scabook final

8/13/2019 Scabook Final

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BLESSED ARE THE HEARTS THAT BEND, THEY SHALL NEVER BE BROKEN St. Francis de Sales

SPECIAL CIVIL ACTION

* IN BP 129: RULE ON JURISDICTION:

- There are no deviations at all insofar as special civil actions are concerned;

- Special Civil Actions (SCA) are also covered by the rule on jurisdictiongoverning civil cases.

- The changes and deviations pertains SOLELY TO PROCEDURAL MATTERS.(MAST: Q: It seems that the general rule is that the rule on jurisdiction providedin the Rules of Court applies. I am just curious of the annotation of Regalado onthe fact that Rule 64 is cognizable only by the SC and not concurrent with the CAand RTC, it being just a petition in the nature of Rule 65 which in BP 129 isconcurrent. Does this mean that a mere procedural rule can alter a substantivelaw providing for the jurisdiction of courts?)

* General Rule: The ordinary rules of procedure also apply to special civilactions.

- Exception: There are some deviations from the rules that apply solely tospecial civil actions;

- These deviations from the Rules apply individually to each and every specialcivil action that is described in the Rules of Court;

-Nota Bene (Note very well):SO, ONE HAS TO INQUIRE INTO EACH AND EVERY SCA AND

DETERMINE THE FEATURE WHICH JUSTIFIES THEIR CLASSIFICATION AS ASCA.

* Webster Dictionary defines special as something having a particular purpose.Therefore, special civil actions being special have always a proceduraldeviation.


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RULE 62- INTERPLEADER

* ORDINARY CIVIL ACTION FEATURES (OCAF):

- There is a plaintiff and there are defendants;

- Commences with the filing of the complaint, which is the general ruleconcerning all civil actions;

- Rule 16, motion to dismiss applies of course to all civil actions as long as any ofthe grounds in Rule 16 is evident;(MAST: Do we apply the rule on lack of prior barangay conciliation; or arbitrationwhen stipulated; or confrontation of family members as grounds for dismissal?Do we also invoke the ground of lack of cause of action or extinguishment of theobligation there being no cause of action in the first place?);

- We also apply the rules on appeal.

* SPECIAL CIVIL ACTION FEATURES (SCAF):

1. Is one civil action where the plaintiff is given the prerogative not to allege thecause of action (SEE Rule 2), because the plaintiff does not have a right that hasbeen violated by the defendants, or if he has a right that right is not disputed bythe defendant;

2. We NEED at least two defendants (MAST: reason: because of the nature of

this particular SCA which is to decide who is entitled to the property or rightbetween two or more defendants, thus according to JARA: the plaintiff isCOMPELLED BY LAW to implead as defendants all the claimants to the property.)

3. In interpleader the defendant declared in default automatically loses the caseunlike the situation in Rule 9 on partial default (MAST: Note that in that Ruleparticularly Section 3, the requirement is that there should be a common causeof action against the defendants) where there are two or more defendantsimpleaded in the same case: generally a decision in favor of the answeringdefendant will also be favorable to the non-answering defendant although thenon-answering defendant has been previously declared in default. (MAST: Is thisregardless of whether or not there is a common cause of action against thedefendant? There should be a common cause of action in partial defaultcontemplated under Rule 9. This situation is impossible in interpleader sincethere is actually no cause of action in interpleader. Inquiring further, let us saythat there is a pair of defendant which claims to have a common right over aproperty against another pair {meaning d1 and d2; d3 and d4} how will that beresolved if we file an interpleader?);


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NOTE:Observe the procedural deviation in interpleader when the parties are

plaintiff vs defendant 1 and defendant 2; and compare this with the case ofplaintiff vs defendant 1 and defendant 2 in ordinary civil action (SEE Rule 9 Sec

3 c). One will immediately see that in interpleader, there is no such thing aspartial default as contemplated in ordinary civil action, aside from the fact thatthere is no common cause of action against defendant 1 and defendant 2 in caseof interpleader. Moreover, since there is in fact no cause of action ininterpleader, it is impossible for them to share a common defense.

4. Aside from the grounds enumerated in Rule 16, there is another ADDITIONALground in interpleader, the defendant in interpleader may file a motion to dismissfounded on the IMPROPRIETY OF THE FILING OF THE COMPLAINT FORINTERPLEADER;

* MAST: REGALADO: Under Sec 5, each claimant shall file an answer and serve acopy;

* The Supreme Court has emphasized that interpleader cannot be availed of inan independent and separate complaint AFTER one of the claimants has filed acomplaint for the recovery of possession of the property in the custody of thewarehouseman. Although the Supreme Court said that interpleader could be set-up as a counterclaim in the answer;

NOTE:

If there is already an ordinary civil action against the warehouseman, hecannot thereafter file a separate interpleader action. This is because to do sowould result to the dismissal of the separate special civil action on the ground ofabsence of cause of action or impropriety of the complaint for interpleader.

- There is nothing in the Rules which prohibits the filing of a counterclaim againstthe original plaintiff and also against a stranger to a case. All that the court willdo is to issue a summons to the stranger so that this stranger will be within the

jurisdiction of the court in so far as his person is concerned.(MAST: Rule 6 Sec12)(MAST: What if there is already an interpleader and one or both of thecomplainants {defendants in the interpleader action} then decided to file aseparate and independent action for recovery of property can this be done? Howabout setting up as counterclaim in the interpleader action the recovery of thepossession of property, is that possible? The only answer I can give is that in thefirst question, there will be litis pendentia. The absence of cause of action willnot prevent the application of the rule. What is important is that in either case ofinterpleader and the subsequent action for recovery of property, the result will


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be the same and one will be res judicata on the other. There is a possibility ofconflicting decisions. As to the second question, I believe that such is possiblesince anyway he may indeed be the true owner and the warehouseman hasimproperly initiated the special civil action.)

* With respect to jurisdiction it is settled that interpleader is one of the SCAswhich could be cognizable by an inferior court depending on the value of theproperty involved. That is in accordance with BP 129.

(MASTER: Interpleader is obviously an action in personam.)

* SEE Warehouse Receipts Law;

* SEE Appendix of Forms: FORM 5: Answer with Counterclaim for Interpleader:This is the justification why counterclaim for interpleader is possible. The

appendix of forms is prepared by the Supreme Court itself.

* In case of appeal we apply the ordinary rules.


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RULE 63- DECLARATORY RELIEF AND OTHER SIMILAR REMEDIES

* There are 4 special civil actions in Rule 63:

1. Declaratory Relief

2. Quieting of title (Art. 476ff NCC)3. Consolidation of ownership in case of sales (Art. 1607 NCC)4. Reformation of instrument (Art. 1359ff NCC)

* It is not correct to assume that the actions covered by the phrase othersimilar remedies are also covered by the procedure for declaratory relief.

* The other similar remedies are not kinds of declaratory relief.

* THE OTHER SIMILAR REMEDIES, namely: quieting of title to real property orremove clouds therefrom, consolidation of title, and reformation of instrument.

All of them need a CAUSE OF ACTION.

* OCAF:-

* SCAF:

1. The court is given the prerogative to entertain or not to entertain this petitionif the court feels that the petition is not meritorious by simply reading theallegations therein, the court has the authority to dismiss the petition by refusing

to entertain the petition UNLIKE in ordinary civil actions; ( MAST: Review:summons, answer, motion to dismiss, non-waivable defenses, rule on summaryprocedure)(MAST: Can we say that the Rules on summary procedure, specialcivil actions or special procedure? Summary Procedure consists partly of anordinary civil action, specifically those of actions governing recovery of claims of100k or 200k. It just happened that it is an ordinary civil action which issummary in nature. Part of the scope of summary procedure is a special civilaction which is FEUD.);

2. There is no cause of action (basis: if you read the Rules it is essential that thepetition must be filed before there is a breach or a violation of the law orordinance or the will or contract involved SEE Sec 1);

3. Rule 39 on execution is not possible because what the court does only indeclaratory relief is to declare the rights and duties of the parties in a contract inits judgment.

* We cannot expect the petitioner to pray for damages etc.


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* Declaratory relief is not conjectural or anticipatory because the filing of thepetition for declaratory relief----because there is a threat of a violation of a righteven under a contract, or another instrument or a law or ordinance.

* The purpose of declaratory relief is to stop a possible litigation.

* So the main purpose of the petitioner in declaratory relief is only for thedeclaration of rights: of his rights and duties under the contract or will; or anyother instrument or a law or ordinance.

* If it is based on contract the party-defendant should be anyone of thecontracting parties, if it involves a law or ordinance, it should be the publicofficial who is in charge of executing the law or ordinance. (MAST: So it seemsthat we call the one who filed as petitioner and the one who should beimpleaded as party-defendant? SEE Secs 2, 3 and 4)

* We still need a defendant in this special civil action SEE Sec 2.

* The actions covered by the phrase "other similar remedies" do not follow theprocedure for a petition for declaratory relief, the court is duty bound to observethe procedure in ordinary civil actions. (SEE Sec 5)

* The court can outrightly dismiss the petition in declaratory relief. (SEE Sec 5)

* Compare declaratory relief with interpleader with regard to the power to

outrightly dismiss or refuse to entertain. In interpleader, the court cannot dothis. (SEE Sec 4 Rule 62)

* The petition for declaratory relief is EXCLUSIVELY cognizable by the RTCbecause the subject matter is incapable of pecuniary estimation.(BP 129 Sec 19)

* The complaint for the quieting of title MAY NOT be exclusively cognizable bythe RTC. Under BP 129, actions involving title to or possession of real propertycould be cognizable by both an inferior court or by a RTC depending upon theassessed value of the real property.

* WARNING: If you are asked the jurisdiction over a petition for declaratory relief AND other similar remedies, do not jump IMMEDIATELY to the conclusion thatthese PETITIONS are cognizable by the RTC.(MAST: How about consolidation of ownership in case of sales and reformationof instrument, where do we file them? I think in case of consolidation ofownership and in case of reformation of instrument it is clear that they areactions not capable of pecuniary estimation.)


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RULE 65 - CERTIORARI, MANDAMUS AND PROHIBITION

SEE: A.M. NO. 07-7-12-SCRE: Amendments to Rules 41, 45, 58 and 65

NOTE: MAST: THE IMPORTANT AMENDMENTS IN RULE 65

- Sec 4:

: The phrase in the old version The petition shall be filed in the SupremeCourt.. was omitted in the present amendment.Purpose of the amendment: To further bolster the policy of the SupremeCourt of discouraging parties to directly resort to it. The Supreme Court remainsto have jurisdiction over Rule 65, however, since it has authority over proceduralmatters it can regulate the direct filing of petitions before it. It does not violatethe Constitution because our fundamental law gives the power to the SC to makeamendments. The operative word in the Constitution is as the law or the Rulesmay provide.

: This paragraph was added to the former provision: In election cases involving an act or an omission of a municipal or regional trialcourt, the petition shall be filed exclusively with the COMELEC, in aid of itsappellate jurisdiction. (MASTER: What do you mean by in aid of appellate jurisdiction ? It means thatthe decision in the main case must in the first place be appealable to theappellate court or within its appe llate jurisdiction. Rule 65 is i n aid meaning the

grounds provided by the Rules are present and the said exercise of appellate jurisdiction is not the speedy remedy. Thus, when the main case is notappealable or if appealable, the same is within the exclusive appellate jurisdictionof a certain court, the petition could not be instituted for example with theCOMELEC as it would not thereby be acting in aid of its appellate jurisdiction.)

- Sec 7:

: A second paragraph was added: The public respondent shall proceed with the principal case within ten days fromthe filing of the petition for certiorari with a higher court or tribunal, absent aTRO or a preliminary injunction, or upon its expiration. Failure of the publicrespondent to proceed with the principal case may be a ground for anadministrative charge. Purpose of amendment: I believe that this is to avoid the delay that a petition forcertiorari might cause on the pendency of the principal case or proceeding inquestion.

The possible sanction on the judge, in some way, cushions the severe


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penalties on the lawyer availing of the remedy and the risk he takes when heavails of this remedy.

- Sec 8:

: An additional sentence was added to the second paragraph: In such event, the court may award in favor of the respondent treble

costs solidarily against the petitioner and counsel, in addition to subjecting thecounsel to administrative sanctions under Rule 139 and 139-B of the Rules ofCourt.

: An additional third paragraph: The Court may impose motu propio, based on res ipsa loquitur, otherdisciplinary sanctions or measures on erring lawyers for patently dilatory andunmeritorious petitions for certiorari.

: Purpose of amendment: It is obvious.

OTHER IMPORTANT AMENDMENTS

* RULE 45

Sec 1:

- The Court of Tax Appeals was included in the enumeration of decisions ofcourts that can be elevated through petition for review on certiorari;

- Another significant amendment is the express mention of the applicability ofprovisional remedies. There are two ways to avail of provisional remedies underthe amendment:1. The petition under Rule 45 may INCLUDE an application for a writ ofpreliminary injunction or other provisional remedies; (MASTER: the provisionalremedy here is embodied in the petition itself)2. BY VERIFIED MOTION filed in the same action or proceeding at any timeDURING ITS PENDENCY;

* RULE 41:

- This ground was omitted from the former rule: (a) An order denying a motion for new trial or reconsideration Purpose of amendment: It appears that the ground was omitted for thesimple reason that it was redundant. If you will look at Rule 37 Sec 9, you canarrive at the conclusion that the omission did not make the said omitted groundappealable. It remains to be NOT APPEALABLE. If the intention was really to


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make it appealable, then the Revision Committee should have also omitted Rule37 Sec 9.

* RULE 58:

- There was an additional 5th

paragraph: The trial court, the CA, the Sandiganbayan or the Court of Tax Appeals thatissued a writ of preliminary injunction against a lower court, board, officer orquasi-judicial agency shall decide the main case or petition within six monthsfrom the issuance of the writ. Purpose of the amendment: So that there will be no indefinite suspension ofthe proceedings of the main case to the prejudice of the parties.

DIFFERENCES: Rules 65, 45 and 64

I. Rules 64, 65 and 45 envisions different factual antecedents.

II.* Rule 45 is a mode of appeal.

* Rule 64 is a mode for review from the decisions of the COA and COMELEC. It isalso a mode of review (MAST: like appeal) ALTHOUGH the form and therequirements to be satisfied are those given in Rule 65.(MAST: So it seems that Rule 64 is not strictly a special civil action? It is still aspecial civil action, even if it is actually a mode of review. That does not changethe fact that it has many procedural deviations characteristic of a special civil

action.)

NOTE:Rule 64 is a mode of review but the mechanism is Rule 65. The period to

appeal (MAST: which is 30 days) should always be followed, even if the appellanthas mistaken the period to be 60 days as in certiorari, the court will outrightlydismiss the appeal.

* Rule 65 is a special civil action.

III.* The questions usually allowed under Rule 45 are questions of law notnecessarily related to jurisdiction of the court, AS LONG AS the question involvedis a question of law. (MAST: So it seems that when the question is one of

jurisdiction you can avail of either or both remedies? One can only avail eitherremedies, this is because before Rule 65 can be availed of there should be noplain, speedy or adequate remedy in the ordinary course of law. Thereforeordinarily when there is a question on jurisdiction we appeal, unless such order


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disposing the question of jurisdiction is an interlocutory order or a final orderwithout prejudice, as the case may be.)

* NOTE: MEMORIZE the 11 instances where questions of law may be raised inthe SC.

* In Rule 65 (certiorari) the question that could be raised is ONLY a question of jurisdiction. A question of jurisdiction is ALWAYS a question of law.

IV.* In Rule 45 it is expressly provided that the period could be extended foranother 30 days. SEE Sec 2; (MAST: Note the Fresh Period rule in Neypes Casewhenever there is a motion for new trial and reconsideration)

* There is no mention in the Rules about the extension of the 60 day period inRule 65. (SEE recent amendment to Sec 4) ???

V.* Generally, the availment of Rule 45 will stop the execution of the order subjectof the appeal. (MAST: Except execution pending appeal. SEE Sec 2 Rule 39, andanalyze Sec 1 Rule 39)

* In Rule 65 the filing of the petition does not stop the trial court from goingagain with the case unless the court issues the writ of preliminary injunction.

* So, while theoretically a petitioner is given the choice as to which court will

hear his petition for certiorari, this privilege is really delimited by anotherprinciple contained in Rule 65, the principle of hierarchy of courts. (SEE recentamendment to Sec 4)

* The purpose of the rule on Hierarchy of Courts is to discourage the filing ofcertiorari to SC (MASTER: SEE Sec 4, 2 nd paragraph as amended that omitted theSC altogether, to implement the policy for the petitioner to choose either RTC orCA)

* Note Sec 4 of Rule 65.

* The dismissal of the petition for violation of the principle of hierarchy of courtswill not prevent the petitioner from filing a similar petition before the propercourt.

* SCAF:

A. The court is given the authority to outrightly dismiss the petition just like


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declaratory relief;

B. The court does not issue summons, what the court issues is an ORDER TOCOMMENT addressed to the respondents;

C. The period to comment is fixed in the Order.

D. There is no such thing as declaration of default, the court will just continuehearing the petition and the court will simply render a judgment based on thepetition filed by the petitioner.- this is because under Rule 65 there is usually no factual issues involved, theissues refer to issues of jurisdiction; (MAST: What are the possible instanceswhen there can be issues of fact?)

E. The public respondent though impleaded is not allowed to defend himselfopenly. The duty to defend the public respondent lies upon the privaterespondent;

* The public respondent must be impleaded but only as a nominal party.

* Certiorari, prohibition and mandamus are three DISTINCT AND INDEPENDENTpetitions.

* The introduction of Rule 41 together with Art VIII Sec 5 of the Constitutiongreatly broadened the application of Rule 65 and now covers also final orders notonly interlocutory orders.

* So Rule 65 (certiorari) is no longer limited to challenging interlocutory orders.Final orders and even judgments could be subject now of Rule 65, as could begleaned from Rule 41 which enumerates the instances when there could be noappeal.(MAST: How about prohibition and mandamus, can they assail final orders,

judgments? Yes of course as long as the requisites under Rule 65 Sec 2 and 3are complied with in relation to Rule 41 as may be appropriate. Rule 41 states

the appropriate special civil action as provided in Rule 65. )

* According to the SC: There could be an award of damages in certiorari andprohibition even if there is no express mention in the Rules like that inmandamus. Thus the award of damages in certiorari and prohibition is notexpressly provided by the Rules, it is given BY VIRTUE OF A COURT DECISION.

* Even if there is no express mention in Sec 1 and 2 on the award of damages,the SC ruled that such award for damages is contemplated by the broad conceptof "incidental relief as law and justice may require."


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* The recovery of damages arising from the wrongful acts should beincorporated. If it is not incorporated then it is barred by res judicata. (SEE Rule39 Sec 47 par. b)

Thus there can be no separate action for damages because that will be in

effect a splitting of a cause of action.

* The said award of damages may be executed through the use of Rule 39. Butgenerally we do not use Rule 39 to enforce this special civil action. The properremedy is contempt.

* Rule 65 is enforced by a petition for contempt.

* Correlate Rules 64, 41 and 16, 17 and 18

* In addition to the grounds enumerated in Rule 16, another ground for a motionto dismiss is when petitioner violates the principle of hierarchy of courts in Sec 4Rule 65.

* Important to determine when it is with or without prejudice, for the correctremedy.

* One could always file a complaint if the dismissal is without prejudice.

* QUERY: When the MOTION TO DISMISS on ground of lack jurisdiction isdenied, which is an interlocutory order, and the defendant really believes that

there is lack of jurisdiction, what is the remedy considering that in Rule 16 he willbe required to answer?Petition for prohibition, is the correct remedy: to prohibit the respondent

court from proceeding, that is to stop requiring an answer from defendant. Toavoid answering, a provisional remedy for the issuance of the writ of preliminaryinjunction may be applied for in the petition for prohibition. The present practiceis to file an ANSWER AD CAUTELAM together with the petition under Rule 65. Itis called ad cautelam, because the answer is filed just to avoid being declared indefault and at the same time the answer will not be construed as a waiver. Thefiling of the answer ad cautelam will in effect be just a precautionary measure.The remedy solves this dilemma: If the defendant does not file an answer hemay be declared in default. If however he files an answer he may be deemed tohave impliedly waived the defense of lack of jurisdiction.

If instead of filing a petition for prohibition, the defendant files a petitionfor certiorari, the SC ruled that the petition for certiorari will be considered ortreated as if a petition for prohibition. This is because the requirements of thetwo remedies are practically identical, thus the error will be disregarded.


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RULE 66- QUO WARRANTO (QW)

* Under our new statutes, QW is a special civil action which is cognizable by allcourts even inferior courts. (MAST: Just like contempt under Rule 71) QWproceeding involving public officials of the barangay level are cognizable

exclusively by inferior courts. (MAST: Sec 191 Election Code; Sec 20 BP 222Barangay Election Law; Sec 8 RA 3590 Revised Barangay Charter: Will theselaws adopt the procedure in Rule 66? Probably, since they seem to be the legalbasis why the inferior court has jurisdiction over QW proceedings.)

* The petition for QW is designed for the purpose of determining who betweenthe contestants is entitled to hold office, either a CORPORATE OFFICE OR APUBLIC OFFICE.

* SCAF:

1. This is one proceeding which violates the rule on splitting the cause of actionand there is no sanction for this splitting. The basis is that once the court hasdecided that the plaintiff is entitled to a particular office and the judgmentbecomes final, the law authorizes the winning party to file a subsequentcomplaint for the recovery of damages arising from the usurpation of that office.(SEE Secs 10 and 11)

2. The court is given the prerogative to reduce the period for pleading (this is notthe case even in other SCAs)(SEE Sec 8)

* The petitioner really is not given much choice. He has to comply with theprinciple of hierarchy of courts mentioned in Section 4 of Rule 65 (Note thatthere is nothing mentioned about the applicability of the principle of hierarchy ofcourts in the Rules. The applicability of the principle has its origin in

jurisprudence.);

* The difference between mandamus and quo warranto:- Mandamus: damages cannot be filed in a separate complaint;- Quo Warranto: we allow a separate complaint for damages;

* A relator can initiate a quo warranto proceeding, even without the assistanceof the Solicitor General. (MASTER: SEE Sec 5)


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RULE 67- EXPROPRIATION

* SEE BP 129 Sec 39 on Multiple Appeals;

* The issue that may be resolved in any expropriation proceeding is whether or

not the plaintiff has the right to expropriate.If that is the first issue, then that is really incapable of pecuniary

estimation. Once that issue is decided by the court, then the court can go tothe other principal issue which could be related to the value of the property, sothat regardless of the assessed value of the real or personal property that is thesubject of expropriation, an expropriation case will always be cognizable by theRTC.

* SCAF:

1. There is stage 1 and stage 2:

- stage 1 : the adjudication by the court, as to whether the plaintiff has the rightto expropriate, after determination that the plaintiff has right to expropriate;

- stage 2 : the determination of just compensation;

2. The decision in Stage 1 is a final order or decision and therefore appealable.The decision as to just compensation is another final order or judgment, which isalso appealable;

3. When the rules allow multiple appeals to be taken in one and the sameproceeding that means to say that the rules on appeal will be different fromordinary civil action. Thus, the period to appeal is extended to 30 days and thereis another requirement for the submission of the record on appeal.

4. One civil action which is not governed by Summary Procedure but there areprohibited pleadings.

NOTE:Reason why there are prohibited pleadings: The court is authorized

to determine title and other issues. There is no need for the litigants to fileclaims, the court will see to it that the claims are paid by just compensationwhether or not they are involved in the litigation. (MASTER: SEE Sec 9.)

5. Even if the defendant has previously been declared in default, he is stillallowed to participate in the trial of the issue of just compensation.


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NOTE:In so far as the first issue (the propriety of expropriation) is concerned he

is in default, but in so far as the second issue (just compensation) is concernedhe can participate in the trial.

6. Trial by commissioner is mandatory.

* SC decision: Even if the defendant has received the money offered by theplaintiff, there is nothing that will prevent the defendant from elevating thematter insofar as the propriety of the expropriation is concerned.

* There can be an immediate issuance of writ of possession in expropriationeven before the defendant gives his side or is heard, as long as the depositrequired by law is given. This is a ministerial duty on the part of the court.(MASTER: Sec 2 Rule 67)

* After control or taking of property, it cannot be dismissed since there is asecond stage.

* Even if there is an appeal of 1st stage, the 2nd stage could still proceed.

* QUERY: In case that the property is in the possession of the defendant but isin reality owned by national government, what is the proper remedy?

Expropriation is proper. It can be filed against the occupant orunlawful possessor, not only against the owner. This remedy is more expedientand favorable to the government because the complainant, the owner-national

government in this case, can immediately take possession of the property.FEUD is also another option, but this is more tedious.

* Rule 36 on Separate Judgment VS Judgments rendered in ExpropriationProceeding:

In Expropriation, both the judgment on the right to expropriate and the judgment on accounting are appealable.

However, in separate judgments they are not appealable, if a party wantsto appeal, he must get the consent of the court. The remedy is Rule 65. (SEERule 41 (f) as amended)

* In Rule 32 appointment of commissioner is also an incident of an ordinary civilaction. The difference from expropriation is that, in Rule 32 it is discretionary.The court moreover may motu propio appoint commissioners, even if the partiesobject under certain instances. (SEE Sec 2 Rule 32)

However in expropriation, whether the parties object or agree, it ismandatory.


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* Rules on appeal:- 30 days, record on appeal

* If on appeal the SC reversed the right to expropriate, the Rules state that thetrial court will see to it that the defendant is restored to his property and will

determine the amount of damages which is expressly provided for in Sec 11.

* According to the SC, the complaint for damages arising from the wrongfulexpropriation could be subject of a separate complaint. It is allowed. The

justification is that the defendant cannot file a counterclaim being a prohibitedpleading in Sec 3. So, there is really nothing he can do in the expropriation caseif the RTC did not award damages pursuant to Sec 11.

We follow the same rule in Quo Warranto. There is no express mention ofthis remedy in Rule 66, but there is nonetheless a Supreme Court decision tosupport the remedy of a separate complaint for damages.


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RULE 68- FORECLOSURE OF REAL ESTATE MORTGAGE

I. Nature

* What is contemplated in the Rules is a JUDICIAL foreclosure of real estatemortgage.

II. Chattel Mortgage

* This Rule has nothing to do with foreclosure of Chattel Mortgage.

* QUERY: How does a mortgagee foreclose chattel mortgage?The recourse is to file a complaint for replevin. Once the possession of

personal property is recovered, then foreclosure may commence.

III. Extra-judicial Foreclosure

* Extra-judicial foreclosure of real estate mortgage is allowed ONLY if themortgagee is given a SPECIAL POWER OF ATTORNEY to foreclose the mortgageextra-judicially in the Deed of real estate mortgage.

* A mortgage can never be a principal contract. A mortgage is ALWAYS an ACCESSORY contract.

IV. Jurisdiction

* It is settled that regardless of the amount sought to be recovered, a judicialforeclosure of mortgage is always cognizable by the RTC EXCLUSIVELY.- REASON: The first issue that will always be resolved when it comes to judicialforeclosure of mortgage is this: Does the plaintiff have the right to foreclose themortgage? By itself alone, that question is not capable of pecuniary estimation.(MAST: What can defeat the right of the mortgagee to foreclose?)

V. Three Stages:

- 1st: determination by the court of whether the plaintiff has right to foreclose;

- 2nd: foreclosure itself of mortgage;

- 3rd: concerned with recovery of deficiency, IF there is any; (MAST: It isobvious that there could be a case where there will be two stages only, if there isno deficiency.)


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* The court can render three final decisions:

A. on the right to foreclose,

B. propriety or regularity of the foreclosure itself, and

C. the recovery of deficiency if there is any after the sale of the property;

* This is one action which admits of multiple appeals.

* The rule is the same as in expropriation on multiple appeals. The court canrender three final decisions. The special civil action of judicial foreclosure of realestate mortgage is MULTI-STAGED.

VI. Parties

* This is one of the few civil actions where the rules themselves tell thepetitioner who should be sued in court.

However, the only indispensable parties are the mortgagee, who is ofcourse the plaintiff in the case, the debtor and the mortgagor. The other partiesidentified in the Rules are only necessary parties.

A. Indispensable parties:The SC held that the indispensable parties are: the borrowers, mortgagor

and of course the mortgagee (plaintiff). But the persons having or claiming aninterest in the property subordinate in right to that of the holder of the

mortgage, they are only necessary parties. (SEE Rule 68 Sec 1)

B. Necessary Party A person who has interest inferior to the foreclosing mortgagee is only a

necessary party.NOTE:

If the mortgagee is ordered to implead a necessary party, there will onlybe a waiver of rights of the plaintiff of any claim against a necessary party notimpleaded. (SEE Rule 3 Sec 9)

C. Important: Mortgage 1, 2 and 3:

* If the owner of the piece of land was able to mortgage his property to threedifferent mortgagees that simply means that he is able to obtain a loan threetimes from three creditors.

Usually, the rule is mortgage 1 is superior to mortgage 2 and 3. Howeverthere is nothing wrong if mortgagee 3 will foreclose ahead of mortgagee 1 and2. As long as the obligation secured by mortgage 3 matures ahead of 1 and 2.


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The rule is that all these mortgages are valid being merely a lien or encumbranceupon property.

* The debtor in a contract of loan could be different from the mortgagor of theproperty.

* The only reason why the law requires that mortgagees 2 and 3 should beimpleaded is for them to loose their right of redemption. (MAST: Is it importantto determine whether or not the principal obligation has become due or not?)

* If one mortgages his car, a second or several times it is a criminal act. But ifone mortgages real property several times it is just fine, as can be implied fromSec 1 on the concept of inferior lien holders.

* If Mortgagee 3 commences a special civil action for foreclosure he need notimplead Mortgagees 1 and 2. This is so, since each mortgage is independentfrom each other. The interests of Mortgagees 1 and 2 are superior (being priorliens). Even if the property is sold in public auction and the sale subsequentlyconfirmed, Mortgagee 1 and 2's interests or lien on the property have to beannotated in the certificate of sale. That is the reason why there is no need toimplead them. (MAST: Since they are sufficiently protected.)

VII. Equity of Redemption

* The court will order to pay within a fixed period of time mentioned in theRules. This period is referred to in substantive law as the equity of redemption.

* The equity of redemption continues to exist even if there is already a publicauction sale, it runs until confirmation of the sale.

* Resort to judicial foreclosure is avoided because of the possible increase inperiod within which an equity of redemption may be exercised. This is in view ofthe multiple appeals that are allowed. The entry of judgment is the reckoningpoint of the 90-120 day period. (SEE Sec 2)

* As long as there is an appeal in the 1st and 2nd judgment (judgment on rightof foreclosure and order on confirmation of sale respectively), equity ofredemption exists. Until the issuance of the order of confirmation of publicauction sale, the equity of redemption still exists. There is no fixed term as longas there is an appeal pending. The third stage, which is the recovery ofdeficiency, may or may not exist. (MAST: Caveat: I cannot personally understandwhat is meant by this paragraph.)


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NOTE:

* In extra-judicial foreclosure there is such a thing as the right of redemption.The right of redemption is the one given at Rule 39, for mortgagors who arenatural persons: within a period of one year from the registration of the deed of

sale.

* There is no right of redemption in Rule 68, even if we follow the procedure onlevy on execution of real estate sale in Rule 39.

VIII. Deficiency

* After the sale is confirmed then the court will determine whether or not thereis a deficiency. If there is, the court will order the debtor to pay the deficiencywhich can be enforced under Rule 39.

* The mortgagor may use Rule 39 to levy on execution of other propertiesbelonging to mortgagor to get the deficiency.

* What the Civil Code refers to when it says that the deficiency is notrecoverable, is when there is chattel mortgage and the subject loan is payable ininstallments.(SEE Recto Law: Art. 1484 NCC)(MAST: It is reasonable to conclude that in case of loans not payable ininstallments which are secured by chattel mortgage, deficiencies are recoverable.Only a chattel mortgage securing a loan payable in installments that recovery ofdeficiency is impossible.)

IX. Judicial Intervention in Extra-judicial Foreclosure

* In extra-judicial foreclosure, there is no court intervention AT THE OUTSET.Everything is done through the sheriff of the court or the clerk of court althoughunder our present system, there should be an application for extra-judicialforeclosure to be filed with the court.

* Even if the foreclosure is extra-judicial, there will be a court intervention whenit comes to the recovery of the foreclosed property. Thus the highest bidder willfile a motion for the issuance of the writ of possession.

* ACT 3135: Real Estate Mortgage Law :In Extra-judicial foreclosure because of the need for SPA, it is really the

mortgagor who decides in the deed of mortgage whether that remedy can beavailed of.

The statement in textbooks that there is no judicial intervention inextrajudicial foreclosure is inaccurate. The mortgagee will be eventually seeking


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the court. The mortgagee, after the confirmation of sale, (in case he is thehighest bidder) may ask or petition the court for the writ of possession andcontrol of the collateral.

* The Extra-judicial mortgagee does not have to possess the property. If he

decides, he may file a petition with clerk of court of the RTC or seek theassistance of a notary public. The clerk will raffle the petition among the sheriffs.The sheriff will then prepare the notice, then there will be a public auction. Therewill be issuance of certificate of sale to the highest bidder. If no right ofredemption is exercised within the prescribed period, title will be consolidated.The mortgagee may then move or a file a petition for the issuance of the writ ofpossession.

The remedy is neither a special civil action nor an ordinary civil action.The remedy is a mere motion, a petition which is incident of a land registrationproceeding. And the court has the MINISTERIAL duty to grant the motion. Thedecision should be heard ex parte. There is thus no need to notify themortgagor.

X. Provisional Remedy

* Provisional remedy: receivership of the collateral. SEE Rule 59 Sec 1 (b).

* The mortgagee can move for writ of preliminary attachment. The rules do notexclude this possibility as long as the requirements in Rule 57 are complied with.Not over the collateral but over the other properties of the mortgagor, remember

that one of the allegations in the application for writ of preliminary attachment isthat there is no sufficient collateral. SEE Sec 3 of Rule 57

* A complaint for foreclosure with the prayer for receivership (SEE Rule 59 Sec 1b) and writ of preliminary attachment is possible.

XI. Judgment by Default

* If the parties did not answer, follow the ordinary procedure. Thus there couldbe a judgment by default ultimately.


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RULE 69 - PARTITION

I. Nature

* The term partition connotes the idea of CO-OWNERSHIP among severalpersons.(MAST: Review Laws on Property {Art. 484ff NCC} and Wills & Succession {Art.1078ff NCC})

* If one of the co-owners wants to leave or get his portion over the objection ofother co-owners, he cannot be forced to remain in the co-ownership. The co-owner who wants to leave may file this special civil action. (MAST: What if twoco-owners want to leave and three do not want?) He must implead all other co-owners because they are indispensable parties.

* The co-owners can agree among themselves voluntarily, BUT if they cannotagree among themselves voluntarily, that is the time that a court proceedingbecomes necessary.

* The Rule contemplates a situation where the co-owners cannot agree.

II. Amicable Partition

* Even if a complaint is already filed, there is nothing that will stop the partiesfrom voluntarily entering into a CONTRACT for partition of the property.

* After the court determines that the co-owner has right to partition, the courtmay then proceed to ask if the co-owners want to agree on a partition. If theywant to agree then there will be a deed of partition. Thereafter the court willrender judgment based on that deed of partition executed amicably by theparties.

III. Commissioners

* But if they cannot agree, then the court shall appoint commissioners. Partitionis similar to expropriation in this matter. (SEE Sec 2) (MAST: It seems that theappointment is also mandatory by th e use of the word shall) (MAST: I s thisappealable? Probably not, being an interlocutory order. The remedy is Rule 65.)

IV. Co-Owners: Indispensable Parties

* All the co-owners or co-owners pro indiviso should be impleaded asINDISPENSABLE PARTIES. Failure to implead one will subject the complaint to


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dismissal for failure to state a cause of action.

* When it comes to partition when there is a co-owner left out, the judgment willnever become final. And the only way to follow this procedural principle is toallow the co-owner, who has not been impleaded, to intervene in the proceeding

even after the court has rendered judgment. (SEE Rule 19)

V. Multiple Appeals

* Just like expropriation and foreclosure of real estate mortgage, partition is acivil action which admits of multiple appeals. The special civil action consists alsoof multiple stages.

VI. Other Matters

* Up to the last centavo there can be a division

* Stage of Accounting is another final judgment.


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RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER (FEUD)

I. Nature

* In both cases (forcible entry and unlawful detainer), the issue is physical

possession of the property. It does not involve real possession of the property,that is, possession as a real right. It does not involve ownership.

* Note that accion reinvindicatoria, accion publiciana may be tried by the inferiorcourt depending on the assessed value of the property; and accion interdictal,the law vests exclusive original jurisdiction to the inferior court regardless of thevalue of the property and regardless of the monetary award which the plaintiffseeks to recover: all these three actions could be cognizable by an inferior court

* These two actions involve ONLY real properties:- for the recovery of personal property, an action for replevin is the proper actionwhich can be filed in the RTC or MTC depending on the value of the personalproperty determined by the plaintiff in his complaint.

* The SC has repeatedly emphasized that in a complaint for forcible entry, theplaintiff must allege in the complaint that he held PRIOR PHYSICALPOSSESSION.

II. Issue of Ownership

* The issue of ownership will not be a justification of the court to dismiss the

complaint, but it is enough justification for the court to rule on the issue ofpossession as well as the issue of ownership. But when it comes to the issue ofownership, the finding of the court will ONLY BE PROVISIONAL (a separateaccion reinvindicatoria may later be filed).

III. Demand

* The requirement of prior demand to pay and vacate may or may not be jurisdictional when it comes to unlawful detainer:

A. Contract Existing and There is ViolationWhile contract still running, and there is failure to pay rental: until the

tenant receives from the landlord the demand to pay and to vacate, thepossession is still lawful; when such demand is ignored then the possessionbecomes unlawful; thus IN THIS CASE prior demand to pay and vacate isJURISDICTIONAL;


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B. Contract ExpiredIf the contract of lease has already expired: NO NEED for prior demand, a

case for unlawful detainer can be filed;

C. Implied Lease

If there is an implied lease, that is, if within 15 days the lessor fails to filea complaint, then the filing of the complaint after this 15 day period needs aprior demand to pay and vacate;(MAST: This last case needs a clarification. The Jara Notes is very misleading onthis matter. It seems to appear that prior demand to pay and vacate is necessaryon the 16th day onwards without qualification. BUT upon talking with Dean Jara,I had my enlightenment. First point, upon failure to file a complaint for unlawfuldetainer within 15 days after the expiration of the contract, an implied new leaseor tacita reconduccion as contemplated in Art 1670 of NCC arises. Thus, if forexample the original contract is for one year, then the 16th day is actually thefirst day of the new year-long implied lease with same terms as the originalcontract. The second point to consider: filing a complaint for unlawful detainerafter the lapse of 15 days needs a prior demand is inaccurate. Prior demand topay and vacate is necessary only if there is non-payment of rentals within theimplied lease contract OR there is failure to comply with the terms of thecontract which would require them to vacate the premises. Thus, without anyviolation of the new implied contract of lease by the lessee while the period ofthe new implied contract of lease is still running, then no prior demand isnecessary because there is no cause of action in the first place. Third and finalpoint, prior demand is not necessary when the said new implied lease expires.Thus, in our example after a year or the expiration of the new implied lease

period, prior demand to pay and vacate is not necessary for filing the unlawfuldetainer case, provided that the 15-day period has not lapsed. Again within 15days and the lessor files no complaint, a new implied lease is created subject tothe rules discussed above.

NOTE: According to the SC, the 1 year period can be reckoned from the time of

discovery, if there is forcible entry on the ground of stealth or strategy. In allother instances we follow the general rule, which is from unlawful possession.

IV. Special Civil Action: Reason

* QUERY: Why are forcible entry and unlawful detainer special civil actions? Is itbecause they are governed by the Rule on Summary Procedure (RSP)?

No. We have to look for a procedural deviation aside from RSP. This isbecause recovery of loans in the amount of 100K or 200K as the case may be, isalso governed by RSP. Such another action governed by the RSP remains to bean ordinary civil action though it has deviations consistent with its summary


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nature. (SEE Rule on Summary Procedure Sec 1 A)

V. Rule 16 and Affirmative Defenses

* The difference between ordinary procedure and RSP when it comes to Rule 16

is that in RSP, it is the court that will motu propio dismiss the case if any of thegrounds is evident from the face of the complaint. (SEE RSP Sec 4; Rule 70 Sec5)

* The Rule on Summary Procedure does not prohibit the defendant from filing ananswer and in that answer, affirmative defenses are set up and these affirmativedefenses are those found in Rule 16. ( SEE Rule 70 Sec 6; RSP Sec 5)

VI. No Declaration of Default

* Note that there should not be a declaration of default, but the plaintiff cansimply file a motion for the rendition immediately of judgment OR the court maymotu propio render such judgment if the defendant does not answer.- such immediate judgment is justified because the pleadings must be

VERIFIED. (SEE Rule 70 Secs 4, 7 and 13; RSP Secs 3B, 6 and 19)

VII. Examination of Witnesses Not Followed

* The ONLY Rule on Evidence that is NOT followed when it comes to FEUD is theEXAMINATION OF WITNESSES. (SEE Rule 70 Sec 10; RSP Sec 9)

NOTE: However, in criminal cases under RSP, the witnesses can be compelled togo to court for the purpose of cross-examination. (SEE RSP Sec 15)

VIII. Immediately Executory

* In addition to actions for injunction, receivership, accounting and support(IRAS) in Rule 39 Sec 4 which are immediately executory, we include FEUD.Meaning, a court has the ministerial duty to execute the judgment. FEUD iscovered by the statement and such other judgments as are now or mayhereafter be declared to b e immediately executory .

* But this rule on immediate execution in case of FEUD applies only when the judgment is in favor of the plaintiff.(MAST: Is this principle applicable also to IRAS?)


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IX. Supersedeas Bond

* The SC has ruled several times that a supersedeas bond covers ONLY the backrentals and damages awarded by the court. (Thus attorneys fees are notcovered.)(SEE Sec 19)

* The filing of a superdeas bond depends on the tenor of the decision. The bondis only a guaranty that the plaintiff will eventually recover the back rentalawarded by the court in its judgment. Thus if there is no back rental awarded,no supersedeas bond is needed. (MAST: only deposit is needed)

X. Damages:

As to the question of whether damages in FEUD only includes backrentals, Dean Jara said that the old cases say that it is only limited to backrentals agreed upon or if there is no agreement, payment for the use andpossession of the premises. In Progressive Development Corp, Inc. vs CA (301SCRA 637) the SC however ruled otherwise and announced that unliquidateddamages may also be awarded. When I asked him he said, that it is good if onewill cite and apply the two views. Because the Progressive case, as it stands, isneither affirmed nor abandoned. But of course the Progressive case is the latestview of the SC.

XI. RTC: Appeal

* If during the appeal the defendant does not deposit the monthly rental to the

court as required by the Rules, the RTC can also order the immediate executionof the judgment. BUT you will note that immediate execution ordered by the RTCas an appellate court is only PARTIAL EXECUTION. Meaning, only the eviction ofthe defendant from the premises will be carried out. But in so far as the questionof payment of money is concerned, that will not be subject to immediateexecution. (SEE Rule 70 Sec 19)

* Note when the case is elevated to the RTC, the RTC is no longer covered bysummary procedure.

* The only way to avoid the immediate execution of the judgment by the RTC isto seek from the CA a writ of preliminary injunction. (SEE Rule 70 Sec 21)

XII. Real Action In Personam

* According the SC, FEUD is still an action in personam, it is a real action inpersonam. This is an exception to the Rule that a decision in an action inpersonam is enforceable only against the parties to the case.(MAST: In the sense


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that the judgment is also binding on the sub-tenant, the guests, the relatives andany one who derives justification of they stay from the lawful possession of thelessee.)

XIII. Rule 41 and Rule 40

If the defendant files a Motion to Dismiss on ground of lack of jurisdictionfor absence of demand, and the court dismisses, this is a dismissal withoutprejudice.QUERY: Can the plaintiff avail of Rule 41? But Rule 41 says it is not appealable,can he file a petition under Rule 65?

No, there can be an appeal, this time the plaintiff should rely on Rule 40Sec 8 regarding ordinary appeal from the MTC.

XIV. Other Matters

* When cases involving title to property like recovery of property or annulmentof sale are filed in another court, such cannot defeat or stop FEUD. In that caseof recovery of property, the adverse party cannot move for the issuance of a writof preliminary injunction to stop MTC from trying the complaint for FEUD. Anycase involving title to property and FEUD could stand together.

* It is possible to have a stipulation in the lease contract that there will be noneed to file ejection suit when the lessee violates the terms of the agreement orrefuses to pay or refuses to vacate. The said stipulation is valid provided thepremises are leased for commercial purposes. The lessor cannot be criminally or

civilly liable. If the premises are residential, then the validity of stipulation isdoubtful.


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RULE 71 - CONTEMPT

* SCAF:

1. The penalty for contempt can be imprisonment;

2. With respect to direct contempt: the plaintiff or the prosecutor and the courtare one and the same person,- practically in direct contempt, the respondent has no chance at all of prevailingin the case; (MAST: What could be the possible reason for the apparentimpartiality?)

3. In case especially of direct contempt, there is absence of pleadings, the courtwill simply order the person guilty of direct contempt; (SEE Sec 1)

NOTE:

In case of Indirect Contempt:

I. Where there is a requirement of an INDEPENDENT PETITION: there issemblance of the application of the rules on civil actions:

A. Should comply with the Rules applicable to ordinary civil actions:- thus filing of an independent petition, which is an INITIATORY PLEADING,requiring the payment of docket fees.

(MAST: How about certificate on non-forum shopping? Sec 4 provides that thereshould be full compliance with the requirements, so it seems there should alsobe certificate on non-forum shopping. But I have a reservation, the directcontempt proceeding is taken cognizance by the court which was disrespected.This is also true with indirect contempt of court involving persons whodisrespected the RTC and courts of higher ranks. Please analyze the provisions ofSec 1, 3, 4 and 5. Because of this, it is impossible for the injured private party tofile a case other than the court where the case is pending or which decided thecase. The reason for the rule being absent, there is no need for the applicationof the rule on certification against forum shopping. Cessante ratione legis, cessatipsa lex.

Note however that in Sec 5 of Rule 70, it seems that there is a need forcertification against forum shopping. The evil sought to be avoided in requiringthe said certification is present in the way indirect contempt is charged against aperson who disrespected an inferior court. The charge may be filed either withthe RTC where the lower court is sitting OR in the lower court itself. Therefore,in so far as indirect contempt against a lower court is concerned there is a needto file a certification against forum shopping as provided under Rule 7 Sec 5.)


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B. It is HOWEVER similar to Rule 65 thus:- there will be issuance of order to comment not necessarily summons (MAST: Isthe last phrase an indication that indeed in order for the court to bring therespondent before it, a process like summons may be issued as provided in Sec3?)

- there is no default order in this special civil action;

II. Where commenced by the court MOTU PROPIO:- this court must issue an order requiring the respondent to show cause why heshould not be cited in contempt of court, at least there is A TRIAL here; (SEE Sec4)

4. The court could send the respondent to jail for an indefinite period of time, afeature not even found in criminal cases:

- INDEFINITELY: as long as you refuse to perform the act required of (MAST:Does this only apply to Sec 8?);

5. REMEDIES:

A. DIRECT CONTEMPT:

- certiorari or prohibition as mandated by the Rules; (SEE Sec 2)

- Jurisprudence: special proceeding of habeas corpus, in fact there is no

prohibition from a petition for certiorari being joined together with the prayer forthe writ of habeas corpus;(MAST: But could they be filed independently without violating splitting a causeof action?)

- The remedy of habeas corpus can be invoked especially if incarceration isconcerned.

- In Direct contempt, there is no need for a complaint unlike the other specialcivil actions. The judgment is rendered right away. Here is a final order which isnot subject to appeal but certiorari.(MAST: Somehow of a feature the same assome of those enumerated in Rule 41.)

B. INDIRECT CONTEMPT:

- the remedy is PLAIN APPEAL(MAST: Why is certiorari not applicable, how about Motion for Reconsideration orNew Trial or Relief from judgment or Annulment of judgment?);


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6. Although contempt may be classified as civil and criminal: there can be noappeal from the order absolving the respondent of the contempt charge, reason:DOUBLE JEOPARDY; (MAST: Does this rule apply to both direct and indirectcontempt, civil and criminal contempt? SEE the conflict with Regalado)

7. Contempt as a remedy to execute a judgment is an exception to the generalrule:

- one exceptional case is when the judgment directs the performance of an actwhich is purely personal to the defendant, meaning he alone can do this act(MAST: Rule 39 Sec 11 on Execution of special judgments: is this direct orindirect contempt? It appears that this is also indirect contempt under Sec 3b)

NOTE:Rule 65 is enforced by a petition for contempt. Therefore, we can observe

that at least there are two instances (Rule 39 Sec 11 and Rule 65) wherecontempt can be a mode of enforcing a decision. In case of Rule 65 thecontempt charge will be against a disobedient court which falls squarely underSec 3 (a) or (b) of Rule 71.

- In unlawful detainer what is contemptuous on the part of the defendant is hisreturn to the premises after he has been successfully evicted (by sheriff and thepolice)(MAST: Section 3b of Rule 71 in relation to Rule 39 Sec 10c: clearly this isINDIRECT CONTEMPT)

* Contempt is previously a provisional remedy, that is why it has similar featureswith provisional remedies where there is a principal case. At present, it is alreadyraised or elevated to the level of an independent special civil action. But stillcontempt proceedings presume or involve a main case or action before availmentof the special civil action of contempt.

* This is similar to quo warranto because it is also cognizable by all courts.

* In contempt proceeding there is a need for an appeal bond, if the contemnerdoes not want to go to prison. This is because the judgment of contempt isimmediately executory.

SALVATOR mundi Salva mundum


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The whole world is not worth one soul St. Francis de Sales

SPECIAL PROCEEDINGS

PRELIMINARY MATTERS

* Out of 37 Rules in SPECPRO, 20 concerns with the settlement of estate.(MAST: 72-90 Settlement of the estate proper, 91 indirectly connected)

* Some of the Rules are no longer applicable, like the Constitution of the FamilyHome which has been practically rendered useless by the Family Code Art 152ff.

* NOTE: In Rule 1 Sec 3, there is no mention of the applicability of ordinary

rules to Special Proceedings. However SEE Rule 72 Sec 2, which mentions thisapplicability;

* Barangay Conciliation is not applicable to Special Proceedings particularly inSettlement of Estate;REASON: SPECPRO is governed by its own set of Rules, the Rules do not so

state such applicability;(MAST: One specific reason is that many of the issues that are resolved insettlement proceedings are prohibited to be compromised like the status of theheirs.)

* Motion to Dismiss: A motion to dismiss may or may not occur. It is possible in probate

proceedings and petition for the issuance of letters of administration. This is so,because grounds may be invoked to dismiss the petitions or application.(SEE Sec 10 Rule 76; Sec 4 Rule 79)

*NOTE: The summary special proceeding under Alternative Dispute Resolutionin case of enforcement of foreign arbitral awards as provided in Sec 44 and 47 ofRA 9285;(MAST: Analyze Sec 22 of the Arbitration Law RA 876 on Domestic

Arbitration, which states that Arbitration is deemed a special proceeding.)


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SETTLEMENT OF ESTATE

I. Testamentary Privilege

- Not embodied in the Rules but in the Civil Code specifically the rules on

Succession; (SEE Article 774ff NCC)

- This is part of the Civil Code which is implemented by the Rules on thesettlement of estate;

- Definition: refers to the right given by law to a person to dispose of hisproperty during his lifetime but the disposition of the property may take effectafter his death;

II. Letters testamentary:- is the authority given by the court to an executor who has been nominated bythe testator in his will;

III. Letters of Administration:

* But if there is no will or even if there is a will but the executor refuses toaccept the trust, the court will appoint an administrator;

* The appointment of this administrator, if there is a will, is contained in thedocument called letters of administration with the will annexed;

* When the document is simply letters of administration, it means that there isno will or if there is a will, it has not been duly admitted to probate and thereforeintestacy results; (SEE Sec 6 Rule 78)

IV. Ancillary Administrator

In order to have an administrator in the other country where the decedenthas left some properties, the recourse is ancillary administration. Thus anancillary administrator presupposes that there is a principal administrationproceeding in a foreign country but the decedent left some properties in thePhilippines. (SEE Rule 77)

V. Settlement Proceeding in General

A. The heirs become such immediately after the death of the testator:

* Settlement proceedings can take place only after the decedent has died.(MASTER: When the testator presents his will himself, how do you classify that?


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SEE Sec 1 Rule 76; Note also Secs 3 2 nd par. and 4 2 nd par., on the effect if thetestator himself petitioned for probate on the mandatory jurisdictionalrequirements)

* But it does not mean to say that the heirs can automatically take possession

and have ownership of the properties left by the decedent;

* This is qualified by the absence of creditors of the decedent;

* The principal purpose therefore of settlement proceedings is to liquidate theestate of the deceased;

* LIQUIDATION: the acts of making inventory of all the properties of thedeceased, naming all the creditors of the deceased;

* The creditors of the deceased are always given preference over his heirs;

B. If there is no will left, the heirs have TWO OPTIONS:

(a) Settle the estate extra-judicially;

(b) Go to court:If there is no agreement among the heirs or if there is dispute among

them:1. Complaint for partition; OR2. Institute settlement proceedings:

> probate proceedings> proceeding on intestacy

* Even if the heirs extra-judicially settle the estate of the predecessor-in-intereston the premise that there is a will and there are no debts that extra-judicialsettlement can never be registered by the officers of the government unless thetaxes are paid first. (SEE Secs 94 and 95 NIRC)

VI. Extra-judicial Settlement

A. CONDITIONS BEFORE THE HEIRS OF A DECEASED PERSON CAN EXTRA-JUDICIALLY SETTLE THE ESTATE OF THE DECEDENT:

1. The decedent must have left no will;

2. There are no debts;

3. The parties agree among themselves to the partition of the properties left by


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the decedent; (SEE Sec 1 Rule 74)

* Settlement in private instrument is still valid, although this is binding onlybetween the parties to it;

B. Deed of Extra-judicial Partition - if there are two or more heirs;(MAST: It seems that extra-judicial settlement and extra-judicial partition aresynonymous and have the same requisites.)

C. Affidavit of self-adjudication - only one heir;

D. Protection of Creditors:

1. State:* If the estate consists of personal and real properties there will be a need forthe certification title to be transferred in the name of the heirs in accordancewith the partition agreed upon in the deed of extrajudicial partition. The Registerof Deeds will not register any document extra-judicially partitioning the propertyunless there is a clearance from the BIR. (Sec 95 NIRC)

* With respect to the Republic of the Philippines, there is practically no dangerthat the Republic will lose the taxes. The particular concern is with the othercreditors of the deceased.

2. Creditors:* The protection given by the Rules to the creditors is that if the estate consists

of real properties, the title that will be issued to the heirs will carry anencumbrance that the properties will be liable for the payment of indebtednesswithin a period of 2 years.

If there are no real properties involved, the protection given by law tocreditors is that these heirs will be required to file a bond, equivalent to the valueof the personal properties left behind. (SEE Sec 4 Rule 74)

VII. Two Options by Way of Settlement Proceedings:

1. To settle the estate summarily in a judicial proceeding which ispractically a useless provision now (because of the value);

2. The regular settlement proceeding;

* The only difference between Summary Settlement and Ordinary Settlement isthe absence of an executor and administrator.

* Note the difference between Summary Procedure and Summary Settlement


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Proceedings.

A. Regular Settlement Proceeding:

* The jurisdictional facts are: that the decedent has died; and is a resident; and

the gross value of the estate;

* Note jurisdiction lies in the RTC or MTC as the case may be; (See BP 129)

* There should only be one court to settle the estate of the deceased person,otherwise there is a possibility of these courts issuing conflicting decisions andorders; (SEE Sec 1 Rule 73)

* QUERY: Where to file the settlement proceedings?

: It is the place where the decedent last resided . (MAST: Which means in which he resides at the time of his death SEE Sec 1 Rule 73. )

: The court which first takes cognizance will do so to the exclusion ofother courts. (SEE Sec 1 Rule 73)(MAST: Is this a principle of venue or of jurisdiction? I believe that this is just aprinciple of venue, since it is just a matter of one court giving way in favor ofanother, to avoid conflicting decisions.)

VIII. Limited Jurisdiction

* The Settlement Court whether the proceeding is estate or intestate is a courtwhich acts with a very limited jurisdiction. It has jurisdiction only to:

1. Liquidate the estate;

2. Decide the claims against the estate;

3. Decide who the heirs are;

4. Distribute the estate;

* Thus they cannot resolve questions of ownership involving properties of thedecedent if these properties are claimed by strangers. An independent actionmust be filed for the purpose of adjudicating this controversy.(MAST: What if the question involves the claim of ownership of an heir and notof a stranger? The court may not generally also determine this issue. However, ifall the heirs agree to submit the question to the probate court, then the courtcan determine the issue. However such determination is not binding on third


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persons, but only on the heirs.)

IX. When Issue of Ownership Determined

* GENERAL RULE:

The issue of ownership should be determined or raised not in a specialproceeding but in an ordinary civil action.

Exceptions:

1. When the heirs agree to submit the issue of ownership to the probate court;NOTE:

Even if the heirs all agreed to submit the issue of ownership to theprobate court; still, the determination of the court as to ownership is not bindingagainst third persons who did not participate in the resolution of the issue.

2. Provisional ruling on ownership allowed;

* QUERY: Suppose the execad discovers that a certain bank account and a landbelong to the deceased. Can the execad file a motion to the settlement court forthe return to the estate of the said properties? Can the settlement court validlyissue an order to the bank or the Register of Deeds to transfer the title to theestate?

In both cases the answer is NO. If there is an issue as to title of theproperty, the settlement court cannot determine such issue. This is because thesettlement court is a court of limited jurisdiction. The RTC is the only court which

is a court of general jurisdiction. But if it acts as a settlement court, it exercisesonly limited jurisdiction. What is the remedy then? The executor has to file anordinary action or an action reinvindicatoria. Note that when an ordinary action isfiled, the RTC is not necessarily the same settlement court, we have to follow theordinary rules on jurisdiction and venue. Thus the court can be an inferior court.

X. How to Commence the Proceeding

A. Petition

* If a person dies and has left a will, the person in custody of that will can simplygo to court, surrender the will to the court and the act of surrendering that willto the court already commences settlement proceedings. So there is no absolutenecessity for the filing of a petition for the allowance of the will. (MAST:

According to SC decisions there is even no need for a petition at all to be able tocommence a special proceeding; SEE Sec 3 Rule 76)

* But generally in settlement proceedings, the petition prepared by the lawyer


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will be accompanied by the petition for the probate of the will or petition for theissuance of letters of administration as the case may be. The petition for theallowance of the will or the issuance of letters of administration should embody:

(a) The legatees or devisees;

(b) The last residence of the decedent;

These are jurisdictional facts which should be embodied therein.

B. Bond

General Rule:There is a need for the execad to file a bond before he assumes office as

an executor or administrator. (SEE Rule 81)

Exception:There are certain instances provided in other laws that even if there is no

bond filed, the execad can assume office. An example is found in GeneralBanking Act. When a banking institution with trust powers, or which acts as atrust corporation, was designated as the execad, there is no bond required to befiled by the executor or administrator bank.REASON: Because the Central Bank already required the filing of large amount ofmoney, as bond, when the said bank applied to be a trust corporation or appliedfor a license. Therefore the bank is not required to file another bond when itaccepts its designation as the execad.

XI. In Rem Proceeding

* A settlement is a classic example of a proceeding in rem. There is a petitionerbut there are no respondents identified in the petition.

* The court does not issue summons, there is no defendant;

* The settlement court acquires jurisdiction over the petitioner when he files thepetition since this is a voluntary surrender to the jurisdiction of the settlementcourt;

* QUERY: How does the court acquire jurisdiction over the heirs, over thepersons interested in the estate of the deceased?

Once a petition for probate or a petition for the issuance of letters ofadministration is filed with the court, the court is COMPELLED to issue an ordersetting the matter for hearing.

This order must be published in a newspaper of general circulation once a


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week for three (3) weeks. It is this act of publication which will confer jurisdictionupon the court.MANDATORY REQUIREMENT: In addition to the publication of this notice ofhearing, the court is required to serve by personal service or by registered mailnotices to the heirs, legatees and devisees identified in the petition.

If there is no notice given personally or by mail to the heirs identified ornamed in the petition, then the court will not acquire jurisdiction over theproceeding. (MAST: Analyze the very reason for this mandatory requirement ascompared to the earlier statement that the publication confers the jurisdiction.From what I heard in another recording of Jara's lecture, it is clear that theposition of Dean is that, there should be BOTH publication and personal notice.)

But remember that what is published is the notice of hearing. It is theorder of the court after the petition has been filed or after a will has beensubmitted to court. (SEE Secs 3 and 4 Rule 76)

XII. Extrinsic Validity and Other Evidentiary Matters

* If there is a will left by the testator, then the hearing will first be concentratedon the extrinsic validity of the will, that is, the court will have to make a findingas to whether or not the formal requirements of the will embodied in the Codehave been satisfied.

* Admission to probate simply means that the will is extrinsically valid, that theformal requirements in the Civil Code have been satisfied by the testator andsubscribing witnesses. The probate of a will has nothing to do with the intrinsicvalidity of the will. It has nothing to do with the contents of the will.

A. Impeachment of Witnesses

In the probate of a will a petitioner is free to impeach a subscribingwitness. Therefore the petitioner is not bound by the testimony of thesesubscribing witnesses.REASON: The evidentiary rule which provides that a person cannot impeach orcontradict his own witness assumes that the party presenting the witness hasfreedom to choose who these witnesses are. In probate proceeding, thepetitioner really has no choice at all in presenting the subscribing witness. Thesewitnesses are in truth not the witnesses of the petitioner. They are witnesses tobe presented in compliance with the Rules of Court, because the Rules requirethat the subscribing witness be presented. (SEE Sec 12 Rule 131)

B. Notarial Will as a Public Document

General Rule in Public Documents:There is no need for authentication, the public document is presumed


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prima facie as to its due execution and authenticity. (SEE Rule 132 Sec 23)

Exception: In case of a Notarial Will, its authenticity must be proved;

C. Best Evidence Rule:

Generally, in case of a public document, before secondary evidence canbe presented the other original copies must be accounted for. For example incase of a Deed of Sale which was notarized, the vendor, the vendee and thenotary public have their respective original copies. However as an exception, dueto the fact that there is only one copy of the notarial will, upon its destructionand loss, a xerox copy can be presented in evidence and in the absence thereofthen the testimony of a witness may be offered in evidence; (SEE Rule 130 Sec3)

D. Dead Man's Statute (SEE Rule 130 Sec 23)

XIII. Executor and Administrator

A. Officer of the CourtThe executor or administrator appointed by the court is a neutral party.

He does not represent the heirs. The executor or administrator is an officer ofthe court. The requirement is that this executor or administrator must file a bondin addition to other duties which are which are embodied in the Rules. (SEE Sec1 Rule 81)

* Supreme Court Justice, appointed executor in the will, could this be done?;

B. Order of Preference

There is an order of preference when it comes to the appointment of anadministrator.

But there is no order of preference when it comes to the appointment ofan executor.REASON: An executor is a person nominated in the will by the testator himself.(SEE Rule 78 Sec 6)

* In all proceedings where there is an element of trust that is involved...thecommon obligation that the rules impose upon them aside from the filing of thebond is that, they must submit a true and complete inventory. They must submitan accounting within a period of 1 year and in such other time as the court willrequire. And they must obey at all times the orders issued by the court, whetherit is a settlement court or a guardianship court or a trusteeship court. (SEE Rule81 Sec 1; Rule 94 Sec 1; Rule 98 Sec 6)


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C. Final Order

When the court appoints an executor or administrator, the appointment isa final order. Since it is a final order it is appealable. (SEE Rule 109 Sec 1 e)

XIV. Special Administrator

A. Appointment of General Execad Challenged

* If the appointment of the executor or administrator is challenged, there will bea situation where nobody will be taking care of the properties of the estate whilethe appeal is going on. According to the Rules, the court can now appoint aspecial administrator. The appointment of a special administrator is notappealable. (SEE Rule 109 Sec 1 e; Sec 1 Rule 80)

* There is conceivably no harm in appointing the same person as the specialadministrator because there is a vast difference between the powers and dutiesof a regular administrator and a special administrator. A special administrator:

1. Cannot pay obligations;

2. All he does is to protect the property;

3. Cannot sell the properties of the estate;

4. Cannot mortgage properties of the estate;

5. He can only be a caretaker of the properties of the estate until aregular administrator or executor is appointed by the court. (SEE Sec 2Rule 80)

* Note that in case of a challenge to the appointment of a special administratorunder Rule 65, the higher court may issue a writ of preliminary injunction to stopthe appointment. The grant of such injunction however is seldom, since thehigher court usually prefers that there be someone to preserve the property.

B. General Administrator has a Claim against the Estate

* QUERY: How about if it is the execad who has a claim against the estate? A special administrator will be appointed. This is because there would be a

conflict between the duty of the general administrator as such and his interestagainst the estate. (SEE Rule 86 Sec 8)


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XV. Statute of Non-Claims

* Notice that there are two classifications of claims in Rule 86:1. secured claims;

2. unsecured claims;

* After the execad submits the inventory and identifies the property in hispossession, then the settlement court issues the second order (which ispublished) ordering the filing of claims.

* A rule of prescription contained in the Rules of Court, specifically Rule 86;

* The consequence if these claims are not duly submitted to the settlement courton time, then the creditors loses their right to enforce collection of their claims;

* QUERY: What will the court do after the administrator has taken an oath ofoffice?

The court will issue another order fixing the date for the enforcement ofthe Statute of Non-Claims.

The court will issue an order directing the money claimants against theestate should file their claims within a period of not less than six months normore than twelve months from the date of the first publication within which tosubmit their respective money claims. OTHERWISE THESE MONEY CLAIMS AREBARRED. So they will no longer be enforceable against the estate of thedeceased person. (SEE Rule 86 Secs 2 and 5)

A. Rule 3 Sec 20 and Rule 39 Sec 7 in Connection with Money Claims

* Rule 3 Sec 20, the claims here are the same as the unsecured claims in Rule86.

* The defendant has died, there is a judgment against him and there is already alevy on the property of the deceased defendant. The levy will continue and theproperties levied upon can be sold at public auction. This should be treated as anexception to the rule that money claims supported by a judgment cannot beenforced against the executor or administrator under the provisions of Rule 39.(SEE Sec 7 c Rule 39)

B. Nature of Money ClaimsThe claims referred to in the Statute of Non-claims are PURE MONEY

CLAIMS arising from contract express or implied and do not include claims forthe recovery of personal or real property. They do not include claims arising fromtort.


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* The claims could either be due or contingent (MASTER: Meaning not yet due orstill conditional)

* An unsecured creditor is one who does not hold a mortgage, pledge or any

other collateral security during the lifetime of the defendant.

C. JurisdictionWe do not apply the provisions of BP 129 when it comes to the

determination of whether or not the settlement court has jurisdiction over certainmoney claims. The RTC has jurisdiction over the amount of the claim, even ifbelow the jurisdictional amount.(MASTER: How about if the settlement court is an MTC, can a creditor claimbeyond the jurisdictional amount? I think Yes, because it can happen that theliabilities of the decedent is more than the assets. If we do not allow the moneyclaim even if it is beyond the jurisdictional amount, we would be depriving thecreditor of his right to at least recover a certain amount, and certainly he wouldbe getting less than what he deserves in the settlement proceeding. BP 129applies only to the main settlement case. Anyway, the court will be awarding tothe creditor only an amount of money within its jurisdiction nothing more, thusthere is no danger that it would be acting in excess of jurisdiction.)

D. How Commenced

*A money claim in the settlement court is not commenced with the filing of acomplaint.

* All that the claimant is required to submit is an affidavit saying that he has aclaim against the estate, and in that affidavit he will annex supporting papers.

* Because a money claim is not in the form of an action as contemplated in civilactions, the executor may or may not file an answer. The executor may notcontest the claim.

E. TrialIf there is a contest of that claim, then there will be a trial to be

conducted by the settlement court to determine whether or not that claimsubmitted by the creditor is valid. In the trial of the contested money claim, thecourt is not required to sit as the judge during trial.

This is one instance where the court is given the discretion to appoint acommissioner for the hearing of the contested claims. (SEE Rule 86 Sec 12)

F. Notice to CreditorsNote that one cannot issue a notice to creditors before the appointment of


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a regular executor or administrator. It is imperative that a regular executor oradministrator be duly appointed and qualified first, before there could be noticeto creditors. As a consequence, there is no notice yet to creditors if it is only aspecial administrator who is appointed, this is understandable because a specialadministrator has limited powers which do not include determination of the

claims of creditors;

G. Appeal

* Once a claim is adjudicated by the court, that adjudication again becomes afinal order which is appealable. (SEE Rule 109 Sec 1 e)

* And while there are appeals going on, on these contested claims, it is notpossible for the administrator or the executor to distribute the estate among theheirs because the principal purpose of the settlement is always the liquidation ofthe estate- payment first of the creditors ahead of the heirs of the decedent.

H. ContestIf the administrator decides not to contest a particular claim, the heirs

could submit their own contest to this claim. This is a remedy to check thepossibility that an executor or administrator may have abused the authority givento him by the Rules. (SEE Rule 86 Sec 11)

I. Recognition by the Testator of the Claim in the Will

* The recognition by the testator of the existence and validity of certain accounts

will not be an excuse for these creditors not to submit their claims within theperiod provided by law.

* Even if the testator in his will expressly stated that he is indebted to creditorsand commands the payment thereof, there is still a need to file a claim inaccordance with the Rules. Even if we know that the will of the testator must begiven effect, such however is not true when it comes to the payment of theliabilities of his estate. It is for the court to finally determine whose claim shouldbe allowed. There might be collusion between the testator and the creditorsmentioned in the will to the prejudice of the other creditors not mentioned in thewill. The settlement court prevails in determining whose claim is to be allowed.

J. Basis of Statute of Non-ClaimsThe Supreme Court said that it is true that prescription is a matter of

substantive law but the provisions of the Rules of Court pertaining to Statute ofNon-claims is substantive because it is just a reproduction of an old provision inthe Code of Civil Procedure. The Code of Civil Procedure was substantive law,that is, before the Rules of Court took effect. It is a reproduction of an old


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substantive law, which has not been repealed by the Civil Code. There is reallyno conflict between the Civil Code and this provision, and the provision of theRules of Court should