Q: Application?
A: Applicable to both real estate and chattel mortgages.
Q: What does judicial foreclosure mean?
A: It has passed through court process.
Q: What should be filed?
A: Verified complaint of foreclosure absolute necessity to the mortgage
Q: Who should be included?
A: All parties who have interest over the property subordinate to that of the mortgagor.
Q: If a party interested is not impleaded what is the effect?
A: He is not affected by loss of equity of redemption.
Q: What is the object of foreclosure A: Property
Q: Can a property mortgaged may still be attached?
A: Yes
Q: Distinguish right of redemption from equity of redemption.
A: Right of redemption is the 1 year period from registration of certificate of sale given to a person to redeem the property. Equity of redemption is a right given to persons with interest within 90 days and not more than 120 days from entry of judgment to redeem the property.
Q: What is order of confirmation?
A: Confirmation of the sale of the property.
Q: Deficiency judgment
A: By filing a motion for deficiency judgment.
RULE 69 PARTITION
Q: What is the object of partition?
A: To assign property.
Q: Jurisdiction
A: RTC because the case is not capable of pecuniary estimation.
Q: What are the stages in partition?
A:
1. Determination of the existence of co-ownership - absence of which partition is unavailable
2. Determination of who are entitled and what properties to be distributed NOTE: Each stage is final and appealable
Q: What kind of appeal?
A: By record of appeal because the action calls for multiple appeals.
Q: What is a project of partition?
A: Agreement between and among the parties in partition which is submitted to the court on which a judgment of partition is made.
Q: Who prepares a project of partition?
A: Any of the co-owners
Q: Who are the parties in an action for partition?
A: Plaintiff - co-owner
Defendant - all other co-owners as indispensable parties Q: What is the effect of the approval of the project?
A: Approval is equivalent to judgment of partition.
Q: If no project is agreed upon what should the court do?
A: Appoint a commissioner and the commissioner would make and submit a project of partition.
Q: If the parties still does not agree, what should commissioner do?
A: Assignment - identical to buying out.
NOTE: Even if only one of the co-owners objects, no assignment
Q: What then should the court do?
A: Sell the property and the proceeds distributed among and between co-owners. This is the last resort.
Q: May a sale be objected to? On what ground?
A: Yes sale may be objected to if it will not redound to the benefit of the co-owners.
NOTE: Commissioner should give report, however such is not binding upon the court.
Q: What does judgment of partition include?
A: It includes payment of the cost of accounting and damages.
Q: Doctrine of Heirs of Teves V. CA
A: Any activity that puts an end to indivision is a case of partition.
RULE 70
Q: What are the 3 kinds of action involving recovery of property?
A:
1. accion publiciana - right of possession
2. accion reinvindicatoria - recovery of ownership with possession as an attribute of ownership
3. accion interdictal - possession de facto a. forcible entry
b. unlawful detainer
i. governed by rule 70
ii. in case of agricultural property/land governed by the civil code Q: Doctrine in Javellosa V. CA
A: Distinction between Unlawful detainer (UD) and Forcible Entry (FE)
UNLAWFUL DETAINER FORCIBLE ENTRY
Possession was lawful at the beginning and became illegal thereafter
Possession is illegal from the beginning There is a need to establish prior
possession
There is no need to establish prior possession
Illegal detention of the property Deprivation of the right of possession of property
There is a need for demand No need for a demand Action must be filed from period of 1
year from the last demand
Action must be filed 1 year from accrual of action
Possession was acquired by force, threat, intimidation or stealth
Not applicable
Q: Who are the aggrieved parties?
A: Vendor, vendee, lessor or any other person deprived of possession
Q: Is the lessee included?
A: Generally no because the lessee is assumed to be in possession. He may be included under those other persons deprived of possession.
Q: In ejectment the only issue is possession de facto. Can you raise the issue of ownership? If so what is the effect?
A: It will not divest the court of its jurisdiction. The court shall resolve the issue of ownership only to resolve the issue of possession. Resolution as to ownership in ejectment cases is only provisional.
NOTE: Old rule prior to BP 129 provides that if issue of ownership is raised, the court is divested of its jurisdiction.
Q: A is the lessor and B is the lessee who was not able to pay rentals for several months. A filed a case of unlawful detainer against B. Judgment was rendered in favor of B. Is the judgment in favor of B immediately executory?
A: No because he was already in possession of the property.
Q: What is immediately executory in the judgment as provided under sec.19?
A: The return of the property. Restoration or restitution to the one who is entitled to possession.
Q: How is execution stayed?
A: Requisites for stay of execution
1. Perfection of appeal by filing a notice of appeal 2. Supersedeas bond
3. Deposit of the amount for the use and occupancy of the premises Q: What is a supersedeas bond?
A: Unpaid rentals. If there are no unpaid rentals there is no supercedeas bond.
Q: How much is the supersedeas bond?
A:
1. In accordance with judgment
2. If there is no judgment, in accordance with the contract
3. In the absence of contract, according to what was paid as rentals Q: What is the amount for use and occupancy?
A: Payment of rental during the pendency of the appeal.
Q: How much?
A: Same as supersedeas bond.
Q: Where do you file notice of appeal?
A: In the municipal trial court
Q: Where do you file supersedeas bond?
A: In the municipal trial court
Q: Where do you file amount for use and occupancy?
A: In the appellate court
Q: When?
A: General rule on or before the 10th day of each succeeding month. For example the rent due for the month of april should be paid on or before May 10.
Exception: When payment of rental must be paid in advance in accordance with the contract.
NOTE: Non-compliance with even one month would render the judgment immediately executory.
Q: Both Sec. 19 and Sec 21 speak of immediately executory judgment. How is Sec. 21 different from section 19?
A: Section 21 speaks of the judgment of the appellate court and such judgment cannot be stayed except when defendant filed injunction.
Q: How about sec. 15 and sec. 20?
A: Sec 15 applies to Trial Court while Sec 20 applies to the appellate court.
Injunctive relief is available to both in order to stop defendant's act of dispossession
Q: Doctrine in Refugia Case
A: Motion for reconsideration is a prohibited pleading only in the MTC under summary procedure. When the case has already been appealed to the RTC, MR is already allowed.
RULE 71
Q: What is contempt?
A: Upfront or defiance, act against dignity, integrity and justice of the court
Q: What are the two kinds?
A:
1. Direct Contempt
Done in the presence of or so near a judge that disrupted proceedings.
2. Indirect Contempt
Q: What are the remedies of a person cited in contempt?
A:
Direct Contempt
File a petition for certiorari and not an appeal because the judgment is only interlocutory
Indirect Contempt
1. File an appeal 2. Post a bond
Q: Doctrine in the case of Yasay V. Recto
A: Supreme Court said that the power of contempt must be used in preventive manner and not in vindictive manner. The distinction between civil and criminal contempt was also abolished.