptioner Section 27 Rule 39(b)
- An attaching creditor. Mortgagor whose lien is subordinate to the lien under which the property is
being sold.
Q: What kind of parties are they?
A: NECESSARY PARTIES
Q: What is the rule on the impleading of Necessary Party?
A: Have to allege the reason why (RULE 3). Otherwise, your claims against them are deemed waived.
Sec 2 when the complaint as to its allegations is valid in form and substance
- Judgment must be rendered in favour of plaintiff
Nature of judgment: it is a JUDGMENT TO PAY.

JUDICIAL FORECLOSURE: Judgment to pay means the payment of the mortgage debt
- For the mortgagor to pay the mortgage debt
- WITHIN what PERIOD? Kung anong nakalagay sa Judgment
EQUITY OF REDEMPTION
ONLY applies in RULE 68
Exception: Section 78 of the General
banking law (financial institution as
mortgagee)
No right of redemption in Rule 68
The equity of redemption is the
opportunity given to the persons
under Rule 68 to pay the property sold
after sale of foreclosure within 90 to
120 days counted from entry of
judgment

RIGHT OF REDEMPTION
Under RULE 39

Right to redeem is within 1 year from


the registration of the sale
(Only the judgment obligor or
redemptioner can redeem)

Section 2. Judgment on foreclosure for payment or sale. If upon the trial in such action
the court shall find the facts set forth in the complaint to be true, it shall ascertain the
amount due to the plaintiff upon the mortgage debt or obligation, including interest and
other charges as approved by the court, and costs, and shall render judgment for the sum so
found due and order that the same be paid to the court or to the judgment obligee within a
period of not less than ninety (90) days nor more than one hundred twenty (120) days from
the entry of judgment, and that in default of such payment the property shall be sold at
public auction to satisfy the judgment.

* But if the judgment is APPEALED then NO Entry of Judgment yet, hence a person can still pay.
- If NOT, an order of sale of property which refers to the ORDER OF CONFIRMATION will be issued
which will cut THE EQUITY GRANTED TO DEFENDANT.
ORDER OF CONFIRMATION Section 3
It is the confirmation of the sale WITHOUT this equity of redemption NEVER
CEASES
EFFECT: cuts the period of Equity of Redemption
-

If the property is sold less than the mortgage debt Then there is DEFICIENCY JUDGMENT
How will you go about the balance? It is by MERE MOTION you can ask RTC to LEVY
other property to answer for the deficiency judgment.
What if the JUDGMENT is EXCESS? Pay the other JUNIOR ENCUMBRANCERS before
pay the mortgagor.

Section 6. Deficiency judgment. If upon the sale of any real property as provided in
the next preceding section there be a balance due to the plaintiff after applying the
proceeds of the sale, the court, upon motion, shall render judgment against the defendant
for any such balance for which, by the record of the case, he may be personally liable to the
plaintiff, upon which execution may issue immediately if the balance is all due at the time of
the rendition of the judgment; otherwise; the plaintiff shall be entitled to execution at such
time as the balance remaining becomes due under the terms of the original contract, which
time shall be stated in the judgment.

Give 5 DIFFERENCES between JUDICIAL AND EXTRAJUDICIAL FORECLOSURE OF


MORTGAGE
JUDICIAL
EXTRAJUDICIAL
Governing Rule: RULE 68
RA 3135
Exception: Section 78 of general banking
laws
Requires COURT INTERVENTION
File an affidavit/application at the clerk of
court (as chief ex-officio sheriff)
EQUITY OF REDEMPTION exception:
RIGHT OF REDEMPTION right of
banking institution
mortgagor to redeem
Deficiency Judgment
No Deficiency Judgment
Need of notice to notify mortgagor
No need of notice to notify the mortgagor

EQUITY OF REDEMPTION
Period of not less than 90 days to not more
than 120 days from the entry of judgment

RIGHT OF REDEMPTION
Closely related to Rule 39 Section 27

What is a Judgment on Foreclosure? (RULE 68)


- JUDGMENT TO PAY MORTGAGE DEBT
- Judgment of Foreclosure
DOESNT MEAN TO SELL!
sell if this was in a court decision it is grave abuse of discretion
Should give mortgagee the chance to pay the mortgage debt
In MOST instances, the mortgagee always prefer Extrajudicial Foreclosure, as in the case of Union
Bank and Ardiente, and BPI. In EXTRAJUDICIAL FORECLOSURE NO NEED FOR NOTICE!
- No need for mortgagee to notify the mortgagor for the consolidation because there is already a
requirement of publication, which is a notice to the whole world.
REMEDY: ANNULMENT OF SALE
- You cant allege lack of notice but can allege requirements in Rule 39
DAYOT vs. SHELL
- Debt can be assigned
- TRB asked for the writ of possession
Writ of possession kakambal ng foreclosure; subsequent to the writ of possession
- TRB sold to Dayot the property
- Writ of possession was granted by the court
- General Rule: is a ministerial function of the court
- Exception: If there is third party claiming the property.
- Issue: Possession
- DOCTRINE: The issuance of writ of possession is a ministerial function with regard to a party in the
case is only subject to implementation of the court
- SC Held: Issuance of Writ Of Possession will no longer be a Ministerial Function when a 3 rd party
who is not a party to the case is claiming ownership adverse to that of the party
Compulsory Counterclaim do NOT require Docket Fees
Q: Application?
A: Applicable to both real estate and chattel mortgages.
Q: What does judicial foreclosure mean?
A: It has passed through court process.
Q: What should be filed?
A: Verified complaint of foreclosure absolute necessity to the mortgage
Q: What is the object of foreclosure
A: Property
Q: Can a property mortgaged may still be attached?
A: Yes.

RULE 69
PARTITION
Q: What is the object of partition?
A: To assign property.
Q: Jurisdiction?

A: RTC because the case is not capable of pecuniary estimation.


Q: What are the stages in partition?
A:
1. Determination of the existence of co-ownership - absence of which partition is unavailable
2. Determination of who are entitled and what properties to be distributed
NOTE: Each stage is final and appealable
Q: What kind of appeal?
A: By record of appeal because the action calls for multiple appeals.
Q: What is a project of partition?
A: Agreement between and among the parties in partition which is submitted to the court on which a
judgment of partition is made.
Q: Who prepares a project of partition?
A: Any of the co-owners
Q: Who are the parties in an action for partition?
A: Plaintiff - co-owner
Defendant - all other co-owners as indispensable parties
Q: What is the effect of the approval of the project?
A: Approval is equivalent to judgment of partition.
Q: If no project is agreed upon what should the court do?
A: Appoint a commissioner and the commissioner would make and submit a project of partition still
under Rule 32 of the Rules of Court.
Q: If the parties still does not agree, what should commissioner do?
A: Assignment - identical to buying out.
NOTE: Even if only one of the co-owners objects, no assignment
Section 6. Report of commissioners; proceedings not binding until confirmed. The
commissioners shall make a full and accurate report to the court of all their proceedings as
to the partition, or the assignment of real estate to one of the parties, or the sale of the
same. Upon the filing of such report, the clerk of court shall serve copies thereof on all the
interested parties with notice that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire. No proceeding had before or
conducted by the commissioners and rendered judgment thereon.

Q: What then should the court do?


A: Sell the property and the proceeds distributed among and between co-owners. This is the last resort.
Q: May a sale be objected to? On what ground?
A: Yes sale may be objected to if it will not redound to the benefit of the co-owners.
NOTE: Commissioner should give report, however such is not binding upon the court.
Q: What does judgment of partition include?
A: It includes payment of the cost of accounting and damages.
Q: Doctrine of Heirs of Teves V. CA
A: Any activity that puts an end to indivision is a case of partition.
What is the similarity of Partition to expropriation?
BOTH is subject to Multiple Appeals = Record of Appeals
More than one final judgment
2 STAGES:
1. Determination of the existence of co-ownership Final and Appealable
If there is NO Co-ownership, partition is not a proper remedy
2. Determination of who are entitled and what property to be distributed Final and

Appealable
MANAGAHAS CASE
- CA said proper remedy is Partition
- SC: CA was WRONG, because there is NO MORE POSSIBILITY of PARTITION, because there is
no more co-ownership by virtue of extrajudicial foreclosure.
JOAQUIN CASE
- any form or action that puts an end to and division is a form of partition
- E.g. sale or mortgage
Partition one of the MODES of SETTLEMENT OF ESTATE
ACTION OF PARTITION court now determined there is ownership determination of property to be
distributed and to whom HOW DONE? (just like expropriation)
1. Court will assign commissioner ( 3 men of integrity and probity)
Duties of commissioner: it never renders a judgment but ONLY A REPORT
Nature: recommendatory. Never binding and conclusive to the court
Trial by commissioner: Mandatory in Partition & Expropriation
Distribution of property judicial function thats why report is only recommendatory
When court renders judgment, the Commissioner is advised to convince the parties to enter into:
Section 3. Commissioners to make partition when parties fail to agree. If the parties are
unable to agree upon the partition, the court shall appoint not more than three (3)
competent and disinterested persons as commissioners to make the partition, commanding
them to set off to the plaintiff and to each party in interest such part and proportion of the
property as the court shall direct.

1. PROJECT OF PARTITION which means to enter into an agreement; if no project of partition,


2. ASSIGNMENT
JUDICIAL PROBLEM: H and W, ABCDE are their children, H and W then died, ABCDE heirs, they can
enter into POP and I they could not agree, then commissioner will ask ABCDE, who wants to get the
entire estate.
A atty, B doctor, C Trike Driver, D Teacher, E Kanto Boy.
Property Worth = 1M
B gives 200k each this is assignment
** If one objects, like if C objects, CANNOT go immediately to sale, the court and even the
commissioner must persuade the parties to agree, no other option.
3. If in default thereto, no other choice but to sell the property and divide and distribute the proceeds.
Section 2. Order for partition and partition by agreement thereunder. If after the trial the
court finds that the plaintiff has the right thereto, it shall order the partition of the real
estate among all the parties in interest. Thereupon the parties may, if they are able to
agree, make the partition among themselves by proper instruments of conveyance, and the
court shall confirm the partition so agreed upon by all the parties, and such partition,
together with the order of the court confirming the same, shall be recorded in the registry of
deeds of the place in which the property is situated.
Section 5. Assignment or sale of real estate by commissioners. When it is made to
appear to the commissioners that the real state, or a portion thereof, cannot be divided
without prejudice to the interests of the parties, the court may order it assigned to one of
the parties willing to take the same, provided he pays to the other parties such amount as
the commissioners deem equitable, unless one of the interested parties asks that the
property be sold instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale under such conditions and within such
time as the court may determine.

BALUS vs. BALUS


- What distinguishes this from Mangahas Case?
- Here, there is NO PARTITION, if the disputed property never formed part of the estate.

RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
What is the nature of actions for forcible entry and unlawful detainer?
- These are recovery action
Q: What are the 3 kinds of action involving recovery of property?
A:
1. Accion publiciana - right of possession (Now, not solely under the jurisdiction of RTC, because it
involves title to or possession of property which is considered as capable of pecuniary estimation
depending on the assessed value, 20,000 and 50,000)
2. Accion reinvindicatoria - recovery of ownership with possession as an attribute of ownership
3. Accion interdictal - possession de facto
a. forcible entry
b. unlawful detainer
i. governed by rule 70
ii. in case of agricultural property/land governed by the civil code
PUBLICIANA
Possession de Jure Legal/ Plenary
Possession

INTERDICTAL
Possession de facto- Actual
Possession recovery of property
based on who has better right of
possession

PNOC EXPLORATION CASE = New Doctrine


- Does not automatically mean cognizable in RTC
- May involve title to, possession to depending on the assessed value of the property. If it is within the
jurisdiction of MTC, then it must be filed in the MTC.
50K down MTC
Exceeding 50K RTC but it still depends within or outside Metro Manila
INTERDICTAL may be:
1. Unlawful Detainer (RULE 70 Sec1) & Rent Control Law
Notice: Building (5 days) ; Plant (15 days)
In Rent Control Law = 5 grounds for ejectment
2. Forcible Entry
5 DISTINCTIONS BETWEEN UNLAWFUL DETAINER AND FORCIBLE ENTRY
UNLAWFUL DETAINER
FORCIBLE ENTRY
Grounds:
Violation of Contract
(FITSS) Fault, Threat, Intimidation, Stealth
and Strategy
Requirement:
Action must be filed from period of 1 year
Action must be filed from accrual of action
from last demand
1 year from actual entry of the land
Time/ Period:
Prior possession need NOT be established
Prior possession must be established
Possession was lawful at the beginning and
Possession is illegal from the beginning
became illegal thereafter
There is a need for demand
There is no need of demand because it is
unlawful from the beginning
VENUE:
- Where the property is located (real actions)
- Could be an Action in personam why? Judgment is against the person

PECULIARITY:
Unlawful Detainer:
1. Judgment may be implemented against non-party to a case, someone all persons claiming right
under defendant
2. Governed by Rules on Summary Procedure there is no trial
Salient Points:
a. Only applies in the lower court
b. There are prohibited pleadings
c. There is not trial
d. Shorter period
Section 13 of Rule 70 features one character of Summary Procedure
Lessor A files an ejectment suit against B Lessee for non-payment of rentals. HOW WILL IT GO?
- Files the case with RTC order the defendant to answer by valid service of summons 10 days to
file an answer because it is summary procedure if failed to file an answer proceeding shall
continue court may Motu Proprio or on motion of the plaintiff shall render judgment as a matter
of policy: but court will ask for plaintiff to submit evidence, what kind?, to submit a POSITION
PAPER together with all the pieces of evidences or documents then on the basis of position paper,
court will render judgment. NO TRIAL.
*** NO DEFAULT Why? Because it is a prohibited pleading
BUT court can conduct a clarificatory questioning:
But WITH LIMITATIONS! It must not be done to DELAY proceedings, meaning an honest to
goodness question.
E.g. What is submitted can only be the basis of clarificatory question.
If A files a case against B for UD and B files a motion to dismiss on the ground for no barangay
conciliation. Will the court grant?
YES, because of section 13 par 1 and section 12 as exception.
Section 12. Referral for conciliation. Cases requiring referral for conciliation, where there
is no showing of compliance with such requirement, shall be dismissed without prejudice,
and may be revived only after that requirement shall have been complied with. (18a, RSP)
Section 13. Prohibited pleadings and motions. The following petitions, motions, or
pleadings shall not be allowed:
1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over
the subject matter, or failure to comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions.

If there are 2 defendants in UD and one defendant answer and one did not, may the one who did not
answer be declared in default?
YES, Rule 9 (SEC3) partial default is allowed motu propio applies in Summary Procedure.
If judgment of the court is in favour of defendant, will it inure to the non-answering defendant?
IT DEPENDS!

Should make a distinction whether or not the defense is a common defense.


If defense is personal to him then such defense is not applicable to UD, like minority.
ONLY ISSUE in UD and FE: Possession de Facto
IF raises issue of ownership, what is the effect as to the court?
Court is NOT DIVESTED of Jurisdiction.
But in the resolution, will the court resolve the issue on ownership?
YES! Section 16, it will be resolved ONLY to determine the issue of possession. this is only
possible if it was raised as an issue.
NOTE: Old rule prior to BP 129 provides that if issue of ownership is raised, the court is divested of its
jurisdiction.
Section 16. Resolving defense of ownership. When the defendant raises the defense of
ownership in his pleadings and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall be resolved only to determine
the issue of possession.

REFUGIA CASE
- Loan obtained to build a duplex by son
- Son then filed UD against his own father
- CA: said it should be co-owned
- SC: UD only issue is possession and ownership was never raised as an issue. Resolution on the issue
of ownership by the MTC: NOT FINAL; ONLY PROVISIONAL and Res judicata will NOT APPLY.
Can A in MTC file litis pendentia?
No. Because issues are different. In MTC, only possession, while in RTC, ownership.
In order to expedite the proceeding:
Avail of Section 15 and Section 20
Distinction?
Section 15 = applies to RTC
Section 15. Preliminary injunction. The court may grant preliminary injunction, in
accordance with the provisions of Rule 58 hereof, to prevent the defendant from committing
further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible from the filing of the complaint,
present a motion in the action for forcible entry or unlawful detainer for the issuance of a
writ of preliminary mandatory injunction to restore him in his possession. The court shall
decide the motion within thirty (30) days from the filing thereof.

Section 20 = applies to CA; available to plaintiff if theres adverse decision ONLY. (Perturbation of
Justice)
Section 20. Preliminary mandatory injunction in case of appeal. Upon motion of the
plaintiff, within ten (10) days from the perfection of the appeal to the Regional Trial Court,
the latter may issue a writ of preliminary mandatory injunction to restore the plaintiff in
possession if the court is satisfied that the defendant's appeal is frivolous or dilatory or that
the appeal of the plaintiff is prima facie meritorious.
Section 17. Judgment. If after trial court finds that the allegations of the complaint are
true, it shall render judgment in favor of the plaintiff for the restitution of the premises, the
sum justly due as arrears of rent or as reasonable compensation for the use and occupation
of the premises, attorney's fees and costs. If a counterclaim is established, the court shall
render judgment for the sum found in arrears from either party and award costs as justice
requires.

Judgment Section 19
- Judgement is for plaintiff IT IS IMMEDIATELY EXECUTORY.
IN FAVOR OF PLAINTIFF, Can the execution be stayed? YES!
1. Notice of Appeal filed with MTC (Rule 40)
2. Post supersedeas bond (MTC) for amount of unpaid rentals
3. Regular monthly deposit for the use and occupancy of the premises and this is filed with the appellate
court- paid on or before 10th day of every succeeding month

Q: When?
A: General rule on or before the 10th day of each succeeding month. For example the rent due for the
month of April should be paid on or before May 10.
Exception: When payment of rental must be paid in advance in accordance with the contract.
NOTE: Non-compliance with even one month would render the judgment immediately executory.
Is there an instance where defendant may not comply with the supersedeas bond?
- When there is no unpaid rentals, there is no supersedeas bond
- This is posted with MTC.
For regular monthly deposit it must be done on or before the 10 th day of every succeeding month. Why?
RULE 40
How much? Basis? Depends on the judgment.
Suppose judgment does not say so what is the basis? LEASE OF CONTRACT
No written contract? LAST PAYMENT OF RENTALS
Suppose, plaintiff objects to that what is now the basis?
FILE A MOTION WITH THE COURT FOR CLARIFICATORY JUDGMENT
Once RTC affirmed the MTC judgment is already final and non-appealable, but can you still stay it?
How?
Defendants remedy is: INJUNCTION (Section 21)
Section 21. Immediate execution on appeal to Court of Appeals or Supreme Court. The
judgment of the Regional Trial Court against the defendant shall be immediately executory,
without prejudice to a further appeal that may be taken therefrom.

If MTC renders decision in favor of defendant? Is it immediately executory?


NO, because there is nothing to execute.
What is immediately executory is only for the defendant to vacate the premises.
Section 1. Who may institute proceedings, and when. Subject to the provisions of the
next succeeding section, a person deprived of the possession of any land or building by
force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person
against whom the possession of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession, by virtue of any contract, express
or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or
other person, may, at any time within one (1) year after such unlawful deprivation or
withholding of possession, bring an action in the proper Municipal Trial Court against the
person or persons unlawfully withholding or depriving of possession, or any person or
persons claiming under them, for the restitution of such possession, together with damages
and costs. (1a)
Section 2. Lessor to proceed against lessee only after demand. Unless otherwise
stipulated, such action by the lesser shall be commenced only after demand to pay or
comply with the conditions of the lease and to vacate is made upon the lessee, or by serving
written notice of such demand upon the person found on the premises if no person be found
thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of land or
five (5) days in the case of buildings.

Q: Who are the aggrieved parties?


A: Vendor, vendee, lessor or any other person deprived of possession
Q: Is the lessee included?
A: Generally no because the lessee is assumed to be in possession. He may be included under those other
persons deprived of possession.
Q: A is the lessor and B is the lessee who was not able to pay rentals for several months. A filed a case of
unlawful detainer against B. Judgment was rendered in favor of B. Is the judgment in favor of B
immediately executory?
A: No because he was already in possession of the property.

Section 19. Immediate execution of judgment; how to stay same. If judgment is


rendered against the defendant, execution shall issue immediately upon motion unless an
appeal has been perfected and the defendant to stay execution files a sufficient
supersedeas bond, approved by the Municipal Trial Court and executed in favor of the
plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment
appealed from, and unless, during the pendency of the appeal, he deposits with the
appellate court the amount of rent due from time to time under the contract, if any, as
determined by the judgment of the Municipal Trial Court. In the absence of a contract, he
shall deposit with the Regional Trial Court the reasonable value of the use and occupation of
the premises for the preceding month or period at the rate determined by the judgment of
the lower court on or before the tenth day of each succeeding month or period. The
supersedeas bond shall be transmitted by the Municipal Trial Court, with the papers, to the
clerk of the Regional Trial Court to which the action is appealed.
All amounts so paid to the appellate court shall be deposited with said court or authorized
government depositary bank, and shall be held there until the final disposition of the appeal,
unless the court, by agreement of the interested parties, or in the absence of reasonable
grounds of opposition to a motion to withdraw, or for justifiable reasons, shall decree
otherwise. Should the defendant fail to make the payments above prescribed from time to
time during the pendency of the appeal, the appellate court, upon motion of the plaintiff,
and upon proof of such failure, shall order the execution of the judgment appealed from with
respect to the restoration of possession, but such execution shall not be a bar to the appeal
taking its course until the final disposition thereof on the merits.
After the case is decided by the Regional Trial Court, any money paid to the court by the
defendant for purposes of the stay of execution shall be disposed of in accordance with the
provisions of the judgment of the Regional Trial Court. In any case wherein it appears that
the defendant has been deprived of the lawful possession of land or building pending the
appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for
such deprivation of possession and restoration of possession and restoration of possession
may be allowed the defendant in the judgment of the Regional Trial Court disposing of the
appeal.

Q: What is immediately executory in the judgment as provided under sec.19?


A: The return of the property. Restoration or restitution to the one who is entitled to possession.
Q: How is execution stayed?
A: Requisites for stay of execution
1. Perfection of appeal by filing a notice of appeal
2. Supersedeas bond
3. Deposit of the amount for the use and occupancy of the premises
Q: What is a supersedeas bond?
A: Unpaid rentals. If there are no unpaid rentals there is no supersedeas bond.
Q: How much is the supersedeas bond?
A:
1. In accordance with judgment
2. If there is no judgment, in accordance with the contract
3. In the absence of contract, according to what was paid as rentals
Q: What is the amount for use and occupancy?
A: Payment of rental during the pendency of the appeal.
Q: How much?
A: Same as supersedeas bond.
Q: Both Sec. 19 and Sec 21 speak of immediately executory judgment. How is Sec. 21 different from
section 19?
A: Section 21 speaks of the judgment of the appellate court and such judgment cannot be stayed except
when defendant filed injunction.

Section 15. Preliminary injunction. The court may grant preliminary injunction, in
accordance with the provisions of Rule 58 hereof, to prevent the defendant from committing
further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible from the filing of the complaint,
present a motion in the action for forcible entry or unlawful detainer for the issuance of a
writ of preliminary mandatory injunction to restore him in his possession. The court shall
decide the motion within thirty (30) days from the filing thereof.

Q: How about sec. 15 and sec. 20?


A: Sec 15 applies to Trial Court while Sec 20 applies to the appellate court. Injunctive relief is available
to both in order to stop defendant's act of dispossession

RULE 71
CONTEMPT
Q: What is contempt?
A: Upfront or defiance, act against dignity, integrity and justice of the court
Q: What are the two kinds?
A:
1. Direct Contempt
Done in the presence of or so near a judge that disrupted proceedings.
Section 1. Direct contempt punished summarily. A person guilty of misbehavior in the
presence of or so near a court as to obstruct or interrupt the proceedings before the same,
including disrespect toward the court, offensive personalities toward others, or refusal to be
sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully
required to do so, may be summarily adjudged in contempt by such court and punished by a
fine not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or
both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not
exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a
lower court.

2. Indirect Contempt
Section 4. How proceedings commenced. Proceedings for indirect contempt may be
initiated motu propio by the court against which the contempt was committed by an order or
any other formal charge requiring the respondent to show cause why he should not be
punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified petition
with supporting particulars and certified true copies of documents or papers involved
therein, and upon full compliance with the requirements for filing initiatory pleadings for civil
actions in the court concerned. If the contempt charges arose out of or are related to a
principal action pending in the court, the petition for contempt shall allege that fact but said
petition shall be docketed, heard and decided separately, unless the court in its discretion
orders the consolidation of the contempt charge and the principal action for joint hearing
and decision.

Q: What are the remedies of a person cited in contempt?


A:
Direct Contempt
File a petition for certiorari and not an appeal because the judgment is only interlocutory
Section 2. Remedy therefrom. The person adjudged in direct contempt by any court may
not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The
execution of the judgment shall be suspended pending resolution of such petition, provided
such person files a bond fixed by the court which rendered the judgment and conditioned
that he will abide by and perform the judgment should the petition be decided against him.

Indirect Contempt
1. File an appeal
2. Post a bond
Section 3. Indirect contempt to be punished after charge and hearing. After a charge in
writing has been filed, and an opportunity given to the respondent to comment thereon
within such period as may be fixed by the court and to be heard by himself or counsel, a
person guilty of any of the following acts may be punished for indirect contempt;

(a) Misbehavior of an officer of a court in the performance of his official duties or in


his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a
court, including the act of a person who, after being dispossessed or ejected from any
real property by the judgment or process of any court of competent jurisdiction,
enters or attempts or induces another to enter into or upon such real property, for
the 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.
But nothing in this section shall be so construed as to prevent the court from issuing process
to bring the respondent into court, or from holding him in custody pending such
proceedings.

Q: Doctrine in the case of Yasay V. Recto


A: Supreme Court said that the power of contempt must be used in preventive manner and not in
vindictive manner. The distinction between civil and criminal contempt was also abolished.
2 Kinds of Contempt Distinguished:
DIRECT
Grounds:
Done in the presence of or so near judge that
the proceedings has been disrupted

INDIRECT
How?
There must be a charge in writing formal
charge

motu proprio direct


There is only one doctrinal principle is almost all cases:
WHETHER CIVIL or CRIMINAL, contempt proceeding is a criminal proceeding, acquittal is a bar to
second prosecution and must not be done in a vindictive manner.
ESPANOL CASE
- Espanol is a judge
- Atty. Formoso was presenting evidence which the judge took judicial notice
- Atty. Formoso contested and was sent to jail
*** CONTEMPT MUST BE EXERCISED: CAUTIOUSLY and RELIGIOUSLY not in the
Vindictive was but in a preservative way.
YASAY CASE:
- Why did Atty. Manalysay and Recto, proceed to go the SHO meeting despite the TRO?
- Because TRO was lifted and overturned by CA
- Capriciously: When Yasay prohibited them to practice before SEC.
- Only SC can suspend lawyers (en banc)
MONTERO CASE:
- Comply then you get out
Section 8. Imprisonment until order obeyed. When the contempt consists in 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.
Section 10. Court may release respondent. The court which issued the order imprisoning
a person for contempt may discharge him from imprisonment when it appears that public
interest will not be prejudiced by his release.

Not a cruel and unjust punishment


Misgiving in the rule: Determined the amount of penalty.

1 day maximum 30 days - MTC


As far as 6 mos. RTC

SPECIAL PROCEEDING
NOTE: Declaration of absence and death: There is no such thing as declaration
of deathit should be absence leading to the declaration of death.
These are the only things which we will be discussing in Special Proceedings (I
will state them in the order of importance, procedurally speaking):
1. Settlement of Estates- states the meat of special proceedings
2. Adoption- although this is already studied in civil law; it is important because
of the new rule on adoption, not the laws on adoption (R.A. 3552, the
Domestic Adoption Act of 1998 as well as R.A. 8043, the Inter Country
Adoption Law of 1995)not that because that is substantive. I am talking of
the new rule on adoption which took effect sometime in August 2004. I thats
why I think its the second most important thing to discuss here.
3. Rule 103 in relation to Rule 108, Change of Name and Correction of
Entry..again, because of the new law. So the possibility of being asked in the
BAR is great. (Read also R.A. 9048)
4. Guardianship- practically the same rules of procedure as settlement of
estate..only that in settlement of estate, the subject is dead unlike in
guardianship, the subject is still alive. Physically alive, but mentally dead or a
minor. That is the difference between the two.
5. Habeas Corpus- a peculiar kind of special proceeding
6. Escheat
7. Trust (not the trust you buy in Mercury, but relationtrust relation)
All the rest, we will not discuss anymore. Voluntary Dissolution of Corporations;
Declaration of Absence & Death; Hospitalization of Insane Persons(but, I still
advise you to read), even the Constitution of the Family Home.
If I were an examiner, I would definitely ask in Special Proceedings, Settlement of
Estate and next to Settlement of Estate would be Adoption and next to that would
be Habeas Corpus.
Note that even in last years BAR examination there was no question on special
proceedings because utmost you get only one question for BAR purposes, one
question in Special Proceedings. Very seldom if you find two questions in Special
Proceedings. If, perhaps, the examiner is teaching special proceedings, then
perhaps he will ask you more questions in the BAR, but ordinarily nonot that
Im demeaning its importance.
My other consolation is that you are well-versed in Special Proceedings, that
remains to be seen starting this afternoon.
Remember, Special Proceedings is different from all other actions, including
Special Civil Actions. If you are asked to define what a Special Proceeding is, A
Special Proceeding is an action other than an ordinary action, a special
civil action, or a criminal action. That is a correct definition by exclusion. To be
more specific, Special Proceedings are actions geared or directed towards

the establishment of a right, status, or a particular fact. The ordinary rules


apply here and more so because there are specific provisions that distinguishes
it from special civil actions where it has a special rule. Here, no. It has its own
uniqueness. Every Special Proceeding has its own nuances. For example,
because the objective is the establishment of a right, status, or a particular fact,
summons, here, is ordinarily not needed. In special proceedings, there is no
defendant, so there is no need for summons. Summons, as we have studied is
the way by which a court acquires jurisdiction over the person of the defendant
(Rule 14). The only exception is, of course, Habeas Corpus Proceedings
wherein you name a respondent but the respondent here is different from a
defendant because summons is not necessary.
Q: So, how does a court acquire jurisdiction over the case?
A: There is no need for the court to acquire jurisdiction over the person of the
defendant because there is no defendant. Therefore, the court should acquire
jurisdiction of the case, over the subject matter. How? Because it is an action in
rem, ordinarily publication. So that is the uniqueness of Special Proceedings.
Publication is the means by which the court acquires jurisdiction over the subject
matter. It is ordinarily not initiated by Complaint, but by Petition.
NOTE: Again, unlike other actions, as a general rule, Special Proceedings do not
prescribe. There might be limitations of such periods in some instances, but
ordinarily, they do not prescribe.
Q: What are the Special Proceedings?
A: Name them according to the Rules starting from Rule 73-90 Settlement of
Estate; Rule 91 Escheat; Rules 92-97 General Guardians & Guardianship; Rule
98 Trustees; Rules 99-100 are no longer applied because they are deemed
repealed by the new rules on adoption, including Rescission & Custody of
Children, these Rules are no longer applied because of the adoption of the Child
& Youth Welfare Code.
SETTLEMENT OF ESTATE OF DECEASED PERSONS
When you speak of Settlement of Estate, immediately what comes to your mind
is that someone died (and thats the beauty in lawmen live forever in lawthey
continue in their estateThere are those who want someone dead because of
his estate. there are also those who want somebody alive because he has no
estatebut actually, even if you are a pauper or a millionaire, you always have
an estate. So you live forever through your estate. That estate must be settled).
Q: There are two ways to Settle an Estate:
A: Extrajudicial Settlement and Judicial Settlement of Estate. In, extrajudicial
settlement, the rules speak of settlement through Affidavit of Self Adjudication
and the other way to settle it is by extrajudicial partition. Those are the
extrajudicial manner of settling the estate. Extrajudicial settlement proper is by
agreement of the parties.. extrajudicial settlement is distinct from partition. When
you go to judicial settlement, you have the first which is Summary Settlement
Sec. 2, Rule 74, which is very practical and then judicial partition under Rule 61,
that is a mode of settlement and then you have the conventional mode of

settlement of estate. We can even add a fourth kind, whish is also a mode of
settlement of estateEscheat proceedings under Rule 91.
The conventional mode settlement is either testate or intestate. The testate can
either be with the will annexed or without the will annexed. The intestate, of
course, there is no will. But both testate and intestate may also be done either in
the Philippines or outside the Philippines.
Q: What are the requirements for an Affidavit of Self Adjudication?
A:
1. There is a will
2. No debts;
3. Only one heir.
Q: Suppose Mr. X, who died, was known to everyone to have one child but later
on, it was found out that he had other illegitimate children. What will happen to
the affidavit of self adjudication? Is there any finality?
A: NO. Even if the properties have already been distributed, they aer still
subject to claims.
Q: How do you go about in making an Affidavit of Self Adjudication?
A: The word suggests already that it is an affidavitso, how do you formulate an
affidavit? You simply state in your affidavit that your father or your mother died;
and that he/she left the following properties; and that you are the only heir of your
parent; and that the estate are such and such, valued accordingly; and that they
are found there (location of property)..you simply submit that to the Register of
Deeds and the Register of Deeds will act on it only after you comply with the
requirement of publication and if there are personal properties belonging to the
estate, put up a bond according to the value or upon the discretion of the register
of Deeds. (extrajudicial hathe court has no participation whatsoever here) You
simply submit to the Register of Deeds, the Register of Deeds acts on it and if
there is already publication, once a week for 3 consecutive weeks in a
newspaper of general circulation, the Register of Deeds will simply transfer the
title in favor of the affiant.
The other mode of extrajudicial settlement is extrajudicial partition...that is not
under Rule 69 because under Rule 69 is judicial partitionhere, the parties
agreed, but take note that there is also no will and there are also no debts and
even if there are debts, there is sufficient money to answer for those debts which
are reservedthe money is reserved to answer for debtsso you can partition
among and between yourselves these properties, provided all of you are of age.
If one is a minor, he is duly representedordinarily, you ask the court for the
appointment of a guardian ad litem. This form of extrajudicial settlement is
similar to Partitionthere is really no distinguishing feature between extrajudicial
partition and extrajudicial settlement. Jurisprudence tells us that any act between
and among persons that would lead to the division of property is a form of
partition or settlementany act that would terminate indivision would be division.
In affidavit of self adjudication, of course you have to support your allegations
with documentary evidence (like for example, that you are the only heir, this can

be proven through your birth certificate and also the marriage contract and the
properties you wish to adjudicate unto yourself should be established by Titles or
muniments of titles).
Judicial Settlement refers to Conventional: Rules 73-90. Summary
Settlement of Estate is very impractical because up to now the value of the
estate is still P10T (P10,000) but you will note that there is still a requirement for
publication (so if you have it published once a week for 3 consecutive weeks,
ubos na yung ten thousand mo).
RULE 91 ESCHEAT
Is another form of Judicial Settlement, Escheat tells us that if a person dies
without a will, without an heir, and no debts, then the Office of the Solicitor
General will file, under the directive of the President of the Philippines, will file an
Escheat Proceeding. But if it happens that during the pendency of the
proceeding, a will pops up, then the proceeding is discontinued. If an heir pops
up, then the proceeding may be suspended and establish your rightotherwise,
after the hearing, the property will go to the government. This escheat
proceeding is founded on the theory that all lands belong to the Statethe
Regalian Doctrine that you studied under LTD (Land Titles & Deeds) all lands
belong to the State and he who claims otherwise has the burden of proof so after
the escheat proceedings, the property belonging to the estate will go to the city or
municipality where it is found.
So if the proceeding is in Manila, but the property escheated is in Calamba, the
property escheated located in Calamba will go to the City of Calamba and not to
the City of Manila. The same thing with personal propertywhere it may be
found and the Rule is very specific that the property will be spent for charitable
purposes, for educational purposes, so on and so forth. So that is Rule 91.
Under Rule 91, Sec.5 is another form of escheat because that was given in the
BAR 5 years ago (sa dami daming pwedeng ibigay sa Special Proceedings, yun
lang ang binigay). This speaks of REVERSION. In other words, the property
was acquired by an individual in violation of the Constitution. Under the
Constitution, any person, even foreigners who were former Filipinos, can now
acquire property in the Philippines and that was given more strength because of
the Dual Citizenship Law.
Q: Which court has jurisdiction over Petitions for Settlement of Estate?
A: Under RA 7691, inferior courts now have jurisdiction over settlement of estate,
whether testate or intestate. So it is not under the provision which speaks of
actions involving title to or any interest in property but it is a direct provision of the
law that settlement of estate, whether testate or intestate, may be taken
cognizance of by inferior courts, depending on the gross value (hindi assessed).
Remember, there is another provision under BP 129, the basis of which is the
assessed valuedito, gross value of the estate and the location is
determinative somehow of jurisdiction because if it is outside Metro Manila, less
that P300T and within Metro Manila, P400Tso suppletory character lang yun.

The old books speak of Courts of First Instance (RTC), exclusivelyhindi na


yun.

RULE 73 VENUE AND PROCESS.


Q: Is settlement of estate limited to the estate of Filipino Citizen?
A: No.
Q: If an American was in the Philippines because he was a member of the
Armed Forces, who joined the Balikatan Forces in Mindanao and he died here,
where should the settlement of estate be done? Is it the place of ones death
which is determinative of the venue? Suppose one had 5 residences because he
had 5 wives?
A: This is a very confusing provision because the title is Venue & Process but
the word venue is never mentioned. On the other hand, the word jurisdiction is
mentioned three (3) times.
Q: So, is the last residence of the decedent a matter of jurisdiction or a matter of
venue?
A: It is a matter of venue so you cannot question it.
Q: Suppose Mr. X, a Filipino citizen residing in Cebu City died at St. Lukes
Hospital, Quezon City, where should his estate be settled?
A: In Cebu because it is the place of the final residence of the decedent.
Q: Suppose the heirs filed a petition for settlement of the estate in Quezon City,
is the venue properly laid?
A: No.
Q: So, what happens to the case?
A: The settlement must continue because venue is not jurisdictional.
Let me emphasize to you that in civil cases, including special proceedings,
venue is not jurisdictional, unlike in criminal cases, venue is jurisdictional and
from what we have learned under Rule 4 of the Rules of Court, venue may be
waived.
So, if there is no opposition, there is no question as to the petition filed by
anybody for the settlement of the estate of Mr. X who is a resident of Cebu, the
petition is filed in Quezon City, the issue is not jurisdiction but only of venue. But
considering that there was no opposition, then the petition for settlement must
continue.
Sec. 1 there does not speak of jurisdiction. Jurisdiction here is conferred
by law and RA 7691 confers that depending on the value of the gross
estate, which can either be the MTC or the RTC.

Q: What is Residence?
(You must have come across the leading case, Cuenco, et. al vs. Cuenco, cited
in your book (it has to cited in your book) because that is a very leading case,
also the case of Fule, et al. vs. CA, these are the cases about venue and
jurisdictionemphasizes these cases cited in all books. Eusebio vs. Eusebio,
that is also cited in your book These are questions about the conflicting rules
on venue and jurisdiction.)
A: It is now settled (because of there cases) that residence is only a matter of
venue. It is not a matter of jurisdiction.
This case of Cuenco is about Senator Cuenco. That Cuenco Street in Quezin
City, parallel to Espaa or Quezon Blvd. He was a resident of Cebu but also had
a house in Qezon City because he was a member the Senate. When he died in
Quezon City, his residence was in Cebu. When he died, he was already a
widower at the time, so he had two families. The first family with his first wife,
and the second family with his second wife. His second wife, staying with him in
Quezon City, filed a petition for the settlement of his estate in the RTC (Then CFI)
of Q.C. After the 9- day novena for his demise, the heirs of Senator Cuenco, filed
a petition for settlement of his estate in Cebu. This reached the SC. The issue
was in fact wrong: Which court has jurisdiction? Mali. It is not a matter of
jurisdiction but only of venue. But the greater error here is not the error of the
petitioners but the error of the Court. Why? Because the Q.C. Court on its own
(motu propio) said we are going to give way to the court in Cebu to settle the
estate. That cannot be done because under the Rule, the court which first takes
cognizance of a petition for settlement of estate, takes it to the exclusion of all
other courts. And so, which court has jurisdiction? Both courts have jurisdiction
actually, but because of the Rule, since it was first filed with the Q.C. Court, it
was already taken cognizance of by said court in Q.C. to the exclusion of all
other courts, including the Cebu Court. That is why if ever the court cedes its
authority in favor of the Cebu Court, that is wrong. It should have been correct if
anybody interested in the petition files a motion to dismiss on the ground of
improper venue but there was none.
In one of the Bar Exams using Cuenco vs. Cuenco, way back in 1992, this was
treated by the examiner saying that a motion to dismiss was filed with the Cebu
Court and the Cebu Court granted it. Wrong. Why? Because the Cebu court did
not acquire jurisdiction because the petition was first filed in Q. C. and there can
be no dual jurisdiction here because the Rule says: the court acquires
jurisdiction to the exclusion of all other courts.
This case was followed by the case of Eusebio vs. Eusebio and finally settled in
the case of Fule vs. CA, a 1975 case. Philippine reports pa ito. If you want to
read it, you can find it in the Philippine Reports. But Fule, you find it already in
the SCRA. Is that clear? Take note of that doctrine because that is very basic in
Settlement of Estate. Sec. 1 of the Rule there does not speak of jurisdiction but
only of venue. In Fule it has been settled that the residence is the actual
place of habitation.

So that if a person has two (well nagayon, hindi lang two, marami, apat, lima,
anim..tingnan nyo si Pacquiao, hindi na malaman kung saan sya resident,
Manila, Gensan.. hindi na malaman.. But if only Pacquiao studied law, he would
not have run for any position in the first place had he studied law, he would not
be a millionaire in the first place.) Fule settled that residence is the place of
actual habitation or it may not be the place of actual habitation, provided there is
animus manendi (intent to remain) and animus revertendi (intent to return). Kaya
pag yung isang lalaki, mayron legal na asawa, mayron pang kerida, mayron pang
kabit, at mayron ding scholar, in different houses, the residence is that of the
original. Why? Because there is animus manendi and animus revertendi. In all
other residences, there is only animus amare (intent to love) so that is
regarding this Section 1.
Let us go now regarding these two: It can be testate or intestate. You know
testate, in other words, there is a will. Intestate, there is no will. The distinction,
regarding these two will give you also the distinction between an executor and an
administrator.
Q: What is the distinction between an executor and an administrator?
A: The executor is the one appointed by the decedent as embodied in the will.
The administrator is the one appointed by the court if there in no will, or if there is
a will but does not designate an executor, or even if there is an executor, the
executor refuses to accept the trust or fails to put up a bond These are the
requirements: He is either not qualified; he fails to accept the trust; or he fails to
put up a bond so an administrator may be appointed.
Q: An administrator is of two kinds, what are they?
A: Rule 80
1. Special Administrator ( also of two kinds): With the will or Without a will
annexed;
2. Regular Administrator
Q: In what instances may the court appoint a special administrator?
A:
1. Delay in granting of Letters of Administration;
2. Sec. 8, Rule 86: The executor is a claimant of the estate he represents.
Q: So, when you go to testate, why is it here that they are of two kinds: with the
will or without a will annexed? How would you explain that? Kailan nangyayari
ito? If you are a custodian of a will of the decedent, what is your obligation?
A: To deliver to the court the will within 20 days after the death. (Sec. 2, Rule
75)
Q: Are you bound to file a petition?
A: No. The obligation there is only to deliver the will. But if you do file a petition,
because you are the custodian of the will, you must have an interest in the
estate. You may either be the named administrator, a devisee, a legatee, or a
creditor, and with more reason, if you are an heir, you have an interest. If you are
in the custody of the will, and you filed a petition for settlement of estate, you
have to attach the will in your petition.. But if you are not in custody of the will and

you are interested in the settlement of the estate, you simply file a petition
without the will annexed.
In many instances, I was telling you that settlement of estate is the best example
of multiple appeals, diba? Because in the settlement of estate there are several
stages.
Q: If it is a testate proceeding, what is the first stage?
A: Probate of a will.
Under this lesson on a probate of a will, there is this general proposition that the
probate court (the court probating a will) either the MTC or the RTC, is a court of
limited jurisdiction.
Q: What does it mean when the Rule says that a probate court is a court of
limited jurisdiction?
A: A probate court can only rule on the due execution of the will and not as to its
intrinsic validity.
This is what you have to understand. Even lawyers do not realize this. Sabi nila
probate court yan so you cannot question, you cannot raise the issue of
ownership. The probate court ceases to be a probate court upon allowance or
disallowance of a will but it remains to be a court no longer of limited jurisdiction.
That is why I was emphasizing on the petition as settlement of estate and not as
a petition for the probate of a will. Why? Once a will has been probated, thats
the end of it? No. It is only the first stage in the testate proceedings. So when
the Rule says that the probate court is a court of limited jurisdiction, only as far as
the probate of a will is concerned. Pagkatapos nun, the court is no longer of
limited jurisdiction because it has to goappointment of the administrator or
executor, approval of the accounting, approval of the inventory, then payment of
debts..papaano limited pa yun? No longer.
So as a probate court, the court is limited to the issue of authenticity and due
execution, but you do not transfer courts after the will has been probated, after
the will has been allowed or disallowed which is a final resolution which is a final
order or resolution of the court which is appealable. But the appeal here is by
record on appeal because it is multiple appeal. The court now is no longer of
limited jurisdiction because it is no longer a probate court.
Q: Ano ba ang end of settlement of estate?
A: Distribution under Rule 90. The first stage of settlement of estate, if it is a
testate proceeding is the probate of the will. That is where the court has limited
jurisdiction.
Q: Why is this so? Why does this issue pop up here?
A: This is because during probate of the will, in the very petition, the jurisdictional
requirement is that you have to state what constitutes the estate and the value of
the estate. Jurisdictional facts.

Q: If an oppositor enters the picture, the oppositor says mali yan because what
constitutes the estate are these properties, but what is stated in the petition do
not belong to the estate, now, can the court decide the ownership of those
properties?
A: No. That is where the limited jurisdiction comes into the picture. It cannot
because the court has only the duty of discussing whether the will has been duly
executed so this is only as to the extrinsic validity of a will. The intrinsic will come
much, much later, the disposition of the will.
The issue of ownership is outside the jurisdiction of the probate court. But if the
probate court cannot continue without deciding the issue of ownership, the issue
of ownership being incidental (intimately related to the issue of probate) to the
probate of the will, must be decided, but the decision here is not final. It is only
provisional and it can be contested in other proceedings and the rule on res
judicata will not apply.
In the case of Balaraw which was assigned to you, that was also the issue
involved.
In the beginning, there is no defendant. The equivalent of a defendant in a
probate proceeding is the oppositor. The oppositor is not only opposing the
probate of the will, but also settlement of the estate, for one reason or another.
The objective of the settlement of the estate is the distribution of the estate
among the heirs or those entitled thereto, although not heirs (those persons
named in the will).
Once the court allows or disallows a will, as the case may be, the nature of the
court as a probate court ceases. Therefore, the issue of limited jurisdiction no
longer applies. Limited jurisdiction applies only to the authenticity and due
execution of the will.
Q: Once the will is allowed, What does it mean?
A: Rule 76: Allowance of the Will
If Mr. A is accused of a crime of falsification of documents by forging the
signature allegedly of a testator and during the pendency of the criminal action,
the will allegedly forged by Mr. A was probated and allowed, the criminal case
should be dismissed because the probate of the court is final and if not appealed
becomes conclusive. Wala na yung forgery because the probate of a will only
avows the fact that the signature there is authentic; that there was due execution
of the will. The case against A for falsification should be dismissed. Suppose he
has been convicted, he shall be released. Supposing he is not released, your
remedy is to file a petition for habeas corpus because the basis .for restraining
his liberty no longer exists. (So kita nyo ang correlations.)
We are talking here of allowance of the will within the Philippines.
Q: Suppose a will was executed and allowed (probated) outside the Philippines,
what happens?

A: Go to the next Rule, Rule 77: Allowance of Will proved Outside of the
Philippines and Administration of Estate thereunder.
Q: An American citizen residing in California died in California, his will was
probated in the county state of San Bernardino. That will has been allowed in the
U.S. Should that will be also allowed in the Philippines?
A: No.
Q: What should anyone interested in the allowance of the will in the Philippines
do because the deceased had property in the Philippines?
A: It should be re-probated here and the venue is in the proper court of any
province where the decedent had property.
This rule shall be read in conjunction with Sec. 48, Rule 39: Foreign Judgment.
Q: What are you supposed to establish or prove in the re-probate of a will?
A:
1. The due execution of the will in accordance with the foreign law;
2. That the testator had his domicile in the foreign country and not in the
Philippines;
3. That the will has been admitted to probate in such country;
4. The fat that the foreign tribunal is a probate court;
5. That the laws of a foreign country on procedure and allowance of wills.
6. The fact of death (jurisdictional fact) of the testator in a place within the
territorial jurisdiction of the court.
These are mandatory requirements. These must all be established in the
Philippine courts. That is how to re-probate a will which has already been
allowed. Thereafter, the court should appoint an administrator. The foreign
allowance of a will leads to the appointment of a domiciliary administrator. Once
it is probated in the Philippines, the court appoints an ancillary administrator.
Q: Who may petition for the allowance of the will or who may oppose thereto?
A: Anybody who has an interest in the estate or in the disposition of the estate of
the decedent
Q: What are the qualifications for one to be appointed as administrator of the
estate?
A: Any competent person may serve as executor or administrator. He is
incompetent if:
1. a minor
2. a non-resident
3. one who in the opinion of the court is unfit to exercise the duties of the trust by
reason of :
a. drunkenness
b. improvidence
c. want of understanding and integrity
d. conviction for an offense involving moral turpitude.

Q: If a man cannot sleep without drinking at least 3 beers before he goes to


sleep, can he be appointed as administrator?
A: Yes. He is not a drunkard.
Q: Suppose in the very will, the testator named an executor of his estate, may
the court appoint another one other than the one named in the will?
A: Yes, when such person:
1. refuses to accept the trust ( ang gusto nya kasi is he would accept the
trust if it is candy flavored);
2. fails to give a bond; and
3. is incompetent.
Q: In the course of the administratorship, when one has already be appointed,
can he be removed? On what grounds?
A: Yes. Rule 82: Revocation of Administration, Death, Resignation and
Removal of Executor or Administrator.
Sec. 2. Grounds:
1. neglect to render accounts within 1 year or when the court directs;
2. neglect to settle the estate according to the Rules;
3. neglect to perform an order or judgment of the court or a duty expressly
provided by these rule;
4. absconding; or
5. insanity or incapability or unsuitability to discharge the trust.
Q: If a special administrator is appointed because the regular administrator has
a claim against the estate, what happens to the regular administrator?
A: The regular administrator is not removed by the appointment of the special
administrator because the regular administrator has a claim under Sec. 8 of Rule
86. The special administrator only has a specific function which is only to work
on the claim of the regular administrator.
The executor of an executor cannot be appointed as executor of the principal
testator.
Example: Richard is the testator. He appointed Piolo as his executor. Later on
Piolo died. In the will of Piolo, he appointed Sam as his executor. Sam cannot
be the executor of the estate of Richard.
Reason: An executor takes charge of the estate. If you are an executor and you
died and you have an own estate and the executor of your own estate will now
execute the estate of your testator that appointed you, there will be conflict of
interest (Magkakaroon ng sama sama yung estate. Magkaka halo halo). To
avoid possible corruption in the administration of ones estate.
Q: What are the duties of a special administrator?
A: Sec. 2, Rule 80:
1. possession and charge of the properties;
2. preserve the properties;
3. commence and maintain a suit for the estate;
4. sell only:

a. perishable property; and


b. those ordered by the court
5. pay debts only as may be ordered by the court.
Q: Can he encumber the property of the estate through lease?
A: It depends. If the lease is not for more than one (1) year, he can because it
would fall under acts of administration. Beyond that, it is already an act of
disposition
Q: If the court appoints Mr. X as special administrator, is the order final and
appealable?
A: No. It is only interlocutory and unappealable because if you appeal the
appointment of a special administrator, there will be no end to the settlement of
the estate.
The special administrator is likewise required to put up a bond.
Q: Suppose the testator in naming an executor of his estate specifically states
there that he should serve as administrator without a bond. Can the court
nonetheless require a bond?
A: Yes. The court has a very wide discretion.
Once a regular administrator is appointed, the continuation of the duties and
functions of a special administrator will now reside in the special administrator.
But always remember that if it is an act of disposition or conveyance, which
cannot be done by an appointed executor or administrator without permission of
the court. You always file a motion for leave of court to sell a specific property
and this is part of your accounting one year after.
Accounting is one of the principal duties of an administrator. His first duty is to
prepare an inventory within three (3) months from appointment and within one (1)
year, prepare an accounting of his administratorship and the bond that he put up
is precisely to answer for the misadministration .
RULE 83 INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF
FAMILY
Q: Who are entitled to allowance during proceedings?
A:
1. legitimate surviving spouse; and
2. children of the decedent (legitimate & illegitimate children)
Relate to Art. 194, Family Code:
entitled to support from the estate.
Read Ruiz Case

Children, even if 18 years of age are still

RULE 86 CLAIMS AGAINST ESTATE


Q: What may be claimed against the estate?
A:
1. Contractual money claims;
2. funeral expenses;
3. expenses for the last illness; and
4. judgments for money.
Q: Suppose they are not due yet, can they be filed against the estate?
A: Yes.
Q: Suppose they are not yet due?
A: Yeswhether due, not yet due, or contingent, you can file against the estate.
Q: When do you file it?
A: Not more than 12 months nor less than 6 months after the date of first
publication. Otherwise it is deemed waived. (STATUTE OF NON- CLAIMS)
STATUTE OF LIMITATIONS: prescriptive period in the Civil Code.
FCC vs Santibanez
Q: What were the issues assigned as errors before the CA?
A: Issues
1. Whether or not estoppel applies
2. Whether or not the extra judicial partition bet among the heirs were valid
3. Whether or not it is necessary for a partition to be approved by the probate
court
4. Whether or not the respondent could be held jointly liable with Santibanez.
Testate Proceeding.
Provisions on a holographic will. It wasnt clearly stated in this case.
The parties entered into an agreement.
Q. Can prospective heirs whether under the testate or intestate enter into a
partition over the properties belonging to the estate?
A. There can be no partition until and unless the will is allowed or probated.
Q. Was it really a partition?
A: According to the SC they may act to put an end in any indivision is considered
and deemed to be a partition.
There can be no partition in a testate proceeding before the will is allowed.

Q: What is the rationale behind that?


A: Because the SC said if it is allowed then you are divesting the court of its
jurisdiction over the property partition. Bec it is partition, it amounts to distribution.
Distribution is the final stage in a settlement proceeding and there will be no

distribution of the estate until and unless all debts has been paid. The court looks
into it as an act of divesting of its jurisdiction.
Q: Can principle of estoppel be applied?
A: The SC said the principle of estoppel will not apply because the basis which is
the extra judicial partition is in fact void, a void act of declaration or omission of a
party cannot be used as evidence against the party. If the act is null and void,
estoppel will not arise therefrom.
Q: Are the heirs liable?
A: The SC said he did not even established the fact that you are the proper party
in interest because Union Bank did not show any evidence to prove that you are
really the affiny.
Settlement of Estate
Sec 7. Mortgage debt due from estate
Remedy
1. Claim against the estate
- after all the debts has been paid; upon distribution
2. Foreclose the mortgage - judicial
- deficiency judgement by motion only in the same action
3. Extrajudicial foreclosure
- you solely rely on his mortgage, you dont get any deficiency judgement
Q: Sec 9 How to file a claim
A: In form of a simple application form
1. Deliver the claim to the clerk of court
2. Serve a copy on the executor or administrator
3. if the claim is due, it must be supported by affidavit stating the amount due
and the fact that there has been no effects.
4. if the claim is not due or contingent, it must be accompanied by affidavit
stating the particulars
Sec 10 Answer of executor or administrator
1. Executor may file answer within 15 days from the service of claim
2. Answer must set forth claims which decedent has against claimant or else it
will be barred forever.

Q. What is a statute of non-claims?


A. A claim against the estate shall be filed within a period of not less than 6 mos
and not more than 12mos from the date of first publication.
Q. What is the relationship bet a statute of non-claims and limitations?
A. A statute of non claims supersedes a statute of limitations. The statute of
limitation is a period provided for in the Civil Code where actions prescribe. An
ordinary prescriptive period in a civil case is 10 years from accrual.

Q: Mr. A took the bus, Philippine Rabbit, owned by Mr. B to Baguio. He never
reached his destination because the bus fell over a ravine on January 5, 1990.
That is the date of the accrual of the cause of action (Jan. 5, 1990). Can Mr. A
file a case against Mr. B on March 2001?
A: No because the action is barred by the statute of limitations.
Q: Suppose Mr. B died in 1995. (yung owner ng bus, Mr. B, not Mr. Bean) What
should A do?
A: File a claim against the estate within a period of not less than 6 mos. and not
more than 12mos from the date of first publication. So, the presumption here is
that there is a settlement of the estate of B. Otherwise the statute of non-claims
will not apply.
Q: Suppose notice was given on March 1, 1995. So you have 6 months and it
was published March 20, you have not less than 6 months from March 20, nor
more than up to the 19th of March 1996. Can you file it in 1998?
A: No because it is beyond the statute of non-claims. Even if it is within the
statute of limitations, you can no longer file it because it is beyond the statute of
non-claims.
That is the meaning of the statute of non-claims supersedes the statute of
limitations.
On the other hand, if B died in 1999 of December, you have only have up to
January of 2000 because the action has already prescribed, the ordinary action.
The statute of non-claims prevails over the statute of limitations. However, the
statute of non- claims will not apply if there is no settlement proceedings.
RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS
We have limited claims against the estate to the following:
1. Contractual money claims;
2. funeral expenses;
3. expenses for the last illness; and
4. judgments for money.
These are considered as contractual money claims under Rule 86. When you go
to Rule 87, you will note that you cannot file a claim against the estate if it is
claimable under Rule 86. So contractual money claims, hindi. That is why in
Rule 87, you are also limited to the following claims or actions:
1. Recovery of real or personal property;
2. Recovery of interest or lien therein;
3. Judgment arising from injuries
Q: In actions by and against executors and administrators, where will the
executor or administrator get his money to satisfy your prayer in your action?
Hindi ba from the estate? So why not against the estate, bakit against the
executor or administrator?

A: Rule 86 is not an action tapos na dyan yung action, it is already through. In


87, it is a separate and distinct action, so that if it is a complaint, you always file it
against the executor or administrator. Pero dito, tapos na yan. Hence, dahil
tapos na, it is urgent urgency of the subject matter so the presumption in 86,
that there must an estate proceeding, whether testate or intestate without that ,
you cannot file any claim. Suppose wala, ano gagawin mo? Iinitiate the testate
or intestate proceeding so that you file a claim. It is not an independent action
here.
But in 87, it is an independent action. Meron bang testate or intestate
proceeding? Not necessarily. You might say, bakit executor, administrator? Kaya
nga or because when you say executor, meron yan. Kung walang executor,
administrator. You mean to say that there can be no administrator without an
estate proceeding? No. There can be an administrator even if there is no estate
proceeding because you can even undertake extrajudicial settlement of the
estate. In extrajudicial settlement there can be an agreement by and between
the parties as to the administrator of the estate. The estate does not have a
separate and distinct personality. It is only an entity authorized by law in special
cases.
As a general rule, the estate cannot sue and be sued. It can only be sued in
certain instances. It cannot be sued because under Sec.1, Rule 3 (Who may be
parties), it is only an entity authorized by law. That is why you file against the
executor or administrator. Remember that an executor or administrator is a
natural person. Iba yun sa Guardian ha? A guardian can be a juridical person..
only guardianship over the property of the ward. In guardianship over the ward,
the guardian cannot be an artificial being or corporation.
Q: Compare Sec. 7, Rule 86 ( Mortgage debt due from estate) with Sec. 5, Rule
87 (Mortgage due estate may be foreclosed).
A: The parties under Sec. 7, Rule 86 are the estate of the decedent and the
creditor. The creditors may have affirmative remedies as to their claims against
the decedent such as going after his estate. The estate is the debtor, the
mortgagor (mortgage due from the estate). As compared to Sec. 5, Rule 87, the
estate is the mortgagee.
Q: Is the estate, under Sec. 5, Rule 87 allowed the alternative remedies in Sec
7, Rule 86?
A: NO. He is only allowed one remedy which is foreclosure.
After all these claims have been settled, all debts have been paid, you go now to
distribution. This is the last stage. But in the distribution of the estate, what Rule
should be followed? First, before distribution, there shall be payment of debts.
Q: What are these debts? There are only 5 specific kinds of debts.
A:
1. Debts of the decedent;
2. Funeral expenses;
3. Expenses for administration;
4. Allowance for the widow; and

5. Taxes.
Q: Under the rules on preference of credit, taxes are given priority. Is there an
exception? What did you Labor Law teacher teach you about that?
A: PNB vs. NLRC case (March 1990): In case of liquidation of the assets of the
corporation, even taxes give way to unpaid salaries and wages. But in all other
instances, palaging ang gobyerno ang uunahin. Sabi nga sa mga Reviewers,
pag wala ka na daw maisasagot sa question sa taxation, taxation is the lifeblood
of the government.
Pag hindi mo mabayaran avail of Rule 89: Sales, Mortgages, and other
Encumbrances of the Property of the Deceased. The fundamental reason for
sales, mortgages, and other encumbrances is to pay off debts.
Q: The estate is worth one million (P1M). After payment of debts, all that had
been paid amounted to P500T. How much is left for distribution?
A: Only P500T.
Q: If there are 5 compulsory heirs, devisees and legatees, A, B, C, D, E, and
under the will, A should receive P500T; B- P100T; C- P100T; D and E- P50T each
and what remains is only P500T, how will you distribute the estate?
A: Distribute the estate by ratio and proportion.
Q: Suppose the asset was P10M gross value and the obligation was only P1M.
You have P900T left but the will says to distribute only P500T; P100T; P100T and
P50T to the last two, may sobra ka, (that goes to the pocket of the lawyer?) it
should be distributed in accordance with intestate succession but also pro rata.
A: Remember we are talking here of the remainder, wala nang babayaran. We
have also studied the Rules on contingent claims, under Sec. 4, Rule 74
( Liability of Distributees and Etate), the two-year lien.
Q: Can the estate be distributed even before payment of debts?
A: General Rule: No.
Exception: Assets may be distributed even prior to payment of debts provided the
distributee first gives a bond.
The remedy is to give a bond. If the asset to be distributed is quite important,
such as real property, then you give the asset.