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03 Remedial Law (SCAPR)
03 Remedial Law (SCAPR)
0, 2016]
(This work is a combination of materials from the Remedial Law Review classes of Attys.
Vera Shayne Salcedo & Christian Villasis. Notes in red are opinions of the lecturers,1 of
authors2 on the subject, or of the reviewee. Cited provisions are from the Rules of Court
unless otherwise provided.)
PROVISIONAL REMEDIES
Provisional remedies are (temporary) writs & processes available during the pendency of the
action w/ may be resorted to by a litigant to preserve and protect certain rights and interests
therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the
case.
The purposes of provisional remedies are to:
Preserve or protect their rights or interests while the main action is pending;
Secure the judgment;
Preserve the status quo; or
Preserve the subject matter of the action.
1. WHAT ARE THE KINDS OF PROVISIONAL REMEDIES? BRIEFLY EXPLAIN EACH.
The case must be any of those where preliminary attachment is proper (Sec. 1,
Rule 57);
The applicant must file a motion with notice and hearing (may be issued ex
parte) (Sec. 2, Rule 57);
The applicant must show by affidavit (under oath) that there is no sufficient
security for the claim sought to be enforced and that the amount claimed in the
action is as much as the sum for which the order is granted above all
counterclaims; and
A bond is filed, executed to the adverse party (attachment bond) (Sec. 3, Rule
57).
REMEDIES
AGAINST
WRONGFUL
OR
IMPROPER
DIFFERENTIATE
PRELIMINARY
If issued by the MTC or RTC: 20 days from service on the party sought to be
enjoined; if a 72-hour TRO is issued, the total period of effectivity of the TRO
shall not exceed 20 days, including the original 72 hours;
If issued by the CA: 60 days from service on the party sought to be enjoined;
If issued by the SC: effective until further orders (Sec. 5, Rule 67).
In computing the effectivity of a TRO, Saturdays, Sundays, and holidays are not excluded
(Marcos-Manotoc vs. Judge Agcaoili). Any court lower than the SC cannot issue a second
TRO; this TRO is void. The remedy is to issue an injunction (Carbungco vs. CA).
5. ENUMERATE THE INSTANCES WHEN THE ISSUANCE OF AN INJUNCTION OR
TRO IS NOT ALLOWED.
Injunction is not proper:
In an action to compel a spouse to cohabit with the other (Arroyo vs. Arroyo);
For restraining consummated acts (Acain vs. Board of Canvassers), except if
the complaint alleges that the defendant will, if not prevented, continue to
perform the objectionable acts (Dayrit vs. De los Santos);
To enjoin a public officer from performing duties specifically imposed by law
(Wong Sin Tong vs. Aquino);
To transfer possession of a property from another (Municipality of Camiling vs.
De Aquino), except in forcible entry cases (Sec. 3, Rule 70).
6. HOW DO WE ASK FOR THE DISCHARGE [OF] A WRIT OF PRELIMINARY
INJUNCTION OR RESTRAINING ORDER?
Two or more claimants with adverse or conflicting interest upon a subject matter
The conflicting claims involve the same subject matter
The conflicting claims are made against the same person (plaintiff)
The plaintiff has no claim upon the subject matter of the adverse claims or if he has an
interest at all, such interest is not disputed by the claimants
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FILING OF COMPLAINT
No affirmative relief
Order
Payment/deposit to court
SUMMONS
Order
Complaint
MOTION TO
DISMISS/ANSWER
MTD on the ground of (1)
impropriety
of
the
interpleader action or other
(2) Rule 16 grounds
(except failure to state
cause of action)
Period to file answer tolled
(remaining 5 days)
Deed
Will
Contract or other written instrument
Statute
Executive order or regulation
Ordinance
Any other governmental regulation
Supervening breach: when breach occurs after the filing of the petition for declaratory relief and
before its final determination, the action is converted to an ordinary action
Similar remedies:
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RESPONDENT
(a) A person who usurps,
intrudes into, or unlawfully
holds or exercises a public
office,
position
or
franchise;
VENUE
SC; CA; RTC exercising
jurisdiction
over
the
territorial area where the
respondent or any of the
respondents resides
when
the
Solicitor
General commences the
action: RTC MANILA;
CA; SC.
LIMITATION
Commence within one
(1) year after the cause
of such ouster, or the
right of the petitioner to
hold such office or
position arose
EXPROPRIATION
Stages
1. Determination of the authority of the plaintiff to expropriate (necessity and public purpose)
2. Determination of just compensation (through the court-appointed commissioners)
Verified complaint
State right and purpose of expropriation
Describe the real or personal property sought to be expropriated
Join as defendants all persons owning or claiming to own, occupying, any part or interest,
showing as far as practicable, the separate interest of each defendant
Answer
When defendant has: (1) objection to the filing of the complaint; (2) objection to the allegations
in the complaint; (3) objection or defense to the taking of the property
Answer may be amended within 10 days from filing (with leave); no counterclaim, cross-claim or
3rd party complaint
Defendant may still present evidence as to amount of the compensation even if defendant did
not file answer
Taking/entry
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R67
Initial deposit only
Deposit equivalent to
assessed value for
taxation purposes
RA 8974
Immediate payment
Market value per tax
declaration of current
relevant
zonal
valuation of the BIR +
value
of
improvements
Time of entry/taking
Upon
filing
of
complaint, with notice
to defendant, and
after deposit
LGC
Deposit
Deposit to the proper
court of at least 15%
of the FMV of the
property based on the
current
tax
declaration of the
property, at the time
of taking
Upon
filing
of
expropriation
proceedings
and
deposit
Order of condemnation:
Declares plaintiff has lawful right to take the property for public use or purpose upon payment of
just compensation
Order is appealable; but will not suspend determination of just compensation
Just compensation
Appointment of commissioners to ascertain just compensation is mandatory
Hearing before the commissioners is indispensable to allow parties to present evidence on the
issue of just compensation
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JUDICIAL FORECLOSURE
R39
R68
EXTRAJUDICIAL
FORECLOSURE
Act 3135, as amended
COMPLAINT
SALE
[MOTION (e)]
JUDGMENT
POSSESSION
[MOTION]
[MOTION (e)]
CONFIRMATION OF SALE
(SUBJECT TO APPEAL)
(SUBJECT TO APPEAL)
Deficiency judgment
Upon motion, judgment will issue for such balance due to the plaintiff.
Deficiency judgment is appealable.
Registration
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Cancellation of mortgagors
certificate of title
Issuance of certificate of
title in the name of the
purchaser
Registration of DEED OF
REDEMPTION and brief
memo on certificate of title
REDEMPTION
Registration of certificate of
sale and order confirming
sale
NON-REDEMPTION
Registration of
certificate of
sale and order
confirming
sale
Brief
memorandum
on the
certificate of
title
Registration of
FINAL DEED
OF SALE
Cancellation of
mortgagors
certificate of
title
Issuance of
new certificate
of title in favor
of purchaser
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REDEMPTION*
EXPIRATION OF REDEMPTION
APPLICATION
SALE
NOTICE
WRIT OF POSSESSION
Jurisprudence
Ramirez v. Manila Banking Corp. (G.R. No. 198800, December 11, 2013)
The Act (3135) only requires
(1) the posting of notices of sale in three public places, and
(2) the publication of the same in a newspaper of general circulation.
Personal notice to the mortgagor is not necessary. Nevertheless, the parties to the mortgage
contract are not precluded from exacting additional requirements.
Carlos Lim, et al. v. Development Bank of the Philippines (G.R. No. 177050, July 1, 2013)
[U]nless the parties stipulate, personal notice to the mortgagor in extrajudicial foreclosure
proceedings is not necessary because Section 3 of Act No. 3135 only requires the posting of the
notice of sale in three public places and the publication of that notice in a newspaper of general
circulation.
What is the legal effect of violating of the deed of mortgage which requires personal notice to
the petitioner-mortgagor by the respondent-mortgagee bank?
Sycamore Ventures Corp. v. Metropolitan Bank and Trust Co. (G.R. No. 173183, November 18,
2013)
Whether the determination of the mortgaged properties appraisal value constitutes a prejudicial
question that warrants the suspension of the foreclosure proceedings
Act No. 3135 has no requirement for the determination of the mortgaged properties appraisal
value. Nothing in the law likewise indicates that the mortgagee-creditors appraisal value shall
be the basis for the bid price. Neither is there any rule nor any guideline prescribing the
minimum amount of bid, nor that the bid should be at least equal to the properties current
appraised value. What the law only provides are the requirements, procedure, venue and the
mortgagors right to redeem the property.
Rules on writ of possession
Nature of issuance
ex parte
non-adversarial
summary and
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21
EJF
No need to file an action
RIGHT OF REDEMPTION: right granted to the
mortgagor to reacquire the property even
AFTER the CONFIRMATION OF THE SALE
and (within 1 year) from the REGISTRATION
OF THE CERTIFICATE OF SALE
No deficiency judgment
Recovery of deficiency thru independent
action
PARTITION
First phase
Whether co-ownership exists
Whether partition is proper and
may be made by parties in
interest
Second
phase
(when parties do
not agree)
O
R
co-ownership
exists;
partition is proper ---accounting of rents and
profits
received
by
defendant from the real
estate is in order
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