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BLESSED ARE THE HEARTS THAT BEND, THEY SHALL NEVER BE BROKEN St. Francis de Sales

SPECIAL CIVIL ACTION

* IN BP 129: RULE ON JURISDICTION: - There are no deviations at all insofar as special civil actions are concerned; - Special Civil Actions (SCA) are also covered by the rule on jurisdiction governing civil cases. - The changes and deviations pertains SOLELY TO PROCEDURAL MATTERS. (MAST: Q: It seems that the general rule is that the rule on jurisdiction provided in the Rules of Court applies. I am just curious of the annotation of Regalado on the fact that Rule 64 is cognizable only by the SC and not concurrent with the CA and RTC, it being just a petition in the nature of Rule 65 which in BP 129 is concurrent. Does this mean that a mere procedural rule can alter a substantive law providing for the jurisdiction of courts?) * General Rule: The ordinary rules of procedure also apply to special civil actions. - Exception: There are some deviations from the rules that apply solely to special civil actions; - These deviations from the Rules apply individually to each and every special civil action that is described in the Rules of Court; -Nota Bene (Note very well): SO, ONE HAS TO INQUIRE INTO EACH AND EVERY SCA AND DETERMINE THE FEATURE WHICH JUSTIFIES THEIR CLASSIFICATION AS A SCA. * Webster Dictionary defines special as something having a particular purpose. Therefore, special civil actions being special have always a procedural deviation.

2 RULE 62- INTERPLEADER * ORDINARY CIVIL ACTION FEATURES (OCAF): - There is a plaintiff and there are defendants; - Commences with the filing of the complaint, which is the general rule concerning all civil actions; - Rule 16, motion to dismiss applies of course to all civil actions as long as any of the grounds in Rule 16 is evident; (MAST: Do we apply the rule on lack of prior barangay conciliation; or arbitration when stipulated; or confrontation of family members as grounds for dismissal? Do we also invoke the ground of lack of cause of action or extinguishment of the obligation there being no cause of action in the first place?); - We also apply the rules on appeal. * SPECIAL CIVIL ACTION FEATURES (SCAF): 1. Is one civil action where the plaintiff is given the prerogative not to allege the cause of action (SEE Rule 2), because the plaintiff does not have a right that has been violated by the defendants, or if he has a right that right is not disputed by the defendant; 2. We NEED at least two defendants (MAST: reason: because of the nature of this particular SCA which is to decide who is entitled to the property or right between two or more defendants, thus according to JARA: the plaintiff is COMPELLED BY LAW to implead as defendants all the claimants to the property.) 3. In interpleader the defendant declared in default automatically loses the case unlike the situation in Rule 9 on partial default (MAST: Note that in that Rule particularly Section 3, the requirement is that there should be a common cause of action against the defendants) where there are two or more defendants impleaded in the same case: generally a decision in favor of the answering defendant will also be favorable to the non-answering defendant although the non-answering defendant has been previously declared in default. (MAST: Is this regardless of whether or not there is a common cause of action against the defendant? There should be a common cause of action in partial default contemplated under Rule 9. This situation is impossible in interpleader since there is actually no cause of action in interpleader. Inquiring further, let us say that there is a pair of defendant which claims to have a common right over a property against another pair {meaning d1 and d2; d3 and d4} how will that be resolved if we file an interpleader?);

NOTE:

Observe the procedural deviation in interpleader when the parties are plaintiff vs defendant 1 and defendant 2; and compare this with the case of plaintiff vs defendant 1 and defendant 2 in ordinary civil action (SEE Rule 9 Sec 3 c). One will immediately see that in interpleader, there is no such thing as partial default as contemplated in ordinary civil action, aside from the fact that there is no common cause of action against defendant 1 and defendant 2 in case of interpleader. Moreover, since there is in fact no cause of action in interpleader, it is impossible for them to share a common defense. 4. Aside from the grounds enumerated in Rule 16, there is another ADDITIONAL ground in interpleader, the defendant in interpleader may file a motion to dismiss founded on the IMPROPRIETY OF THE FILING OF THE COMPLAINT FOR INTERPLEADER; * MAST: REGALADO: Under Sec 5, each claimant shall file an answer and serve a copy; * The Supreme Court has emphasized that interpleader cannot be availed of in an independent and separate complaint AFTER one of the claimants has filed a complaint for the recovery of possession of the property in the custody of the warehouseman. Although the Supreme Court said that interpleader could be setup as a counterclaim in the answer; NOTE: If there is already an ordinary civil action against the warehouseman, he cannot thereafter file a separate interpleader action. This is because to do so would result to the dismissal of the separate special civil action on the ground of absence of cause of action or impropriety of the complaint for interpleader. - There is nothing in the Rules which prohibits the filing of a counterclaim against the original plaintiff and also against a stranger to a case. All that the court will do is to issue a summons to the stranger so that this stranger will be within the jurisdiction of the court in so far as his person is concerned.(MAST: Rule 6 Sec 12) (MAST: What if there is already an interpleader and one or both of the complainants {defendants in the interpleader action} then decided to file a separate and independent action for recovery of property can this be done? How about setting up as counterclaim in the interpleader action the recovery of the possession of property, is that possible? The only answer I can give is that in the first question, there will be litis pendentia. The absence of cause of action will not prevent the application of the rule. What is important is that in either case of interpleader and the subsequent action for recovery of property, the result will

4 be the same and one will be res judicata on the other. There is a possibility of conflicting decisions. As to the second question, I believe that such is possible since anyway he may indeed be the true owner and the warehouseman has improperly initiated the special civil action.) * With respect to jurisdiction it is settled that interpleader is one of the SCAs which could be cognizable by an inferior court depending on the value of the property involved. That is in accordance with BP 129. (MASTER: Interpleader is obviously an action in personam.) * SEE Warehouse Receipts Law; * SEE Appendix of Forms: FORM 5: Answer with Counterclaim for Interpleader: This is the justification why counterclaim for interpleader is possible. The appendix of forms is prepared by the Supreme Court itself. * In case of appeal we apply the ordinary rules.

5 RULE 63- DECLARATORY RELIEF AND OTHER SIMILAR REMEDIES * There are 4 special civil actions in Rule 63: 1. 2. 3. 4. Declaratory Relief Quieting of title (Art. 476ff NCC) Consolidation of ownership in case of sales (Art. 1607 NCC) Reformation of instrument (Art. 1359ff NCC)

* It is not correct to assume that the actions covered by the phrase other similar remedies are also covered by the procedure for declaratory relief. * The other similar remedies are not kinds of declaratory relief. * THE OTHER SIMILAR REMEDIES, namely: quieting of title to real property or remove clouds therefrom, consolidation of title, and reformation of instrument. All of them need a CAUSE OF ACTION. * OCAF: * SCAF: 1. The court is given the prerogative to entertain or not to entertain this petition if the court feels that the petition is not meritorious by simply reading the allegations therein, the court has the authority to dismiss the petition by refusing to entertain the petition UNLIKE in ordinary civil actions; ( MAST: Review: summons, answer, motion to dismiss, non-waivable defenses, rule on summary procedure)(MAST: Can we say that the Rules on summary procedure, special civil actions or special procedure? Summary Procedure consists partly of an ordinary civil action, specifically those of actions governing recovery of claims of 100k or 200k. It just happened that it is an ordinary civil action which is summary in nature. Part of the scope of summary procedure is a special civil action which is FEUD.); 2. There is no cause of action (basis: if you read the Rules it is essential that the petition must be filed before there is a breach or a violation of the law or ordinance or the will or contract involved SEE Sec 1); 3. Rule 39 on execution is not possible because what the court does only in declaratory relief is to declare the rights and duties of the parties in a contract in its judgment. * We cannot expect the petitioner to pray for damages etc.

* Declaratory relief is not conjectural or anticipatory because the filing of the petition for declaratory relief----because there is a threat of a violation of a right even under a contract, or another instrument or a law or ordinance. * The purpose of declaratory relief is to stop a possible litigation. * So the main purpose of the petitioner in declaratory relief is only for the declaration of rights: of his rights and duties under the contract or will; or any other instrument or a law or ordinance. * If it is based on contract the party-defendant should be anyone of the contracting parties, if it involves a law or ordinance, it should be the public official who is in charge of executing the law or ordinance. (MAST: So it seems that we call the one who filed as petitioner and the one who should be impleaded as party-defendant? SEE Secs 2, 3 and 4) * We still need a defendant in this special civil action SEE Sec 2. * The actions covered by the phrase "other similar remedies" do not follow the procedure for a petition for declaratory relief, the court is duty bound to observe the procedure in ordinary civil actions. (SEE Sec 5) * The court can outrightly dismiss the petition in declaratory relief. (SEE Sec 5) * Compare declaratory relief with interpleader with regard to the power to outrightly dismiss or refuse to entertain. In interpleader, the court cannot do this. (SEE Sec 4 Rule 62) * The petition for declaratory relief is EXCLUSIVELY cognizable by the RTC because the subject matter is incapable of pecuniary estimation.(BP 129 Sec 19) * The complaint for the quieting of title MAY NOT be exclusively cognizable by the RTC. Under BP 129, actions involving title to or possession of real property could be cognizable by both an inferior court or by a RTC depending upon the assessed value of the real property. * WARNING: If you are asked the jurisdiction over a petition for declaratory relief AND other similar remedies, do not jump IMMEDIATELY to the conclusion that these PETITIONS are cognizable by the RTC. (MAST: How about consolidation of ownership in case of sales and reformation of instrument, where do we file them? I think in case of consolidation of ownership and in case of reformation of instrument it is clear that they are actions not capable of pecuniary estimation.)

7 RULE 65 - CERTIORARI, MANDAMUS AND PROHIBITION SEE: A.M. NO. 07-7-12-SC RE: Amendments to Rules 41, 45, 58 and 65 NOTE: MAST: THE IMPORTANT AMENDMENTS IN RULE 65 - Sec 4: : The phrase in the old version The petition shall be filed in the Supreme Court.. was omitted in the present amendment. Purpose of the amendment: To further bolster the policy of the Supreme Court of discouraging parties to directly resort to it. The Supreme Court remains to have jurisdiction over Rule 65, however, since it has authority over procedural matters it can regulate the direct filing of petitions before it. It does not violate the Constitution because our fundamental law gives the power to the SC to make amendments. The operative word in the Constitution is as the law or the Rules may provide. : This paragraph was added to the former provision: In election cases involving an act or an omission of a municipal or regional trial court, the petition shall be filed exclusively with the COMELEC, in aid of its appellate jurisdiction. (MASTER: What do you mean by in aid of appellate jurisdiction? It means that the decision in the main case must in the first place be appealable to the appellate court or within its appellate jurisdiction. Rule 65 is in aid meaning the grounds provided by the Rules are present and the said exercise of appellate jurisdiction is not the speedy remedy. Thus, when the main case is not appealable or if appealable, the same is within the exclusive appellate jurisdiction of a certain court, the petition could not be instituted for example with the COMELEC as it would not thereby be acting in aid of its appellate jurisdiction.) - Sec 7: : A second paragraph was added: The public respondent shall proceed with the principal case within ten days from the filing of the petition for certiorari with a higher court or tribunal, absent a TRO or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge. Purpose of amendment: I believe that this is to avoid the delay that a petition for certiorari might cause on the pendency of the principal case or proceeding in question. The possible sanction on the judge, in some way, cushions the severe

8 penalties on the lawyer availing of the remedy and the risk he takes when he avails of this remedy. - Sec 8: : An additional sentence was added to the second paragraph: In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting the counsel to administrative sanctions under Rule 139 and 139-B of the Rules of Court. : An additional third paragraph: The Court may impose motu propio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari. : Purpose of amendment: It is obvious. OTHER IMPORTANT AMENDMENTS * RULE 45 Sec 1: - The Court of Tax Appeals was included in the enumeration of decisions of courts that can be elevated through petition for review on certiorari; - Another significant amendment is the express mention of the applicability of provisional remedies. There are two ways to avail of provisional remedies under the amendment: 1. The petition under Rule 45 may INCLUDE an application for a writ of preliminary injunction or other provisional remedies; (MASTER: the provisional remedy here is embodied in the petition itself) 2. BY VERIFIED MOTION filed in the same action or proceeding at any time DURING ITS PENDENCY; * RULE 41: - This ground was omitted from the former rule: (a) An order denying a motion for new trial or reconsideration Purpose of amendment: It appears that the ground was omitted for the simple reason that it was redundant. If you will look at Rule 37 Sec 9, you can arrive at the conclusion that the omission did not make the said omitted ground appealable. It remains to be NOT APPEALABLE. If the intention was really to

9 make it appealable, then the Revision Committee should have also omitted Rule 37 Sec 9. * RULE 58: - There was an additional 5th paragraph: The trial court, the CA, the Sandiganbayan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer or quasi-judicial agency shall decide the main case or petition within six months from the issuance of the writ. Purpose of the amendment: So that there will be no indefinite suspension of the proceedings of the main case to the prejudice of the parties. DIFFERENCES: Rules 65, 45 and 64 I. Rules 64, 65 and 45 envisions different factual antecedents. II. * Rule 45 is a mode of appeal. * Rule 64 is a mode for review from the decisions of the COA and COMELEC. It is also a mode of review (MAST: like appeal) ALTHOUGH the form and the requirements to be satisfied are those given in Rule 65. (MAST: So it seems that Rule 64 is not strictly a special civil action? It is still a special civil action, even if it is actually a mode of review. That does not change the fact that it has many procedural deviations characteristic of a special civil action.) NOTE: Rule 64 is a mode of review but the mechanism is Rule 65. The period to appeal (MAST: which is 30 days) should always be followed, even if the appellant has mistaken the period to be 60 days as in certiorari, the court will outrightly dismiss the appeal. * Rule 65 is a special civil action. III. * The questions usually allowed under Rule 45 are questions of law not necessarily related to jurisdiction of the court, AS LONG AS the question involved is a question of law. (MAST: So it seems that when the question is one of jurisdiction you can avail of either or both remedies? One can only avail either remedies, this is because before Rule 65 can be availed of there should be no plain, speedy or adequate remedy in the ordinary course of law. Therefore ordinarily when there is a question on jurisdiction we appeal, unless such order

10 disposing the question of jurisdiction is an interlocutory order or a final order without prejudice, as the case may be.) * NOTE: MEMORIZE the 11 instances where questions of law may be raised in the SC. * In Rule 65 (certiorari) the question that could be raised is ONLY a question of jurisdiction. A question of jurisdiction is ALWAYS a question of law. IV. * In Rule 45 it is expressly provided that the period could be extended for another 30 days. SEE Sec 2; (MAST: Note the Fresh Period rule in Neypes Case whenever there is a motion for new trial and reconsideration) * There is no mention in the Rules about the extension of the 60 day period in Rule 65. (SEE recent amendment to Sec 4) ??? V. * Generally, the availment of Rule 45 will stop the execution of the order subject of the appeal. (MAST: Except execution pending appeal. SEE Sec 2 Rule 39, and analyze Sec 1 Rule 39) * In Rule 65 the filing of the petition does not stop the trial court from going again with the case unless the court issues the writ of preliminary injunction. * So, while theoretically a petitioner is given the choice as to which court will hear his petition for certiorari, this privilege is really delimited by another principle contained in Rule 65, the principle of hierarchy of courts. (SEE recent amendment to Sec 4) * The purpose of the rule on Hierarchy of Courts is to discourage the filing of certiorari to SC (MASTER: SEE Sec 4, 2nd paragraph as amended that omitted the SC altogether, to implement the policy for the petitioner to choose either RTC or CA) * Note Sec 4 of Rule 65. * The dismissal of the petition for violation of the principle of hierarchy of courts will not prevent the petitioner from filing a similar petition before the proper court. * SCAF: A. The court is given the authority to outrightly dismiss the petition just like

11 declaratory relief; B. The court does not issue summons, what the court issues is an ORDER TO COMMENT addressed to the respondents; C. The period to comment is fixed in the Order. D. There is no such thing as declaration of default, the court will just continue hearing the petition and the court will simply render a judgment based on the petition filed by the petitioner. - this is because under Rule 65 there is usually no factual issues involved, the issues refer to issues of jurisdiction; (MAST: What are the possible instances when there can be issues of fact?) E. The public respondent though impleaded is not allowed to defend himself openly. The duty to defend the public respondent lies upon the private respondent; * The public respondent must be impleaded but only as a nominal party. * Certiorari, prohibition and mandamus are three DISTINCT AND INDEPENDENT petitions. * The introduction of Rule 41 together with Art VIII Sec 5 of the Constitution greatly broadened the application of Rule 65 and now covers also final orders not only interlocutory orders. * So Rule 65 (certiorari) is no longer limited to challenging interlocutory orders. Final orders and even judgments could be subject now of Rule 65, as could be gleaned from Rule 41 which enumerates the instances when there could be no appeal. (MAST: How about prohibition and mandamus, can they assail final orders, judgments? Yes of course as long as the requisites under Rule 65 Sec 2 and 3 are complied with in relation to Rule 41 as may be appropriate. Rule 41 states the appropriate special civil action as provided in Rule 65.) * According to the SC: There could be an award of damages in certiorari and prohibition even if there is no express mention in the Rules like that in mandamus. Thus the award of damages in certiorari and prohibition is not expressly provided by the Rules, it is given BY VIRTUE OF A COURT DECISION. * Even if there is no express mention in Sec 1 and 2 on the award of damages, the SC ruled that such award for damages is contemplated by the broad concept of "incidental relief as law and justice may require."

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* The recovery of damages arising from the wrongful acts should be incorporated. If it is not incorporated then it is barred by res judicata. (SEE Rule 39 Sec 47 par. b) Thus there can be no separate action for damages because that will be in effect a splitting of a cause of action. * The said award of damages may be executed through the use of Rule 39. But generally we do not use Rule 39 to enforce this special civil action. The proper remedy is contempt. * Rule 65 is enforced by a petition for contempt. * Correlate Rules 64, 41 and 16, 17 and 18 * In addition to the grounds enumerated in Rule 16, another ground for a motion to dismiss is when petitioner violates the principle of hierarchy of courts in Sec 4 Rule 65. * Important to determine when it is with or without prejudice, for the correct remedy. * One could always file a complaint if the dismissal is without prejudice. * QUERY: When the MOTION TO DISMISS on ground of lack jurisdiction is denied, which is an interlocutory order, and the defendant really believes that there is lack of jurisdiction, what is the remedy considering that in Rule 16 he will be required to answer? Petition for prohibition, is the correct remedy: to prohibit the respondent court from proceeding, that is to stop requiring an answer from defendant. To avoid answering, a provisional remedy for the issuance of the writ of preliminary injunction may be applied for in the petition for prohibition. The present practice is to file an ANSWER AD CAUTELAM together with the petition under Rule 65. It is called ad cautelam, because the answer is filed just to avoid being declared in default and at the same time the answer will not be construed as a waiver. The filing of the answer ad cautelam will in effect be just a precautionary measure. The remedy solves this dilemma: If the defendant does not file an answer he may be declared in default. If however he files an answer he may be deemed to have impliedly waived the defense of lack of jurisdiction. If instead of filing a petition for prohibition, the defendant files a petition for certiorari, the SC ruled that the petition for certiorari will be considered or treated as if a petition for prohibition. This is because the requirements of the two remedies are practically identical, thus the error will be disregarded.

13 RULE 66- QUO WARRANTO (QW) * Under our new statutes, QW is a special civil action which is cognizable by all courts even inferior courts. (MAST: Just like contempt under Rule 71) QW proceeding involving public officials of the barangay level are cognizable exclusively by inferior courts. (MAST: Sec 191 Election Code; Sec 20 BP 222 Barangay Election Law; Sec 8 RA 3590 Revised Barangay Charter: Will these laws adopt the procedure in Rule 66? Probably, since they seem to be the legal basis why the inferior court has jurisdiction over QW proceedings.) * The petition for QW is designed for the purpose of determining who between the contestants is entitled to hold office, either a CORPORATE OFFICE OR A PUBLIC OFFICE. * SCAF: 1. This is one proceeding which violates the rule on splitting the cause of action and there is no sanction for this splitting. The basis is that once the court has decided that the plaintiff is entitled to a particular office and the judgment becomes final, the law authorizes the winning party to file a subsequent complaint for the recovery of damages arising from the usurpation of that office. (SEE Secs 10 and 11) 2. The court is given the prerogative to reduce the period for pleading (this is not the case even in other SCAs)(SEE Sec 8) * The petitioner really is not given much choice. He has to comply with the principle of hierarchy of courts mentioned in Section 4 of Rule 65 (Note that there is nothing mentioned about the applicability of the principle of hierarchy of courts in the Rules. The applicability of the principle has its origin in jurisprudence.); * The difference between mandamus and quo warranto: - Mandamus: damages cannot be filed in a separate complaint; - Quo Warranto: we allow a separate complaint for damages; * A relator can initiate a quo warranto proceeding, even without the assistance of the Solicitor General. (MASTER: SEE Sec 5)

14 RULE 67- EXPROPRIATION * SEE BP 129 Sec 39 on Multiple Appeals; * The issue that may be resolved in any expropriation proceeding is whether or not the plaintiff has the right to expropriate. If that is the first issue, then that is really incapable of pecuniary estimation. Once that issue is decided by the court, then the court can go to the other principal issue which could be related to the value of the property, so that regardless of the assessed value of the real or personal property that is the subject of expropriation, an expropriation case will always be cognizable by the RTC. * SCAF: 1. There is stage 1 and stage 2: - stage 1: the adjudication by the court, as to whether the plaintiff has the right to expropriate, after determination that the plaintiff has right to expropriate; - stage 2: the determination of just compensation; 2. The decision in Stage 1 is a final order or decision and therefore appealable. The decision as to just compensation is another final order or judgment, which is also appealable; 3. When the rules allow multiple appeals to be taken in one and the same proceeding that means to say that the rules on appeal will be different from ordinary civil action. Thus, the period to appeal is extended to 30 days and there is another requirement for the submission of the record on appeal. 4. One civil action which is not governed by Summary Procedure but there are prohibited pleadings. NOTE: Reason why there are prohibited pleadings: The court is authorized to determine title and other issues. There is no need for the litigants to file claims, the court will see to it that the claims are paid by just compensation whether or not they are involved in the litigation. (MASTER: SEE Sec 9.) 5. Even if the defendant has previously been declared in default, he is still allowed to participate in the trial of the issue of just compensation.

15 NOTE: In so far as the first issue (the propriety of expropriation) is concerned he is in default, but in so far as the second issue (just compensation) is concerned he can participate in the trial. 6. Trial by commissioner is mandatory. * SC decision: Even if the defendant has received the money offered by the plaintiff, there is nothing that will prevent the defendant from elevating the matter insofar as the propriety of the expropriation is concerned. * There can be an immediate issuance of writ of possession in expropriation even before the defendant gives his side or is heard, as long as the deposit required by law is given. This is a ministerial duty on the part of the court. (MASTER: Sec 2 Rule 67) * After control or taking of property, it cannot be dismissed since there is a second stage. * Even if there is an appeal of 1st stage, the 2nd stage could still proceed. * QUERY: In case that the property is in the possession of the defendant but is in reality owned by national government, what is the proper remedy? Expropriation is proper. It can be filed against the occupant or unlawful possessor, not only against the owner. This remedy is more expedient and favorable to the government because the complainant, the owner-national government in this case, can immediately take possession of the property. FEUD is also another option, but this is more tedious. * Rule 36 on Separate Judgment VS Judgments rendered in Expropriation Proceeding: In Expropriation, both the judgment on the right to expropriate and the judgment on accounting are appealable. However, in separate judgments they are not appealable, if a party wants to appeal, he must get the consent of the court. The remedy is Rule 65. (SEE Rule 41 (f) as amended) * In Rule 32 appointment of commissioner is also an incident of an ordinary civil action. The difference from expropriation is that, in Rule 32 it is discretionary. The court moreover may motu propio appoint commissioners, even if the parties object under certain instances. (SEE Sec 2 Rule 32) However in expropriation, whether the parties object or agree, it is mandatory.

16 * Rules on appeal: - 30 days, record on appeal * If on appeal the SC reversed the right to expropriate, the Rules state that the trial court will see to it that the defendant is restored to his property and will determine the amount of damages which is expressly provided for in Sec 11. * According to the SC, the complaint for damages arising from the wrongful expropriation could be subject of a separate complaint. It is allowed. The justification is that the defendant cannot file a counterclaim being a prohibited pleading in Sec 3. So, there is really nothing he can do in the expropriation case if the RTC did not award damages pursuant to Sec 11. We follow the same rule in Quo Warranto. There is no express mention of this remedy in Rule 66, but there is nonetheless a Supreme Court decision to support the remedy of a separate complaint for damages.

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RULE 68- FORECLOSURE OF REAL ESTATE MORTGAGE I. Nature * What is contemplated in the Rules is a JUDICIAL foreclosure of real estate mortgage. II. Chattel Mortgage * This Rule has nothing to do with foreclosure of Chattel Mortgage. * QUERY: How does a mortgagee foreclose chattel mortgage? The recourse is to file a complaint for replevin. Once the possession of personal property is recovered, then foreclosure may commence. III. Extra-judicial Foreclosure * Extra-judicial foreclosure of real estate mortgage is allowed ONLY if the mortgagee is given a SPECIAL POWER OF ATTORNEY to foreclose the mortgage extra-judicially in the Deed of real estate mortgage. * A mortgage can never be a principal contract. A mortgage is ALWAYS an ACCESSORY contract. IV. Jurisdiction * It is settled that regardless of the amount sought to be recovered, a judicial foreclosure of mortgage is always cognizable by the RTC EXCLUSIVELY. - REASON: The first issue that will always be resolved when it comes to judicial foreclosure of mortgage is this: Does the plaintiff have the right to foreclose the mortgage? By itself alone, that question is not capable of pecuniary estimation. (MAST: What can defeat the right of the mortgagee to foreclose?) V. Three Stages: - 1st: determination by the court of whether the plaintiff has right to foreclose; - 2nd: foreclosure itself of mortgage; - 3rd: concerned with recovery of deficiency, IF there is any; (MAST: It is obvious that there could be a case where there will be two stages only, if there is no deficiency.)

18 * The court can render three final decisions: A. on the right to foreclose, B. propriety or regularity of the foreclosure itself, and C. the recovery of deficiency if there is any after the sale of the property; * This is one action which admits of multiple appeals. * The rule is the same as in expropriation on multiple appeals. The court can render three final decisions. The special civil action of judicial foreclosure of real estate mortgage is MULTI-STAGED. VI. Parties * This is one of the few civil actions where the rules themselves tell the petitioner who should be sued in court. However, the only indispensable parties are the mortgagee, who is of course the plaintiff in the case, the debtor and the mortgagor. The other parties identified in the Rules are only necessary parties. A. Indispensable parties: The SC held that the indispensable parties are: the borrowers, mortgagor and of course the mortgagee (plaintiff). But the persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, they are only necessary parties. (SEE Rule 68 Sec 1) B. Necessary Party A person who has interest inferior to the foreclosing mortgagee is only a necessary party. NOTE: If the mortgagee is ordered to implead a necessary party, there will only be a waiver of rights of the plaintiff of any claim against a necessary party not impleaded. (SEE Rule 3 Sec 9) C. Important: Mortgage 1, 2 and 3: * If the owner of the piece of land was able to mortgage his property to three different mortgagees that simply means that he is able to obtain a loan three times from three creditors. Usually, the rule is mortgage 1 is superior to mortgage 2 and 3. However there is nothing wrong if mortgagee 3 will foreclose ahead of mortgagee 1 and 2. As long as the obligation secured by mortgage 3 matures ahead of 1 and 2.

19 The rule is that all these mortgages are valid being merely a lien or encumbrance upon property. * The debtor in a contract of loan could be different from the mortgagor of the property. * The only reason why the law requires that mortgagees 2 and 3 should be impleaded is for them to loose their right of redemption. (MAST: Is it important to determine whether or not the principal obligation has become due or not?) * If one mortgages his car, a second or several times it is a criminal act. But if one mortgages real property several times it is just fine, as can be implied from Sec 1 on the concept of inferior lien holders. * If Mortgagee 3 commences a special civil action for foreclosure he need not implead Mortgagees 1 and 2. This is so, since each mortgage is independent from each other. The interests of Mortgagees 1 and 2 are superior (being prior liens). Even if the property is sold in public auction and the sale subsequently confirmed, Mortgagee 1 and 2's interests or lien on the property have to be annotated in the certificate of sale. That is the reason why there is no need to implead them. (MAST: Since they are sufficiently protected.) VII. Equity of Redemption * The court will order to pay within a fixed period of time mentioned in the Rules. This period is referred to in substantive law as the equity of redemption. * The equity of redemption continues to exist even if there is already a public auction sale, it runs until confirmation of the sale. * Resort to judicial foreclosure is avoided because of the possible increase in period within which an equity of redemption may be exercised. This is in view of the multiple appeals that are allowed. The entry of judgment is the reckoning point of the 90-120 day period. (SEE Sec 2) * As long as there is an appeal in the 1st and 2nd judgment (judgment on right of foreclosure and order on confirmation of sale respectively), equity of redemption exists. Until the issuance of the order of confirmation of public auction sale, the equity of redemption still exists. There is no fixed term as long as there is an appeal pending. The third stage, which is the recovery of deficiency, may or may not exist. (MAST: Caveat: I cannot personally understand what is meant by this paragraph.)

20 NOTE: * In extra-judicial foreclosure there is such a thing as the right of redemption. The right of redemption is the one given at Rule 39, for mortgagors who are natural persons: within a period of one year from the registration of the deed of sale. * There is no right of redemption in Rule 68, even if we follow the procedure on levy on execution of real estate sale in Rule 39. VIII. Deficiency * After the sale is confirmed then the court will determine whether or not there is a deficiency. If there is, the court will order the debtor to pay the deficiency which can be enforced under Rule 39. * The mortgagor may use Rule 39 to levy on execution of other properties belonging to mortgagor to get the deficiency. * What the Civil Code refers to when it says that the deficiency is not recoverable, is when there is chattel mortgage and the subject loan is payable in installments.(SEE Recto Law: Art. 1484 NCC) (MAST: It is reasonable to conclude that in case of loans not payable in installments which are secured by chattel mortgage, deficiencies are recoverable. Only a chattel mortgage securing a loan payable in installments that recovery of deficiency is impossible.) IX. Judicial Intervention in Extra-judicial Foreclosure * In extra-judicial foreclosure, there is no court intervention AT THE OUTSET. Everything is done through the sheriff of the court or the clerk of court although under our present system, there should be an application for extra-judicial foreclosure to be filed with the court. * Even if the foreclosure is extra-judicial, there will be a court intervention when it comes to the recovery of the foreclosed property. Thus the highest bidder will file a motion for the issuance of the writ of possession. * ACT 3135: Real Estate Mortgage Law: In Extra-judicial foreclosure because of the need for SPA, it is really the mortgagor who decides in the deed of mortgage whether that remedy can be availed of. The statement in textbooks that there is no judicial intervention in extrajudicial foreclosure is inaccurate. The mortgagee will be eventually seeking

21 the court. The mortgagee, after the confirmation of sale, (in case he is the highest bidder) may ask or petition the court for the writ of possession and control of the collateral. * The Extra-judicial mortgagee does not have to possess the property. If he decides, he may file a petition with clerk of court of the RTC or seek the assistance of a notary public. The clerk will raffle the petition among the sheriffs. The sheriff will then prepare the notice, then there will be a public auction. There will be issuance of certificate of sale to the highest bidder. If no right of redemption is exercised within the prescribed period, title will be consolidated. The mortgagee may then move or a file a petition for the issuance of the writ of possession. The remedy is neither a special civil action nor an ordinary civil action. The remedy is a mere motion, a petition which is incident of a land registration proceeding. And the court has the MINISTERIAL duty to grant the motion. The decision should be heard ex parte. There is thus no need to notify the mortgagor. X. Provisional Remedy * Provisional remedy: receivership of the collateral. SEE Rule 59 Sec 1 (b). * The mortgagee can move for writ of preliminary attachment. The rules do not exclude this possibility as long as the requirements in Rule 57 are complied with. Not over the collateral but over the other properties of the mortgagor, remember that one of the allegations in the application for writ of preliminary attachment is that there is no sufficient collateral. SEE Sec 3 of Rule 57 * A complaint for foreclosure with the prayer for receivership (SEE Rule 59 Sec 1 b) and writ of preliminary attachment is possible. XI. Judgment by Default * If the parties did not answer, follow the ordinary procedure. Thus there could be a judgment by default ultimately.

22

RULE 69 - PARTITION I. Nature * The term partition connotes the idea of CO-OWNERSHIP among several persons. (MAST: Review Laws on Property {Art. 484ff NCC} and Wills & Succession {Art. 1078ff NCC}) * If one of the co-owners wants to leave or get his portion over the objection of other co-owners, he cannot be forced to remain in the co-ownership. The coowner who wants to leave may file this special civil action. (MAST: What if two co-owners want to leave and three do not want?) He must implead all other coowners because they are indispensable parties. * The co-owners can agree among themselves voluntarily, BUT if they cannot agree among themselves voluntarily, that is the time that a court proceeding becomes necessary. * The Rule contemplates a situation where the co-owners cannot agree. II. Amicable Partition * Even if a complaint is already filed, there is nothing that will stop the parties from voluntarily entering into a CONTRACT for partition of the property. * After the court determines that the co-owner has right to partition, the court may then proceed to ask if the co-owners want to agree on a partition. If they want to agree then there will be a deed of partition. Thereafter the court will render judgment based on that deed of partition executed amicably by the parties. III. Commissioners * But if they cannot agree, then the court shall appoint commissioners. Partition is similar to expropriation in this matter. (SEE Sec 2) (MAST: It seems that the appointment is also mandatory by the use of the word shall) (MAST: Is this appealable? Probably not, being an interlocutory order. The remedy is Rule 65.) IV. Co-Owners: Indispensable Parties * All the co-owners or co-owners pro indiviso should be impleaded as INDISPENSABLE PARTIES. Failure to implead one will subject the complaint to

23 dismissal for failure to state a cause of action. * When it comes to partition when there is a co-owner left out, the judgment will never become final. And the only way to follow this procedural principle is to allow the co-owner, who has not been impleaded, to intervene in the proceeding even after the court has rendered judgment. (SEE Rule 19) V. Multiple Appeals * Just like expropriation and foreclosure of real estate mortgage, partition is a civil action which admits of multiple appeals. The special civil action consists also of multiple stages. VI. Other Matters * Up to the last centavo there can be a division * Stage of Accounting is another final judgment.

24 RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER (FEUD) I. Nature * In both cases (forcible entry and unlawful detainer), the issue is physical possession of the property. It does not involve real possession of the property, that is, possession as a real right. It does not involve ownership. * Note that accion reinvindicatoria, accion publiciana may be tried by the inferior court depending on the assessed value of the property; and accion interdictal, the law vests exclusive original jurisdiction to the inferior court regardless of the value of the property and regardless of the monetary award which the plaintiff seeks to recover: all these three actions could be cognizable by an inferior court * These two actions involve ONLY real properties: - for the recovery of personal property, an action for replevin is the proper action which can be filed in the RTC or MTC depending on the value of the personal property determined by the plaintiff in his complaint. * The SC has repeatedly emphasized that in a complaint for forcible entry, the plaintiff must allege in the complaint that he held PRIOR PHYSICAL POSSESSION. II. Issue of Ownership * The issue of ownership will not be a justification of the court to dismiss the complaint, but it is enough justification for the court to rule on the issue of possession as well as the issue of ownership. But when it comes to the issue of ownership, the finding of the court will ONLY BE PROVISIONAL (a separate accion reinvindicatoria may later be filed). III. Demand * The requirement of prior demand to pay and vacate may or may not be jurisdictional when it comes to unlawful detainer: A. Contract Existing and There is Violation While contract still running, and there is failure to pay rental: until the tenant receives from the landlord the demand to pay and to vacate, the possession is still lawful; when such demand is ignored then the possession becomes unlawful; thus IN THIS CASE prior demand to pay and vacate is JURISDICTIONAL;

25 B. Contract Expired If the contract of lease has already expired: NO NEED for prior demand, a case for unlawful detainer can be filed; C. Implied Lease If there is an implied lease, that is, if within 15 days the lessor fails to file a complaint, then the filing of the complaint after this 15 day period needs a prior demand to pay and vacate; (MAST: This last case needs a clarification. The Jara Notes is very misleading on this matter. It seems to appear that prior demand to pay and vacate is necessary on the 16th day onwards without qualification. BUT upon talking with Dean Jara, I had my enlightenment. First point, upon failure to file a complaint for unlawful detainer within 15 days after the expiration of the contract, an implied new lease or tacita reconduccion as contemplated in Art 1670 of NCC arises. Thus, if for example the original contract is for one year, then the 16th day is actually the first day of the new year-long implied lease with same terms as the original contract. The second point to consider: filing a complaint for unlawful detainer after the lapse of 15 days needs a prior demand is inaccurate. Prior demand to pay and vacate is necessary only if there is non-payment of rentals within the implied lease contract OR there is failure to comply with the terms of the contract which would require them to vacate the premises. Thus, without any violation of the new implied contract of lease by the lessee while the period of the new implied contract of lease is still running, then no prior demand is necessary because there is no cause of action in the first place. Third and final point, prior demand is not necessary when the said new implied lease expires. Thus, in our example after a year or the expiration of the new implied lease period, prior demand to pay and vacate is not necessary for filing the unlawful detainer case, provided that the 15-day period has not lapsed. Again within 15 days and the lessor files no complaint, a new implied lease is created subject to the rules discussed above. NOTE: According to the SC, the 1 year period can be reckoned from the time of discovery, if there is forcible entry on the ground of stealth or strategy. In all other instances we follow the general rule, which is from unlawful possession. IV. Special Civil Action: Reason * QUERY: Why are forcible entry and unlawful detainer special civil actions? Is it because they are governed by the Rule on Summary Procedure (RSP)? No. We have to look for a procedural deviation aside from RSP. This is because recovery of loans in the amount of 100K or 200K as the case may be, is also governed by RSP. Such another action governed by the RSP remains to be an ordinary civil action though it has deviations consistent with its summary

26 nature. (SEE Rule on Summary Procedure Sec 1 A) V. Rule 16 and Affirmative Defenses * The difference between ordinary procedure and RSP when it comes to Rule 16 is that in RSP, it is the court that will motu propio dismiss the case if any of the grounds is evident from the face of the complaint. (SEE RSP Sec 4; Rule 70 Sec 5) * The Rule on Summary Procedure does not prohibit the defendant from filing an answer and in that answer, affirmative defenses are set up and these affirmative defenses are those found in Rule 16. ( SEE Rule 70 Sec 6; RSP Sec 5) VI. No Declaration of Default * Note that there should not be a declaration of default, but the plaintiff can simply file a motion for the rendition immediately of judgment OR the court may motu propio render such judgment if the defendant does not answer. - such immediate judgment is justified because the pleadings must be VERIFIED. (SEE Rule 70 Secs 4, 7 and 13; RSP Secs 3B, 6 and 19) VII. Examination of Witnesses Not Followed * The ONLY Rule on Evidence that is NOT followed when it comes to FEUD is the EXAMINATION OF WITNESSES. (SEE Rule 70 Sec 10; RSP Sec 9) NOTE: However, in criminal cases under RSP, the witnesses can be compelled to go to court for the purpose of cross-examination. (SEE RSP Sec 15) VIII. Immediately Executory * In addition to actions for injunction, receivership, accounting and support (IRAS) in Rule 39 Sec 4 which are immediately executory, we include FEUD. Meaning, a court has the ministerial duty to execute the judgment. FEUD is covered by the statement and such other judgments as are now or may hereafter be declared to be immediately executory. * But this rule on immediate execution in case of FEUD applies only when the judgment is in favor of the plaintiff. (MAST: Is this principle applicable also to IRAS?)

27 IX. Supersedeas Bond * The SC has ruled several times that a supersedeas bond covers ONLY the back rentals and damages awarded by the court. (Thus attorneys fees are not covered.)(SEE Sec 19) * The filing of a superdeas bond depends on the tenor of the decision. The bond is only a guaranty that the plaintiff will eventually recover the back rental awarded by the court in its judgment. Thus if there is no back rental awarded, no supersedeas bond is needed. (MAST: only deposit is needed) X. Damages: As to the question of whether damages in FEUD only includes back rentals, Dean Jara said that the old cases say that it is only limited to back rentals agreed upon or if there is no agreement, payment for the use and possession of the premises. In Progressive Development Corp, Inc. vs CA (301 SCRA 637) the SC however ruled otherwise and announced that unliquidated damages may also be awarded. When I asked him he said, that it is good if one will cite and apply the two views. Because the Progressive case, as it stands, is neither affirmed nor abandoned. But of course the Progressive case is the latest view of the SC. XI. RTC: Appeal * If during the appeal the defendant does not deposit the monthly rental to the court as required by the Rules, the RTC can also order the immediate execution of the judgment. BUT you will note that immediate execution ordered by the RTC as an appellate court is only PARTIAL EXECUTION. Meaning, only the eviction of the defendant from the premises will be carried out. But in so far as the question of payment of money is concerned, that will not be subject to immediate execution. (SEE Rule 70 Sec 19) * Note when the case is elevated to the RTC, the RTC is no longer covered by summary procedure. * The only way to avoid the immediate execution of the judgment by the RTC is to seek from the CA a writ of preliminary injunction. (SEE Rule 70 Sec 21) XII. Real Action In Personam * According the SC, FEUD is still an action in personam, it is a real action in personam. This is an exception to the Rule that a decision in an action in personam is enforceable only against the parties to the case.(MAST: In the sense

28 that the judgment is also binding on the sub-tenant, the guests, the relatives and any one who derives justification of they stay from the lawful possession of the lessee.) XIII. Rule 41 and Rule 40 If the defendant files a Motion to Dismiss on ground of lack of jurisdiction for absence of demand, and the court dismisses, this is a dismissal without prejudice. QUERY: Can the plaintiff avail of Rule 41? But Rule 41 says it is not appealable, can he file a petition under Rule 65? No, there can be an appeal, this time the plaintiff should rely on Rule 40 Sec 8 regarding ordinary appeal from the MTC. XIV. Other Matters * When cases involving title to property like recovery of property or annulment of sale are filed in another court, such cannot defeat or stop FEUD. In that case of recovery of property, the adverse party cannot move for the issuance of a writ of preliminary injunction to stop MTC from trying the complaint for FEUD. Any case involving title to property and FEUD could stand together. * It is possible to have a stipulation in the lease contract that there will be no need to file ejection suit when the lessee violates the terms of the agreement or refuses to pay or refuses to vacate. The said stipulation is valid provided the premises are leased for commercial purposes. The lessor cannot be criminally or civilly liable. If the premises are residential, then the validity of stipulation is doubtful.

29

RULE 71 - CONTEMPT * SCAF: 1. The penalty for contempt can be imprisonment; 2. With respect to direct contempt: the plaintiff or the prosecutor and the court are one and the same person, - practically in direct contempt, the respondent has no chance at all of prevailing in the case; (MAST: What could be the possible reason for the apparent impartiality?) 3. In case especially of direct contempt, there is absence of pleadings, the court will simply order the person guilty of direct contempt; (SEE Sec 1) NOTE: In case of Indirect Contempt: I. Where there is a requirement of an INDEPENDENT PETITION: there is semblance of the application of the rules on civil actions: A. Should comply with the Rules applicable to ordinary civil actions: - thus filing of an independent petition, which is an INITIATORY PLEADING, requiring the payment of docket fees. (MAST: How about certificate on non-forum shopping? Sec 4 provides that there should be full compliance with the requirements, so it seems there should also be certificate on non-forum shopping. But I have a reservation, the direct contempt proceeding is taken cognizance by the court which was disrespected. This is also true with indirect contempt of court involving persons who disrespected the RTC and courts of higher ranks. Please analyze the provisions of Sec 1, 3, 4 and 5. Because of this, it is impossible for the injured private party to file a case other than the court where the case is pending or which decided the case. The reason for the rule being absent, there is no need for the application of the rule on certification against forum shopping. Cessante ratione legis, cessat ipsa lex. Note however that in Sec 5 of Rule 70, it seems that there is a need for certification against forum shopping. The evil sought to be avoided in requiring the said certification is present in the way indirect contempt is charged against a person who disrespected an inferior court. The charge may be filed either with the RTC where the lower court is sitting OR in the lower court itself. Therefore, in so far as indirect contempt against a lower court is concerned there is a need to file a certification against forum shopping as provided under Rule 7 Sec 5.)

30 B. It is HOWEVER similar to Rule 65 thus: - there will be issuance of order to comment not necessarily summons (MAST: Is the last phrase an indication that indeed in order for the court to bring the respondent before it, a process like summons may be issued as provided in Sec 3?) - there is no default order in this special civil action; II. Where commenced by the court MOTU PROPIO: - this court must issue an order requiring the respondent to show cause why he should not be cited in contempt of court, at least there is A TRIAL here; (SEE Sec 4) 4. The court could send the respondent to jail for an indefinite period of time, a feature not even found in criminal cases: - INDEFINITELY: as long as you refuse to perform the act required of (MAST: Does this only apply to Sec 8?); 5. REMEDIES: A. DIRECT CONTEMPT: - certiorari or prohibition as mandated by the Rules; (SEE Sec 2) - Jurisprudence: special proceeding of habeas corpus, in fact there is no prohibition from a petition for certiorari being joined together with the prayer for the writ of habeas corpus; (MAST: But could they be filed independently without violating splitting a cause of action?) - The remedy of habeas corpus can be invoked especially if incarceration is concerned. - In Direct contempt, there is no need for a complaint unlike the other special civil actions. The judgment is rendered right away. Here is a final order which is not subject to appeal but certiorari.(MAST: Somehow of a feature the same as some of those enumerated in Rule 41.) B. INDIRECT CONTEMPT: - the remedy is PLAIN APPEAL (MAST: Why is certiorari not applicable, how about Motion for Reconsideration or New Trial or Relief from judgment or Annulment of judgment?);

31

6. Although contempt may be classified as civil and criminal: there can be no appeal from the order absolving the respondent of the contempt charge, reason: DOUBLE JEOPARDY; (MAST: Does this rule apply to both direct and indirect contempt, civil and criminal contempt? SEE the conflict with Regalado) 7. Contempt as a remedy to execute a judgment is an exception to the general rule: - one exceptional case is when the judgment directs the performance of an act which is purely personal to the defendant, meaning he alone can do this act (MAST: Rule 39 Sec 11 on Execution of special judgments: is this direct or indirect contempt? It appears that this is also indirect contempt under Sec 3b) NOTE: Rule 65 is enforced by a petition for contempt. Therefore, we can observe that at least there are two instances (Rule 39 Sec 11 and Rule 65) where contempt can be a mode of enforcing a decision. In case of Rule 65 the contempt charge will be against a disobedient court which falls squarely under Sec 3 (a) or (b) of Rule 71. - In unlawful detainer what is contemptuous on the part of the defendant is his return to the premises after he has been successfully evicted (by sheriff and the police)(MAST: Section 3b of Rule 71 in relation to Rule 39 Sec 10c: clearly this is INDIRECT CONTEMPT) * Contempt is previously a provisional remedy, that is why it has similar features with provisional remedies where there is a principal case. At present, it is already raised or elevated to the level of an independent special civil action. But still contempt proceedings presume or involve a main case or action before availment of the special civil action of contempt. * This is similar to quo warranto because it is also cognizable by all courts. * In contempt proceeding there is a need for an appeal bond, if the contemner does not want to go to prison. This is because the judgment of contempt is immediately executory.
SALVATOR mundi! Salva mundum!

32

The whole world is not worth one soul St. Francis de Sales

SPECIAL PROCEEDINGS
PRELIMINARY MATTERS * Out of 37 Rules in SPECPRO, 20 concerns with the settlement of estate. (MAST: 72-90 Settlement of the estate proper, 91 indirectly connected) * Some of the Rules are no longer applicable, like the Constitution of the Family Home which has been practically rendered useless by the Family Code Art 152ff. * NOTE: In Rule 1 Sec 3, there is no mention of the applicability of ordinary rules to Special Proceedings. However SEE Rule 72 Sec 2, which mentions this applicability; * Barangay Conciliation is not applicable to Special Proceedings particularly in Settlement of Estate; REASON: SPECPRO is governed by its own set of Rules, the Rules do not so state such applicability; (MAST: One specific reason is that many of the issues that are resolved in settlement proceedings are prohibited to be compromised like the status of the heirs.) * Motion to Dismiss: A motion to dismiss may or may not occur. It is possible in probate proceedings and petition for the issuance of letters of administration. This is so, because grounds may be invoked to dismiss the petitions or application. (SEE Sec 10 Rule 76; Sec 4 Rule 79) *NOTE: The summary special proceeding under Alternative Dispute Resolution in case of enforcement of foreign arbitral awards as provided in Sec 44 and 47 of RA 9285;(MAST: Analyze Sec 22 of the Arbitration Law RA 876 on Domestic Arbitration, which states that Arbitration is deemed a special proceeding.)

33 SETTLEMENT OF ESTATE I. Testamentary Privilege - Not embodied in the Rules but in the Civil Code specifically the rules on Succession; (SEE Article 774ff NCC) - This is part of the Civil Code which is implemented by the Rules on the settlement of estate; - Definition: refers to the right given by law to a person to dispose of his property during his lifetime but the disposition of the property may take effect after his death; II. Letters testamentary: - is the authority given by the court to an executor who has been nominated by the testator in his will; III. Letters of Administration: * But if there is no will or even if there is a will but the executor refuses to accept the trust, the court will appoint an administrator; * The appointment of this administrator, if there is a will, is contained in the document called letters of administration with the will annexed; * When the document is simply letters of administration, it means that there is no will or if there is a will, it has not been duly admitted to probate and therefore intestacy results; (SEE Sec 6 Rule 78) IV. Ancillary Administrator In order to have an administrator in the other country where the decedent has left some properties, the recourse is ancillary administration. Thus an ancillary administrator presupposes that there is a principal administration proceeding in a foreign country but the decedent left some properties in the Philippines. (SEE Rule 77) V. Settlement Proceeding in General A. The heirs become such immediately after the death of the testator: * Settlement proceedings can take place only after the decedent has died. (MASTER: When the testator presents his will himself, how do you classify that?

34 SEE Sec 1 Rule 76; Note also Secs 3 2nd par. and 4 2nd par., on the effect if the testator himself petitioned for probate on the mandatory jurisdictional requirements) * But it does not mean to say that the heirs can automatically take possession and have ownership of the properties left by the decedent; * This is qualified by the absence of creditors of the decedent; * The principal purpose therefore of settlement proceedings is to liquidate the estate of the deceased; * LIQUIDATION: the acts of making inventory of all the properties of the deceased, naming all the creditors of the deceased; * The creditors of the deceased are always given preference over his heirs; B. If there is no will left, the heirs have TWO OPTIONS: (a) Settle the estate extra-judicially; (b) Go to court: If there is no agreement among the heirs or if there is dispute among them: 1. Complaint for partition; OR 2. Institute settlement proceedings: > probate proceedings > proceeding on intestacy * Even if the heirs extra-judicially settle the estate of the predecessor-in-interest on the premise that there is a will and there are no debts that extra-judicial settlement can never be registered by the officers of the government unless the taxes are paid first. (SEE Secs 94 and 95 NIRC) VI. Extra-judicial Settlement A. CONDITIONS BEFORE THE HEIRS OF A DECEASED PERSON CAN EXTRAJUDICIALLY SETTLE THE ESTATE OF THE DECEDENT: 1. The decedent must have left no will; 2. There are no debts; 3. The parties agree among themselves to the partition of the properties left by

35 the decedent; (SEE Sec 1 Rule 74) * Settlement in private instrument is still valid, although this is binding only between the parties to it; B. Deed of Extra-judicial Partition - if there are two or more heirs; (MAST: It seems that extra-judicial settlement and extra-judicial partition are synonymous and have the same requisites.) C. Affidavit of self-adjudication - only one heir; D. Protection of Creditors: 1. State: * If the estate consists of personal and real properties there will be a need for the certification title to be transferred in the name of the heirs in accordance with the partition agreed upon in the deed of extrajudicial partition. The Register of Deeds will not register any document extra-judicially partitioning the property unless there is a clearance from the BIR. (Sec 95 NIRC) * With respect to the Republic of the Philippines, there is practically no danger that the Republic will lose the taxes. The particular concern is with the other creditors of the deceased. 2. Creditors: * The protection given by the Rules to the creditors is that if the estate consists of real properties, the title that will be issued to the heirs will carry an encumbrance that the properties will be liable for the payment of indebtedness within a period of 2 years. If there are no real properties involved, the protection given by law to creditors is that these heirs will be required to file a bond, equivalent to the value of the personal properties left behind. (SEE Sec 4 Rule 74) VII. Two Options by Way of Settlement Proceedings: 1. To settle the estate summarily in a judicial proceeding which is practically a useless provision now (because of the value); 2. The regular settlement proceeding; * The only difference between Summary Settlement and Ordinary Settlement is the absence of an executor and administrator. * Note the difference between Summary Procedure and Summary Settlement

36 Proceedings. A. Regular Settlement Proceeding: * The jurisdictional facts are: that the decedent has died; and is a resident; and the gross value of the estate; * Note jurisdiction lies in the RTC or MTC as the case may be; (See BP 129) * There should only be one court to settle the estate of the deceased person, otherwise there is a possibility of these courts issuing conflicting decisions and orders; (SEE Sec 1 Rule 73) * QUERY: Where to file the settlement proceedings? : It is the place where the decedent last resided. (MAST: Which means in which he resides at the time of his death SEE Sec 1 Rule 73.) : The court which first takes cognizance will do so to the exclusion of other courts. (SEE Sec 1 Rule 73) (MAST: Is this a principle of venue or of jurisdiction? I believe that this is just a principle of venue, since it is just a matter of one court giving way in favor of another, to avoid conflicting decisions.) VIII. Limited Jurisdiction * The Settlement Court whether the proceeding is estate or intestate is a court which acts with a very limited jurisdiction. It has jurisdiction only to: 1. Liquidate the estate; 2. Decide the claims against the estate; 3. Decide who the heirs are; 4. Distribute the estate; * Thus they cannot resolve questions of ownership involving properties of the decedent if these properties are claimed by strangers. An independent action must be filed for the purpose of adjudicating this controversy. (MAST: What if the question involves the claim of ownership of an heir and not of a stranger? The court may not generally also determine this issue. However, if all the heirs agree to submit the question to the probate court, then the court can determine the issue. However such determination is not binding on third

37 persons, but only on the heirs.) IX. When Issue of Ownership Determined * GENERAL RULE: The issue of ownership should be determined or raised not in a special proceeding but in an ordinary civil action. Exceptions: 1. When the heirs agree to submit the issue of ownership to the probate court; NOTE: Even if the heirs all agreed to submit the issue of ownership to the probate court; still, the determination of the court as to ownership is not binding against third persons who did not participate in the resolution of the issue. 2. Provisional ruling on ownership allowed; * QUERY: Suppose the execad discovers that a certain bank account and a land belong to the deceased. Can the execad file a motion to the settlement court for the return to the estate of the said properties? Can the settlement court validly issue an order to the bank or the Register of Deeds to transfer the title to the estate? In both cases the answer is NO. If there is an issue as to title of the property, the settlement court cannot determine such issue. This is because the settlement court is a court of limited jurisdiction. The RTC is the only court which is a court of general jurisdiction. But if it acts as a settlement court, it exercises only limited jurisdiction. What is the remedy then? The executor has to file an ordinary action or an action reinvindicatoria. Note that when an ordinary action is filed, the RTC is not necessarily the same settlement court, we have to follow the ordinary rules on jurisdiction and venue. Thus the court can be an inferior court. X. How to Commence the Proceeding A. Petition * If a person dies and has left a will, the person in custody of that will can simply go to court, surrender the will to the court and the act of surrendering that will to the court already commences settlement proceedings. So there is no absolute necessity for the filing of a petition for the allowance of the will. (MAST: According to SC decisions there is even no need for a petition at all to be able to commence a special proceeding; SEE Sec 3 Rule 76) * But generally in settlement proceedings, the petition prepared by the lawyer

38 will be accompanied by the petition for the probate of the will or petition for the issuance of letters of administration as the case may be. The petition for the allowance of the will or the issuance of letters of administration should embody: (a) The legatees or devisees; (b) The last residence of the decedent; These are jurisdictional facts which should be embodied therein. B. Bond General Rule: There is a need for the execad to file a bond before he assumes office as an executor or administrator. (SEE Rule 81) Exception: There are certain instances provided in other laws that even if there is no bond filed, the execad can assume office. An example is found in General Banking Act. When a banking institution with trust powers, or which acts as a trust corporation, was designated as the execad, there is no bond required to be filed by the executor or administrator bank. REASON: Because the Central Bank already required the filing of large amount of money, as bond, when the said bank applied to be a trust corporation or applied for a license. Therefore the bank is not required to file another bond when it accepts its designation as the execad. XI. In Rem Proceeding * A settlement is a classic example of a proceeding in rem. There is a petitioner but there are no respondents identified in the petition. * The court does not issue summons, there is no defendant; * The settlement court acquires jurisdiction over the petitioner when he files the petition since this is a voluntary surrender to the jurisdiction of the settlement court; * QUERY: How does the court acquire jurisdiction over the heirs, over the persons interested in the estate of the deceased? Once a petition for probate or a petition for the issuance of letters of administration is filed with the court, the court is COMPELLED to issue an order setting the matter for hearing. This order must be published in a newspaper of general circulation once a

39 week for three (3) weeks. It is this act of publication which will confer jurisdiction upon the court. MANDATORY REQUIREMENT: In addition to the publication of this notice of hearing, the court is required to serve by personal service or by registered mail notices to the heirs, legatees and devisees identified in the petition. If there is no notice given personally or by mail to the heirs identified or named in the petition, then the court will not acquire jurisdiction over the proceeding. (MAST: Analyze the very reason for this mandatory requirement as compared to the earlier statement that the publication confers the jurisdiction. From what I heard in another recording of Jara's lecture, it is clear that the position of Dean is that, there should be BOTH publication and personal notice.) But remember that what is published is the notice of hearing. It is the order of the court after the petition has been filed or after a will has been submitted to court. (SEE Secs 3 and 4 Rule 76) XII. Extrinsic Validity and Other Evidentiary Matters * If there is a will left by the testator, then the hearing will first be concentrated on the extrinsic validity of the will, that is, the court will have to make a finding as to whether or not the formal requirements of the will embodied in the Code have been satisfied. * Admission to probate simply means that the will is extrinsically valid, that the formal requirements in the Civil Code have been satisfied by the testator and subscribing witnesses. The probate of a will has nothing to do with the intrinsic validity of the will. It has nothing to do with the contents of the will. A. Impeachment of Witnesses In the probate of a will a petitioner is free to impeach a subscribing witness. Therefore the petitioner is not bound by the testimony of these subscribing witnesses. REASON: The evidentiary rule which provides that a person cannot impeach or contradict his own witness assumes that the party presenting the witness has freedom to choose who these witnesses are. In probate proceeding, the petitioner really has no choice at all in presenting the subscribing witness. These witnesses are in truth not the witnesses of the petitioner. They are witnesses to be presented in compliance with the Rules of Court, because the Rules require that the subscribing witness be presented. (SEE Sec 12 Rule 131) B. Notarial Will as a Public Document General Rule in Public Documents: There is no need for authentication, the public document is presumed

40 prima facie as to its due execution and authenticity. (SEE Rule 132 Sec 23) Exception: In case of a Notarial Will, its authenticity must be proved; C. Best Evidence Rule: Generally, in case of a public document, before secondary evidence can be presented the other original copies must be accounted for. For example in case of a Deed of Sale which was notarized, the vendor, the vendee and the notary public have their respective original copies. However as an exception, due to the fact that there is only one copy of the notarial will, upon its destruction and loss, a xerox copy can be presented in evidence and in the absence thereof then the testimony of a witness may be offered in evidence; (SEE Rule 130 Sec 3) D. Dead Man's Statute (SEE Rule 130 Sec 23) XIII. Executor and Administrator A. Officer of the Court The executor or administrator appointed by the court is a neutral party. He does not represent the heirs. The executor or administrator is an officer of the court. The requirement is that this executor or administrator must file a bond in addition to other duties which are which are embodied in the Rules. (SEE Sec 1 Rule 81) * Supreme Court Justice, appointed executor in the will, could this be done?; B. Order of Preference There is an order of preference when it comes to the appointment of an administrator. But there is no order of preference when it comes to the appointment of an executor. REASON: An executor is a person nominated in the will by the testator himself. (SEE Rule 78 Sec 6) * In all proceedings where there is an element of trust that is involved...the common obligation that the rules impose upon them aside from the filing of the bond is that, they must submit a true and complete inventory. They must submit an accounting within a period of 1 year and in such other time as the court will require. And they must obey at all times the orders issued by the court, whether it is a settlement court or a guardianship court or a trusteeship court. (SEE Rule 81 Sec 1; Rule 94 Sec 1; Rule 98 Sec 6)

41 C. Final Order When the court appoints an executor or administrator, the appointment is a final order. Since it is a final order it is appealable. (SEE Rule 109 Sec 1 e) XIV. Special Administrator A. Appointment of General Execad Challenged * If the appointment of the executor or administrator is challenged, there will be a situation where nobody will be taking care of the properties of the estate while the appeal is going on. According to the Rules, the court can now appoint a special administrator. The appointment of a special administrator is not appealable. (SEE Rule 109 Sec 1 e; Sec 1 Rule 80) * There is conceivably no harm in appointing the same person as the special administrator because there is a vast difference between the powers and duties of a regular administrator and a special administrator. A special administrator: 1. Cannot pay obligations; 2. All he does is to protect the property; 3. Cannot sell the properties of the estate; 4. Cannot mortgage properties of the estate; 5. He can only be a caretaker of the properties of the estate until a regular administrator or executor is appointed by the court. (SEE Sec 2 Rule 80) * Note that in case of a challenge to the appointment of a special administrator under Rule 65, the higher court may issue a writ of preliminary injunction to stop the appointment. The grant of such injunction however is seldom, since the higher court usually prefers that there be someone to preserve the property. B. General Administrator has a Claim against the Estate * QUERY: How about if it is the execad who has a claim against the estate? A special administrator will be appointed. This is because there would be a conflict between the duty of the general administrator as such and his interest against the estate. (SEE Rule 86 Sec 8)

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XV. Statute of Non-Claims * Notice that there are two classifications of claims in Rule 86: 1. secured claims; 2. unsecured claims; * After the execad submits the inventory and identifies the property in his possession, then the settlement court issues the second order (which is published) ordering the filing of claims. * A rule of prescription contained in the Rules of Court, specifically Rule 86; * The consequence if these claims are not duly submitted to the settlement court on time, then the creditors loses their right to enforce collection of their claims; * QUERY: What will the court do after the administrator has taken an oath of office? The court will issue another order fixing the date for the enforcement of the Statute of Non-Claims. The court will issue an order directing the money claimants against the estate should file their claims within a period of not less than six months nor more than twelve months from the date of the first publication within which to submit their respective money claims. OTHERWISE THESE MONEY CLAIMS ARE BARRED. So they will no longer be enforceable against the estate of the deceased person. (SEE Rule 86 Secs 2 and 5) A. Rule 3 Sec 20 and Rule 39 Sec 7 in Connection with Money Claims * Rule 3 Sec 20, the claims here are the same as the unsecured claims in Rule 86. * The defendant has died, there is a judgment against him and there is already a levy on the property of the deceased defendant. The levy will continue and the properties levied upon can be sold at public auction. This should be treated as an exception to the rule that money claims supported by a judgment cannot be enforced against the executor or administrator under the provisions of Rule 39. (SEE Sec 7 c Rule 39) B. Nature of Money Claims The claims referred to in the Statute of Non-claims are PURE MONEY CLAIMS arising from contract express or implied and do not include claims for the recovery of personal or real property. They do not include claims arising from tort.

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* The claims could either be due or contingent (MASTER: Meaning not yet due or still conditional) * An unsecured creditor is one who does not hold a mortgage, pledge or any other collateral security during the lifetime of the defendant. C. Jurisdiction We do not apply the provisions of BP 129 when it comes to the determination of whether or not the settlement court has jurisdiction over certain money claims. The RTC has jurisdiction over the amount of the claim, even if below the jurisdictional amount. (MASTER: How about if the settlement court is an MTC, can a creditor claim beyond the jurisdictional amount? I think Yes, because it can happen that the liabilities of the decedent is more than the assets. If we do not allow the money claim even if it is beyond the jurisdictional amount, we would be depriving the creditor of his right to at least recover a certain amount, and certainly he would be getting less than what he deserves in the settlement proceeding. BP 129 applies only to the main settlement case. Anyway, the court will be awarding to the creditor only an amount of money within its jurisdiction nothing more, thus there is no danger that it would be acting in excess of jurisdiction.) D. How Commenced *A money claim in the settlement court is not commenced with the filing of a complaint. * All that the claimant is required to submit is an affidavit saying that he has a claim against the estate, and in that affidavit he will annex supporting papers. * Because a money claim is not in the form of an action as contemplated in civil actions, the executor may or may not file an answer. The executor may not contest the claim. E. Trial If there is a contest of that claim, then there will be a trial to be conducted by the settlement court to determine whether or not that claim submitted by the creditor is valid. In the trial of the contested money claim, the court is not required to sit as the judge during trial. This is one instance where the court is given the discretion to appoint a commissioner for the hearing of the contested claims. (SEE Rule 86 Sec 12) F. Notice to Creditors Note that one cannot issue a notice to creditors before the appointment of

44 a regular executor or administrator. It is imperative that a regular executor or administrator be duly appointed and qualified first, before there could be notice to creditors. As a consequence, there is no notice yet to creditors if it is only a special administrator who is appointed, this is understandable because a special administrator has limited powers which do not include determination of the claims of creditors; G. Appeal * Once a claim is adjudicated by the court, that adjudication again becomes a final order which is appealable. (SEE Rule 109 Sec 1 e) * And while there are appeals going on, on these contested claims, it is not possible for the administrator or the executor to distribute the estate among the heirs because the principal purpose of the settlement is always the liquidation of the estate- payment first of the creditors ahead of the heirs of the decedent. H. Contest If the administrator decides not to contest a particular claim, the heirs could submit their own contest to this claim. This is a remedy to check the possibility that an executor or administrator may have abused the authority given to him by the Rules. (SEE Rule 86 Sec 11) I. Recognition by the Testator of the Claim in the Will * The recognition by the testator of the existence and validity of certain accounts will not be an excuse for these creditors not to submit their claims within the period provided by law. * Even if the testator in his will expressly stated that he is indebted to creditors and commands the payment thereof, there is still a need to file a claim in accordance with the Rules. Even if we know that the will of the testator must be given effect, such however is not true when it comes to the payment of the liabilities of his estate. It is for the court to finally determine whose claim should be allowed. There might be collusion between the testator and the creditors mentioned in the will to the prejudice of the other creditors not mentioned in the will. The settlement court prevails in determining whose claim is to be allowed. J. Basis of Statute of Non-Claims The Supreme Court said that it is true that prescription is a matter of substantive law but the provisions of the Rules of Court pertaining to Statute of Non-claims is substantive because it is just a reproduction of an old provision in the Code of Civil Procedure. The Code of Civil Procedure was substantive law, that is, before the Rules of Court took effect. It is a reproduction of an old

45 substantive law, which has not been repealed by the Civil Code. There is really no conflict between the Civil Code and this provision, and the provision of the Rules of Court should be taken as an exception to the rules on prescription contained in the Civil Code. K. Creditors Not Covered * There are creditors who are not covered by the provisions of Statute on Nonclaims and they are expressly found in the Rules namely: creditors who hold collateral or mortgage over the properties of the decedent. (SEE Rule 86 Sec 7) * We are referring here to mortgages contracted by the decedent during his lifetime; * The rule is different with respect to mortgages that are contracted by the executor or administrator with the permission of the court; (SEE Rule 89) L. Contingent Claim * The Rules are clear in saying that money claims whether they are contingent or absolute must be presented within the period otherwise they are barred. * CONTINGENT CLAIM: ... If this claim becomes certain later on, then the executor or administrator will have to retain a part of the estate for the payment of this contingent claim. If the executor is ordered by the court to distribute the estate notwithstanding the fact that this contingent claim has not matured or has not become absolute, then the distributees of the properties of the deceased could be held personally liable up to the limit of their share in the estate in the payment of the contingent claim. * According to some authors a contingent claim - includes a pending case, even before there is a judgment. This is because it may happen that the defendant dies or a party dies during the pendency of the case. During the pendency of the case a settlement proceeding may also be initiated and we know that it will take time for the case of the creditors to be final and be entered. And because of the Statute of Non-claims, the remedy of the creditors in a pending case is to already file a claim in the settlement of the estate to protect their interests. And since they do not have a final (and executory judgment) yet in their favor, their claim is classified as a contingent claim. M. Summary of Procedure for Filing Claims against the Estate

46 It is not proper in case of unsecured claims to file a separate complaint against the execad. If an ordinary action is filed for recovery of money (unsecured) against the executor or administrator, the case will be dismissed. Because the procedure is to file a claim under Rule 86 with the settlement court. A claim under Rule 86 is similar to a third party claim or terceria under Rule 39. The claim is not a complaint, a counterclaim etc, but it is just an affidavit which the claimant sets forth his claim and annex the documents which will justify approval of the claim. It is not an action where there is plaintiff or defendant. It is again only an affidavit where the claimant outlines his claim, its brief history, the details and where he attaches the supporting documents (like a promissory note). The claimant submits the claim to the executor or administrator. The executor or administrator must answer the claim by either denying or admitting the claim. If the execad admits the validity of the claim, then there is no dispute at all and the court may approve the claim right away. So it is possible that the execad may conspire with other claimants. Is there any check to this possibility? Under the Rules even if the execad files an answer that admits the claim, the court can ask the opinion of the heirs. Even if the execad appears to be a very powerful person, the power could be neutralized by the heirs who can deny the claim. What if the execad denies, will there be a trial? Yes. Notice that the burden of the settlement court becomes very heavy if there are several claimants. For example if there are 10 different claimants and all the claims are denied by the execad in his answer, the settlement court will give opportunity to everyone to present evidence of claims; and the execad and heirs to present rebuttal evidence. To ease the burden, the court can appoint a commissioner solely for the purpose of hearing the claims. In addition to expropriation and partition, where commissioners are also appointed, we have here another instance where a commissioner is appointed. (MAST: Note that unlike in expropriation and partition, the referral to commissioner here is discretionary. SEE Rule 86 Sec 12 word may) The commissioner recommends the approval of the claim and the settlement court approves. The remedy is not certiorari, the 10 final orders approving the 10 claims are appealable. So there can be 10 appeals. The mode of appeal is by notice of appeal and record on appeal. The period to appeal is 30 days. Once the settlement court approves the claim, that approval is not a guarantee of payment. The claimant must wait until the order for paying the claims is issued. It is not practical for the creditor to move for execution because the person handling the property, the execad, is an officer of the court. Generally, there is no writ of execution that can be issued for the purpose of enforcing the claim. The remedy is to file a motion to compel the execad to pay so that the court will issue the order for paying the claim. If the execad ignores the order compelling him to pay, then the remedy is contempt.

47 N. Solidary Obligation QUERY: Suppose during his lifetime the deceased signed a promissory note together with another person. The deceased accommodated a friend and signed as a solidary debtor. Should the creditor bank also file a claim with the settlement court against the estate of the deceased, although it has an option of claiming against the friend who is also solidarily liable? Yes. The creditor bank should still file a claim as if the deceased is the only debtor in that indebtedness. It is true that it is the privilege of the creditor to run after any of the solidary debtors as provided under the Civil Code. But if the creditor only runs after the other debtor, but he fails to file a claim against the estate of the deceased debtor, his claim will be barred as to the latter. (SEE Rule 86 Sec 6) O. Concurrence and Preference of Credit * To determine whether or not the estate is solvent one must look at the inventory and accounting which is regularly submitted. *QUERY: If the estate is insolvent, does the settlement court possess the power to determine which claim should be paid ahead? It has power, but it must comply with the Civil Code Provision on Concurrence and Preference of Credits. (SEE Art. 2236ff NCC; Sec 7 Rule 88) XVI. Options of Creditors not Covered by Statute of Non-Claims * The creditor is given three options under the Rules: 1. Abandon the mortgage and consider its loan as an unsecured loan, in which case the creditor should file a claim against the estate; 2. Rely on its mortgage- foreclose the mortgage and if there is any deficiency, the creditor can file a claim with respect to the deficiency; 3. Rely absolutely on the collateral that it holds, in which case it does not have to participate in the settlement proceedings. * As to the 2nd mode: Deficiency is contingent because there is no guarantee that there will be a deficiency after foreclosure. * If the decedent has died and in the contract of mortgage that is previously contracted, there is a special power of attorney that is given to the mortgagee to foreclose, that special power of attorney is not extinguished by death. REASON: This is an agency that is coupled with an interest. It is only the agent

48 who is given the prerogative of canceling the power of attorney. * The Civil Code states that death of principal or agent extinguishes the agency. But also under the Civil Code even if the agent or principal dies, the agency will not be extinguished if it is an agency coupled with an interest. The agency to extra-judicially foreclose is an agency coupled with an interest: in the sense that the agency is created solely for protecting the interest of the agent. Besides under Rule 86, the mortgagee can rely solely on the mortgage, and may not participate in the judicial proceedings. In other words, Option Number 3 gives the mortgagee the choice to extra-judicially foreclose a mortgage created during the lifetime of the mortgagor. The death of the borrower or mortgagor will not affect the power of the mortgagee to extra-judicially foreclose the mortgage with special power of attorney to do so. Of course, he may also opt to judicially foreclose, if he chooses Option Number 2. (SEE Art. 1930 NCC) XVII. Sale and Encumbrance of Property * It may happen that the estate is solvent but it has no liquid funds. The Rules give the remedy to the execad to ask the court to dispose of or encumber the property. Theoretically, the Rules allow approval only of the sale of personal properties. But, as to real properties there can be sale or encumbrance. However, the Rules give the court enough discretion whether to allow the encumbrance or sale of personal property. The Rules do not require strict application of the provisions of the Rules. The court could still evaluate the benefit that the heirs or creditors will derive in the sale, conveyance or encumbrance of either personal or real properties. In some instances the Court could require that a proper motion must be heard first; and even require the publication of the motion for permission or leave for sale, conveyance or encumbrance of properties. (SEE Rule 89 Sec 7) * When it comes to personal property the court can authorize the executor himself for the sale of the property. In case of real property the Rules authorize the sale or encumbrance of property to satisfy the debts. * The settlement court has the absolute discretion to authorize the sale or mortgage of both real and personal properties as long as the purpose for the conveyance or disposition of these properties is to raise money to pay off the obligations of the estate. Court decisions are to the effect that these provisions should NOT be interpreted strictly. * Even if the claim of a creditor is approved by the court, it cannot move for the execution of such claim. The creditor must wait for the proper time, which is when the settlement court finally issues the order directing the executor to pay the creditors.

49 * Once the court issues an order directing the executor or administrator to pay the creditors, then the executor and administrator (execad) must pay. * When the assets are hard assets or not liquid assets, there is a need to liquidate said assets if the claim is pecuniary in character. When the indebtedness or claim is in the form of money, the settlement court should pay also in money by selling property of the estate to satisfy the debts. Consequently, dacion en pago or payment in kind is generally discouraged. * QUERY: Can the court authorize a dacion en pago? Yes. In case of an heir when he has a claim against the estate. We allow this because dacion en pago is just a specie of a contract of sale provided of course that the heir has previously filed said claim within the Statute of Nonclaims. (MASTER: There seems to be a conflict between the last sentence of the preceding paragraph and this query. The only reconciliation that can be made is to make the prohibition or discouragement of dacion en pago in paying the creditors of the estate as the general rule; and the payment of a claim of the heir against the estate in this form as the exception. Moreover, the court has a wide discretion to pay debts through dacion en pago provided that it is beneficial for the estate and will not reduce the assets in the hands of the executor and administrator so as to prevent a creditor from receiving his full debt or diminish his dividend. Possible exceptions are Sec 8 and 9 of Rule 89.) XVIII. Status of a Sale without Authority of Settlement Court * In case of a buyer of the property under administration and the contract of sale of such property was not submitted to the court for approval or without authority of the settlement court, such sale is VOID. The third person or the buyer cannot argue that he is a buyer in good faith or for value. This is not a good argument in cases of sale between third person and the execad, if it is without the PRIOR approval or authority of the court. REASON: The THIRD PERSON who is the buyer cannot claim that he is in good faith. He should know that the execad is just acting as an officer of the court (as an officer he needs prior authority in entering into contracts of sale involving property under administration) and that the execad is under the authority and supervision of the court. * Under the Rules of Evidence, the buyer is conclusively presumed to know that execad is an officer of the court and to know the law. (Rule 89 Sec 1ff) * In a case, the settlement court issued an order directing the sale of the property under administration at its minimum prize provided that the deed of sale must be first submitted to the court for approval. The administrator of the estate sold it at a good price to a buyer, but neglected to submit to the court the

50 deed of sale for approval. The buyer having the deed of sale registered it with the Register of Deeds. Subsequently an heir questioned the contract of sale on the ground of the lack of court approval or disobedience of the lawful court order. The SC ruled in favor of the heir and declared the disputed contract of sale void. In this case, the execad is not obeying the lawful order of the settlement court. To cure the defect, the remedy is to submit the questioned deed to the settlement court for approval. The court is given enough discretion on whether to approve or authorize the sale or encumbrance of personal property and real property, as the case may be, if it will serve the best interests of the estate of the deceased person. XIX. Contract of Lease * QUERY: Can the execad, sign a contract of lease? Yes, but the contract must have the approval of the settlement court. * QUERY: If the tenant however during the pendency of the contract does not pay the execad as lessors, can the settlement court order the ejectment or eviction of the tenants? No. The execad must file a separate and independent special civil action for ejectment or unlawful detainer under Rule 70. The settlement court has only limited jurisdiction (to liquidate the estate of the deceased person), and cannot enforce the terms of the contract of lease even if this contract is approved by the court. XX. Deed of Mortgage with SPA to Extra-judicially Foreclose * QUERY: Can the court authorize the execad that in the deed of mortgage, for the purpose of paying debts, to give a special power of attorney to mortgagee to extra-judicially foreclose the mortgage on the property in case of non-payment of debt? Yes, the mortgagee may go ahead with the foreclosure. A foreclosure proceeding can proceed against the execad and the court cannot enjoin the mortgagee from doing so. XXI. Partition and Distribution * The determination of an heir by the settlement court will also constitute a final order and therefore is also appealable. (SEE Rule 109 Sec 1 b) * In the distribution of shares of the heirs, the usual procedure followed by the court is for the court to ask the heirs to enter voluntarily into a project of partition.

51 But if the heirs could not agree among themselves as to the manner as to how the estate will be distributed, the settlement court again has enough discretion. It is competent to determine the manner by which the shares are going to be distributed. (SEE Rule 90 Sec 1) * After the debts paid and assets are still left for distribution. The settlement court has authority to determine who the heirs are. * How to divide the property: The heirs will submit a project of partition. The project of partition will then be approved; entered if no appeal is taken from the order of the court approving the project of partition. * The order to liquidate is the order of the court to pay off the obligations. After all the claims are paid, the settlement court will then determine who the heirs are. Next, the court will issue an order of distribution. The big problem is how to divide the estate. If the estate consists entirely of money, there is no problem as long as the forced heirs legitime is not prejudiced. The remedy in case of unliquid assets then is to agree on a project of partition. If there is disagreement, then the court will determine. * QUERY: If the execad failed to deliver their distributive shares embodied in or pursuant to the project of partition, can the heirs move for execution? No. The remedy is not to move for execution under Rule 39. The remedy is a special civil action for contempt under Rule 71 on the ground of disobedience to a lawful order of the court. Under the Rules, in a settlement proceeding, a writ of execution cannot be directed against execad but a writ of execution can be directed against the heirs. (SEE Sec 6 Rule 88) * Again to compel distribution of the respective shares to the heirs, the remedy is not Rule 39 but Rule 71 particularly the provision on indirect contempt. * In ordinary civil action, contempt as a general rule is not available to enforce a final order. However in settlement proceeding, we can have the executor or administrator cited in contempt of the settlement court, if it does not obey a lawful order of the court. XXII. Order of Closure * After the order of distribution is issued and a report by the execad that the distributive shares are already distributed, then the settlement court will issue the order of closure which is also appealable. The ORDER OF CLOSURE assumes that the final accounting has been submitted and approved by the court. The

52 issuance of the order of closure marks the end of settlement proceedings. * Before the order of closure is issued by the court, usually the administrator will submit a final accounting. And in this final accounting, the administrator will seek the approval of the court for the payment of administration expenses. * If all the heirs have gotten their respective distributive shares then the court will issue what is known as an order of closure. The ORDER OF CLOSURE marks the end of the settlement proceedings. * If the distributive share has been delivered, the executor will then move for issuance of the order of closure. Every time an executor submits an annual accounting (of the income and expenses of administration of the estate), this must be approved by the court. That constitutes also a final order and it is appealable. Once the final accounting (that the payment of debts and distribution of shares has been made) is approved this is also a final order which is also appealable. This final accounting if entered will also release the execad of his burden of administration. XXIII. Multiple Appeals * In settlement proceedings, this is one instance where several appeals could be held in one and the same case. (MASTER: It seems that in multiple appeals in cases of special civil actions and special proceedings, there is a need for record on appeal. Note for example that the resolution an issue in stage 1 does not have to await the resolution of another issue in stage 2 before an appeal can be made under the same multistaged special civil action or proceeding. This principle must be distinguished from the situation or the rule contemplated in Rule 41 Sec 1 (g) on judgment against several parties or separate claims etc.) XXIV. Reopening * It is possible that an heir is left out or certain properties are subsequently discovered. A. Comparison * In criminal cases, the reopening must be done before the judgment of conviction becomes final. * The only difference between the civil cases and settlement proceeding is that in civil case the reopening as a remedy is available only after the trial has ended and the court renders judgment.

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* In ordinary procedure, reopening is also allowed, it is not expressly recognized by the Rules of Civil procedure (except that it is recognized in the Rules on Summary Procedure as a prohibited motion and also an express mention of it is made in Criminal Procedure {before it becomes final and executory}, so there is in fact an express mention at least by the Rules of Court in general) but jurisprudence says it is available. The time frame is from the time trial has ended until rendition of judgment. Thus after the judgment has been rendered, reopening is no longer available. The remedies after rendition of judgment in ordinary procedure are Rule 37, 38, appeal and 47. B. Reopening of Settlement Proceeding * In settlement proceeding, reopening could take place even after the proceedings have terminated, even after the closure issued by the court has been entered. - REASON: There should only be one court that should handle the settlement proceeding. (MAST: Is this not a violation of res judicata to allow heirs deprived of shares to be included in the same proceeding that has been entered?) * QUERY: What if properties belonging to the estate are discovered after the proceedings are entered? Again there should only be one settlement court. The remedy is to reopen. It does not violate res judicata. Because the settlement court will not touch properties or rights already bestowed and determined in the original settlement proceeding. The reopened settlement proceeding will only distribute the new properties. * An order of closure is also a final order. After entry, here comes a creditor who tells the court he is not notified of the settlement proceeding and thus moves for the reopening of the proceedings not necessarily against the estate but against the heirs. If it is the creditor who appears he is barred by the Statute of Nonclaims. If it is an heir who appears, he can move for reopening. If we do not allow him to reopen he might file his own settlement proceeding which is not against the principle that there should only be one settlement court to settle the estate. * QUERY: If the allegation of the person who claims to be an heir, who was left out, appears to be meritorious, can he file an independent special proceeding against the heirs? Or can the execad file another special proceeding to liquidate the newly discovered property? NO. The remedy is to file a petition for the reopening of the settlement proceeding or case.

54

* QUERY: Is there a time frame? There is no period or time frame given by the Rules. It can be held even after the order of closure is entered or has become final executory, or even after a year or two years from the time the order of closure was entered by the court. XXV. Conversions A. Conversion from Testate to Intestate In probate proceedings when the will is disallowed, the proceedings will not be terminated instead the testate proceeding will be converted to intestate proceeding or there will be intestacy. Since there will be intestacy, the purpose of settlement proceedings being to distribute the property, the property will be liquidated and distributed accordingly. B. Conversion from Intestate to Testate In case the first proceeding is intestate or for the issuance of letters of administration and then another proceeding is instituted which is testate or a probate proceeding, meaning the will was subsequently discovered. The subsequent probate proceeding will have to be terminated and the will submitted to the court where the first proceeding was commenced. In effect the first will be converted into a testate proceeding or probate proceeding. There is nothing wrong with this procedure because both proceedings have a common purpose which is liquidation and subsequent distribution of the estate. Still we follow the principle that the first court which takes cognizance of the case excludes others without prejudice to the principle that testacy prevails over intestacy. (MAST: How do we know that there is another proceeding initiated in a court? Do we apply the certification of non-forum shopping in special proceeding? I think this could easily be known since there is publication and even notice served personally to the persons interested and these persons interested usually are the ones who institute the proceedings and has custody of the will. Note however that annotations in the Book of Regalado have a contrary remedy in the above cited case.) XXVI. Partition VS Probate Partition is a special civil action that is at the same time an action quasi in rem, while probate proceedings is a proceeding in rem. XXVII. Rule 87 * Action reinvidicatoria or claim for damages for tortuous acts are not covered by Rule 86 but by Rule 87

55 - The message in Rule 87 is: the claimant can file a complaint directly against the execad. Thus, for example the claimant has a claim for recovery of real property but failed to file an action because the defendant died. The claimant can file an action reinvindicatoria against the executor or administrator. * Rule 87 enumerates certain actions that can be commenced against the execad. There could be an ordinary civil action where the execad serves as a representative party as defined under Rule 3. The complaint identifies the plaintiff. Since it is the execad who is identified as the defendant, it is necessary that the estate must be duly mentioned in the pleading, being the real party in interest. (SEE Rule 3 Sec 3) * In case of the receiver or when there is receivership. When a party wants to file an action against the receiver or when the receiver wants to commence an action, the approval of the court is necessary in either or both cases. (SEE Sec 6 Rule 59) * An execad can be made a defendant even without the permission of the court. If the execad acts as plaintiff there is also no need to get permission from the court. (SEE Rule 87) XXVIII. Attorneys Fees * If the executor wants to commence an action with the assistance of lawyer, he can hire him without permission of the court. Suppose the execad refuses to pay the attoneys fees, the lawyer may file a complaint for recovery of attorneys fees against the execad. Another option is that the lawyer may ask the administrator to include his attorneys fees in the accounting as expenses (of administration) so that the settlement court may approve it or permit it and eventually order the payment of the attorneys fees. (SEE Rule 90) * The SC said that if the executor is himself a lawyer, he will not be allowed to charge attorney's fees for his services rendered as a lawyer and as an administrator or executor. (SEE Rule 85 Sec 7)(MAST: What is the reason? Does the same principle apply to administrator-lawyer?)

56 ESCHEAT PROCEEDINGS: I. Nature * It is not a continuation of settlement proceeding, but an independent and separate special proceeding. * Two instances under the Rules: 1. escheat proper; and 2. reversion proceeding; * Assumes that the person has died; has not left a will; no heirs; but may have debts. (SEE Sec 1 Rule 91) * This is just an implementation of the Civil Code provision that the Republic of the Philippines is always an heir of any deceased person who dies without a will and without an heir. (SEE Art. 1011ff NCC) * Justification of escheat: The State is an heir as provided in the Civil Code. In the enumeration of heirs, the State is the last heir. * Even if there is a will but that will has not been admitted to probate because of defect in its form, the law will consider that the deceased has died intestate. If there are no heirs, then the same proceeding could be resorted to by the Solicitor General. * It is a proceeding in rem, since there is no respondent and the publication requirement is in fact longer than settlement proceedings. (SEE Sec 2 Rule 91: once a week for 6 successive weeks) (MAST: It is also binding against the whole world, the only difference is that the State is the sole heir, there being no other heir.) II. Jurisdiction QUERY: Should we not follow the jurisdiction provided in BP 129 with respect to settlement of estate which is based on the gross value of the estate? NO. BP 129 in vesting authority to inferior courts or RTC, as the case may be, refers only to intestate or estate proceeding. BP 129 does not mention escheat proceeding expressly as among those covered within the jurisdiction of any court or tribunal. In the absence of express delegation of jurisdiction to any court or tribunal, then we apply the general rule that the case is cognizable by the RTC in the exercise of its general jurisdiction. Therefore the jurisdiction lies within exclusive original jurisdiction of the RTC.

57 * QUERY: Do we also follow the jurisdictional principles in settlement proceedings? We do not follow. An escheat proceeding is cognizable by the trial court. The subject is not capable of pecuniary estimation. (MASTER: There appears to be two reasons, but what is important is that the jurisdiction lies with the RTC.) III. Limited Jurisdiction * In escheat, the court acts in a limited jurisdiction: meaning, issues which are not related to escheat cannot be resolved validly by the court. The issue in escheat proceeding is: Whether the State is authorized to take over the estate or property. Rule 10 Sec 5 on amendment to conform to evidence is thus not applicable. * In ordinary civil action: The does not resolve a case with a limited jurisdiction, in the sense that amendment to conform to evidence under Rule 10 Sec 5 is possible. For example: in an action for recovery of a loan of 5M filed in the RTC. The issue is non-payment of the loan. Can this court resolve a different issue of ownership of the piece of land? Yes. Amendment to conform to evidence under Rule 10 Sec 5. IV. When the Owner of Property Alive A. Unclaimed Balances Act (UBA) * Q: Will there be escheat proceedings even if the owner of the property has not died? A: Yes. In some special laws like, the Unclaimed Balances Act, escheat proceedings could prosper as long as the conditions imposed by this law are met. * The SC ruled that the Unclaimed Balances Law is founded on police power of the State. In other words, it is not an expropriation proceeding. It is inherent as part of the police power of the State to take over bank deposits which have become dormant ( no movement: no deposit, no withdrawal) for at least 10 years. (MAST: Dean Jara asked whether we could consider the interest given by the bank as a movement of the money deposited. I am of the opinion that the interest here being given by the bank is not the movement contemplated by the Unclaimed Balances Act. This is because the interest is not initiated by the depositor but by the bank. To be considered a movement, it must be initiated by the depositor and not by the bank as in case of interest.) * Basis of confiscating dormant bank deposits: There is nothing in the Civil Code on this subject since it is a special law.

58 The justification is in the police power of the State. After all, these bank deposits will be part of the National Treasury intended for the use in economic development of the country. * The UBA requires that all banks submit a report of all dormant accounts of their depositors to the Central Bank. It is thus easy for the government to know the dormant accounts. The Solicitor General, in one and the same proceeding or petition for escheat, may include for example all dormant accounts deposited in banks located in Manila. The caption does not identify the depositors because the banks are the respondents. The banks of course dont care at all since the deposits that will be taken over are not theirs. (MAST: Why is the bank impleaded as the respondent in Unclaimed Balances Act? It was intimated that the bank is actually a borrower in a contract of loan since though the money is called "deposit" the contract is not really deposit. The bank is impleaded because in case the money is escheated by the State, it will be deprived of the use of the deposited money.) B. Reversion Proceeding * Another Escheat proceeding; (SEE Sec 5 Rule 91): Acquisition of property by aliens if prohibited by laws or Constitution could be reverted to the State by virtue of this escheat or reversion proceeding. * In this proceeding we do not assume that the respondent is dead; or there is no will; it is possible that he is alive; * The properties here are acquired in violation of the Constitution or any statute; * Under the present Anti-Money Laundering Law (AMLA) this is called forfeiture procedure which is similar to reversion proceeding; * The proceeding is not necessarily an in rem action, because there is a plaintiff which is the Republic; or the defendant or respondent who acquired the property in violation of laws. This is more of a civil action with elements of escheat; * There is a particular defendant identified, like a person accused of having gotten wealth illegally. III. Filing of Claim * ... If it turns out that the deceased may have left some heirs who were not aware of the death and therefore were not able to insist that they be given the share in the intestate estate, the law gives them the period of 5 years within which to make a claim for the return of the properties that has been escheated

59 in favor of the government. * Escheat proceeding is IN REM. There is a requirement of publication, but what is peculiar is that even if after the judgment on escheat has been entered, an interested person or an heir can ask for the reopening or the return of the properties of the estate within a period of 5 years from the entry of that order or decision of escheat. * QUERY: In Rule 91, it may turn out that the deceased have various creditors, what is the remedy of the creditors? Can they file a separate petition for the settlement of the estate or a petition for the issuance of letters of administration, once the properties have been escheated? No. The creditor can move within the period of 5 years that the State pay the indebtedness out of the assets inherited by the State. If there are enough assets then it may be paid in full. However, if the assets are not enough, the creditors cannot compel the State to pay the deficiency. Thus in case of insufficient assets, the creditors cannot expect full payment. * QUERY: What if the State or local government to which the estate of the deceased person was assigned, refuses or neglects to pay the Creditor of his claim against the estate in the escheat proceeding made through a motion within 5 years, what is his option? The remedy of the creditor is to commence a settlement proceeding. The creditor has personality to commence a settlement proceeding because he is a person interested in the estate of the deceased person. (MAST: This remedy presupposes that a motion has been previously filed in the escheat proceeding. This is resorted only in case of unjustified refusal of the State to pay his claim. This is only my opinion, but there appears to be a irreconcilable conflict with the other query.) (MAST: What will happen to the escheat proceedings in case a will is discovered and an heir appears? It seems that when that happens, the escheat proceedings will be voided if it is still pending since it was instituted on the assumption that there is no will and that there is no heir, it loses the basis for the institution. However, another scenario is that when the escheat has already become final and executory and the heir appears within the 5 year period to file his claim: Can he file a settlement proceeding? The Jara lecture says No since there is a remedy provided by law, that is, to file a claim in the escheat proceeding. If an heir files a settlement proceeding, it seems that it is his right and option to do so and in fact it is only an indication that the escheat proceeding is already moot. However, the property is already with the State and thus I believe that the claim within 5 years is the best remedy. At this point, it remains unclear whether if a claim is filed by an heir or a creditor or any interested person the escheat court will act as a settlement court in reverting the property back to the heirs or giving the creditor his shares. Because if the escheat court will just revert the whole

60 estate to an heir, without determining whether the heir is indeed the heir and that there are no creditors, there will be difficulty in the future if a creditor appears within the 5 year period. Another scenario is when a will or an heir appears after the period of 5 years within which to file a claim. Is he barred from filing a petition for settlement of estate? There is no question that the properties are already with the State and such is already binding on the whole world. However another question arises: Is the bar of claims binding on heir who has a will, considering that the right to present a will does not prescribe? I believe that the fact that there is already an escheat proceeding, it is somehow determined in that court that there is reasonable ground to believe that there is no heir and no will existing. The prescriptive period of 5 years within which to file a claim serves as a limit on the imprescriptible character of the right to present a will. The purpose of the Rule on escheat is to put a rest on the status of a property when the existence of the heirs or will is in great doubt. The remedy under this view possibly is to file an action under Rule 38 or Rule 47 since there is already a final and executory judgment and the prescriptive period of 5 years to file a claim has elapsed. There is a view, that when it is the heir who presents a will and with or without a claim against the estate in any period, the escheat proceedings will automatically be mooted if pending and void if already entered. It was argued that the 5 year period is only a prescriptive period against creditors and not against heirs who have a will. This view is consistent with the imprescriptibility of presenting the will for probate. Thus when there is a will and an heir, probate proceedings always prevails and can always be commenced. To reconcile the views, I believe that when it is only an heir without a will who appears and it is belatedly only after 5 years, he cannot institute a settlement proceeding and is barred forever. The case is different when the heir has a will, he has the option of filing within 5 years a claim or if that is not entertained by the escheat court, he has the personality to file an independent settlement proceeding. After 5 years, in consonance with the principle of imprescriptibility he may always commence a settlement proceeding.)

61 HABEAS CORPUS I. Jurisdiction * The jurisdiction over these petitions is given to all courts in our system. * In the case of inferior courts, they are given interlocutory jurisdiction under BP 129 Sec 35: that is if there is a certification that all the judges in of the RTC in that district are absent. * QUERY: What courts may entertain petition for habeas corpus? ALL the courts namely the: 1. Supreme Court: Constitution; 2. CA: BP 129 Sec 9 (1); 3. RTC: BP 129 Sec 21 (1); 4. Family Courts: Law creating Family Courts; (SEE Circular on Custody of Minor) 5. Even inferior courts in the exercise of special jurisdiction in certain instances (SEE Sec 35 BP 129); *QUERY: In the Law creating Family Courts, it is provided that Family Courts have EXCLUSIVE ORIGINAL JURISDICTION over petition for habeas corpus involving minors. Does this mean that the SC, CA, and RTC cannot take cognizance of this petition for habeas corpus involving minors? NO. The said courts remain to have concurrent jurisdiction over a petition for habeas corpus involving minor children, notwithstanding the provision of the Law creating the Family Courts on its exclusive original jurisdiction. REASONS: (a) As to the Supreme Court: This petition could still be filed with the SC because it is provided in the Constitution that the Supreme Court cannot be deprived of its original jurisdiction provided in Sec 5 Art VIII; (b) As to the CA and RTC: The SC issued a CIRCULAR stating that the CA and the RTC COULD ENTERTAIN the petition for habeas corpus involving minors, notwithstanding the provision that the Family Court has exclusive original jurisdiction over habeas corpus involving minors. Moreover, the CA and RTC have jurisdiction even if the Law creating Family Courts is more recent than BP 129. * We do not observe the principle of hierarchy of courts when it comes to the applications for the writ of habeas corpus. The writ extends to all cases where the detention is illegal or there is unlawful restraint. * Review the applicability of the principle of hierarchy of courts in Rule 65 (express) and in Rule 66 (no mention) in case of concurrence of jurisdiction.

62

* Even if the petition is filed directly with the SC, the petition will not be dismissed since the rule on hierarchy of courts is not applicable (no reason was mentioned by Dean Jara). The SC can just issue an order directing that the return should be heard by a RTC or CA as provided in Rule 102 Sec 2. II. Illegal Detention * If the detention is illegal at the start but if at the time of the filing of the petition, the detention has become lawful, the petition for habeas corpus will be denied. * If the detainee himself tells the court that he is not being illegally detained, that he has voluntarily submitted himself to this unlawful restraint that will render the petition moot and academic. * If the detention is illegal at the time of the time of the filing of the petition but after the filing the detainee is already released from custody that will also render the petition moot and academic- because the petition has already achieved its purpose. III. Preliminary Citation * The court can give due course to the petition right away, even if the respondent is not given the chance to be heard. The court may issue the writ of habeas corpus right away, if after evaluation of the petition, the court finds the allegations to be true and correct, that is, the detention is unlawful and illegal. (SEE Sec 5) If, however, the court has doubts as to the merit of the petition, then only a preliminary citation will be issued which is in effect a show cau se order of why the writ of habeas corpus should not issue. * So if there is doubt arising from the contents of the application whether the detention is illegal, the court will not issue right away a writ of habeas corpus. The court will simply issue what is called as a preliminary citation. It is an order issued by the court directing the respondent to show-cause why the writ of habeas corpus will (should) not be issued. (SEE Sec 6) * There is no summons issued in the petition for habeas corpus just like other special proceedings. But what is issued is a preliminary citation requiring a respondent to make a return. The idea of a return is peculiar to habeas corpus. The return serves as an answer. (SEE Sec 6 and 8)

63 IV. Nature A. Substantive point of view: Constitution: The SC held that restraint for purposes of habeas corpus does not only mean physical restraint. It could also extend to psychological or moral restraint. B. Procedural point of view: The SC described habeas corpus as a proceeding that is SIMILAR to an in rem proceeding, but not a genuine in rem proceeding: REASONS: (a) There is a petitioner and there is a respondent; (b) There is no requirement for publication; COMPARE: * The SC said that even if the petition for habeas corpus does not have the features of the other special proceedings (absence of a respondent, publication and service upon interested parties) IT IS A PROCEEDING IN REM. (MASTER: The Old Magic Notes seems to be unsure of the true nature of habeas corpus proceeding, unlike the categorical statement in this more recent lecture.) * The petition for writ of habeas corpus is a very peculiar proceeding. The SC has held that it can be commenced even if he petition is sent by telegram to a court. The SC considers this a proper filing. Courts are not strict with formalities since the proceeding pertains to a writ of liberty. V. Return * The respondent is required also to answer and this answer is called the RETURN in habeas corprus. * Two kinds of return: (a) made by public official: if there is compliance with the requirements of oath, verification, explain the reason for detention and give documents authorizing the detention: his return is PRESUMED to be an evidence of the legality of the detention; (b) made by a private individual: the allegations contained in the return must be proven by the private individual; (SEE Sec 13) * The SC said that if the petitioners denied that the detainee has been released, that is contradictory to what the respondents have submitted to the court in the return stating that the detainee has been released. It is the duty or burden of the respondents to prove that there has been actual release. (This is similar to a situation where a defendant puts up an affirmative defense the burden shifts to him.)

64 VI. Appeal * The remedy to challenge a writ of habeas corpus issued by the court is to appeal from this order. (MAST: Is there an instance where Rule 65 can be used?) * The general principle on appeals in special proceedings is found in BP 129: which is by record on appeal within 30 days from judgment or final order. * PROBLEM: In case of a petition for habeas corpus, there are Conflicting Decisions: - Older decisions: 30 days - Old decisions: 15 days - Recent: 48 hrs * UPDATE: Fortunately, a CIRCULAR was issued by the SC clarifying the conflicting decisions. It stated that the 48-hour period is the CORRECT period to appeal. The reason why the SC made previous erroneous decisions: because the SC did not take into account Sec 39 of BP 129 providing for the 48 hour period in case of an appeal from habeas corpus proceeding. According to the SC there is nothing in the Rules that will prohibit the party to file a motion for reconsideration. And if such motion for reconsideration is filed the 48 hrs start from the receipt of the order denying the motion for reconsideration. The appellant is not required to file a brief. Instead, the parties are to submit a memorandum. The period (30 days from receipt of notice issued by the clerk that all the evidence oral and documentary, is already attached to the record) of submission of said memorandum is non-extendible; (SEE Rule 44 Sec 10) * Note that the enumeration in the Rules of Court of special proceedings is not exclusive. Among those provided by law, particularly the Family Code, are summary special proceedings for the annulment of marriage and declaration of nullity of marriage. In summary special proceedings provided in the Family Code we do not use the 30-day period or the general rule in special proceedings. QUERY: So what period of appeal do we use? The SC has rendered conflicting decisions on this matter. In one of its decisions it held that the period to appeal is 15 days. In another decision it held that the judgments in summary special proceedings in the Family Code are immediately executory (SEE Art. 247 of Family Code in relation to Rule 41 Sec1

65 f), thus the remedy is Rule 65. (SEE Circular Rule on Declaration of Nullity of Void Marriages and Annulment of Voidable Marriages where in so far as appeal of actions on void and voidable marriages are concerned Sec 20 is clear on two things: (1) a motion for reconsideration and new trial within 15 days from notice of judgment is a precondition; (2) the appeal is by notice of appeal within 15 days from notice of denial of MR and MNT) * Note that as a general rule in special proceedings enumerated in the Rules of Court, we apply the 30-day period of appeal, EXCEPT habeas corpus and custody of children proceedings which follow their different respective periods. (SEE Sec 19 of AM 03-04-04 SC, which is very identical to Sec 20 of AM 02-11-10 SC) (MAST: Add to this list are the summary special proceedings on annulment of marriage and declaration of nullity which, like custody of children proceedings, the period to appeal is also 15 days.) VII. Damages A. Recovery of Damages Prohibited * QUERY: If the court finally decides that the petitioner was really deprived of his liberty or there was unlawful detention, can it award damages in favor of petitioner and against respondent? NO. This is not allowed. Even if there is a finding that the respondent is guilty for violating the right of the petitioner or that there was indeed unlawful deprivation of liberty, the court does not have authority in special proceedings to award damages. The court in special proceedings is always a court of limited jurisdiction. In case of a petition for habeas corpus, the only power of the court is to make a finding as to whether or not there is unlawful detention or deprivation of liberty. REMEDY: The petitioner or aggrieved party can file an ordinary independent action for recovery of damages. And there is no time frame for the filing of such action for damages unlike in the case of quo warranto. The said action is not barred by res judicata under Rule 39 Sec 47 (b) - in the first place it is a matter that could not have been tried or even raised because the Rules prohibit it to be raised. (SEE Secs 16 and 18) B. Rules 65, 66 and 102: As to the Propriety of Ordinary Independent Action for Recovery of Damages: (a) Rule 65, mandamus: if the court makes a finding in favor of petitioner for recovery of damages; - Independent action: No. The remedy is a motion in the same special civil action for recovery of damages;

66 - Res judicata: Yes. The award of damages is a matter that could have been decided; - Time frame: None, there is no provision identical to quo warranto; (b) Rule 66, quo warranto: - Independent action for recovery of damages is allowed: the Rules themselves allow; - Res judicata: None. Since the Rules allow it; - Time frame: Yes, within 1 year from the termination of the proceedings; (c) Rule 102: - Independent action: Yes. As explained above. - Res judicata: None. As explained above; - Time frame: None; VIII. Comparison: Writ of Habeas Corpus, Writ of Amparo and Writ of Habeas Data
WRITS OF: HABEAS CORPUS AMPARO DATA Habeas Corpus in FC AM 03-0404 SC: Sec 20 MAST: There is no express ground, but I am of the opinion that the ground is provided by Rule 102 Sec 1: by which the rightful custody of any person is withheld from the person entitled thereto Note: Sec 1 The Rules of Court shall apply suppletorily .

LEGAL BASIS

RULE 102

AM 07-9-12 SC

AM 08-1-16-SC

REMEDY

To all cases of illegal confinement or detention: 1. by which any person is deprived of his liberty; or 2. by which the rightful custody of any person is withheld from the person entitled thereto (Sec 1)

To any person whose right to life, liberty and security is violated or THREATENED with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. (Sec 1)

To any person whose right to PRIVACY in life, liberty or security is violated THREATENED with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in: 1. Gathering 2. Collecting 3. Storing Of data or information regarding the person, family, home and correspondence of the aggrieved party; (Sec 1)

PETITIONER

Sec 3: By the party for whose

Sec 2: By the aggrieved party,

Sec 2: General Rule:

MAST: No mention

67
relief it is intended, or by some other person on his behalf or by any qualified person or entity in the order provided in Sec 2 - the aggrieved party Exception: - in cases of extralegal killings and enforced disappearances by: 1. immediate family 2. in default of no. 1, ascendant, descendant or collateral relative within the 4th civil degree of consanguinity or affinity Sec 3: 1. RTC; 2. Sandiganbayan, SC and CA: when action concerns public data files of government offices; again but I think the person entitled to custody or claiming custody Sec 3

PROPER COURTS

Sec 2: 1. SC or any member thereof; 2. CA or any member thereof;and 3. RTC , or any judge thereof; 4. BP 129 Sec 35: Special jurisdiction of MTC; * Sandiganbayan, only in aid of its appellate jurisdiction

Sec 3: * Courts where it may be filed: 1. RTC of the place where the threat, act or omission was committed or any of its elements occurred; 2. Sandiganbayan or any of its justices; 3. CA or any of its justices; 4. SC or any of its justices;

VENUE

Rule 4 Sec 2

Sec 3: * SC, CA, Sandiganbayan: Manila; * RTC: of the place where the threat, act or omission was committed or any of its elements occurred;

Sec 3: * SC, CA, Sandiganbayan: Manila; * RTC A. Where the petitioner resides B. Where the respondent resides C. which has jurisdiction over the place where data or information is gathered etc. All the OPTION of the petitioner.

Sec 20 1.Family Court; 2. RTC: In the absence of the presiding judge of the FC, provided however that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty; 3. SC, CA or any of its members; Sec 20: * Family Court where the petitioner resides or where minor may be found;

EXTENT OF ENFORCEABILITY

* SC, CA and Sandiganbayan:

Anywhere in the Philippines

Anywhere in the Philippines

* FC: within its judicial

68
anywhere in the Philippines; * RTC: only within his judicial district region where the FC belongs * SC, CA: Anywhere in the Phils. Sec 3: On any day and at any time AMPARO Sec 4: Exempt

When to File

WRIT OF: DOCKET FEES AND OTHER LAWFUL FEES REQUISITES OF PETITION

Sec 2: On any day and at any time HABEAS CORPUS

Sec 3: Signed and verified * Vide the contents Sec 5: When it appears ought to issue: immediately

Sec 5: Signed and verified * Vide the contents Sec 6: When in its face ought to issue: immediately

ISSUANCE OF THE WRIT

HABEAS DATA Sec 5: Exemption applies to an Indigent petitioner only Sec 6: Verified written petition * Vide the contents Sec 7: When in its face ought to issue: immediately * Note however that there is a provision of service within three days unlike in WOA and WHC where there is no such period; Sec 7: Not later than 10 work days from the date of its issuance

Sec 20: Verified petition

SUMMARY HEARING

WHEN NOT ALLOWED TO WHOM WRIT DIRECTED HOW SERVED

Sec 12: Hearing on return; Adjournment - seems to be immediate after receipt of return Sec 4 Sec 6 Sec 7: Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service. If that person cannot be found, or has not the prisoner in custody then the service shall be made on any person having or exercising such custody. Sec 10: - signed; and shall also be sworn to if the prisoner is not produced

Sec 6: Not later than 7 days from the date of its issuance

Sec 8: If the writ cannot be served personally on the respondent, the rules on substituted service shall apply.

Sec 9: If the writ cannot be served personally on the respondent, the rules on substituted service shall apply

CONTENTS OF RETURN

Sec 9 - verified written return; - period to file cannot be extended except on highly meritorious ground; - the extension seems to be through motion

Sec 10: - verified written return; - may be reasonably extended BY THE COURT for justifiable grounds; - general denial disallowed;

69
since it is not anymore a prohibited motion; - general denial disallowed

NOTE: a motion to extend to file a return is prohibited under Sec 13 (b)

HOW WRIT EXECUTED AND RETURNED DEFECT OF FORM WHEN RETURN EVIDENCE, AND WHEN ONLY PLEA WHEN PERSON LAWFULLY IMPRISONED RECOMMITTED, AND WHEN LET TO BAIL WHEN PERSON DISCHARGED IF NO APPEAL

Sec 8

Sec 9 Sec 13

Sec 14

PENALTIES

Sec 15: If the respondent does not desire to appeal, the petitioner shall be forthwith released Sec 16: Clerk of court: - refuses to issue a writ: Person to whom the writ is directed: - who neglects or refuses to obey or make return - makes false return - refuses to deliver within 6 hrs after demand a true copy of the warrant or order of commitment * Penalties: 1. forfeit to the party aggrieved the sum of 1K, to be recovered in a proper action; 2. contempt;

Sec 7: Clerk of court: - refuses to issue a writ; Deputized person: - refuses to serve the writ; Penalty: Contempt without prejudice to other disciplinary actions; Sec 16: Respondent: - who refuses to make a return; - makes a false return; Any person: - who disobeys or resists a lawful process order of the court Penalties: 1. contempt 2. imprisonment 3. fine

Secs 8 and 11: Same as WOA

PERSON DISCHARGED NOT TO BE AGAIN IMPRISONED WHEN PRISONER MAY BE REMOVED FROM ONE CUSTODY TO ANOTHER RECORD OF WRIT; FEES AND COSTS DEFENSES NOT PLEADED DEEMED WAIVED

Sec 17

Sec 18

Sec 19 Sec 10:

70
WHEN DEFENSES MAY BE HEARD IN CHAMBERS Sec 12: * Defenses may be heard in chambers, which is not available in WOA Except may be in Sec 14 (b) IO & (c) PO on Interim Reliefs

PROHIBITED PLEADINGS AND MOTIONS

Sec 11: - motion for extension of time to file return not prohibited

Sec 13 * It appears that motion to file a return here is expressly prohibited unlike in WOA, however it seems that the 5 day period may be extended motu propio by the court, See Sec 10 herein * It is confirmed in par. k, that interim relief orders may also be availed of in here as may be necessary (possibly TPO & WPO, not IO & PO which will be redundant) See and compare also Sec 6 especially par. E and Sec 14 of writ of amparo;

EFFECT OF FAILURE TO FILE A RETURN

Sec 12: - proceed to hear the petition ex parte

Sec 14 * If you will compare the provisions, in WOA the phrase "..granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence" is not found. Sec 15 * This statement is found in WOA: The hearing shall be from day to day until completed and

SUMMARY HEARING 2

Sec 13

71
given the same priority as petitions for habeas corpus.

INTERIM RELIEFS

Sec 12: 1. unless for good cause shown the hearing is adjourned, in which event the court shall make an order for the safe keeping of the person imprisoned or restrained as the nature of the case requires; 2. the court or judge must be satisfied that the person that the illness is so grave that he cannot be produced without danger;

Sec 14

MAST: As already opined, TRO and WPO may be available. We cannot avail of IO and PO, because this will be absurd. The writ of habeas data is prayed for similar purposes as IO and PO.

AVAILABILITY OF INTERIM RELIEFS TO RESPONDENT BURDEN OF PROOF AND STANDARD OF DILIGENCE REQUIRED JUDGMENT

Sec 15

Sec 17

Sec 15

Sec 18

RETURN OF SERVICE

HEARING ON OFFICERS RETURN APPEAL

Sec 16: Substantially the same as WOA but with this additional statement: Upon its finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within 5 working days Sec 17: The officer who executed the final judgment shall make a verified return within 3 days from its enforcement Sec 18 Sec 19: Same as WOA Sec 19 of circular and RA 8369 Sec 14: Decisions and orders of the court shall be appealed in the same manner as appeals

Sec 15 in relation to Sec 3 of Rule 41 and Sec 39 BP 129: 48 hrs from notice of judgment appealed from by ordinary appeal

Sec 19: Rule 45 by petition for review on certiorari with peculiar features: 1. appeal may raise questions of fact or law or both; 2. period of appeal shall be 5 working days from the date of notice of the adverse judgment;

72
3. same priority as habeas corpus cases from the ordinary RTC thus Rule 41 by notice of appeal within 15 days with peculiar feature as provided in the circular: there must be first a motion for reconsiderati on or new trial within 15 days from notice of judgment;

ARCHIVING AND REVIVAL OF CASES INSTITUTION OF SEPARATE ACTIONS EFFECT OF FILING OF A CRIMINAL ACTION CONSOLIDATION SUBSTANTIVE RIGHTS

Sec 20 Sec 21 Sec 22 Sec 20 Same as WOA Sec 22 Same as WOA Sec 21 Same as WOA Sec 23: * the only difference to Sec 24 is the mention in WOA of a particular law from which the substantive rights arise, the Constitution;

Sec 23 Sec 24

SUPPLETORY APPLICATION OF THE RULES OF COURT APPLICABILITY TO PENDING CASES

Rule 72 Sec 2

Sec 25

Sec 24 Same as WOA

Sec 26

73 GUARDIANSHIP I. Jurisdiction * The Family Courts (FC) exercise exclusive and original jurisdiction over the petitions for guardianship. * Substantive law provided in: 1. Family Code; and 2. Law creating Family Courts Family Courts Act, RA 8369; * In order to update the guardianship proceedings pursuant to said substantive laws, an Administrative Circular was issued by the SC. (SEE AM 03-02-05 SC) * RTC : - has jurisdiction over guardianship proceeding involving an incompetent who is not a minor: - QUERY: What is the source or basis of the in circular saying that RTC and not FC has jurisdiction over incompetents? A: The basis is found in BP 129 Sec 19 par. 7 providing that the RTC will be exercising exclusive original jurisdiction over all civil actions and special proceedings that used to be cognizable by the Old or Former Juvenile and Domestic Relations Court. BP 129 has done away with the said OLD COURT and decided to transfer the authority over the cases, which includes guardianship proceeding over incompetents who are not minors, to the jurisdiction of the RTC. - SEE definition of incompetent in the Rules: * FAMILY COURT: - has jurisdiction over guardianship proceeding over a minor as provided by the Law creating the Family Court or Family Courts Act, RA 8369 Sec 5 par. b; - when the incompetent is also a minor then the jurisdiction must be in the Family Court; II. Appointment of GENERAL Guardians * The appointment of a guardian that is exclusively given to a Family Court is the appointment of a GENERAL GUARDIAN not the appointment of a GUARDIAN AD LITEM, which is inherent in any court before which a civil action is pending as long as one of the parties is a minor who needs a guardian ad litem. * There is no requirement of publication, simply require the court to serve copies personally to parties named;

74 * General Rule: There is no need for publication; (SEE Rule 93 Sec 3) Exception: In case of guardianship over the properties of the minor or incompetent who is a non-resident, the Rules give authority to the court to order publication. Thus in this case there is a need for publication. (SEE Rule 93 Sec 6) * The General Guardian could be a: 1. over the person only; 2. or over the property only; or 3. both over the property or person; * There could be two guardians appointed by the same guardianship court. (SEE Rule 93 Sec 1 and Circular) NOTE: Art. 1060 NCC: A corporation or association authorized to conduct the business of a trust company in the Philippines may be appointed as an executor or administrator, guardian of an estate, or trustee, in like manner as an individual; but it shall not be appointed guardian of the person of the ward. * QUERY: Can this same order (appointing two guardians) be issued in a settlement proceeding, meaning to say can the court appoint administrators of the same estate? A: Yes, there could be more than one executor or administrator (execad) in a settlement proceeding. These matters are left to the discretion of the settlement court. (SEE Sec 6 Rule 78) * Similarities with execad: 1. an officer of the court; 2. bound to obey the orders of the court; 3. required to file a bond; 4. to submit an inventory of the properties of the ward; 5. to submit an accounting of the properties under his care and management; 6. can also sell, dispose of, and mortgage the properties of the ward as long as these things are done always with the approval of the guardianship court. * Difference with execad: When an execad is given authority to sell or mortgage properties of the estate, there is no time limit given for the sale and encumbrance of these properties. WHILE in the case of guardians, he must sell the property of a ward within a period of one (1) year, otherwise his authority ceases to be effective.

75 He must ask the court for the renewal of that authority. * If the guardian sells the property of the ward without prior authorization from the guardianship court, the same will be null and void. III. Circular: In Case of a Minor * The procedure prescribed in the circular is almost an identical procedure to the settlement of estate: petition states: 1. jurisdictional facts; 2. identity of the ward 3. value of the property of the ward 4. person asking for the issuance of letters of guardianship * Circular recognizes classification: 1. natural, 2. judicial 3. general, 4. over property, 5. over person, 6. ad litem 7. decisions: de facto guardian? * Administrative Circular and Rules: Factor in: - Rule 3 Sec 5 and 18 on guardian ad litem; and - Rule 14 how summons is served upon a minor or incompetent * In petition for guardianship of a minor the best evidence of minority is the birth certificate; IV. Guardian Ad Litem * Appointment of Guardian Ad Litem of a minor or an incompetent who is not a minor: QUERY: Is the appointment of a guardian ad litem for a minor exclusively cognizable by the Family Court? Is the appointment of a guardian ad litem for incompetent exclusively cognizable by the RTC? Principle: Any court before which the principal case is pending has the authority to appoint a guardian ad litem. The SC ruled that the appointment of a guardian as litem is only an incident to a principal action. It is not necessary for anyone of the litigants to file an independent petition for appointment of a guardian ad litem.

76 EXAMPLE: More particularly if the defendant is an incompetent, an inferior court can possibly take cognizance. This is if the recovery of damages is only for 250K for an act of negligence of a minor. * The appointment of a guardian ad litem is only for a very limited purpose for the protection of the interest in the particular case. After case has ended then the authority also ends. * The appointment of a guardian ad litem: assumes or presupposes that there are no parents (natural guardians) or judicial guardians. Thus, if there is already a judicial guardian appointed by the court, it is improper for a court to appoint a guardian ad litem. V. Evidentiary Matter: Rule on Object Evidence * In the trial of a petition for guardianship over a minor or incompetent who is not a minor, the law mandates the application of the Rules of Evidence, particularly the RULE ON OBJECT EVIDENCE. The law requires that the minor himself or the incompetent himself must be present. This is for the court or judge to easily ascertain whether the minor or ward is indeed a minor; or the incompetent or ward is really an incompetent who is not a minor. (SEE Rule 93 Sec 5; AM 03-02-05 SC Sec 11, and 12: in case of non-resident minor the court may dispense with the presence) VI. Rule 93 on Incompetents A. Filing of the Petition: * The 1. 2. 3. 4. 5. 6. petition will allege that there is an incompetence and that the person is: suffering from civil interdiction; a hospitalized leper; a prodigal; deaf and dumb who are unable to read and write insane, even though they have lucid intervals; even if not insane but by reason of age, disease, weak mind, and other similar causes, cannot without outside aid, take care of themselves and manage their property, becoming an easy prey for deceit and exploitation;

(SEE Rule 92 Sec 2; Civil Code Art. 38)

77 B. Contest as to Incompetence * In case of petition for guardianship of an incompetent, there should be a declaration by the court that he is an incompetent; (SEE Sec 5 Rule 93) * It is possible that nobody will appear to contest the allegation in the petition that there is an incompetence. However, it is also possible that an interested person will file an opposition contesting the allegation that the proposed ward is incompetent. If there is an issue or factum probandum as to the incompetence of the proposed ward, it must be first adjudicated by the guardianship court. If the court says that the proposed ward is incompetent, then the court can proceed to the appointment of the guardian. (SEE Secs 4 and 5 Rule 93) QUERY: Is the order of the court adjudicating that the proposed ward is indeed an incompetent an interlocutory order? NO. The order of the court declaring the proposed ward as indeed incompetent is a final order, although there are other proceedings to be taken by the court like the appointment of the guardian. The order being a final order, it can therefore be appealed. (SEE Sec 1 e Rule 109) C. Rule of Evidence: Presumption that the Person is Capacitated to Act * The trial court is bound to follow the presumption that a person is capacitated to act: presumption on competency. It is the duty of the petitioner to prove to the court that the proposed ward is really incompetent. QUERY: What is the quantum of proof to defeat the presumption of competence? It is clear and convincing evidence, not preponderance of evidence. The reason is that there is a presumption in law that the person is competent. (SEE Rule 131 Sec 3; Art. 37 NCC) * Just like in ordinary civil actions, when there is an allegation of fraud or bad faith, the presumption in law is that the parties to the contract have acted in good faith. The quantum to destroy the presumption of good faith is always clear and convincing evidence. VII. Issuance of Notice and Service Thereof * QUERY: Upon the filing of petition, will the court issue summons to acquire jurisdiction over respondent? No. The petitioner does not implead a particular respondent. This is because a guardianship proceeding is a proceeding in rem. But unlike settlement proceedings where notice and publication requirements are jurisdictional, the law does not require the court in guardianship proceeding

78 to issue an order setting the case for hearing which should be published. The law only requires personal notice which must be served upon ward himself (if he is at least 14 years of age) or persons interested. The guardianship proceedings do not require service of summons, there is just a notice to interested persons. (SEE Sec 3 Rule 93; AM 03-02-05 Sec 8) * Guardianship is an in rem proceeding since it concerns the STATUS of the person under Rule 39 Sec 47. VIII. Guardian has already been Appointed A. Comparison: Settlement Proceeding and Guardianship (1) Settlement: * Query: Are there substantial differences as to the duties with respect to the settlement of indebtedness of a ward and the settlement of indebtedness of the estate? There is a difference. Recall that in settlement proceedings, it is the duty of the creditors of the estate arising from a contract express or implied, to submit or file their claims in the intestate or estate court within the period of Statute of Non-claims, otherwise it will be barred. It is the estate or intestate court that determines the validity of claims. If the court determines the claim as valid, even if the order approving the claim has been entered, the creditor cannot move for execution. The creditor must wait for the court to issue an order directing the execad to pay the indebtedness. The court decides the merit of a claim for money presented to the court within the statute of limitations. However in case of claims for recovery of personal or real properties, these matters must be decided in a separate proceeding or action. WHILE Guardianship: * QUERY: Can the guardianship court approve or disapprove the claims against the ward? NO. Although it is also the duty of the guardian to pay and settle indebtedness against the ward, in guardianship cases there is no such thing as Statute of Non-claims. If the creditor has a claim against the ward, he cannot file said claim in the guardianship court. The guardianship court has no authority to pass upon merits of the claim. The remedy is to file an ordinary case in court against the guardian in a court of general jurisdiction (which may also be the same guardianship court but now in the exercise of its general jurisdiction). If

79 the minor or incompetent has no guardian, the creditor may file a complaint against the minor or incompetent and then seek for appointment of a guardian ad litem. (SEE Sec 3 Rule 96; Rule 3 Sec 18; AM 03-02-05 Sec 17 b) NOTE: The minor may be sued because he can enter valid contracts like a contract of sale when the minor buys necessaries. (SEE Art. 1489 NCC) Most of the contracts entered into by a minor are voidable, nonetheless he can be sued as a minor since they are valid until annulled. (SEE Art. 1390 Sec 1 NCC) * Under the Rules the representative party must implead the real party-ininterest. (SEE Rule 3 Secs 3 and 5) * The creditor can move for execution in case of final and executory judgment against the guardian as representative of the ward in an ordinary case of recovery of sum of money. Thus the guardian is not immune from execution (but note the court that will execute is not a guardianship court). In settlement proceeding, the estate is immune from execution in case of claim for money under Rule 86. (MAST: Note that the execad is not immune from execution when the claim is for real or personal property or for damages arising form tort under Rule 87) * QUERY: If the ward is sued, the guardian must represent the ward. And if guardian is convinced that there are properties with third persons, can the guardian ask the guardianship court to order the third person to appear for examination? Yes (SEE Rule 96 Sec 6; AM 03-02-05 Sec 18 c), but if the third person says he is owner can the guardianship court conduct a trial? No, the guardianship court is a court of limited jurisdiction. It can only resolve incidents pertaining to guardianship. It cannot resolve dispute over title. (2) There is a need to compare the power of guardian and the power of the execad to convey or dispose properties. Rule 89 vs Rule 95, thus must be compared. In settlement of the estate, there is always a need for the execad to get the approval of court. The same is true with guardianship proceedings, the guardian must ask the consent of the guardianship court to be able to convey, dispose or encumber the property of the ward. But in case of conveyance, disposition or encumbrance by execad of the properties of the estate, Rule 89 is more detailed and specific. When properties of the estate are to be sold, personal properties must be sold first as a general rule. Personal properties cannot be encumbered, the rules frowns on this procedure (MAST: but the settlement court has wide discretion to allow encumbrance if it will benefit the estate). The personal properties must always be disposed of thru a contract of sale. However, real properties may be sold or

80 mortgaged in order to raise funds for the estate. Thus, real properties may be encumbered not necessarily sold in order raise funds for the payment of debts. In guardianship proceedings there is no such specific requirement. The guardian may file a petition asking for authority to convey, sell, dispose of or encumber either personal or real properties. (Rule 95 Sec 1ff; AM 03-02-05 Secs 19-22) (3) If the execad files a petition asking for authority to sell or encumber property, the said petition can be defeated or stopped right away by simple expedient of filing a bond by an heir in estate or intestate court. (SEE Rule 89 Sec 3) In guardianship proceeding, if the guardian files a petition seeking authority to sell or encumber the property of the ward, this cannot be stopped by filing a bond of an interested person. In case of settlement of the estate, there is a need to hear this petition for authority to sell or convey giving notice to ALL interested parties. Even if the order setting the case for hearing at outset has already been published, even if notice to creditors has already been published; if the execad has a petition for authority to sell or encumber properties of estate, the court can still require publication of the order setting this petition or motion for hearing. If this publication requirement is not complied with, being jurisdictional, then the proceedings taken thereafter is void. (SEE Rule 89 Sec 7 b) In guardianship, the guardianship court has no power to say that said order setting the hearing for the petition for authority to sell must be published. It is enough that personal notice of the hearing of this petition is given to the interested parties. (SEE Rule 95 Sec 2; AM 03-02-05 Sec 20) NOTE: QUERY: In the care of the ward, the needs should be financed by the assets of the ward, can the guardian sell and encumber the properties to meet these finances? Yes, with the permission from the guardianship court. The guardian should file a correlative petition asking for leave to sell. There shall be notice to ward, incompetent or next of kin. Then the court finally issues the order. Is the guardian duty bound to sell the property in public auction? No. There could be public sale or also private sale, depending on the appreciation of the guardian of the market forces. (SEE Rule 95 Sec 4; AM 03-02-05 Sec 22: there is mention only of public sale, but there is use of the word may which does not preclude private sale) (4) Settlement: In case of settlement proceeding, the authority to sell and encumber does not have a fixed duration, it can be for an indefinite period of time. This is

81 as long as the execad complies with the other requirements in the matter of conveyance or disposition of the property of the estate. (SEE Rule 89) WHILE In guardianship proceeding, the duration of the authority to sell or encumber properties is limited to a period of 1 year. After 1 year, the authority expires by operation of law unless the court extends its effectivity. (SEE Rule 95 Sec 4) NOTE: The authority to sell is only for a period of one year, if it expires the authority is revoked by operation of law. In such a case the remedy is to file

another petition asking for a new authority.

(MAST: There appears to be a conflict as to whether the court is allowed to extend the one year period upon motion or a new verified petition is necessary. But reading the Rules, I believe that a new petition should be filed, for there is no showing that a motion to extend is expressly allowed. Besides the petition must be verified and if we allow that the period is extended through a mere motion, it will defeat the purpose of the law which is to limit the authority of the guardian. Nonetheless, if the one year period has not yet expired and there is a motion to extend, then the court may grant such motion since there is a period to extend which has not yet expired. A different case obtains when the period has expired, since by operation of law there is no period to extend anymore.) (5) If the interested parties do not agree with the appointment of the guardian there can be an appeal. And unlike in settlement proceedings there is no similar provision providing for a special guardian. Some cases have ruled that the appointment of the guardian is immediately executory as long as he files a bond and other conditions complied with, and thus the guardian will undertake his duties despite the appeal. Granting that the court believes, (since this case is not included under Rule 39 on immediately executory orders) that the decision is not immediately executory, also under Rule 39 there can be an execution pending appeal. There can be reasons that can justify this like: there must be someone to take care of the interests of the ward and the rules of guardianship are designed to benefit the best interests of the ward. The guardian is of course required to file a bond. ???? * In some instances there is no need to file a bond. (MASTER: The instance that there is no need to file a bond I think refers to a bank which acts as a trust corporation. As a trust corporation it can be appointed as a guardian over the property but not over the person of the ward. The bond is not anymore necessary because the bank has already filed a bond with the Central Bank when

82 it applied for a license to act as a trust corporation.) The duties of a guardian are somewhat similar to execad or any person who occupies a fiduciary position. B. Summary
ESTATE OR INTESTATE COURT There is Yes GUARDIANSHIP COURT None No authority

STATUTE OF NON CLAIMS DETERMINES THE VALIDITY OF CLAIMS OF CREDITORS PERSONAL PROPERTIES SHOULD BE SOLD FIRST BOND DEFEATING A PETITION FOR AUTHORITY TO SELL PUBLICATION OF ORDER SETTING THE HEARING OF PETITION FOR AUTHORITY TO SELL DURATION OF AUTHORITY TO SELL OR ENCUMBER PROPERTY SPECIAL ADMINISTRATOR

Yes, generally Yes

No requirement, it can either be real or personal No

Yes

No. Notice sufficient

Period is indefinite

1 year from granting of order

There is concept of Special Administrator

There is no such thing as Special Guardian

IX. Termination * The guardianship should automatically end when the ward reaches the age of majority. This is so even if no order is issued saying that the guardianship is terminated. By operation of law the ward is deemed emancipated and the guardian loses power. This does not mean that the guardianship proceeding is already closed, the guardian must still submit a final accounting; (AM 03-02-05 Sec 25) * In case of guardianship by reason of incompetency, the incompetent or the guardian files a petition with the guardianship court to declare his competency. The petition is not a separate proceeding but is considered as a continuation of the guardianship proceeding. If the court declares the ward competent, the guardianship ends. (SEE Rule 97 Sec 1) *The quantum of evidence to declare incompetency is clear and convincing evidence. To defeat a disputable presumption, the evidence must be clear and convincing evidence.

83 X. Independent Special Summary Proceeding for Approval of the Bond There is a mention in the Rules of a summary special proceeding for the approval of the bond. This applies when the assets of the ward is worth at least 50,000. It is a separate independent summary proceeding where the parents petition for the approval of the bond so that they can manage the property of minor. (SEE AM 03-02-05 Sec 16 and Family Code Art. 225)

84 ADOPTION I. ADOPTION LAWS * Do not rely on the Rules of Court instead rely on Domestic Adoption Act (DAA) and the Inter-country Adoption Act (ICAA). * As the title of the proceeding, this case generally covers only minors. It is in exceptional circumstances that there could be an adoption of a person who is already of age. (SEE RA 8552 Sec 8; AM 02-06-02 SC Sec 5) * There is a provisional remedy now recognized by the said two laws on adoption in relation to this proceeding. So a petition for adoption may be filed and in that petition there could be a prayer for TEMPORARY CUSTODY OF CHILDREN. * Procedurally contents of petition in case of settlement proceedings are similar with the contents of the petition for adoption: 1. jurisdictional facts; 2. identify persons involved; 3. Value of the estate; 4. Adopter; 5. Adoptee; * QUERY: Do we allow adoption that is NON-JUDICIAL in character that is we allow adoption even if there is no court proceeding at all? Yes, under our present statutes. Under the Inter-country Adoption Act, adoption may be authorized/decreed by the court. (SEE RA 8043 Sec 10; AM 0206-02 SC Sec 28) * If it is judicial, the court that has exclusive original jurisdiction will be the Family Court, because this is a family related case. * The court relies heavily upon the report of the social worker, without these reports the court will not resolve the petition. The child study report and home study report and trial custody, practically forms part of the jurisdictional requirements. (AM 02-06-02 SC Secs 13, 15 and 16) * The annexed consent documents are also required. They should be annexed, because if they are not annexed the court will not acquire jurisdiction; (AM 0206-02 SC Sec 11) * The privilege to adopt extends to aliens, can file a petition if he continuously resides for 3 years in the Philippines until the judgment is entered. By the phrase

85 until the judgment is entered implies that the alien may be compelled to stay for an undetermined number of years. This is a strict requirement which discouraged aliens from adopting. The government thus came out with the administrative Inter-country Adoption. (AM 02-06-02 SC Sec 4 {2}) * Both in domestic and inter-country, we find penal provisions governing Child trafficking and other violations and penalties. (RA 8552 Sec 21, 22; RA 8043 Sec 16) * Comparison of Guardianship and Adoption: GUARDIANSHIP Residence of a minor or incompetent Not required, only the requirement of giving notice to the parties ADOPTION Residence of the adopter Required to enable the court to acquire jurisdiction (AM 02-06-02 SC Sec 12; notice that furnishing of copies is discretionary except in case of change of name of the adoptee the Solgen must be notified Generally a minor, except in exceptional situations where our law allows a person who is already of age to be adopted.

VENUE PUBLICATION

PARTY

Not necessarily a minor, he could be a person of age as long as he is incompetent

A. Domestic Adoption Act 1990: - the procedure is always judicial in character - the adoptee need not be a Filipino citizen; may be a minor or of legal age, or may even have a spouse; B. Inter-Country Adoption Act: - purely administrative - must be a Filipino citizen; must be a minor - the law requires that there must be a certification that the adoptee is a legally free child, that is available for adoption;

86 NOTE: * The Inter-country Adoption Board (ICAB) is a quasi-judicial body. * Must always be a minor, a Filipino and a legally free child: he has no more parents, a declaration that he is a legally free child; (SEE AM 02-06-02 SC Sec 29; RA 8043 Sec 8) * What is filed in the ICAB is simply called an application; (RA 8043 Sec 10; SEE however AM 02-06-02 SC Sec 28 which used the word verified petition) * Practically the application can be filed abroad. There is no requirement of period of stay in the Philippines. The matching will be undertaken by the agencies of the Philippine and foreign government. If the ICAB determines that the adoption is for the benefit of the child, the adopter is given the permission to bring out the proposed adoptee from the Philippines. The alien must go here in the Philippines. There is no decree of adoption issued by the ICAB. (SEE RA 8043 Sec 11) * QUERY: The alien brings out of the country the minor. And the alien and the minor is now the beyond jurisdiction of our courts. It is possible that the alien might abuse the minor and we cannot do anything about it. However, if he really takes care of the minor, then who will issue the decree of adoption? The foreign court issues the decree of adoption. (SEE RA 8043 Sec 14) C. Resort to ICAA if DAA Fails is Possible * QUERY: If in domestic adoption act the Family Court did not render a decree of adoption, can the petitioner or adopter resort to the provisions of InterCountry Adoption Act? Yes. In fact under the law, if the Family Court in a domestic adoption proceeding denies the petition, one of the privileges given to the Family Court is to study if adoption can be had under the provisions of the Inter-Country Adoption Act. (AM 02-06-02 SC Sec 32; RA 8043 Sec 7 and 10) * If an alien files a petition for adoption under the Domestic Adoption Act and the FC analyzes and concluded that it will not grant the petition, the FC will not dismiss the petition but will refer the case to ICAB; II. Publication Requirement - must be strictly complied with otherwise the court will not acquire jurisdiction over the petition for adoption; - in the order to be published or at least in the caption of the case the complete and correct name of the person to be adopted must be specified;

87 - this complete and correct name is contained in the Office of the Civil Registrar. (SEE AM 02-06-02 SC Sec 12) III. Policy of the State Reading the Domestic Adoption Act and the Inter-country Adoption Act, the trend seems to be that every interpretation of these laws should be in favor of the adopted. So the SC has given the rule that procedural laws should not be strictly applied and interpreted as long as the interest of the adopted are well protected. * The policy of the state is to apply the laws liberally in favor of the adoptee that will benefit the adoptee whether under the provisions of DAA or ICAA. (SEE RA 8552 Sec 2; RA 8043 Sec 2) III. Revocation or Rescission of the Decree of Adoption * The court that has given the decree of adoption is also the court that has the authority to revoke or rescind that decree. * Under the present law only the adoptee has the right to seek for rescission. (SEE AM 02-06-02 SC Sec 19) * Conflicting Jurisprudence on the Availability of Independent Petition for Revocation of Decree of Adoption: In some cases, the proceedings for the revocation of adoption is considered as a continuation of the adoption case. But in other cases, the SC said that there may be an independent petition for revocation of a decree of adoption. RESOLUTION: But this does not seem to be important anymore because the Family Court has the authority to revoke or set-aside a decree of adoption that has been previously given. * QUERY: Should he file it with the same adoption court? No. This is a proceeding different from the decree of adoption, the petition should be filed in the court located at the residence of the adoptee. (MASTER: From the reading of the AM 02-06-02 SC Secs 19-25, it appears that the petition for rescission of adoption decree is an independent proceeding. Therefore the conflicting decisions have already been resolved by the Circular in favor of the independence of a petition for revocation or rescission of adoption decree.)

88 IV. Prohibition on Joinder in Case the Petitions are Governed by Different Procedures not Followed * But there is a provision not applicable in any other special proceeding, or for that matter in ordinary civil action or special civil action. Under the AM 02-06-02 SC Sec 7, in compliance with Domestic Adoption Act three different proceedings could be joined in the same petition: 1. adoption; 2. change of name; 3. correction of entries; * if the court wants: a petition for declaration of adoptee as an abandoned or neglected child; The general rule on joinder of causes of action in Rule 2, is that joinder is allowed subject to several limitations to the privilege of the person to have joinder of causes of action. In ordinary actions, if the causes of action are governed by different procedures there can be no joinder. However, the law expressly allows joinder of different petitions even if they are governed by different procedures. The SC and the laws seem to have ignored the basic principle when it comes to joinder of causes of action: that causes of action cannot be joined if they are governed by different procedures. V. Petitions Embodied in the Same Petition * In a petition for change of name, embodied in the same petition, there can be a petition for substantial change of a name, not only change of name because of clerical error. NOTE: When there is a decree of adoption, the surname of the adoptee is changed even without a specific order allowing the use of the surname of the adopter. Note that the provisions refers only to surname, there must be a petition for change of name as to first name. * In the petition for correction of entry, embodied in the same petition, like a correction of entry in birth certificate; the correction is allowed even if it is not simple clerical error, the change or correction may be substantial. * QUERY: If petition for adoption could embody different petitions governed by different procedures, should the court comply with all the requirements of each petition? Yes. Otherwise if the jurisdictional requirements of the petition for adoption are only complied with, the court acquires jurisdiction over the petition for adoption, but not over the other petitions.

89 * JURISDICTIONAL AND MANDATORY REQUIREMENTS: A. In case of adoption: - the petitioner is mandated to submit the written conformity of the adoptee; of the biological parent if they could be found; written consent legitimate children and adopted children of both the adopter and the adoptee, even the illegitimate children if they are living with the adopted (AM 02-06-02 SC Sec 11) - notice of hearing to be served upon the interested parties which should be published once a week in three weeks; (SEE AM 02-06-02 SC Sec 12) B. Change of Name SAME AS 99 PLUS: Rule 103: publication is also required in the caption of the petition, the name that appears in the certificate of birth which is sought to be changed and all the aliases, should be mentioned in the caption of the case and order which is required to be published. The court will not acquire jurisdiction in so far as change of name is concerned, if there is any omission. C. Correction of Entries SAME AS 99 PLUS: Rule 108: Expressly required that it should be filed in the place where local civil registry is located. If not complied with, there is no acquisition of jurisdiction is so far as this aspect. The local civil registrar must be impleaded as a defendant and again there is a separate publication

90 CUSTODY OF MINORS I. Independent Proceeding for Custody of Minor A. In Rule 99 the Title is: Adoption and Custody of Minor B. In the circulars, custody of minor is treated as an independent proceeding and it could even be treated as a provisional remedy. (SEE A.M. No. 03-04-04 SC, Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors) C. In cases of annulment of marriage and declaration of nullity, the temporary custody of minor is treated as a provisional remedy. (SEE A.M. No. 02-11-10-SC, Sec 5, Sec 21, Rule on Declaration of Void Marriages and Annulment of Voidable Marriages) D. Unlike Adoption, in petition for custody of children as an independent proceeding: 1. there is a plaintiff and there is a defendant; (Sec 2) 2. there is no requirement of publication; 3. which seems to be that custody of minor is not a proceeding in rem 4. the court issues a summons addressed to the respondent requiring him to answer for a very short period of 5 days; (Sec 5) 5. there is no declaration of default; (Sec 9, ..or expiration of the period to answer) 6. there is also a requirement for pre-trial, (Sec 9) 7. there is also a requirement where the parties submit the case for mediation; Note that this topic of mediation is not mentioned in other special proceedings; (Sec 12) 8. the rule on custody of minors also includes petition for habeas corpus involving minors; 9. there is a provisional remedy of support pendente lite or after trial that support be given permanently to the minor subject of the litigation; (Sec 18) 10. the period to appeal is only 15 days; (Sec 19) NOTE: That in BP 129 the general rule is 30 days. Circular also says that in petition for custody of minor an appeal can not be had unless an appellant files a motion for reconsideration or new trial, thus it is a condition precedent for the perfection of an appeal. In Rule 65 there must first also be a motion for reconsideration before resorting to Rule 65.

91 CHANGE OF NAME * The SC has already settled that the remedies provided in Rule 103 and Rule 108 could be availed of in one and the same proceeding. The only requirement is that the procedural requisites in these two rules must be satisfied. * For purposes of Rule 103, the name that could be changed, that is judicially, is the name that is written on the certificate of birth at the office of the local civil registrar. * The SC has ruled that with respect to the first name or proper name, that is almost subject to the discretion of the parents. But when it comes to the surname, it is the law which determines the surname that could be used by a person. The law requires that the surname must be the surname of the legitimate father under our civil law. (SEE Art. 365ff NCC) * For purposes of Rule 103 a name that can be changed could either be the surname or the first name, but the change must always be with sufficient justification. I. Jurisdictional Requirements: RULE 103 A. The first requirement is in the petition itself, in the caption of the petition and in the caption of the order to be published, all the names must be correctly written. In the caption itself the name as it appears in the certificate, new name and the aliases must appear in the caption. If this is not met, the court acquires no jurisdiction. B. Suppose the caption complies strictly with the first jurisdictional requirement, the other essential requirement is the notice of hearing. According to jurisprudence, the notice of hearing must also contain all the names. NOTE: * If there is any error or change or difference between the caption and the notice of hearing, the court will not acquire jurisdiction over the petition, the birth certificate must be copied correctly (including the error). * Supposing that the change of name which the adopter seeks in the petition for adoption is not a substantial change in name but a correction of a clerical error or innocuous error in spelling, this will now be covered by Rule 108.

92 II. In Rem Proceeding * Petition for change of name is another proceeding IN REM: REASONS: (1) there is a requirement for publication (jurisdictional); (SEE Sec 3) (2) although there is no respondent, the office of the Solicitor General should always be notified and it is the practice of the Solicitor General always to oppose any petition for the change of name. (SEE Sec 4) III. Grounds * One of the grounds is if the name is dishonorable or if the name is hard to write or pronounce. But if the only reason is given for the change of name is that it could subject the petitioner to derision or laughter whenever he uses the name, the SC ruled that this may not be enough justification for the change of name. * Name that could be changed is first name, middle name or surname: this is just a privilege: policy is not to allow unless for good reasons: 1. the petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or 3. The change will avoid confusion; (SEE 9048 Sec 4) * Important condition imposed by SC: petitioner must show that the petition will not prejudice any third person. IV. Rule 103 VS Rule 108 * Rule 103 and Rule 108 although they could refer to the same issue that is the change of name, there are also marked differences between these two proceedings: 1. venue: - 108: must be filed in the locality where the office of the local civil registrar is located; - 103: must be filed in the place where the petitioner has resided for at least 3 years

93 2. parties: - 108: the local civil registrar must be impleaded as defendant or respondent Reason: Rule 108 Sec 3 considers the local civil registrar as an indispensable party. V. Adversarial Proceedings * The proceedings in 103 and 108 could be adversarial (meaning there are parties who go to trial and will introduce evidence to demonstrate the truth of their allegations) depending on the change that is sought in Rule 108. - if the change is substantial then the proceeding must be adversarial; - otherwise it will be summary in character; (SEE Rule 103 Sec 4; Rule 108 Sec 7)

94 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY I. Requirements (assuming it is embodied in a petition for adoption) (A) It is required that the local civil registrar must be impleaded as a defendant and the petition must be filed in the place where the local civil registrar holds office; (B) It is required that this defendant must appear in the caption notwithstanding the fact that petition for adoption does not have a defendant; (C) We satisfy the jurisdictional requirements of: a. adoption: before the Family Court where the adopter resides; b. Rule 108: place where civil registry is located; NOTE: We must see to it that the venue of the petition for adoption and Rule 108 is the same, otherwise we cannot join them. We can join them as long as the residence of adopter and the place where the local registrar holds office are the same. Otherwise a separate petition must be filed. (D) The notice of hearing is published; (E) There is a need to give notice to the Solicitor General. Which is not needed in a petition purely for adoption; (F) The errors that should be taken up are innocuous or clerical errors; NOTE: In the enumeration of entries that could be changed, we find the word adoption: reason for SC to think that Rule 108 can be joined with a petition for adoption; II. Nature * Looking at historical background, Rule 108 was originally designed solely for the correction of clerical errors. So the SC ruled several times in the past that when the correction involves substantial matters, Rule 108 is not the correct remedy. * The decisions of the SC modified effectively the principles given under Rule 108, even substantial errors may be corrected by Rule 108. If there is a petition which seeks substantial correction of entries, there must be an adversarial proceeding. If the correction is only clerical or innocuous errors the summary

95 proceeding applies where plain affidavits are enough. In other words, there must be an actual trial and the parties are given the opportunity to present evidence. In such a case Rule 30 applies. * Republic vs. Valencia (141 SCRA 462): Change of entry from Chinese to Filipino, this is really not a substantial change in the sense that a Chinese will become a Filipino; the start of a radical change of Rule 108; SC held that Rule 108 can also be used in substantial change of an entry provided there must be an adversarial proceeding; * Lee vs. CA (367 SCRA 110): from legitimate to illegitimate, this is substantial change because it will affect the hereditary rights of the parties: The SC allowed the change in accordance with the case of Valencia: NOTE: Obiter Dictum: The SC said that under present conditions there could also be change of sex in the entries. If a person is a gay he converts himself into a true woman he can apply for change of entry of Sex from male to female. (MASTER: During recitations, it was intimated that there is a recent case that abandoned this obiter dictum. Therefore a transsexual cannot petition for the correction or cancellation of entries regarding his or her sexuality.)

RA 9048

AN ACT AUTHORIZING THE CITY OR MUNICIPAL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER, AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL CODE OF THE PHILIPPINES I. Nature * Allows the change of name administratively, only with respect to clerical error. (SEE Sec 1) * We now have here a statute authorizing non-judicial or administrative correction of clerical errors that are contained in documents under the control of the civil registrar. However it seems that the fees collected by the local civil registrar are double the fees that are going to be spent if the petitioner simply go to court and resort to Rule 108 applying summary procedure. * In Lee vs CA, the SC seems to be of the impression that in case of request of clerical change of name, the local civil registrar has exclusive authority. So it appears that the court is now deprived of its jurisdiction under Rule 108. But if you read the law, there is nothing mentioned that the authority of the local civil registrar is exclusive. Thus, there is reason to believe that the party has still the

96 option of filing either with the courts under Rule 108 or administratively under RA 9048. (MASTER: Note that Herrera and Regalado have a different opinion) (MASTER: Adopting the view of Dean Jara that with respect to clerical or innocuous errors an applicant has two options, implications arise: FIRST, in case a final and executory decision is already rendered under RA 9048 and the petitioner failed to have a favorable decision, can he file a verified petition under Rule 108? In other words, can there be res judicata, considering that one proceeding is quasi-judicial and the other judicial? In Administrative law, it is now well settled in our jurisprudence that the decisions and orders of administrative agencies like the local civil registrar under RA 9048 rendered pursuant to their quasi-judicial authority have upon their finality, the force and binding effect of a final judgment within the purview of the doctrine of res judicata. SECOND, there is a possibility of litis pendentia when both remedies are availed of at the same time by the petitioner or applicant. Rule 108 is judicial in character, while RA 9048 is administrative in character. It may be argued that litis pendentia cannot apply because the other forum is administrative. This argument does not hold water because, though it is true that the proceeding is administrative, RA 9048 gave the administrative office of the local civil registrar the quasi-judicial authority to determine whether or not there is a clerical error in the subject entry. In litis pendentia, the test is not whether there is identity of proceedings but whether as announced in HSBC vs Aldecoa the decision in one forum will be res judicata as to the other decision in another forum whichever party is successful. The principle of litis pendentia avoids the situation of conflicting decisions rendered by two fora determining identical issues and involving the same parties. There is indeed a possibility that the applicant or petitioner will gamble on the results of the proceeding in Rule 108 and RA 9048 and in the process abuse the remedies provided by law. The applicant may decide for example to dismiss his petition under Rule 108 when it becomes apparent that his application under Rule 9048 will succeed or succeeds. This abuse of remedies should not be allowed, being against public policy and the principle on litis pendentia. Note that in case there is litis pendentia, the civil registrar or any person having or claiming any interest under the entry may move to dismiss one of the proceedings. Only one proceeding should remain and continue to determine the issue. THIRD, in case remedies are availed of at the same time by the petitioner or applicant forum shopping could also arise. We have learned in Civil Procedure that whenever there is litis pendentia, there is also forum shopping. And pursuant to Rule 72 Sec 2 that the Rules on ordinary civil actions are suppletory to special proceedings, we can thus apply

97 the principle of forum shopping. This is a better ground for a motion to dismiss since both actions or proceedings will be dismissed and the dismissal may be with prejudice if the forum shopping is willful. Certification against forum shopping is required at least in the verified petition under Rule 108 and even may be perhaps in the verified petition under RA 9048. If we will look at Rule 7 Sec 5 we find the word quasi -judicial agency, it can thus be reasonably inferred that the requirement of certification against forum shopping contemplates a situation that there is a pending judicial proceeding and at the same time a similar quasi-judicial proceeding is pending.) II. Requirements Under AO 1 Series of 2001 * If you read the Implementing Rules issued by the Civil Registrar General, there is still a need for publication and there are several clearances that are required to be submitted. (SEE Administrative Order No. 1 Series of 2001, The Rules and Regulations Governing the Implementation of RA 9048 Rules 8 and 9 thereof) III. Exhaustion of Administrative Remedies * If the local civil registrar approves the petition, the matter could automatically reach the Office of the Civil Registrar General he may affirm the approval. If however, the Civil Registrar General does not act within a period of 10 days then it is deemed to have been affirmed. He can also reverse the approval. (SEE AO 1 Series of 2001 Rules 12, 13, 14, 15 and 16) * QUERY: What is the remedy of the person after the receipt of the decision of the Civil Registrar General? The law states only that appropriate action may be taken, but the law does not tell us what this specific action or remedy is. However, if we are going to follow established principles of governance, since this is an administrative proceeding, we have to exhaust administrative remedies before going to court. Otherwise the recourse to court will be dismissed for failure to state a cause of action. From the Office of the Civil Registrar General, the decision will be taken to the higher administrative office which is the Office of President. The decision of the Office of the President on the matter may now be taken to the courts under the provisions of Rule 43 through petition for review. Note that this remedy is not mentioned at all in the law. (SEE Secs 6 and 7) * In case of Rule 108 the remedy is appeal from the decision of the court where the petition for change of name was filed. There is no requirement of exhaustion of administrative remedies since the proceeding is judicial at the outset.

98 RULE 98: TRUSTEES * A trustee also occupies the same office as a guardian or as an executor or administrator. A trustee occupies a POSITION OF CONFIDENCE. * Civil Code contains the substantive provisions on trust. (TITLE V: Articles 14401446 NCC) * Trustee is one of the officers of the court who hold a fiduciary position. * The Rules of Court govern the express trust which is referred to in the Civil Code. However, there are no Rules for the enforcement of an implied trust. * The Rules of Court are the procedural principles governing the enforcement of a trust. * Kinds of trusts in substantive law: 1. living trust; 2. testamentary trust; (envisioned in the Rules of Court, Sec 1) 3. contractual trust; (mentioned in the Rules of Court Sec 3: trustee under a written instrument) * In the Rules, the trustee is one appointed by the court (MAST: This statement somehow clarifies on what really is the kind of trust contemplated by the Rules. Both testamentary and contractual trusts are mentioned in the Rules. However what is really provided in the Rules is a trustee appointed by the court whether he be by virtue of a will or when a trustee in a contract dies, resigns etc.) * Substantive Laws: 1. Civil Code and 2. the General Banking Act (power of banking institutions to engage in the business of trust); * General Banking Act: - There is no classification of whether the trust is an express or an implied trust; - The trust referred to in the law is of course an express trust; - Dean Jara suggested to read Central Bank Circulars 521 and 553 governing a living trust; I. Title of Trustee * The difference between an execad and a guardian from the trustee of a trust is that a trust ACQUIRES TITLE to the property held in trust.

99

* A trustee of an EXPRESS TRUST, either testamentary or a living trust will acquire title to the property under his care. * Insofar as 3rd persons are concerned, the trustee is the legal owner of the property held in trust. Thus the trustee holds legal title to the property held in trust while the beneficiary holds beneficial title over the property. II. Testamentary Trust * In Testamentary Trust, a trust is created in a will. After the settlement proceedings are finished and the property that is given in trust is not delivered to a creditor for the payment of the indebtedness of the decedent, then it is the duty of the executor or administrator to follow the provisions of the will creating the trust. So it is the duty of the executor and administrator to ask the settlement court to go ahead with the appointment of a trustee for this testamentary trust. In that sense, a testamentary trust could be considered as a CONTINUATION OF THE SETTLEMENT PROCEEDING. But the property will now be transferred to the name of the trustee unlike in the case of an executor or administrator. (SEE Secs 1 and 2) * PROCEDURE IN CASE OF TESTAMENTARY TRUST: CASE: A wealthy man dies, and there is a provision in his will saying that he is setting aside 10 M in trust for Philippine National Red Cross (PNRC) as beneficiary. - QUERY: If a trust is created in the last will and testament, can the court appoint a trustee right away? The court cannot right away appoint a trustee. Article 838 of the Civil Code requires that the will must be submitted to the court for probate. This is because no property can be acquired through a will unless the will is admitted to court for probate. The executor named in the will or the one who has custody of the will must submit the will to probate, follow the procedure that is outlined for settlement of estate and the court will appoint execad. - QUERY: If there is already execad, can he already this time set aside 10M in trust for PNRC? NO. Execad must still follow the provisions of the will, the law or the rules concerning liquidation of the estate. He must see to it that the estate is managed well and the obligations are paid first, before distributing to legatees, devisees and heirs. While the settlement proceeding is going on, it is impossible to set aside the 10M in trust for PNRC. Unless the court is convinced (not necessarily an

100 absolute certainty) that the assets are more than the liabilities and that the trust will not prejudice the legitime of the forced heirs. We have to wait until the estate is finally settled. If the estate is eventually liquidated and there is enough money to comply with the instructions in the testamentary trust. Then, it is only the time that the execad can set aside the 10M in trust for the PNRC. The executor should not be the trustee at the same time, because that could produce a situation of conflict of interest between trustee and administrator. If there is a testamentary trust, the appointment of the trustee is not necessarily a part of the settlement proceeding. It could be by way of an independent proceeding for the appointment of a trustee. * The duty of the trustee is almost the same as the execad in settlement proceeding. * QUERY: Is there a difference between the execad and the trustee (in contractual trust) with respect to the property held in administration or trust, as the case may be? The answer is found in the Civil Code. The execad just manages. In express trust (particularly a contractual trust) the trustee is effectively the owner. So that in express trust, if the trustee sells the property, he does not need the approval of the court (the only limitation is the document or instrument creating the trust). Thus, the defense of innocent purchaser for value in good faith is proper when there is a sale to a third person buyer. This is because the buyer deals with someone holding title and is the registered owner of the property as trustee. (MASTER: A different rule applies in case of a testamentary trust or when a trustee is appointed by the court. Unlike in contractual trust where the authority comes from the written instrument, a trustee appointed by the court has authority coming from the court that is why there is a need for approval. The trustee appointed by the court is the case contemplated by Sec 9.) III. Contractual Trust * It does not mean however, that only the court can appoint a trustee. If the trust is a living trust or a contractual trust the trustee is appointed by the parties to the agreement. The powers and duties of the trustee in a contractual trust are contained in the agreement. If the trustee is appointed by court, the powers and duties are provided by the rules and the substantive laws. *A trust also under the Rules could be CONTRACTUAL in character and the appointment of the trustee does not need the intervention of the court. The appointment of the trustee could be had in the deed of trust. Thus the trust could be had purely by reason of an agreement between the trustor and the trustee and in some instances by the beneficiary. Ex: Trust that exists in the

101 cemeteries. (SEE Sec 3) * QUERY: The Civil Code provides a trust which is created by the parties, since it is contractual what is the business of the court? If the trust is purely contractual, then the parties are free to choose the trustee. There is no need to go to court for the appointment of a trustee * In case of banks as a trust company, a person gives money to a bank which acts as trustee. This money is not given as savings account deposit or a time deposit or a current savings account, which is insured by PDIC. The money is given in trust and this is not covered by compulsory insurance of the PDIC. * QUERY: In contractual trust, when can the RTC approve a petition for the appointment of a trustee? As a general rule, there is no need to go to court to appoint a trustee in a contractual trust. However, if a trustee dies, resigns or becomes incapacitated (the trust continues, there is only a need to appoint a substitute trustee) and the parties are not in a position to name a substitute trustee, this is a proper occasion to go to court. (SEE Sec 3) IV. Perpetual Trust Unlike settlement proceedings, which are expected to terminate at some time, we do not follow the same principle in case of trust. There may be instances where the living or contractual trust falls within the concept of a perpetual trust. The trust can lapse for an indefinite period of time. In settlement proceeding however, the policy is to terminate the proceeding as soon as possible so that the creditors and the heirs will not be prejudiced in so far as their interests are concerned.

102 RULE 107 - ABSENTEES * There are effectively three proceedings contemplated in the Rule on Absentees: 1. Proceeding for the appointment of a representative: - If the person disappears and his whereabouts are unknown, during the 1st two years, what the court can do is to appoint a representative; NOTE: General Rule: An agent is appointed by the principal pursuant to a contract of agency. Exception: QUERY: Can a court appoint an agent (instead of the principal) while the person is still alive? Yes. The instance is found in Rule 107 on Absentees. The court does not declare a person as absent right away. The court will still appoint an administrator (of a person to represent him is actually the phrase used in the Rule 107 Sec 1) (agent) of the property of a person (principal) whose whereabouts are unknown. A principal-agent relationship is thus created. 2. Proceeding for the declaration of absence: - If the person does not turn out within this 2 year period or his whereabouts remain to be unknown or nobody appears and shows that he is the duly authorized representative of this party;(SEE Sec 2) 3. Proceeding for the settlement of the estate of the absent or presumably dead person: - If still the person does not appear, then this is the recourse of the heirs or the spouse or any person interested in his estate; - This proceeding will make use of the presumptions contained in the Civil Code that a person is dead; (SEE Articles 390, 391 NCC) - Once the facts from which this presumption will arise are proven, the court can apply this presumption of death and settle the estate accordingly; - But if later on he appears, then the court will simply order a reversion of the properties of this person or party; (Art. 392 NCC; Rule 73 Sec 4) - In this matter of absence, there is no need for a prior declaration of presumptive death for the purpose solely of settling the estate of the absentee; * Under our Family Code Art. 41, there is now a petition for the declaration of presumptive death. But this is ONLY for the purpose of allowing the spouse to remarry. * After the appointment of the administrator, if the whereabouts of a person is still unknown, the remedy is to file a petition for declaration of absence. The

103 declaration of absence cannot be the permanent status of the absent person. If he still does not appear, the next step is to apply the principle of presumption of death in the Civil Code, and the proper procedure is petition for settlement of estate making use of the presumption of death in the Civil Code. There is no such thing as petition for the declaration of presumptive death for the purpose of settlement of the estate. The foregoing should be distinguished from the declaration of presumptive death for the purpose of allowing the spouse to remarry. The remedy in this case is a summary special proceeding by itself in relation to remarriage. CONSTITUTION OF THE FAMILY HOME There is no such proceeding anymore because it has been repealed by the Family Code particularly Articles 152 and 153: Art. 152. The family home constituted jointly by the husband and the wife or by an unmarried head of the family, is the dwelling house where they and their family reside and the land on which it is situated. Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. VOLUNTARY DISSOLUTION OF THE CORPORATION We do not have to go to court. To voluntarily dissolve the corporation, we make use of the provisions of the Corporation Code on shortening the corporate life. We know in Corporation Law that when the term ends, the life of the corporation also ends or is dissolved. (SEE Sec. 120 BP 68) In case of involuntary dissolution of a corporation, such is governed by the special civil action of Quo Warranto under Rule 66 Sec 1. (MAST: SEE Regalado: However, voluntary and involuntary dissolution of corporations are now governed by BP 68. SEE Secs 118, 119 and 120: voluntary dissolution; Sec 121: Involuntary Dissolution) (MASTER: I am of the opinion that Rule 66 is considered only for the grounds of involuntary dissolution since no specific grounds are expressly mentioned in Sec 121. But the SEC will take cognizance of the verified complaint.) HOSPITALIZATION OF INSANE PERSON

104

RULE 109 - APPEALS * The Rules on appeal in special proceedings (SP) are different from the Rules on appeal in civil cases (CC) EXCEPT in cases which admit of multiple appeals. 1. As to period of appeal: - SP: 30 days (generally) - CC: 15 days; 2. As to record of appeal: - SP: docket fee plus record on appeal needs to be approved by the court - CC: docket fee plus notice of appeal does not need to be approved by the court;
Cursed are you who have eyes but cannot SEE, hands but cannot TOUCH, has a heart but cannot LOVE! BE A BLESSING - DOMINUS

BENEDICAMUS DOMINO! LAUDEM DOMINE MISERERE NOBIS! DEO GRATIAS!!! PAX ET VALOR Ab Magistre, III-C; 2007-2008

CONSUMMATUM EST!

TEMPUS FUGIT