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SPECIAL PROCEDURE

- Certification against non forum shopping is applied in Specpro

RULE 73: VENUE AND PROCESS:

JURISDICTION - Gross value of the estate (400/300k)

- It is not the actual gross value of the estate which is the basis. It is the ALLEGED GROSS VALUE

VENUE:

1. Inhabitant/Resident - Resides at the time

2. Non resident - He had his estate

REMEDY IF VENUE IS IMPROPERLY LAID: Ordinary appeal & Rule 65

KINDS OF SETTLEMENT:

1. Extrajudicial - a proceeding where the decedent left no will and no debts and the heirs adjudicate the estate among themselves without seeking letters of administration

2. Judicial Settlement

1. Summary judicial proceeding (Not exceeding 10k)

2. Regular

Probate courts are of limited jurisdiction. It may only determine:

1. Liquidation

2. Administration

3. Distribution

- Complaint in intervention is allowed in probate provided that all parties consented.

- Court cannot determine issue of ownership

EXCEPTIONS:

1. Ownership may be provisionally determined for purpose of including the property in inventory

2. All heirs take part in the distribution

3. Question is one of collation or advancement

OTHER QUESTIONS WHICH PROBATE COURT MAY DETERMINE:

1. Status of a woman who claims to be lawful wife of decedent

2. Inventory is conjugal or exclusive

3. Status of each heir

4. Matters incidental or collateral

5. Validity of waiver

6. Decedents

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- A trial court cannot make a declaration of heirship in an ordinary civil action

- If decedent is neither an inhabitant nor has an estate, Venue may be waived.

- GR: PC cannot issue writs of execution.

- EXC:

- 1. Partition of expenses

- 2. Contributive shares

- 3. Surety’s Liability

- There is no need for an independent action for declaration of presumptive death for purposes of succession

RULE 74: SUMMARY SETTLEMENT OF ESTATE

- Without appointment of ExecAd

EXTRAJUDICIAL SETTLEMENT PROCESS:

1. Division in PUBLIC INSTRUMENT

2. Filed with ROD and bond of the value of the personal property (if there is Personal prop)

3. Publication of notice

REQUISITES FOR EXTRAJUDICIAL SETTLEMENT:

1. No will

2. No debts or if there are debts, paid by the heirs at the time it is entered

3. Heirs are all of age or minors are represented

- If real estate, it shall be subject to a lien in favor of the creditors, heirs or other persons for the full period of 2 years.

AFFIDAVIT OF SELF ADJUDICATION - Sole heir of a deceased person adjudicating to himself the entire estate filed in ROD

- If heirs did not agree, May file partition

- A private instrument or document or oral agreement of partition as well as a compromise agreement entered without authority of court is VALID among the heirs who participated in the extrajudicial settlement.

- The same is still valid but REFORMATION MAY BE COMPELLED.

- Persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby.

- Publication in this case will not constitute constructive notice

EXTRAJUDICIAL SETTLEMENT

SUMMARY SETTLEMENT

No court intervention

Requires summary judicial adjudication

Value is immaerial

GE not exceeding 10k

Allowed only in INTESTATE

Both in testate and intestate

No outstanding debt

Available even if there are debts

Resorted by agreement of all heirs

Instituted by any interested party

Bond is equal to personal property

Court determines bond

- If no creditor files a petition for any letters of administration within 2 years after the death of the decedent, it is presumed that the estate left no debts

SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

- There is still hearing

- Court may admit it summarily even without the appointment of EXECAD

- WITHIN THE JURISDICTION OF MTC

- Bond is determined by the court

WHEN SETTLEMENT OF ESTATES MAY BE COMPELLED:

1. If there is an undue deprivation of lawful participation

2. Existence of debts against the estate

3. Undue deprivation of lawful participation payable in money

2 YEAR BAR RULE APPLIES ONLY:

1. Persons who have participated or taken part or had notice of Extrajudicial part

2. All persons or heirs have taken part in the extrajudicial settlement

REMEDIES IF AGGRIEVED PARTIES:

1. Within 2 years: Claim against the bond or real estate

2. Rescission in case of preterition of compulsory heirs

3. Reconveyance

4. Action to annul deed

5. Petition for relief on the ground of fame

6. Reopening by intervention within any time before rendition of judgment

7. New action to annul within 2 years

- If 2 years have lapsed, One may file for reconveyance based on IMPLIED TRUST if property is acquired through fraud. The person obtaining it is by force of law considered a trustee in an implied trust for the benefit of the person whom the property comes.

- It shall be brought within 10 years from the registration of title in the name of trustee

- IF Minor, Incapacitated, in prison or outside PH, They may present their claims 1 year after the disability is removed.

RULE 75: PRODUCTION OF WILL

- No will shall pass either real or personal property unless it it proved and allowed by court.

- Partitioning without probating is improper regardless of whether it is in accordance with the will.

- Imprescriptible

- Estoppel does not apply

PROBATE - Act of proving in a court a document purporting to be the last will and testament of the deceased person in order that it may be officially recognized, registered.

- Interested party may file. Including heirs and creditors

- Certificate of non forum shopping is required

- EFFECT: It is conclusive as to the execution and validity of the will. Forgery will not lie.

- GR:Only the determination of extrinsic validity is allowed. - EXC:

1. PRETERITION

2. Entire or all the testamentary dispositions are void and where defect is apparent on its face (Donation with parties guilty of adultery/concubinage)

EXTRINSIC - Covers only legal formalities, testamentary capacity, Due execution

Due execution - voluntariness to dispose his estate

- There was no vitiation of consent, no undue and improper influence and signature is genuine

- Personal service upon the heirs is a matter of procedural convenience not a jurisdictional requisite

- If ante mortem, no publication needed

PROOF NEEDED WHEN NOT CONTESTED:

1. NOTARIAL WILL

1. NO CONTEST - One of the subscribing witnesses only is enough

2. NOT RESIDE IN PROVINCE - Court may authorize taking of deposition and a photocopy be presented to the witness

3. DEAD, INSANE, NOT RESIDING IN PH - Court may admit the testimony of other witnesses. It may admit proof of testator’s handwriting

2. HOLOGRAPHIC WILL

1. Testimony of one who knows the handwriting of the testator

PROOF WHEN CONTESTED:

1.

NOTARIAL WILL

1. All the subscribing witnesses and notary public if present in the PH and not insane

2. Deposition is also allowed is some are outside the province

- If any or all of them testify against the due execution of the will or do not remember having attested to, the will may be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented.

2. HOLOGRAPHIC WILL

- Testimony of 3 witnesses.

- CONTEST OF WILL - Challenge the authenticity of the will.

- If challenge was based on undue influence and lack of intent, it did not attach will’s authenticity

- If alleged fraud on the signature - VALID CONTEST

PROOF IN CASE OF LOSS OR DESTROYED WILL

1. NOTARIAL WILL

1. Execution and validity

2. Existence of the will at the time of the testator’s death

3. At least 2 credible witness by which the provisions of the will are clearly and distinctly proved.

2. HOLOGRAPHIC WILL

1. Same as notarial will

2. Testimonial evidence is not admissible because it is prone to fraud or mistake

- A holographic will may be proven by xerox copy

- Rule on destroyed or lost will NOT APPLIED IN HOLOGRAPHIC.

FACTS TO BE PROVEN FOR A LOST OR DESTROYED WILL

1. Duly executed

2. Existence when the decedent died or it was accidentally destroyed during his lifetime

3. Provisions of will are duly established by 2 witnesses

GROUNDS FOR DISALLOWANCE OF WILL:

1. Not executed according to formalities

2. Duress or influence of fear or threats

3. Undue and improper pressure

4. Signature was procured by fraud or trick

RULE 77: ALLOWANCE OF WILL PROVED OUTSIDE PH

- A will of a foreigner executed abroad can be probated in the PH without need of being probated abroad.

REPROBATE - Local court acknowledges as binding the findings of the foreign probate court provided its jurisdiction over the matter can be established.

VENUE - SAME AS RULE 73 (300/400)

- Requirements of publication and notice as stated in Rule 73 is still required.

- The will shall have an effect as if originally proved and allowed in such court.

- It shall only extend to all estates in the PH

RULE 78: LETTERS TESTAMENTARY AND ADMIN EXECUTOR - Stated in the will ADMINISTRATOR - Appointed by the court

ADMINISTRATOR WITH A WILL ANNEXED - The one appointed by the court in cases when although there is a will, the will does not appoint any executor or if appointed said person is either incapacitated or unwilling. (WILL WITH EXECUTOR BUT NOT COMPETENT, HENCE ADMIN)

- If a will is disallowed - ADMINISTRATOR

- Admin is still required to post a bond

NOT COMPETENT TO SERVE AS EXECAD

1. Minor

2. Non resident

3. Unfit according to court because of:

1. Drunkenness

2. Improvidence

3. Want of understanding

4. Want of integrity

5. Conviction of moral turpitude

- Executor of an executor cannot administer the estate

ADMINISTRATOR DE BONISNON - Of goods not administered.

LETTERS TESTAMENTARY - With will that is validly probated LETTERS OF ADMINISTRATION - Without a will

ORDER OF PREFERENCE IN GRANTING ADMINISTRATION:

1. Surviving spouse or next of kin

- Next of Kin - persons entitled by law to receive the decedent’s property

- Preference to surviving spouse is not absolute. If there is another person having MORE INTEREST than surviving spouse, such may be appointed as admin.

2. Principal creditors

3. Strangers of any qualified applicant

- Neglect of filing after 30 days of death ALONE is not sufficient to exclude the widow

- Appointment is in the sound judgment of the court

- Order is final and unappealable

- Co administrator may be appointed

- Where the fact of being indebted was subsequently discovered after the administrator had been duly appointed, he should not be removed absent any other lawful ground

RULE 79: OPPOSING THE ISSUANCE OF THE LETTERS TESTAMENTARY

- In writing

- A petition may be accompanied by a petition for issuance of letters of administration

- Notice to heirs and creditors and other person having interest IS JURISDICTIONAL. Without this, It is void.

GROUNDS:

1. Incompetency

2. Preferential right

- An incompetent minor may contest the appointment

RULE 80: SPECIAL ADMINISTRATOR SPECIAL ADMINISTRATOR - A representative of the decedent appointed by the court to take care and preserve the estate until an executor or general administrator is appointed

- Appointment of SA implies a denial of the power to appoint regular administrator during the pendency of the appeal

WHEN MAY BE GRANTED:

1. Delay in the granting of letters including appeal

2. Executor is a claimant of the estate that he represents

- Preference not applied. Appointment is discretionary

- Notice and publication is still a jurisdictional req

- SA cannot be sued by a creditor for the payment of debts of the deceased

- Powers will cease upon the appointment of regular excad

- Not appealable. Remedy is Rule 65

RULE 81: BONDS OF EXECAD

- Judicial: Fixed by court

- Terms and effectivity of bond does not expire until the administration is closed

- If the will states that the executor serves without a need of bond, It is conditioned that he can only pay the debts of the testator

RULE 82: REVOCATION OF ADMINISTRATION

- Testate proceedings take precedence over intestate for the same estate GR: The court which the petition is first file shall take cognizance of the settlement of the intestate estate. EXC: If it learns thereafter that another court has before it a petition for probate, It may hold the petition in abeyance and defer to the second court where the probate proceeding is pending.

- Discovery of a will does not ipso facto nullify the letters of administration

- Discretion in the removal of admin is within the discretion of the court appointing him

- Order of removal is APPEALABLE

RULE 83: INVENTORY

- Must be made within 3 months from the grant of letters

- 3 Month period is not mandatory. Filing after such period will not deprive the probate court of jurisdiction to approve it. Unexplained delay is only a ground for removal

- Approval of inventory is not a conclusive determination of assets. It is only PROVISIONAL and prima-facie finding of issue of ownership

- Children need not be minors in order to be entitled to allowance

- Grandchildren are not entitled to allowance

RULE 84: POWERS OF EXECAD

- The right of EXECAD to the possession and management of the properties of the deceased is not absolute and can only be exercised so long as it is necessary for the payment of the debts and expenses.

RESTRICTIONS OF POWERS:

1. Cannot acquire by purchase even at public or judicial auction either in person or mediation of another the property under administration

2. Cannot speculate with fund

3. Cannot lease the property for more than 1 year.

4. Cannot exercise the right of legal redemption over a portion of property owned in common which is sold by one of the other co-owner

5. Cannot enter into transaction involving estate subject to the testate or intestate proceeding without approval of court

6. Cannot profit by the increase of decrease in the value of property

7. Cannot borrow money without authority of court

8. Cannot continue business of the deceased unless authorized by court

- EXECAD may bring actions necessary to protect the assets

RULE 85: ACCOUNTABILITY AND COMPENSATION

EXECAD is accountable for: Whole estate of the deceased at the value of the appraisement contained in inventory Except those which did not come to his possession

- If there is loss, he is not liable if justly made

- Execad is accountable for damages if he neglects or unreasonably delays and the value lessened or unnecessary costs or interest accrued.

- An execad is allowed the necessary expenses in the care, management and settlement

- NECESSARY EXPENSES - Entailed for the preservation of the estate

NOT NECESSARY EXPENSES:

1. Expenses for the settlement of question as to who are entitled to the estate

- An administrator who is also a lawyer may not recover attorneys fees from the estate

- A lawyer of an administrator may not charge from the estate. He must charge the EXECAD

- When a lawyer has rendered legal services to the execad to assist him in the execution of his trust, his attorney’s fees shall be allowed expenses of administration. The estate however is not directly liable for his fees. EXECAD is primarily liable subject to reimbursement.

- Duty to render account is not waivable even in extrajudicial settlements.

RULE 86: CLAIMS AGAINST THE ESTATE

MONEY CLAIMS - Claims for money, debt or interest upon a liability contracted by a decedent BEFORE HIS DEATH arising from CONTRACT: Implied or express EXCEPT Delict or Quasi Delict - Due or not due or absolute or contingent or even a deficiency judgment EXC: Funeral expenses and expenses for the last sickness of the decedent

- Filed in the office of clerk of court

- It is entertained by settlement court regardless of the amount. BP 129 is not applicable

STATUE OF NON CLAIMS - Creditors of a deceased must present their claims for examination and allowance within the specified period which shall not be less than 6 months but not beyond 12 years.

- File within the time fixed in the notice or else barred forever

- Even if the testator acknowledged the debt in his will and instructed the executor to pay the debt, the statute of non claims must still be complied with otherwise barred.

TARDY CLAIMS - Claims not filed within the original period fixed by the rules. - At anytime before order of distribution, creditor may still file with cause shown. Court may allow such claim to be filed within a time not EXCEEDING 1 MONTH from the order allowing

- File a motion for leave to file tardy claim then file a tardy claim within 1 month.

- Statute of non claims prevails over the statute of limitations

REMEDY: A creditor barred by the statute of non claims may file a claim as COUNTERCLAIM in ANY SUIT that the execad may bring against the creditor

WAIVER OF STATUTE OF NON CLAIMS

- It may be waived by the estate’s representative

- Administrator’s failure to plead the statute of non claims and his active participation and resistance to the civil action amounts to such waiver.

- When an action is for recovery of money and defendant dies before final judgment, the civil case shall be dismissed to be prosecuted in the testate or intestate proceedings to avoid duplicity

- If the Civil case is final, the estate has thus waived its right to have the claim re-litigated in the estate proceedings.

- Notice to all creditors and publication is required.

- A notice to creditors to file their claims is not proper if only a SPECIAL ADMINISTRATOR has been appointed as a special administrator is generally NOT EMPOWERED TO PAY THE DEBTS OF THE DECEASED.

- Statute of non claims applies to debts not secured. If secured, 2 years lien

DEFICIENCY JUDGMENT - Contingent claim. Must be filed with the probate court.

- Execution is not proper if civil case is final and executory. It must be filed in the settlement pro

- Unpaid taxes by the government is not included in money claims.

- Where the defendant dies while the action for sum of money is pending, he shall be substituted therein by his legal representatives.

- If Solidary obligation, File as if he were the only debtor without prejudice to reimbursement

- If joint, File up to the extent of his portion

- The law reserves a right to Execad to redeem a mortgaged property of a decedent which the mortgagee has opted to foreclose upon the discretion of court.

- The EXECAD has 15 days to file his answer to the claim. EXECAD may interpose any counterclaim in the offset of a claim. Such is regarded as compulsory counterclaim

- Any claim admitted ENTIRELY by the execad shall immediately be submitted to court which may approve the same without hearing

- Judgments approving or denying is appealable as in ordinary cases. RECORD OF APPEAL WITHIN 30 DAYS from notice of judgment

- Judgment against the EXECAD shall not create any lien

RULE 87: ACTIONS BY AND AGAINST EXECAD DIRECTLY AGAINST EXECAD:

1. Recovery of real prop or personal prop

2. Recovery of any interest from estate

3. Enforcement of lien

4. Action to recover damage from injury (tort)

ACTIONS BY EXECAD: For the recovery or protection of estate in the right of deceased actions for causes which survives

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- Heirs may not sue until share is assigned

- Heirs have no legal standing to sue during the pendency of administration proceedings

- EXCEPTIONS:

- 1. Execad is unwilling to sue

- 2. Administrator is alleged to have participated in the act complained

- 3. Heirs may bring reinvidicatory action before declaration of heirship.

- There is no need to ask for the authority of court to foreclose the mortgaged property.

DOUBLE VALUE RULE - A person who before the granting of letters testamentary or administration embezzles or alienates any money, goods, chattels shall be liable to an action in favor of the execad for DOUBLE THE VALUE of the property

- EXECAD may recover properties fraudulently disposed by decedent:

1. Disposed in fraud against the creditors

2. Void conveyance

- If execad fails to bring such action, any of the creditors may bring in his own name upon filing of indemnity bond

REQUISITES BEFORE ACTION BE FILED BY CREDITORS:

1. Deficiency of assets in the hands of execad

2. Fraudulent conveyance

3. Execad shows no desire to file

4. Leave of court

5. Bond

RULE 88: PAYMENT OF THE DEBTS OF THE ESTATE

- Writ of execution is not proper.

- Court may order the sale or mortgage of the properties to pay debts

- Approval of payment does not create lien

- Personal property first then real property

- Even after partition, The heirs may be held individually liable for the payment of all lawful outstanding claims against the estate in proportion to the amount or value of the property they received

- Execution may only issue where the heirs, devisees and legatees have entered into possession of their respective portions in the estate prior to the payment of debts and expenses and is later ascertained that there are still debts to be paid

- If non resident decedent, His estate in the PH shall be so disposed of that his creditors in and outside the PH may receive pro rata

TIME OF PAYMENT: Shall not exceed 1 year in the first instance. EXCEPT: Court may extend not exceeding 6 months and the whole period allowed to the original execad shall not exceed 2 years

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RULE 89: SALES, MORTGAGES AND OTHER ENCUMBRANCES

- Written notice to the heirs and other persons interested is mandatory or else VOID.

- Notice to the parents of minor is not sufficient.

- But Notice to the counsel or guardian ad litem is sufficient if duly represented

- Persons interested may prevent such sale by giving bond

- If the opposition of the sale is based on claims of title, the court will hold in abeyance the authority to sell until issue of ownership has been settled in ORDINARY ACTION.

- Objection of one of the heirs to the application for the authority to sell a property or her failure to receive notice of such application is not sufficient legal cause to annul the sale ordered by the court.

- There is no payment by installment in this sale EXCEPT court allows

RULE 90: DISTRIBUTION AND PARTITION OF THE ESTATE:

- Shall be made after payment of all debts, funeral expenses, expenses for administration, allowance of the widow and inheritance tax.

- EXC: There is bond deposited

- Liquidation and distribution of heirs shall first be accomplished

- Probate court has the power to entertain the question whether or not a person is an acknowledged natural child of the decedent

- Adoption decree cannot be assailed collaterally in settlement proceedings

REMEDIES OF HEIRS ENTITLED TO RESIDUE

1. Duly notified but not given

- Move for reconsideration or appeal within 30 days from notice

2. Address is known but no notice

- Action to annul judgment

3. Address is unknown and no notice

- NOT FINAL ORDER:Motion for the delivery of his share or to reopen

- FINAL ORDER: Action for reconveyance

4. Where the heir is given a share in the order of distribution, he may move for the delivery even

after the closure of proceedings subject to acquisitive prescription

GR: NO WRIT OF EXECUTION EXC:

1. Partition expenses

2. Examination costs

3. Contributive shares - (When entered prior possession of the estate)

4. Surety’s liability on bonds

- Court may issue writ of possession in favor of the heirs

- Title is vested to the heirs from the finality of order of distribution

- Orders that determine heirs and shares are appealable

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PROJECT PARTITION - A document prepared by the executor or administrator setting forth the manner in which the estate of the deceased is to be distributed among the heirs.

ORDER OF CLOSURE - Issued after the payment of all debts and the delivery of the estate to the heirs.

- It is appealable

RULE 91: ESCHEAT

- Falling of a decedent’s estate into the general property of the state on his death

THREE TYPES:

1. INTESTATE LEAVING NO HEIRS

2. Reversion of property alienated in violation of consti or law

3. Unclaimed balances act

- The RP is the real party.

- Action shall be instituted by the SOLGEN or officer acting in behalf of RP

WHERE TO FILE:

1. RESIDENT - RTC of province where the deceased last resided

2. NON RESIDENT - RTC of the place where his estate is located

- Hearing shall not be more than 6 months after entry of order

- There must be direct publication of order for 6 consecutive weeks

ASSIGNMENT OF PROPERTIES

1. Personal - Decedent last resided

2. Real - Where it is located

3. Non resident - Municipality where the property may be found

- The court at the instance of interested party or o its own motion may order the establishment of a permanent trust so that only the income from the property shall be used.

- The beneficiaries shall be in favor of public schools, public charitable institutions and centers

- Right to escheat may be waived expressly or impliedly

- Interested persons may file within 5 years from the date of judgment to claim the estate escheated or else barred forever.

- Reckoned from the date of delivery to the state

- A trial court cannot convert escheat proceedings to ordinary special proceeding.

- Publication requirements. 6 weeks in escheat. usually 3 weeks in others

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GUARDIANSHIP - power of protective authority given by law and imposed in an individual who is free and in enjoyment of his rights over one whose weakness on account of his age or other infirmity renders him unable to protect himself

GUARDIANSHIP OF MINOR - Special rule - FC GUARDIANSHIP OF INCOMPETENT - ROC - RTC

- Court is solely concerned with the ward’s custody and control of the person’s estate

- Conflicts regarding ownership or title of the property shall be litigated in separate proc.

- Court cannot actually order delivery unless title is clear and indisputable.

LEGAL GUARDIAN - Without need of judicial appointment GUARDIAN AD LITEM - appointed by courts. JUDICIAL GUARDIAN - Appointed in pursuance of law.

VENUE:

1. RESIDENT - RTC of ward’s place of residence

2. NON RESIDENT - RTC of place where ward’s property is located.

INCOMPETENT INCLUDES:

1. Civil interdiction

2. Hospitalized lepers

3. Prodigals - spendthrift or a person who by excessive drinking, gaming, idleness or debauchery of any kind shall so spend, waste or lessen his estate as to expose himself or his family to want, or suffering.

4. Deaf and dumb who are unable to read and write

5. Unsound mind though with lucid intervals

6. Not unsound but by reason of age, weak mind, disease and other similar causes cannot without outside help take care of themselves or manage his properties.

RULE 93: APPOINTMENT WHO MAY FILE

1. Any relative

2. Friend

3. Other person on behalf of the resident incompetent who has no parents or lawful guardian

4. Director of health in favor of insane person who should be hospitalized or in favor of leper

- Creditor and mortgagee cannot be appointed as guardian

- CNFS is required

- Notice to person interested or publication in case of non resident ward is required

- The notice to person mentioned in PH residing in PH and incompetent is required.

- NOTICE ONLY. NO NEED FOR PUBLICATION

- EXCEPT TO NON RESIDENT

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- If insane: DIRECTOR OF HOSPITAL

- Incompetent must be present in the hearing

ANCILLARY GUARDIANSHIP - refers to the guardianship in a state other than that in which guardianship is originally granted.

VALUE OF PROPERTY IS LESS THAN 50K - Father and mother jointly exercises legal guardianship EXCEEDS 50K - parents must File a verified petition

RULE 94: BONDS

- Before an appointed guardian enters, he shall give a bond

CONDITIONS:

1. Inventory within 3 months

2. Faithfully execute duties

3. Accounting

4. Perform orders of the court

- Filed in the office of clerk of court

- Breach of conditions may be filed in a separate or same proceeding

RULE 95: SELLING AND ENCUMBERING

GROUNDS FOR PETITION FOR LEAVE TO SELL:

1. When the income of the estate is insufficient to maintain the ward and family

2. For the benefit of the ward

- Status of sale without authority is unenforceable

- Notice to the next of kin is jurisdictional and required

- EXC: Where next of kin are her mother, guardian, uncles, and aunts who agreed to make the transfer of their respective shares in the property

Duration of order: Within 1 year from the granting of order. It shall not extend beyond unless renewed by the court.

- The guardian cannot acquire by purchase even at a private or public sale or through mediation of another the property of the person or persons who may be under his guardianship.

- Appeal is proper in such order

- Court may order investment of proceeds

- Guardian ad litem has no authority to act or bind a minor in any transaction with regard to his estate but he can however do so with the approval of the court

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GUARDIAN MAY BE AUTHORIZED TO JOIN IN PARTITION PROCEEDINGS:

1. hearing

2. Notice to all relatives

3. Careful investigation

- Compensation of the guardian shall not exceed 15% of the net income of the ward

- A guardian is prohibited to make donations of the property of his ward

TERMINATION OF GUARDIANSHIP:

Who may file:

1. Declared incompetent

2. Friend

3. Guardian

4. Relative

- Remedy of a removed guardian is to appeal

SPECIAL DISQUALIFICATIONS:

1. Judges, clerks, lawyers

2. Advance age

3. Non residence

- Voluntary emancipation is no longer recognized as a ground for termination of guardianship

GUARDIANSHIP OF MINORS

TENDER AGE PRESUMPTION - A mother is to be preferred in awarding custody of children under the age of 7

- This presumption may be overcome only by compelling evidence of mother’s unfitness

- Sexual preference or moral laxity alone does not prove parental neglect or incompetence

- If the incapacitated is a MINOR, SC AM shall apply

WHO MAY PETITION:

1. Minor himself if 14 years of age or over

2. Any relative

3. Other person on behalf of a minor

4. Secretary of DSWD

5. Secretary of health

GROUND:

1. Death or continued absence or incapacity of his parents

2. Suspension, termination or deprivation of parental authority

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3.

Remarriage of his surviving parent and is found unsuitable

4. Best interest

- In default parents shall be appointed as guardian of minor

- Others in order:

- 1. Grand parents

- 2. Oldest brother or sister of the minor over 21 years of age

- 3. Actual custodian of the minor over 21

- 4. Other person in the discretion of court

- Notice must be given to persons named in the petition including the minor if over 14 years of age

- Notice if above 14 years old is jurisdictional

- Guardian shall first secure a bond determined by the court

- IF PARENTS ARE GUARDIANS - Post a bond if market value of child’s property is ABOVE 50K

- Authority shall also be obtained before selling. (Same as rule above)

- Guardianship’s termination may be motu proprio or upon motion

RULE 98: TRUSTEES

- Confidence reposed in one person called the TRUSTEE for the benefit of another called CESTUI QUE TRUST with respect to the property held by the former for the benefit of the latter.

- JURISDICTION: RTC or MTC in which the will was allowed

- If not allowed in PH: RTC of province in which the property is situated

- Applies only to EXPRESS TRUST

- Trust is not an adverse possession

-

EXCEPT:

- REQUISITES:

1. Trustee has performed unequivocal acts of repudiation amounting to ouster of the cestui que trust.

2. Positive acts of repudiation known by the cestui que trust.

3. Clear and conclusive

- No person succeeding to the trust as EXECAD shall be required to accept such trust

- Notice to and consent of the beneficiary are not essential

- When a land in the PH is held in trust for a resident by a trustee who derives his authority from abroad, such trustee must petition the RTC where the land is situated otherwise trust will be vacant

- When trust is created abroad for property in the PH, Judicial approval is still needed though the trustor is alive.

- Trustee must file a bond

- EXCEPT:

- If requested by Testator or all persons beneficially interested in the trust

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- Neglect to file a bond - resignation/decline

- When the trustee is appointed as successor to prior trustee, the court may dispense with the making and return of an inventory if one has already been filed

EXECAD

GUARDIAN

TRUSTEE

Accounts are not under oath and shall be filed only at tiles may be required by the court

Must be under oath and annually

Must be under oath and annually

RTC/MTC

RTC - Incompetent FC - Minor

where the will was allowed If dies, resigns - RTC shall appoint new trustee

May sell if it is necessary for the purpose of paying debts upon application to courts with notice to heirs

May sell upon order of the court

May sell upon order of the court.

No time limit for order of sale

Valid for 1 year

No time limit

Settle estate

Guardian

Carry the provisions of the will

Not exempted from filing bond

Must always file a bond

May be exempted if provided in the will

Services of execad is terminated upon payment of debts

Terminated upon attainment of age of majority or upon gaining competency (Court order for the latter)

Terminated upon turning over the property to the beneficiary after the expiration of trust

Must pay the debts of the estate

Must pay the debts of ward

No obligation to pay debts of beneficiary or trustor

CONTRACTUAL TRUST - Trustee declines, resigns or dies or is removed before the accomplishment of trust

TESTAMENTARY TRUST - Will creating a trust but the testator omitted to appoint trustee in the PH

ADOPTION

- A juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation

- Adoption must comply with the statutory process in order to be valid.

- Not an adversarial proceeding.

- Strictly personal between adopter and adopted

- Shall be considered as if legitimate child

GR: Decree of adoption shall have retroactive effect from the time of the petition EXC: TAMARGO VS CA: The natural parents shall be liable and such will not have an retroactive effect

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- An illegitimate child upon adoption by her natural father may use the surname of her natural mother as her middle name. No law on middle name in PH

2 PHASES OF ADOPTION:

1. Administrative phase - Until DSWD announces that child is legally available

2. Judicial Phase

RULES ON DOMESTIC ADOPTION WHO MAY ADOPT

1.

ANY FILIPINO CITIZEN:

1. Legal age

2. Position to support and care

3. Good moral char

4. Full civil capacity

5. At least 16 years older than adoptee EXC: When adopter is biological parent

6. Not convicted of crime involving Moral turpitude

-

PARDON WOULD NOT ERASE THE DISQUALIFICATION.

7. Emotionally capable.

2.

ANY ALIEN

1. Same qualification as filipino

2. Diplomatic relations of his country

3. Certified that his government allowed the adoptee to enter his country as his adopted child

4. Living in PH for at least 2 continuous years prior to the application and maintains such residence until adoption decree is entered

- Temporary absences for professional business or emergency reasons NOT EXCEEDING 60 DAYS IN 1 YEAR shall not break the continuity

5. Legal capacity to adopt certified by their consular office

3. ANY GUARDIAN:

1. After termination of the guardianship with respect to his ward

2. Clearance of his or her financial accountabilities

NO RESIDENCY REQUIREMENTS IF:

1. A former filipino citizen seeking to adopt a relative within 4 degree of C/A

2. Seeks to adopt the legitimate child of his or her filipino spouse

3. One who is married to a filipino cit and seeks to adopt jointly a relative within 4th civil degree of C/A of the filipino spouse.

- Foreign adoptee does not automatically acquire citizenship

GR: Husband and wife shall jointly adopt EXC:

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1.

One spouse seeks to adopt the legitimate child of the other spouse

2. One spouse seeks to adopt his or her own illegitimate child with the consent of the other spouse.

3. Spouses are legally separated.

WHO MAY BE ADOPTED:

1. Child whose biological or adoptive parents have died

- NO PROCEEDING SHALL BE INITIATED WITHIN 6 MONTHS FROM THE TIME OF DEATH OF SAID PARENTS.

2. Child voluntarily committed to DSWD or legally declared available for adoption

3. Child whose adoption previously rescinded

4. Illegitimate child to improve statues

5. Legitimate child of other spouse

6. Person of legal age who prior to the adoption has been consistently considered by the adopter as his or her own SINCE MINORITY

VENUE: FC of the province or city where the prospective adoptive parents reside.

- Petition may include application for change of name, Rectification of simulated birth, voluntary or involuntary commitment of child, Declaration of child as abandoned.

ABANDONED CHILD - No proper parental care or whose parents have deserted him for a period of at least 3 continuous months

- Physical estrangement alone without financial and moral desertion is not abandonment

AFFIDAVIT OF CONSENT REQUIRED:

1. Adoptee is 10 years or over

2. Biological parents or legal guardian or the child placement agency, child caring agency or proper government instrumentality (EXCEPT IF THE CHILD WAS ABANDONED BY BP, NO NEED)

3. Legitimate and adopted children of the adopter and of the adoptee who are 10 years of age or over

4. Illegitimate children of adopter if living with them who are 10 years or over

5. Spouse

HOME STUDY REPORT - study made by court of the motivation and capacity of the adoptive parents to provide for home

- There must be an order of hearing and such must be published

- The necessary jurisdictional requirements should be indicated in the petition for adoption. Thus, the name of the person to be adopted is that appearing in the civil registry and the court does not acquire jurisdiction if a different name is carried in the notice of publication.

- When petition includes a prayer for change of name, notice to SOLGEN is required

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SUPERVISED TRIAL CUSTODY - Before issuance of the decree of adoption, the court shall give the adopter trial custody of the adoptee for AT LEAST 6 MONTHS

- Court may reduce or exempt parties for STC if it is for the best interest of child

GR: ALIEN adopter must complete the 6 months STC EXC: When exempted for residency requirements

TEMPORARY PARENTAL AUTHORITY - Provisionally vested during the period of trial custody.

- In Tamargo vs CA the trial custody has not yet began

- 15 days from judgement - APPEAL

GR: After compliance with the jurisdictional requirements, all adoption hearings shall be CONFIDENTIAL and shall not be open to public.

- Court may release information if necessary and if for the best interest of the child

INTERCOUNTRY ADOPTION:

- Adoption of legally free FILIPINO CHILD in a foreign country

WHERE TO FILE:

1. INTERCOUNTRY ADOPTION BOARD (ICAB)

2. In case of foreign nationals who file petition for adoption in PH - In RTC and shall be transmitted to the ICAB

WHO MAY ADOPT:

- Any foreign national or Filipino Citizen permanently residing abroad who has the qualifications and none of the disqualifications

QUALIFICATIONS:

1. Jointly file if married.

2. At least 27 years old and at least 16 years older than the child at the time of the application UNLES:

1. Natural parent

2. Spouse of such parent by nature

3. Capacity to act and assume all rights under his national law

4. Not convicted of a crime involving moral turpitude

5. Eligible to adopt under his national laws

6. Agrees to uphold rights under UN Convention and PH laws

7. Country with diplomatic relations with PH

8. Position to provide for care and support

9. None of the Disq

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WHO MAY BE ADOPTED:

- Any child who has been voluntarily or involuntarily committed to DSWD.

- Provided that if voluntarily committed, The physical transfer shall not be made earlier than 6 months from the date of execution of deed of voluntary commitment.

- This shall not be applied to children with special medical conditions

CHILD - Under 15

- An adoption created under the law of a foreign country is entitled to registration in the the PH. The effects of such adoption shall be governed by the law of the PH

- Adopter can no longer rescind the adoption. He can merely disinherit the adoptee

- Rescission relates only as to the date of the judgment. Vested rights prior to rescission should be respected

WHO SHALL FILE RESCISSION:

1. Adoptee over 18

2. If still minor, With the assistance of the DSWD

3. Guardian or counsel if over 18 but incapacitated.

GROUNDS:

1. Repeated physical violence and verbal maltreatment by the adopter despite counseling

2. Attempt of the life of the adoptee

3. Sexual assault or violence

4. Abandonment or failure to comply with the parental obligations

venue: FC where the ADOPTEE resides.

- Separate proceeding from the adoption

- Must be filed within 5 years from reaching of age of majority or after recovery of incompetency

EFFECTS:

1. Parental authority of biological parent or legal custody of DSWD will be restored if still M/I

2. Reciprocal rights will be extinguished

3. Successional rights shall revert back to its status prior to the adoption.

4. Vested rights shall be respected

5. Adoptee to use original name

6. Cancel new Birth cert and revert the original

- Validity of adoption cannot be questioned collaterally

RULE 101: HOSPITALIZATION OF INSANE PERSONS

1. Voluntary

2. Involuntary

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- Only for the public welfare

- Venue is RTC of province where the person alleged to be insane is found.

- Court may motu proprio send a person to National center for mental health

REQUISITES:

1. Secretary of health is of the opinion that the commitment of the person is for public welfare or for welfare of such person

2. Person insane or having custody opposed.

- Notice of hearing shall be served upon person alleged to be insane and one having charge of him

- Secretary of health cannot order release without approval of RTC and RTC cannot order release without recommendation of Secretary

RULE 102: HABEAS CORPUS

- A writ directed to the person detaining another and commanding him to produce the body of the person at a certain time and place with the day and cause of his caption and detention.

KINDS:

1. PRELIMINARY CITATION - If the person is detained under government authority and the illegality of his detention is not patent from the petition for the writ.

2. PEREMPTORY WRIT - If the cause of detention appears to be patently illegal. Non compliance to this shall be punishable

WRIT OF HABEAS CORPUS

PRIVILEGE OF WRIT OF HC

Order requiring the person to whom it is issued to produce the body of the person alleged to be restrained of his liberty and to justify his detention

Further order inquiring into the cause of detention and directing the release of the person if he is illegally detained.

SCOPE OF HC:

1. Illegal confinement or detention by which a person is deprived of his liberty

2. Rightful custody of the person is withheld from person entitled thereto.

- Actual physical restraint is not required. Any restraint which will prejudice freedom of action is sufficient

- The writ cannot be used as a substitute for the trial court’s function. It cannot be used to investigate and consider questions of error

- It is not ordinarily granted where the law provides other remedies

- It is a summary remedy

- It is a prerogative writ which does not issue as a matter of right but in the discretion of the court.

- Resort to such writ is not to inquire into the criminal act of which a complaint is made but unto the right of liberty

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- HC may be used with the Writ of certiorari for the purpose of review

- However it does not lie where the petitioner has the remedy of appeal or certiorari because it will not be permitted to perform the function of writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of the court.

GROUND FOR SUSPENSION OF WHC:

1. Invasion when public safety requires it.

2. Rebellion when public safety requires it.

HC IS PROPER WHEN:

1. Deprivation of constitutional right resulting to restraint of a person

2. No jurisdiction to impose sentence

3. Excessive penalties

4. Amendment of law lowering penalty

5. Denial of right to speedy trial

6. Results of post conviction DNA testing favorable to the accused

7. Parents to regain custody of minor even of her own free will

8. Constitutionality of statute

9. Testing the legality of alien’s confinement and expulsion

10. Permitting an alien to land in PH

11. Legality of extradition

12. Mistaken identity

NOT PROPER WHEN:

1. Denial of bail

2. Correcting errors of appreciating facts

3. When the court has jurisdiction over the cause and person of the accused

4. Detention because of a charge in court. He may no longer question the detention

5. Compel husband to live with wife

- Release whether permanent or temporary renders petition of WHC moot and academic

- EXC: Release precludes freedom of action (Lukban Case)

- HC is not available if restraint is voluntary EXC: Parents to minor

WHO MAY ISSUE:

RTC, CA SC - Concurrent jurisdiction MTC - If no available RTC Judge

- Hierarchy of courts in HC is not observed

IF RTC - Enforceable only within its territorial jurisdiction CA/SC - Anywhere in PH

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- SB may issue only if it is in aid of appellate jurisdiction

IF CUSTODY OF MINORS: FC. Enforceable within its judicial region.

WHO MAY FILE:

1. Party whose relief it is intended

2. Some person on his behalf

- Formalities in HC must be construed liberally

- Person must be under ACTUAL AND EFFECTIVE restraint or deprivation of liberty

- Three day detention of suspect without charge provided that the arrest of those suspected with terrorism or conspiracy to commit treason must be in accordance with act. NO HC

- Supervening events may bar the release. Events which made it legal detention - NO HC

- Posting of bail is not a waiver to question illegality of detention

- In emergency cases, the judge may issue the writ under his own hand and deputize any person to serve it

EXCEPTIONAL CASES WHEN HC IS VALID EVEN DETENTION IS BY VIRTUE OF JUDGMENT:

1. Deprivation of constitutional right

2. No jurisdiction to impose sentence

3. Excessive

4. Lowered penalty as amended

5. Results of post conviction DNA testing are favorable

- Person to be produced may be designated even if his name is not known but he must be identified.

- Court acquires jurisdiction over the person by mere service of writ

- If detention if by public authority, the return is considered prima facie evidence of the validity of the restraint and the petitioner has the burden of proof.

- If by PRIVATE INDIVIDUAL - The return is considered only a plea of the facts asserted therein and the person responsible for the detention has burden of proof to establish that it is legal

- HC will not lie after WARRANT OF COMMITMENT was issued by court on the basis of information filed against the accused.

- Once a person detained is DULY CHARGED in court, he may no longer question the detention through HC. Remedy is to quest the information

- Court includes quasi judicial bodies like deportation board of the Bureau of immigration

PERIOD OF APPEAL: 48 HOURS from the notice of judgment or final order. (notice of appeal only)

GR: A person who is set at liberty upon HC shall not again be imprisoned for the same offense. EXC: Lawful order or process of court

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- Person may again avail the privilege of WHC

CUSTODY OF MINORS AND WRIT OF HC IN RELATION TO CUSTODY OF MINORS

- May be filed by any person claiming rightful custody

- Filed in FC where the petitioner resides OR where the minor may be found.

- Enforceable in the judicial region of the FC

- May be filed in a regular court where no FC is available but it shall again transmit the case to the FC if available

- It may also be filed in SC/CA - Enforceable anywhere

- Returnable to FC

REQUISITES:

1. Petitioner has the right of custody over minor

2. Withheld

3. Best interest of minor

- Purpose is not only present the body of the child but also determine who has the rightful custody of such child

- MD is not allowed except lack of jurisdiction over the subject matter.

- Any ground other than Lack of juris over the Subject matter may be raised as an affirmative defense.

- Respondent has 5 days to answer

- Pre trial is mandatory

- PETITIONER FAILS TO APPEAR - Dismissed unless counsel appears with valid excuse

- RESPONDENT FAILS - Petitioner shall be allowed to present evid ex parte.

TEMPORARY VISITATION RIGHTS: The court shall provide in their order awarding provisional custody appropriate visitation rights to the non custodial parent unless unfit or DQ

HOLD DEPARTURE ORDER - The minor child subject of the petition shall not be brought out of the country without prior order from court where petition is pending

- Court may motu proprio order such

- No appeal shall be allowed unless MR is filed.

- Judgment involving custody of minor cannot be accorded as RES JUDICATA

- In case of LegSep, The custody of minor children shall be awarded to the innocent spouse unless if it is not for the best interest of the children.

- Upon filing of petition for declaration of nullity, the issue of custody is deemed automatically submitted pursuant to the express provision of FamCode

WRIT OF AMPARO (WAMP)

- Remedy available to any person whose right to life, liberty and security is violated or threatened with violation of an unlawful act or omission of a public official or employee or a private individual or entity

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COVERAGE:

1. Extralegal killings

2. Enforced disappearances

- There must be substantial evidence that the disappearance was carried out by or with the authorization, support or acquiescence of the state or a political organization followed by a refusal to acknowledge the same or give information on the fate or whereabouts of said missing person.

- GOVERNMENT PARTICIPATION IS AN INDISPENSABLE ELEMENT

EXTRA LEGAL KILLINGS - Killings committed without due process.

ENFORCED DISAPPEARANCES REQUISITES:

1. Arrest, detention or abduction of a person

2. By a government officer to organized groups or private individuals acting with direct or indirect acquiescence of the government

3. Refusal of the state to disclose the fate or whereabouts

4. Intent of which is to place such person outside the protection of law

- It is confined only with extralegal killings and Enforced disappearances

AMPARO LIBERTAD - For the protection of freedom equivalent to Habeas Corpus AMPARO CONTRA LEYES - Judicial review of constitutionality of statutes AMPARO CASACION - Judicial review of constitutionality and legality of judicial decisions AMPARO ADMINISTRATIVO - Judicial review of administrative actions AMPARO AGRARIO - Protection of peasant’s rights derived from agrarian reform process

- WAMP is limited to life, liberty and security

- There must be ACTUAL THREAT.

- WAMP is not available as a remedy for threatened demolition of dwelling

- WAMP is not available against a barangay captain’s alleged trespass

- Mere violation of property rights, wamp is not proper

WHO MAY FILE (ORDER OF PREFERENCE)

1. Any member of the immediate family: Spouse, children and parents

2. Ascendant/Descendant or collateral relative of the aggrieved within 4 civil degree CA

3. Any concerned citizen, organization, association or institution if there is no known member of the immediate family or relative

- Filing by the aggrieved party suspends the right of all other authorized

WHERE TO FILE:

1. RTC where the threat, act or omission was committed or any of its elements

2. SB, CA, SC or any justice of such courts

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- ENFORCEABLE ANYWHERE IN PH

WHERE RETURNABLE

1. RTC - Same court

2. SB,CA - Such court or to any RTC where the threat happened

3. SC - Such court or SB, CA or RTC where the threat happened

- Petition may be filed on any day, including saturday, sunday or holiday and at any time from morning until evening

- No docket fees in WAMP

- GR: Clerk of court shall issue writ

- EXC: In case of urgent necessity, Justice or judge may issue under his or her own hand and may deputize any officer or person to serve it.

- Writ is served upon the respondent by a judicial officer or by a person deputized by the court who shall retain a copy on which to make a return of service

- In case it cannot personally serve, substituted service shall apply

- Return serves as the responsive pleading.

- Respondent shall file a verified return together with supporting affidavits within 5 WORKING DAYS after service.

- THERE IS NO GENERAL DENIAL. Revelation of all evidence relevant is required.

- OMNIBUS WAIVER RULE - Respondent must plead all his defense in the return or else deemed waived

PROHIBITED MOTIONS

1. MD

2. Extension

3. Dilatory motion

4. Bill of parti

5. Counterclaim or crossclaim

6. Third party complaint

7. Reply

8. Motion to declare in default

9. Intervention

10. Memorandum

11. MR of interlocutory orders

12. Certiorari, mandamus, prohibition against interlocutory order.

- Failure to file return - May hear petition ex parte.

- Hearing is summary

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INTERIM RELIES OF PETITIONER

1. Temporary Protection Order -Upon motion or motu proprio may order that the petitioner or aggrieved party and any member of immediate family be protected in a government agency or by an accredited private institution capable of keeping and securing their safety.

2. INSPECTION ORDER -Order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting, measuring, surveying or photographing the property

3. PRODUCTION ORDER - Order any person in possession, custody or control of any designated documents, papers, books, accounts, or objects which constitute or contain evidence relevant to the petition.

4. WITNESS PROTECTION ORDER - Refer the witness to DOJ for admission to the witness protection security and benefit program or the witness may be referred to other government agencies or to accredited persons or private institutions capable of keeping and securing safety

- Interim relief may only be granted before final adjudication of the case is made.

- Once WAMP is granted, It necessarily entails the protection of the aggrieved party

INTERIM RELIEFS AVAILABLE TO RESPONDENT

1. Inspection order

2. Production order

- Burden of proof - Substantial evidence

- Presumption of regularity in the performance cannot be invoked

- Extraordinary diligence in the performance shall be observed

- Exhaustion of administrative remedies is not required

- Technical rules of evidence not observed in WAMP.

- Hearsay evidence may be validly admitted.

CONTEMPT:

1. Refuses to make a return

2. False return

3. Disobeys lawful orders of court

- Appeal if 5 days from judgment

- TO SC UNDER RULE 45

PRIVILEGE OF WRING OF AMPARO - Includes availment of the entire procedure outlined in the rules.

- HC and WAMP are immediately executory

LIBERALIZED RULE ON DISMISSAL - The court shall not dismiss the petition but shall archive it if upon the determination it cannot proceed for a valid cause such as failure of the petitioner or witness to appear due to threats on their lives

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- The petition shall be dismissed with prejudice upon failure to prosecute after the lapse of 2 years from notice of order archiving the case

- Filing of WAMP shall not preclude the filing of separate criminal, civil or admin

- When a criminal action is commenced, no separate petition for the writ shall be filed. Writs shall be available by motion in the said criminal case

CONSOLIDATION: When a criminal action is filed subsequent to the filing of a petition, the latter shall be consolidated with the criminal action.

- If WAMP and Crim and civ case were subsequently filed - CONSOLIDATE IN CRIMINAL

DOCTRINE OF COMMAND RESPONSIBILITY - Any government official or supervisor or officer of PNP shall be held accountable for neglect of duty if he has knowledge of crime or offense.

- The president cannot be included as respondent in a WAMP solely on the basis of command responsibility because of presidential immunity from suits

- AFP chief and PNP Director may be included as respondents but not for the purpose of attaching liability and responsibility to them but only to determine the author who is accountable.

WRIT OF HABEAS DATA (HD)

- Remedy available to any person whose right to privacy in life, liberty and security is violated or threatened by an unlawful act or omission of a public official or employee or of a private individual or entity engaged in gathering, collecting or storing of data or information regarding the person, family, home and correspondence of aggrieved party.

WHO VIOLATES: Public official or employee or of a private individual or entity engaged in gathering, collecting or storing of data or information

NEXUS: Violation of right to privacy AND violation of right to life, liberty and security

- HD may be filed with WAMP

- HD allows families of victims of enforced disappearance to petition to the courts to COMPEL THE GOVERNMENT TO ALLOW ACCESS TO DOCUMENTS about missing person.

- Entity need not be in the business of collecting or storing data.

- It will not issue to protect PURELY PROPERTY AND COMMERCIAL CONCERNS

WHO MAY FILE HD

1. Aggrieved party may file

WHO MAY FILE HD IN WAMP:

1. Any member of the immediate family

2. Ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degrees of C/A

- HUMAN RIGHTS ORG/INSTITUTIONS cannot file

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WHERE TO FILE:

1. RTC where the petitioner or respondent resides. or that which has jurisdiction over the place where the data or information gathered, collected or stored at the option of the petitioner.

2. SC or CA or SB when action concerns PUBLIC DATA FILES OF GOV OFFICES

WHERE RETURNABLE

1. RTC - Same court

2. SB/CA - Same court or RTC of the place where the respondent resides or that which has jurisdiction over the place where the data or information is gathered.

3. SC - Same court or CA/SB or RTC of the place where the respondent resides or that which has jurisdiction over the place where the data or information is gathered.

- ENFORCEABLE ANYWHERE

- There is docket fees but indigent may be exempted.

- Petition for HD shall be verified.

- Respondent shall file a written return within 5 working days

- General denial is still not allowed.

DEFENSES AVAILABLE TO THR RESPONDENT:

1. National security

2. State secrets

3. Privilege communications

4. Confidentiality of source of information of media

- SAME PROHIBITED PLEADINGS

- Hearing shall be summary

JUDGMENT: If proven, The court shall enjoin the act complained of or order the deletion, destruction or rectification of the erroneous data or information and grant other relevant reliefs.

- Shall be enforced within 5 working days

GRANT OF WRIT - Decision of the court to give due course and requires the respondent to submit return GRANT OF PRIVILEGE OF WRIT - Petition is found meritorious and prayers are granted

APPEAL - 5 DAYS FROM THE JUDGMENT OR FINAL ORDER to SC by Rule 45

- Same consolidation rule in WAMP

RULE 103: CHANGE OF NAME:

- Covers SUBSTANTIAL CHANGE in the name recorded in the civil registry.

- Mere correction of typographical or clerical errors in the entry of the name which are obvious are governed by RULE 108.

- Both petitions are subject to the primary jurisdiction of the LCR or CG

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CHARACTERISTICS OF NAME:

1. Absolute

2. Obligatory

3. Fixed, unchangeable or immutable

4. Outside commerce of man

5. Imprescriptible

- RULE 103 covers the change of first name, nickname, middle name or surname which is not simply a correction of a typographical error.

- Real and official name of a person is that which is given in the civil registrar no the name by which he is baptized.

GROUNDS FOR CHANGE OF NAME: (EXCLUSIVE)

1. When the name is ridiculous, dishonorable or extremely difficult to write or pronounce

2. Change results as a legal consequence as in legitimation

3. Avoid confusion

4. Continuously used and been known since childhood by a Filipino name, unaware of her alien parentage

5. Sincere desire to adopt a filipino name to erase signs of former alienage

6. Surname causes embarrassment and not done for fraudulent purpose.

Change of name will not be allowed:

1. Legal separation alone

2. Using such name and has become known by it

- An alien can petition for change of name but he must be domiciled in PH

- Change of name affects only the petitioner. A separate petition is needed for his spouse or children.

- Change of name is proceeding in rem. Jurisdiction to hear and determine the petition is acquired after publication

- Sex reassignment is not a valid ground

- Venue is RTC of the province where the petitioner has been residing for at least 3 years prior to the filing.

- Requirement of verification is a mere formal defect.

- All names and aliases must be stated in the order or else it will defeat the purpose of publication.

- Publication must include the correct information in order to vest jurisdiction upon the court

- Law does not allow one to drop his middle name because it has practical and legal significance. It serves to identify the material lineage of filiation.

- Hearing shall not be within 30 days prior to AN ELECTION nor within 4 months after the last publication.

- Wrong spelling of name in publication is substantial defect.

WHO MAY OPPOSE:

1. Interested person

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2.

Republic of PH

- A decree of adoption grants the adoptee to use the name of the adopter. If change of first name is desired, it must be prayed and alleged in adoption

- Copy of judgment furnished with Civil reg

- Change of name does not change the status or legal capacity

- A married woman has the option to use the surname of her husband

- Appeal is by NOTICE OF APPEAL ONLY.

- A legitimate child cannot change his surname in order to adopt the surname of her stepfather.

- BEST REMEDY: ADOPTION

RULE 107: ABSENTEE

- One who disappears from the domicile and his whereabouts being unknown and without having left an agent to administer his property or the power conferred upon the agent has expired.

JURISDICTION: RTC where the absentee resided before his disappearance

APPOINTMENT OF REPRESENTATIVE IF:

1.

Person disappears

2.

Whereabouts unknown

3.

Leaves no agent or upon expiration of agency

2

YEARS - If person left no administrator

5

YEARS - Person left administrator

WHO MAY FILE FOR APPOINTMENT:

1. Spouse

2. Heirs instituted in a will

3. Relatives

4. Right over the property

- If petition left no property, petition is useless.

- Disqualification as an heir does not inhibit him to file a petition for declaration of absence or to be appointed as administrator

REQUISITES FOR DECLARATION OF PRESUMPTIVE DEATH:

1. Absent spouse has been missing for 4 consecutive years or 2 years if the disappearance occurred where there is danger under the circumstances stated in NCC

2. Present spouse wishes to remarry

3. Well founded belief that the absentee is death

4. Files a summary proceeding

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- Declaration of presumptive death is immediately final and executory

GROUNDS FOR ADMINISTRATION:

1. Absentee appears personally or through agent

2. Absentee’s death is proven by heirs

3. Third person appears showing that he acquired such property

- Declaration of presumptive death is only for the purpose of remarriage.

7 YEARS - Considered as dead for all purposes except succession 10 YEARS - Considered dead for the purposes of succession. - 5 YEARS if disappeared at the age of 75

CONSIDERED DEAD FOR ALL PURPOSES INCLUDING SUCCESSION:

1. Lost during voyage for a period of 4 years

2. Member of armed forces taking part thereof and missing for 4 years

3. Danger of death under other circumstances missing for 4 years

- If absentee reappears, He shall recover his property in the condition in which it may be founded the price of any property that may have been alienated or property acquired therein.

RULE 108: CANCELLATION OR CORRECTION OF ENTRIES IN CIVIL REGISTRY

- 108 applies only to substantial changes or correction of entries or typographical errors in the civil registry

- BUT IT EXCLUDES:

- 1. Change of nationality, Age and Status (NAS)

- 2. Change of first name or nickname

- 3. Change of date and month of birth

- 4. Sex where it is patently clear that there was mistake in entry

- Any person interested in any act, event, order or decree concerning the civil status of persons recorded in the civil registry

WHERE TO FILE: RTC of province where the civil reg is located

ENTRIES SUBJECT TO CANCELLATION OR CORRECTION:

1. Births

2. Marriages

3. Deaths

4. Legal separations

5. Judgments of annulments or void marriages

6. Legitimations

7. Adoptions

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8.

Acknowledgements

9. Naturalization

10. Election, loss or recovery of citizenship

11. Civil interdiction

12. Judicial declaration of filiation

13. Voluntary emancipation

14. Change of name

- Person with Congenial Adrenal Hyperplasia may elect his or her gender after reaching the age of majority

- Civil registrar and all person who have claim or interest must be impleaded.

- Failure to implead will make the proceedings void.

- Notice and publication is needed.

OPPOSITION:

- Filed within 15 days from notice of petition or date of last publication

- Petition for change of name and correction of entry may be joined in one proceeding if the change of name and correction of entry are based on the same underlying facts or logically connected to each other and provided that all the requirements are complied with.

- Venue of such will follow the principal proceeding

CLERICAL ERROR ACT (RA 9048) SCOPE:

1. Clerical or typographical errors and change of first name or nickname

2. Clerical or typographical errors and change of the day and month in the date of birth

3. Clerical or typographical errors and change of Sex of a person where it is patently clear there was clerical mistake

- Changed by the concerned city or municipal registrar or consul general

CANNOT BE CORRECTED: NAS

1. NATIONALITY

2. AGE

3. STATUS

- Legitimate to illegitimate - substantial - Adversarial proceedings

CLERICAL OR TYPOGRAPHICAL ERROR - A mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is HARMLESS and innocuous such as misspelled name, misspelled place of birth or the like.

- Rule 103 and 108 are different proceedings.

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GROUNDS:

1. Petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write

2. New first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community

3. Avoid confusion

- Any person of legal age having direct or personal interest in correction

WHERE TO FILE:

1. Local civil registrar where record is kept

2. Nearest PH consulate for citizens of PH who are presently residing or domiciled in foreign countries.

- 103, 108 and 9048 may only be availed once under the same law.

PUBLICATION IS REQUIRED ONLY WHEN:

1. Change of first name

2. Correction of entry concerning day or month of bday

3. Correction of entry concerning sex of person

- Change shall be reflected on the birth cert by way of marginal annotation

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PROVISIONAL REMEDIES

- Temporary, auxiliary and ancillary remedies available to the litigant for the protection of his rights while the main action is pending

- Dependent for the existence of main actions. If main action is dismissed, PR is also dismissed.

- Available in criminal cases and in some special civil actions and specpro.

- Court which has jurisdiction over the main action has jurisdiction to PR

- Orders granting PR are merely interlocutory and cannot be subjected to appeal

RULE 57: PRELIMINARY ATTACHMENT

- Ancillary remedy applied for not for its own sake but to enable the attaching party to realize upon the relief sought and expected to be granted in the main or principal action.

- It may also be availed to acquire jurisdiction over the action by actual or constructive seizure of the property in those instances where personal or substituted service of summons on the defendant cannot be effected

- It is strictly construed against the applicant.

REQUISITES:

1. Motion whether ex parte or with notice to parties.

2. Applicant or some other who knows personally the facts must state in the affidavit that:

1. Sufficient cause of action exists

2. No other sufficient security for the claim sought

3. Amount due to the applicant or the value of the property the possession of which he is entitled to recover is as much as the sum for which the order is granted above all legal counterclaims.

3. Post a bond fixed by court

4. Bond duly filed in court

- Attachment places the property in custody of the court.

- Jurisdiction of the defendant is not required as long as the court acquires jurisdiction over the res

- It doe not affect the decision on the merits of the main action

KINDS OF ATTACHMENT:

1. Preliminary attachment or levy on attachment - one issued at the commencement of the action or at any time before the entry of the judgment as security for the satisfaction of any judgment that may be recovered in the cases provided by the rule.

2. Garnishment - Plaintiff seeks to claim either the property of the defendant in the hands of a third party called the GARNISHEE or the money which said third person owes the adverse party.

3. Levy on execution - writ issued by the court after judgment has become final and executory by which the property of the judgment obligor is taken into the custody of the court before the sale of the property on execution for the satisfaction of a final judgment.

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WHEN TO APPLY PA:

1. At the commencement of action

2. Any time before entry of judgment

- It may also be availed by defendant whenever he asserts counterclaim won it is compulsory or permissive.

GROUNDS FOR THE ISSUANCE:

1. Recovery of a specified sum of money or damages EXCEPT moral and exemplary damages on cause of action arising from law, contract, quasi contract, delict or quasi delict against a party about to depart from the PH with intent to defraud his creditors

2. In actions for money or property embezzled or fraudulently misapplied or converted on his own use by a public officer or an officer of a corp or an attorney, factor, broker, agent or clerk in the course of his employment or by any person in a fiduciary capacity

3. Actions to recover the possession of property unjustly or fraudulently taken, detained or converted when the property or party thereof has been concealed or disposed of to prevent being found by the applicant

4. Actions against a person guilty of fraud in contracting the debt (dolo causante) or incurring or performing an obligation upon which the action is based (Dolo incidente)

5. Actions against a party who has removed or disposed of his property or is about to do so with intent to defraud creditors.

6. Actions against non residents not found in the PH or on whom summon is served by publication

- Intended to acquire jurisdiction over the res by converting the action in personam to an action quasi in rem and thus justifying summons by publication.

- It applies in any action where the defendant is designated as an unknown owner or the

like or whenever his whereabouts are unknown and it cannot be ascertained by diligent inquiry

- Service may be applied by publication. It applies to PERSONAM, REM, QREM

- PA can be applied even on appeal

PRELIMINARY ATTACHMENT

FINAL ATTACHMENT

Auxiliary remedy to give security for a judgment still to be rendered

Means for the execution of final judgement

No sale

Always accompanied by sale at public auction

At the commencement and before entry of judgment

After the judgment has become final and executory

Proceeds of sale are in custodia legis

Turned over to the attaching creditor

Intervention is a remedy

Intervention is not a remedy

- PA is issued either ex parte or upon motion with notice to parties.

- When issued ex parte, the writ cannot be enforced and may not be validly implemented unless preceded by a service of summons upon the defendant or simultaneously

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accompanies by service of summons, a copy of the complaint, application for attachment, order of attachment and the attachment

- Bond posted is for the damages, costs which may be adjudged to the adverse party arising from and by reason of attachment.

- The person whose property is to be attached may PREVENT THE IMPLEMENTATION of writ by making CASH DEPOSIT or executing a counter bond to the adverse party equal to the amount of the bond fixed by the court.

- Once the implementation of writ commences, the court must have acquired jurisdiction over the defendant by prior or CONTEMPORANEOUS SERVICE OF SUMMONS.

- Without such, court has no jurisdiction against the defendants

CONTEMPORANEOUS SERVICE OF SUMMONS:

1. Service of summons

2. Copy of the complaint

3. Application for attachment

4. Affidavit and bad

5. Order and writ of attachment.

EXCEPTIONS:

1. Summons count not be served personally or by substituted service

2. Defendant is a resident of the PH temporarily absent therefrom

3. Defendant is non resident

4. Action is one in rem or quasi in rem

- In garnishment, By notice of garnishment court acquires jurisdiction over the garnishee and the later becomes a forced intervenor

- Property legally attached is property in custodia legis and cannot be interfered without the permission of the court.

PRINCIPLE OF SENIORITY OF LIENS - Where the property attached by the judgment creditor had previously mortgaged, the judgment creditor’s lien is inferior to that of the mortgagee which must first be satisfied in the event of foreclosure.

- It is not necessary to serve summons upon the garnishee in order that the trial court may acquire jurisdiction. Service to him of the writ of garnishment is enough.

- Sale at public auction after levy on attachment and before entry of judgement may be ordered when:

1. Perishable in nature

2. Interests of all the parties will be subserved.

- Proceeds will be in custodia legis

- The remedy of adverse party is lifting the attachment through cash deposit or counter bond

IF ATTACHMENT HAS ALREADY BEEN ENFORCED:

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- Notice of the deposit shall be served on the attaching party. Court shall after due notice and hearing order the discharge

- Mere posting of the counterbond does not automatically discharge the writ of attachment

- Ex parte discharge or suspension of attachment is not allowed.

- Upon discharge of an attachment, Deposit or counterbond shall stand in place of the property so discharged.

- Preliminary attachment is not lifted by execution of a compromise agreement even if approved by court.

GROUNDS FOR DISCHARGE OF PA:

1. Debtor has posted counterbond or cash deposit

2. Attachment was improperly or irregularly issued

3. Judgment is rendered against the attaching creditor

4. Attachment is excessive but discharge shall be limited to the excess

5. Exempt from execution

- When judgment against the party whose property has been attached becomes final and executory, the surety on any counterbond given shall become charged on such counterbond and bound to pay the judgment obligee after notice and summary hearing

- Liability on the counterbond automatically attaches without the need of supplemental pleadings

RULE 58: PRELIMINARY INJUNCTION (PRINJ)

INJUNCTION - An independent action brought specifically to restrain or command the performance of an act.

- An original action for injunction may only be filed in the RTC. (Incapable of pecuniary)

- Immediately executory

- Preliminary injunction may be issued by any court having jurisdiction of the main case.

PRELIMINARY INJUNCTION - An ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal to either refrain or perform an act during the pendency of the final disposition of the principal action.

- It is merely a temporary remedy

- It may be extended in cases of extreme urgency where the right is very clear

- Not judgment on the merits. Evidence presented is not conclusive and complete. It is a mere preliminary determination

- Purpose is to preserve status quo and prevent future wrongs

STATUS QUO - The last peaceable and uncontested situation which precedes a controversy. It is the situation at time of the filing of the case

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REQUISITES OF PI:

1. Clear and unmistakable right (Right in esse)

2. Material and substantial invasion of right

3. Urgent need for writ to prevent irreparable injury

4. No other ordinary, speedy and adequate remedy

CLEAR AND UNMISTAKABLE RIGHT - Clearly founded in or granted by law or is enforceable as a matter of law

IF FILED BEFORE A SINGLE SALA COURT

- Notice of the application must be served to the adverse party

- Preceded or contemporaneously accompanies by service of summons

FILED IN MULTIPLE SALA COURT:

- Raffled only after notice of the application is sent to the adverse party or person to be enjoined.

- Contemporaneous service of summons with the copy of complaint

- It is improper for a judge to order a hearing on issuance of TRO where it was not prayed.

- Summary hearing after sheriff’s return

- If granted, party must file a bond as determined by the court

- Order granting Prinj is interlocutory

EX PARTE ISSUANCE OF TRO: (EXCEPTION ONLY)

1. Great irreparable injury would result to the applicant before the matter can be heard on notice

1. Single sala court - Effective only for 20 days FROM SERVICE of TRO

2. Multi Sala court - Raffle must be immediately be conducted without the notice to the person whose property is to be attached. Judge may likewise issue TRO effective only for 20 days from the service

3. Matter of extreme urgency and applicant will suffer grave injustice and irreparable injury

- Executive judge of a multi sala court or presiding judge of a single sala court may issue

exparte a TRO effective only for 72 hours from issuance. TRO must immediately be served to the party sought to be enjoined.

- Presiding judge if the single sala court shall conduct a summary hearing to determine

whether the TRO shall be extended until the application for preliminary injunction can be heard.

- Within 72 hours, the executive judge of a multi sala court who issued TRO shall raffle the

case to an ordinary judge without notice to the person whose property is going to be attached.

- IN NO CASE SHALL THE TOTAL PERIOD OF EFFECTIVITY OF TRO EXCEED 20 DAYS INCLUDING THE ORIGINAL 72 DAYS.

IRREPARABLE - If constant and frequent recurrence that no fair or reasonable redress can be had

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- TRO is deed automatically vacated if not resolved within 20 days. It is not extendible without need of any judicial declaration to that effect and no court shall have the authority to extend or renew the same on the same ground which it was issued.

PERIOD OF EFFECTIVITY:

1. RTC: Effective for 20 days or 72 hours if not extended - EXCEPT: TEPO: Remain effective until case is decided

2. CA: 60 days from the service on the party or person sought to be enjoined

3. SC: Effective until further orders

PRELIMINARY PROHIBITORY INJUNCTION - To prevent PRELIMINARY MANDATORY INJUNCTION - To require

PROHIBITORY INJUNCTION

PROHIBITION

Directed against a party

Directed against a court, tribunal or a person exercising judicial, quasi judicial or ministerial functions

Does not involve jurisdiction

GAD

May be the main action or provisional remedy

Always main action

MANDATORY INJUNCTION

MANDAMUS

Directed to a party or litigant

Commanding a tribunal, board or o cer to perform a ministerial duty

- Prinj should not issue to take the properties out of the possession of one party to place it in the hand of another

- EXC: FEUD to prevent the defendant from committing further acts of dispossession against the plaintiff.

- Within 5 days from the filing of complaint may file for the issuance of PRELIMINARY MANDATORY INJUNCTION to restore him in his possession.

- Within 10 days from the perfection of appeal to RTC of a judgment in an action for FEUD, the court may issue a writ of preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant’s appeal is frivolous or dilatory

WHO MAY GRENT PRINJ:

1. SC in its original and appellate juris

2. CA WON in aid of appellate juris

3. Trial court in cases pending before it

4. SB

5. CTA

LIMITATIONS OF POWERS OF RTC TO ISSUE WRIT:

1. Restrain acts being or about to be committed within its JURISDICTION ONLY

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2.

Cannot issue in ULP

3. Not issue against SEC, Bureau of patents, Trademarks, COMELEC

4. Cannot interfere by injunction with the judgment of a court of concurrent jurisdiction

GROUNDS:

1. Applicant is entitled to relief demanded and the whole or part of such relief consists in restraining or requiring an act for a limited period or perpetually

2. Commission or continuance or non performance of act complained

3. Party, court, agency or person is doing, threatening, or is attempting to do or is procuring or suffering some acts in violation of his rights respecting the subject of the action or proceeding

NO PRINJ ALLOWED:

1. Foreclosure of mortgage by a government bank

2. Only SC may issue any TRO or Print against the government or any of its subdivisions, officials or any person, entity, whether public or private acting under government discretion, to restrain, prohibit or compel the following acts:

1. Acquisition, clearance and development of the right of way and or site or location of any national government project

2. Bidding or awarding of contract/project of the national government

3. Commencement prosecution, execution, implementation, operation of any such contract or project

4. Termination or rescission of any such project

5. Undertaking or authorization of any other lawful activity necessary for such contract of project

- APPLIES TO ALL CASES OF DISPUTES OR CONTROVERSIES instituted by public parties including but not limited to cases filed by bidders or those claiming to have rights through such bidders.

- NOT APPLY when the matter is of extreme urgency involving constitutional issue such that unless a TRO is issued, grave injustice will arise.

- Applicant shall file a bond which shall accrue in favor of the government.

3. Concessions, licenses, permits, patents, public grants as to the disposition, exploitation,

utilization, exploitation and or development of natural resources.

4. Except SC, No court can issue TRO or Prink against lawful actions of government agencies that

enforce environmental laws or prevent violations thereof.

5. RTC shall not enjoin the arbitration proceedings that has already commenced during the

pendency of the petition for relief

6. CA shall not during the pendency of the decision for certiorari from a judgment rendered by

RTC under ADR prohibit or enjoin the commencement of arbitration

- Absence of verification makes an application patently insufficient both in form and substance

- Notice of PRINJ or TRO shall be preceded or contemporaneously accompanied by service of summons together with the copy of the complaint or initiatory pleading.

- EXCEPTIONS:

1. Where the summons cannot be served personally or substituted

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2.

Resident of PH temporarily absent

3. Non resident

- When TRO is issued ex parte because of extreme urgency, The TRO will be effective upon the issuance without prior and contemporaneous service of summons.

- Summons must be immediately be served thereafter together with other documents

PRINJ

TRO

No definite date of e ectivity but if the writ is issued by RTC or the CA, SB or CTA against lower court, the former shall decide the main case or petition within 6 months from the issuance of writ

Does not exceed 20 days including the first 72 hours in RTC, 60 days in CA Indefinite in SC

Restrains or requires the performance of a particular act

Maintanis status quo

Cannot be granted without notice of hearing

May be granted ex parte if the matter is of extreme urgency and applicant will su er grave injustice and irreparable injury

STATUS QUO ORDER - Not a TRO. More in the nature of cease and desist order since it directs the doing or undoing of acts as in the case of prohibitory or mandatory injunction. It has no definite time. It lasts until revoked. Duration may be subjected to the agreement of parties and no bond required

TRO IN EXECUTIVE JUDGE MULTI SALA COURTS

TRO ISSUED BY ORDINARY JUDGE

Good for 72 hours

Good for 20 days including the first 72 hours

Issued before raing

Issued AFTER ra ing

Issued exparte because the matter is of extreme urgency

Issued after summary hearing to determine whether the TRO shall be extended until the application for Prinj be heard

- Writ of injunction may not be denied or dissolved by simply posting a counterbond. The party must show in the hearing that there will be irreparable damage to the party enjoined.

PRINJ

FINAL INJUNCTION

Granted at any stage before the rendition of judgment

Issued in the judgment permanently restraining the defendant or making the PRINJ permanent

RULE 59: RECEIVERSHIP

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INSTANCES WHERE ALLOWED:

1. Applicant has in interest in the property or fund subject of the proceeding and such property is in the danger of being lost, removed or materially injured unless receiver is appointed

2. Foreclosure of mortgage when the property is in danger of being wasted or dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt (Real property only)

3. After judgment, to preserve the property during the pendency of appeal

4. When most convenient and feasible means of preserving it

- Property being placed must be the subject of litigation

- A receiver is not a representative party but a real party in interest. But he cannot file a case without the consent of court.

- GR: Neither party to litigation may be appointed as receiver without other’s consent. Indifferent person

- Not agent of any party. He is an officer of the court.

- May be a principal or ancillary action

- PRINCIPAL: RTC (Incapable of pecuniary)

- Ancillary: Where the main action is pending

- May be resorted to during the pendency of an appeal or even after the judgment becomes final and executory

POWERS:

1. Bring and defend in such capacity in his own name

2. Take and keep possession

3. Receive rents

4. Collect debts

5. Compound for or compromise the same

6. Make transfers

7. Pay debts

8. Invest funds in his hands only by order of the court.

- No action may be brought against the receiver without leave of court.

- An action filed by successor receiver against his predecessor receiver is allowed without leave of court.

RULE 60: REPLEVIN

- Seeking for possession of personal property prior to the determination of the main action for the recovery thereof.

- Principal and provisional relief

- PRINCIPAL ACTION may be filed before RTC or MTC depending on the value of personal property

WHEN APPLIED: At the commencement of the action but before defendant files an answer

- NO REPLEVIN IN APPELLATE COURTS.

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REPLEVIN

WRIT OF PRELIMINARY ATTACHMENT

Recover personal property capable of manual delivery from the defendant and to give the plainticustody during the pendency of the action

Property put in the custody of the court to secure the satisfaction of the judgment

Property belongs to plainti or one over which he has right of possession

Property does not belong to plainti

May be sought ONLY WHEN PRINCIPAL ACTION IS FOR THE RECOVERY OF PERSONAL PROPERTY

Available even if recovery of property is just incidental

Only when defendant is in actual or constructive possession

Even if property is in the possession of third person

Cannot be availed when in CUSTODIA LEGIS

May be availed even in custodia legis

Before defendant answers

Before judgment

Bond is double the value

Fixed by court

Only to personal property capable of manual delivery

All kinds of property

- Replevin and Preliminary attachment cannot be availed at the same time on the same property.

- In PA, It puts the property in custodia legis, thus replevin is not proper.

- If detention of property is actually legal, No replevin

- Sheriff may cause the building or enclosure to be broken open and take the property in possession.

REDELIVERY BOND - Defendant may file such.

- Serve copy of such bond to the plaintiff

- Within 5 days from the taking by the officer.

- Sheriff shall retain possession for 5 days (Period of filing redelivery bond)

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SPECIAL CIVIL ACTIONS

- Kind of action which are governed by its own special rules.

- No cause of action required as compared with ordinary civil action

- MTC has jurisdiction to take cognizance of real actions or those affecting title to real property or for condemnation of or foreclosure of a mortgage on real property.

EXPROPRIATION/CONDEMNATION - Incapable of pecuniary estimation - RTC FORECLOSURE OF REAL ESTATE MORTGAGE: Incapable of pecuniary estimation - RTC

RULE 62: INTERPLEADER

- Special civil action where a person who has property in his possession or an obligation to perform either wholly or partially but who claims no interest in the subject or whose interest in whole or in part is not disputed by others, goes