FORECLOSURE OF REAL ESTATE MORTGAGE (Sections 1 to 8)

In document Remedial Law (Page 130-134)

CIVIL PROCEDURE A. Actions

FORECLOSURE OF REAL ESTATE MORTGAGE (Sections 1 to 8)

A. COMPLAINT (Sec. 1) It shall set forth the following:

a. Date and due execution of the mortgage; its assignment, if any;

b. Name and residence of the mortgagor and the mortgagee;

c. Description of the mortgaged property;

d. Statement of the date of the note or order documentary evidence of the obligation secured by the mortgage;

e. Amount claimed to be unpaid thereon;

f. Names and residence of all persons having or claiming interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action.

B. ANSWER AND SUBSEQUENT PROCEEDING a. Summons

b. Answer see rules on ordinary action since c. Pre-trial Rule 68 is silent on this point.

d. trial

C. JUDGMENT ON FORECLOSURE FOR PAYMENT OD SALE (Sec. 2)

Judgment is for the sum found due and orders that the same be paid within a period not less than 90 days nor more than 120 days from entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment.

D. SALE OF MORTGAGED PROPERTY; EFFECT (Sec. 3)

a. In default of payment of the judgment debt, the court, on motion, shall order he property sold under Rule 39 and other regulation governing sale of real estate under execution;

b. Sale at public auction pursuant to notice of sale posted and published dif required;

c. Sheriff’s certificate of sale to the highest bidder;

1) Equity of redemption before confirmation of sale. No right of redemption except when provided by laws as when the mortgagee creditor is a bank.

d. Order of confirmation of sale upon motion;

1) Confirmation of the sale divests the rights in the property of all the parties to the action and vests their right in the purchaser , subject to such rights of redemption as may be allowed by law.

2) The order of confirmation of sale is appealable (ocampo v. Dimalanta, 20 SCRA 1136).

3) Upon finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser or the last redemptioner shall be entitled to the possession of the property. He may secure a writ of possession, upon motion, from the court which ordered the foreclosure.

E. DEFICIENCY JUDGMENT (Sec. 6)

In case of deficiency “the court, upon motion, shall render judgment against the defendant for any such balance x x x upon which execution may issue.”

F. FINAL ACT (Sec. 7)

a. Registration with the proper Registry of Deeds of the sheriff’s sale and order of confirmation of sale;

1) If no right of redemption exist, the certificate of title of the mortgagor is cancelled and new one is issued in the name of the purchaser.

2) If the right of redemption exist, the certificate of title id not cancelled but the certificate of sake and the order of confirmation of sale shall be registered with a brief memorandum thereof made by the registrar of deeds upon the certificate of title.

(a) If redeemed, the deed of redemption shall be registered and a brief of memorandum thereof shall be made by the registrar of deeds on the title.

(b) If not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser shall be registered with the registry of deeds, where upon the certificate of title in the name of the mortgagor is cancelled and a new one is issued in the name of the purchaser.

G. THESE ARE THREE (3) ORDERS IN JUDICIAL FORCLOSURE WHICH ARE APPEALABLE, TO WIT:

a. Judgment on Foreclosure;

b. Order of confirmation of sale;

c. Deficiency judgment.

But they are not a case of multiple appeals because the judgment on the foreclosure must first become final before there can be sale of the mortgaged property at the public auction and order of confirmation a deficiency judgment is obtained, not during the pendency of each, unlike in the case of expropriation the appeal from the order of expropriation does not prevent the court from determining just compensation to be paid.

a. Judgment on foreclosure for payment or sale b. Sale of mortgaged property; effect

c. Disposition of proceeds of sale d. Deficiency judgment

(1) Instances when court cannot render deficiency judgment e. Judicial foreclosure versus extrajudicial foreclosure f. Equity of redemption versus right of redemption

11. Partition

RULE 69 PARTITION (Section 1 to 13)

A. COMPLAINT IN PARTITION OF REAL PROPRTY (Sec. 1) a. Parties:

1) Plaintiff --- the person having the right to compel partition;

2) Defendants --- all other persons interested in the property

b. All co-owners are indispensable parties c. Complaint must set forth:

1) Nature and extent of plaintiff’s title;

2) Adequate description of real estate; and

3) Joining as defendants all other persons interested in the property.

B. ANSWER AND SUBSEQUENT PROCEEDING a. Answer after summons

b. Per-trial c. Trial

C. ORDER OF PARTITION AND PARTITION BY AGREEMENT (Sec. 2)

a. After trial and the court finds for the plaintiff, it shall order partition among all the parties in interest;

(i) The final order decreeing partition and accounting may be appealed by any party aggrieved thereby.

Actual partition

b. If parties are agreeable, they make the partition agreement and submit to the court for confirmation which shall be recorded with the Registry of Deeds of the place where the property is situated.

c. If parties are unable to agree upon partition:

(i) Court appoints three (3) commissioners to make the partition:

(a) They view and examine the real estate;

(b) They hear the parties’ preference in the portion of property to be set apart.

D. JUDGMENT OF PARTITION

a) Judgment of partition is rendered based on the commissioner’s report (Sec. 7) b) Judgment of accounting for rent and profit (Sec. 8).

E. APPEALS

Actions for partition admits multiple appeal at each of their stages, to wit:

a. Order of Partition

b. Judgment of Accounting c. Judgment of Partition.

Hence, record on appeal is required.

F. PARTITION OF PERSONAL PROPERTY (Sec. 13)

a. Some rule applicable to partition of real property applies to partition of personal property.

a. Who may file complaint; who should be made defendants b. Matters to allege in the complaint for partition

c. Two (2) stages in every action for partition d. Order of partition and partition by agreement

e. Partition by commissioners; Appointment of commissioners, Commissioner’s report; Court action upon commissioner’s report

f. Judgment and its effects g. Partition of personal property h. Prescription of action

12. Forcible Entry and Unlawful Detainer RULE 70

FORCIBLE ENTRY AND UNLAWFUL DETAINER

In document Remedial Law (Page 130-134)

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