CDSDUNGAO

Quiz today
Qs:
1. May a writ of preliminary attachment be issued ex parte? 3 cite 3 grounds and examples for each.
2. What are the requisites for the issuance of a writ of preliminary injunction?
3. When may a TRO not be issued?
4. Distinguish between Prohibition and Injunction

EXPROPRIATION (R67)
The State has every authority to take away the property of another.
The nature of this power is coercive.

Subject can be either real or personal property.

Must see to it that the government is empowered.

Through a law, ordinance, etc.

If manifest intent to sell to the government, no expropriation. It is a mere deed of sale.

2 stages:
1. The ascertainment of public use.
Public hearings, consultations, etc.
Oppositions or objections can be heard during these hearings.
2. Information given to the owner that the property is to be expropriated.
Can be in writing or verbally.
If the property owner objects to the expropriation, the only ground he has is the inadequacy of the price.

Upon objection, he must incorporate that in his answer.

Note: A MTD under Rule 67 is not allowed. You must incorporate that in your answer.

Will the Omnibus Motion Rule apply in Rule 67?

Yes.
Amendment under Rule 10 can also apply.

The only pleading that can be filed is an answer.

This presupposes that the identity of the owner and property has been determined. What if not?
The expropriation will still continue. These issues can be tackled during the hearing.
If do not know owner, all the owners of the property beside will be given notice.

When may the State start to possess the property?

After it has paid the 15% of the fair market value.
Put an asterisk there.
If national infrastructure project, payment must be 100%.

What is this 15% for?

Intended for pre-payment or advance payment.

In this kind of complaint for expropriation, may be elevated via appeal or Rule 65 if GAD.
If multiple appeals, expect several issues to be tackled by the higher courts.
You may expect the lower courts to issue several/separate judgments.
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Contents of a judgment for expropriation (S10)
1. Payment that is given to the property owner.
Commissioners determine the value of the property. Relate to R32. Court can disregard if with reasons.
Can be opposed.
What if there are conflicting claims? No interpleader. The trial court that is actually handling the case will hear
both parties. Here, the claimant is the government as opposed to interpleader.
2. Aa
If State occupies, the State has the right to retain the property.

Note: The pendency of an appeal will not stay the right of the State to possess the property.

What if the property was introduced improvements (S11)

The Rules speak of restoration to the defendant of the possession of the property.
What about the damages?
All these shall be computed and given back to the property owner.

What is just compensation?

No formula.
That amount which is acceptable to the seller and which the buyer is willing to pay.
No hard and fast rule.

What if an incompetent or a minor is involved in expropriation?

They must have guardians or guardian ad litem.
General guardian comes in after necessary petition for guardianship.
In guardian ad litem, no need. Appointed by the court for that case.
Power of the guardian to do anything which the incompetent or the minor is unable to do.

FORECLOSURE (R68)
Judicial Foreclosure.

File a complaint for foreclosure:

Contents:
1. Fact of obligation secured by REM.
2. Due and demandable
3. May isa pa
4. Despite maturity and demand, the obligation remains unpaid. You are making it known to the court you are
electing this.

May there be MTD in R68?

Yes. Unlike in expropriation, no MTD.
Grounds for MTD:
Failure to state COA if not yet mature.

Foreclosing creditor presents the deed of mortgage and the fact that it was signed by mortgagor and unpaid.
Obligation secured by REM and is unpaid.

Judgment is issued, remedy of defendant: Equity of redemption

Right of the mortgagor to redeem
Timeline: 90 to 120 days
Reckoning point: From the finality of decision.
Correlate with ECJF. Here, 1 year from registration of certificate of sale.
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Why longer in JF?

Proceedings is a bit long. In EXJF, no trial.
In EXJF, ex officio sheriff and not the court.
EXJC possible only if there was a previous agreement in writing to that effect.
If no agreement, JF.

How will the mortgagee or creditor be paid in JF?

Judgment itself will state there that the mortgagor must pay the mortgagee within a period of 90 to 120 days. If
fails, then the subject property will be sold at public auction. Relate to R39.

If deficiency, the mortgagee/judgment creditor has the remedy of deficiency judgment.

How given? (S6)
Given after the filing of a motion for deficiency judgment.
If EXJF, not a motion but through an action to collect a sum of money.

After realization of the proceeds, how pay?

Payment to judgment creditor
Then pay junior encumbrances.

After sale, registration with the RD. This is without prejudice to the right of junior encumbrances.
Period: 60 days from last redemption of the most senior encumbrances to the junior.

Before redemption, who is the owner?

It is still the judgment mortgagor. Fruits still pertain to the mortgagor.

After lapse of period, consolidation of ownership. Transfers the title to the purchaser.

What happens if the mortgagor refuses to vacate?

Writ of possession issued by the court.

Note: There will be no auction unless there is a compliance with notice.

1. Publication in a newspaper of general circulation.
2. Posting of notices in conspicuous places. Points of ingress and egress.

R69 - Partition
2 stages:
1. Determination of whether or not there is co-ownership.
Note: This is another SPCA where there can be multiple appeals.
Determination of partition (Judicial partition)
There can also be EXJPartition.

What impels you to resort to EXJP?

Less expensive.

2. Division of the property.

Heirs may choose to divide among themselves. This is called the project of partition.
The court shall approve the same if it is not contrary to law, morals, good customs or public policy.
When parties fail to agree, court shall be the one to make the partition.

Remedies:
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1. Referral to the Board of commissioners again.
2. Buying out of property
3. Execute affidavit of self adjudication - if only remaining heir.
If not true, the remedy of the excluded heir is to annul the judgment (R47) on the ground of fraud.

What if the property remains unregistered but there is no judicial decision to speak of?
Remedy is reconveyance. That right does not prescribe because it was obtained through fraud.
If registered, the deprived heir has 10 years to file an action for reconveyance.

Object of partition: Real or personal properties.

This is another instance where BOCommissioners.
Partition is encouraged because it is as much as possible, we have division.

FORCIBLE ENTRY (R70)

What if your parcel of land was suddenly occupied by an intruder who claims he is the owner?
You have forcible entry and unlawful detainer.

Grounds:
FISTS. - Force, intimidation, stealth, t, strategy

Without prejudice to trespass to property.

When filed: Within 1 year from dispossession.

What must you first establish?

You must first prove that you were ahead. Priority in time, priority in possession.

Where: MTC always (BP Blg 129), regardless of the amount.

Is there a need to send a letter of demand?

No. Only UD, not FE.
In FE, possession was unlawful from the beginning.

There is an illegal possession of property.

UNLAWFUL DETAINER (R70)

Ex. Lease expired. If you insist on staying despite demand to vacate, UD.
If contract of lease prohibits you from subleasing, FE against roomie.

If contract expired, no need. (?)

Letter of demand must contain:
1. Demand to vacate; and
2. Demand to pay

Tacita reconduccion - implied renewal of the lease. However, the period of the lease is now considered on a month
to month basis.

Note: FE and UD is immediately executory.

Reason: Governed by the Rules on Summary Procedure.
Why summary?
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Cases of these kind are sources of trouble.

Remedy of the defendant: Stay the execution

1. Perfect an appeal within 15 days from receipt of adverse decision;
2. Post a supersedeas bond; and
3. Periodic payment of deposits.
Absence of one makes the decision executory.

Remedy of reparation, restitution, etc.

Damages sustained shall likewise be reimbursed.

Action interdictal - within 1 yr (UD/FE)

1 yr period has elapsed:
Accion publiciana
Accion reindivicatoria

CONTEMPT R71
Basis: It is actually intended to ensure the respectability of the Courts.

Protect the court from any act of aggression.

It is intended to be used sparingly. Meaning only in proper situations. It is not supposed to be used as a tool for
vengeance.

2 kinds of contempt:
1. Direct
When the misbehavior is right in the presence of the judge.
Jurisprudence: If through the pleadings and against the judge, can still be direct contempt.
Take note of penalty. Lighter than indirect contempt.
He is not automatically imprisoned. He can still question the order of the court through a petition for certiorari
and prohibition under R65. However, he must put up a bond.

2. Indirect contempt
Refusal to follow or obey a court order
General penalty is at least 6 months contempt or 2k or both
Imprisonment can be indefinite until such time that the contemnor is able to obey the order or perform the act
which he was ordered to. He unlocks the key once he is able to obey.
Case: Arvin Balag vs Senate
BASAHIN MO TO MATATANONG TO SA EXAM HAYUP :)

A petition for indirect contempt is initiated through an original action. You file a petition for indirect contempt.
Note: Not a motion but a petition. It is an original action.
Thus, you have to file certificate on non-forum shopping and verification.
Where filed: The same court where the order was issued. It is in the best position to determine whether or not it
will be obeyed.