RULE 68 FORECLOSURE OF MORTGAGE

2 Kinds:
1) Judicial ~ Rule 68
2) Extrajudicial ~ Act No. 3135
Mortgagee will prepare a letter petition/complaint
to be filed before the OCC/Ex-officio Prov. Sheriff
OCC will be mandating for the publication as to the
date of the auction sale
Auction sale ~Rule 39, property will be sold to the
highest bidder.
If there is no highest bidder,
mortgagor will be the sole bidder, min.will be the
foreclosed amount depending upon the interest
OCC will issue a Sheriffs certificate of sale
Certificate of sale will be annotated at the back of
the title
Said certificate should be registered before the
Registry of Deeds
The annotation/registration will signal the start if
the right of redemption (mandatory) which is 1 year
SEC. 1
Contents of the complaint for Judicial foreclosure of mortgage
e.g. Mortgage is due on 9/5/11. After this, the mortgage
becomes due and demandable; property can be foreclosed.
Options: disregard mortgage; institute collection of sum of
money; go to court for receivership
How about pacto de retro? Can there be foreclosure?
In a pacto de retro sale, considered as an equitable
mortgage, the creditor may avail himself of foreclosure
proceedings to collect his credit (Spouses Rosales v. Spouses
Suba 408 SCRA 644)
Who are considered as defendants?
Remedies:
1. Property can be foreclosed
2. Institute collection of sum of money
3. Go to court for receivership
SECS. 2 & 3
Judgment of foreclosure
After the filing of the complaint, Court will determine
the propriety of foreclosure, of the amount of obligation to be
paid (hearing is necessary) (amount shall include debt, costs)
Court will render a judgment require the mortgagor
to pay the amount to the court within 90-120 days
What if the mortgagor fails to pay? Property will be sold at
public auction (Sec. 3 procedure in rule 39: Auction sale
~Rule 39, property will be sold to the highest bidder. If there
is no highest bidder, mortgagor will be the sole bidder)
Order of confirmation
Effect:
Equity of redemption mandatory (Rule 68); none in Act No.
3135; right granted to mortgagor to retain possession of the
property by paying the obligation to the court (Sec. 2) even if

there was a foreclosure of mortgage as long as there is no

order of confirmation yet
Right of redemption mandatory (Act 3135); General rule: no
right of redemption in Rule 68 EXCEPT if the mortgagee is a
bank or banking institution
What if there is no right of redemption/not a bank?
Request for an order of confirmation of the sale executed by
the Sheriff
No right of redemption exists in case of judicial
foreclosure of a mortgage if the mortgagee is not the PNB or
a bank or banking institution. In such a case, the foreclosure
sale when confirmed by an order of the court, shall operate
to divest the rights of all parties to the action and to vest
their rights in the purchaser. (Limpin v. IAC)
SEC. 3 Upon the expiration of the period of redemption, the
purchaser/mortgagee. if there is no purchaser, will be entitled
to the possession of the property and he can have it
transferred to his name
What if there is a right of redemption?
period before asking for the order

Wait for the 1-year

SEC. 4 There is a bidder aside from the mortgagor himself

How to dispose the proceeds of the sale?
Deduct the cost/expenses for the sale
Pay the mortgagee; if there is a residue, pay the junior
encumbrancers as annotated in the back of the title
If there is still a balance/residue, return it to the mortagagor
SEC. 5 The entire obligation is not all due
e.g. entire obligation =P1M
Only 500,000 is due and demandable secured by 1 property
in Claveria. How would you satisfy this obligation? Sell it by
portion. What if the property is indivisible? The whole shall
be sold and the entire debt shall be paid. If there is interest,
rebate where rebate is proper.
SEC. 6 (Sec. 4-residue or balance of judgment to be returned
to mortgagor)
Deficiency judgment mortgaged property is not sufficient to
answer for the obligation
Recourse:
Court, upon motion, shall render deficiency
judgment but proof is required to _____ such insufficiency
Court will issue a writ of execution to answer for the
remaining obligation, other properties can be garnished at
public auction
SEC. 7 Reg.
(1) Upon reg., no right of redemption after the
confirmation of sale. All titles shall be cancelled by
RODs, new one is issued in the name of the
purchaser, hence, the need for confirmation of the
sale made at public auction
(2) Right of redemption exists certificate of sale and
order of confirmation shall be registered and
annotated at the back of the title pertaining to
memorandum of encumbrances.
Effect: previous
certificate of sale will be cancelled
(3) Property is not redeemed final deed of sale, register
with RODs; new one issued in the name of the
purchaser
SEC. 8
RULE 69 ~ Rule 67
PARTITION ~ Eminent Domain

SEC. 1 Complaint for partition (Real property) ~ Sec. 13

(personal property)
Contents: property subject matter of the case
: rights of the plaintiffs claiming the partition
Who are the defendants? All persons having interest in the
property (real/personal/mixed)
SEC. 2 1st phase: determine as to WON there really is a coownership and determine as to WON there is a need for
partition
After proper hearing, the court will determine the 2 issues. If
it finds cause, the court will order the parties to partition the
property (Sec. 2) and IF THE PARTIES WILL AGREE, they
should submit an affidavit of agreement to the partition, then
thats THE END of the controversy. The court will issue a
judgment confirming the manner of partition and this
issuance must be brought to the Register of Deeds after
having made several conveyances.
IF THE PARTIES WILL NOT AGREE,
2nd phase:
determine on how to properly partition the
property (by the Court) between and among themselves
SEC. 3
Commissioners make a recommendation as to the manner of
partitioning the property
Qualifications: competent and disinterested
(may only commence with their duties upon oath)
SEC. 4
Tenor of commisssioners oath
Duties of commissioners:
-shall view and examine the real estate after due notice
-shall hear the parties as to their preference in the portion of
the property and the value or amount/s
SEC. 5
If, after viewing, the commissioners find out that the property
cannot be divided without prejudice to the parties, they shall
make the report to the court which may order:
-assignment of the property to a party and for that party to
pay the other party
-the sale of the property (by the commissioners) and the
division of the parties in the proceeds of the sale in
accordance with their share
END
What if the property can be properly divided?
SEC. 6
Commissioners will make a report to the court
Contents: proceedings
: conduct of examination, hearing
: recommendation
The Clerk of Court will furnish copies to the parties and have
a 10-day period to file their comments/objections
After the filing of the comment,
SEC. 7
Upon expiration or within the 10-day period, the court will
take action on the comments or objections and will set a
hearing for the approval/disapproval of the Commissioners
reports
After hearing, the Court has 4 options to the report:

(1) Accept the Commissioners report and render

judgment
(2) If the Court is not satisfied with the report, the Court
may
recommit
the
report
to
the
same
Commissioners
(3) The Court may set aside the Commissioners report
and appoint another set of commissioners (Sec. 2,4)
(4) The Court may partly accept and partly set aside the
Commissioners report
-The party rejected may be recommitted to the same
Commissioners for further study or it can be set aside
and the Court can appoint a new set of officers who will
determine the rejected part of the report
SEC. 8
Perhaps the property is obtaining rentals or profits, so the
parties may ask for the accounting of the rentals/profits of
the properties. This accounting should be included in the
judgment.
SEC. 9 Power of guardian
Should be with approval of the Court
SEC. 10 Who shall shoulder the taxes? The costs and the
compensation of the Commissioners fees?
The Court will apportion that among the parties
If there is money, less costs and taxes
What if there is no money involved?
The amount of expenses, taxes, etc. is based on the share of
the parties in the property
SEC. 11
3 instances wherein the Court can render judgment or end
the controversy:
(1) Sec. 2 :when the parties already agree on the
manner of partition or settlement of the parties, the
metes and bounds of the area of the property
(2) Sec. 5 :when the property involved is found to be
indivisible without prejudice to the parties, so the
Court may assign the property to the co-owners and
this should be stated in the order. If the other party
objects, the Court may order the sale of the property
and shall be so specified in the judgment
(3) Sec. 11:property can be properly divided so the
judgment shall be rendered based on the
Commissioners report to specify the metes and
bounds of the property for each co-owner (which
shall be properly recorded in the Register of Deeds
and which shall be the basis to ____ title to the
specific co-owner
SEC. 12
Parties can have the partition agreed upon among themselves
and the conveyance of the same without intervention from
the court EVEN if there is already a judgment rendered by the
Court
-agreement should be in writing
RULE 70 FORCIBLE ENTRY & UNLAWFUL DETAINER
Subject matter: real property
3 kinds:
Forcible entry
1.
Accion interdictal /
2. Accion publiciana \Unlawful detainer
3. Accion reinvindicatoria/reinvindicacion

(1) Purpose: recovery of possession of property; can

only instituted within the 1-year period from the time
of the unlawful deprivation or withholding of the
property
Jurisdiction: MTC; governed by the rules on SCA
(Rule 70)/Rules on Summary Procedure
(2) Purpose: recovery of possession of property even
after the 1-year period
Jurisdiction: MTC/RTC depending on the assessed
value of the property; governed by the rules on OCA
(3) Purpose: recovery of ownership
Jurisdiction: MTC/RTC depending on assessed value;
R.A. 7691
SEC. 1

Who may
institute?

FORCIBLE ENTRY
Any person deprived of
possession by FISTS

Within
what
period?

Within 1 year after the

unlawful deprivation

Against
whom?

The
person/s
unlawfully withholding
or
depriving
of
possession
or
any
person/s
claiming
under them for the
restitution
of
such
possession

DISTINCTIONS:
FORCIBLE ENTRY
Entry is unlawful
the very beginning

from

Demand letter to vacate

is NOT needed
Plaintiff
MUST
PROVE
prior possession
1
year
period
is
RECKONED from the date
of ACTUAL ENTRY

UNLAWFUL DETAINER
A
lessor,
vendor,
vendee or other person
against
whom
the
possession is unlawfully
withheld
after
the
expiration of the right
to hold possession
Within 1 year after
such
unlawful
withholding
of
possession

UNLAWFUL DETAINER
Possession is valid but becomes
unlawful after the expiration of
the right to possess
DL to vacate is NEEDED; no DLpresumption of extension of lease
NO
NEED
to
prove
prior
possession
1 year period is from the date of
LAST DEMAND

FE
GR: from the date of actual entry
Exception: in the case of STEALTH, 1 year from the date of
discovery
UD
GR: from the date of last demand
Exception:
last demand except if the letter is a mere
reminder as in the case of Desbarats v. Laureano 18 SCRA
116 :
But where the subsequent demands were mere
reminders to comply with an alleged previous agreement to
voluntarily vacate and the reason why no action was taken
was because the lessors were expecting that the lessee would
voluntarily give possession, the one year period is counted
from the first demand.
POSSESSION BY TOLERANCE

1st action: demand letter stating therein that he should

already vacate thereby showing that there is no more
tolerance
UD may still be filed despite the lapse of 31 years (Yu v. de
Lara: a person who occupied the land of another at the
latters tolerance or permission without any contract between
them is necessarily bound by an implied promise that he will
vacate upon demand, failing which a summary action for
ejectment is the proper remedy against him)
Muoz v. CA tolerance CANNOT CONVERT FE into UD
SEC. 2 Demand
To whom demand will be given in the case of a lessee?
UD
When to make a demand?
After the expiration of the period of lease
Land -15 days
Building -5 days
How demand will be made?
Jakihaca v. Aquino 181 SCRA 67
The allegation in the complaint that the plaintiff
verbally asked the defendants to remove their houses on the
lot of the former but the latter refused ans still refuse to do so
without just and unlawful grounds was held to be more than
sufficient compliance with the jurisdictional requirements.
~ Art. 1687, NCC
If there is no fixed period in the contract of lease, Art. 1687
will apply
-you can only give your demand after the period shall have
been determined or fixed
Gindoy v. Tapucar 75 SCRA 3 if there is fixed period
The court has discretionary authority to fix a longer
term of the lease but NOT when the lease is for a
FIXED period that had already expired.
SEC. 3 PROHIBITED PLEADINGS
Pleadings allowed:
SEC. 4, Rule 70 (verified)
Complaint, compulsory counterclaim & cross-claim pleaded in
the answer and the answer thereto
Plaintiff Complaint
Defendant Answer
Next, Counterclaim
Compulsory Counterclaim or cross claim
Plaintiff will answer
SEC. 5 Action on complaint
Court will examine the complaint and the evidence attached
thereto
(1) dismiss outright on any of the grounds for dismissal
THEN/ which are apparent
\(2) if there is no ground for dismissal (Sec. 16) the
court shall issue SUMMONS
Motion to dismiss prohibited pleading
EXCEPTIONS:
1)
If there is NO JURISDICTION over the SUBJECT
MATTER of the case
2) Failure to refer to the CONCILIATION (RA 7160
Katarungang Pambarangay)

SEC. 6 Complaint/Summons
Complaint Defendant (10 days to answer) non-extendible
Motion for extension of time is a prohibited pleading
Defendant should include all his compulsory counter/cross
claim; otherwise, (all affirmative or negative defenses should
be included except issues on jurisdiction) it shall be barred
After receiving the answer, plaintiff has 10days from receipt
to file his answer to the compulsory cross/counter claim
If plaintiff fails to file his answer,
If defendant fails to file his answer, Sec. 7
Effect: plaintiff wins the case if his causes of action have
been properly alleged in his complaint
Since the court shall render judgment as may be warranted
by the facts alleged in the complaint
Court will limit the award basing on the prayer in the
complaint and may even reduce it if he finds the prayer to be
unconscionable or excessive
What if the answer has been filed? Sec. 8
The court shall set a PRELIMINARY CONFERENCE of the case
i.e. not later than 30d after the last answer is filed
What if the parties fail to appear?
Plaintiff dismissal of his complaint; defendant shall be
entitled to judgment on his counterclaim; cross claims shall
be dismissed
Defendant:
Sole defendant plaintiff is entitled to judgment
2 or more defendants this shall not apply provided that the
said defendants sued under a common cause of action and
had pleaded a common defense

(3) Whether judgment may be rendered based on the

pleadings without need of further proceedings
(within 30 days);
(4) A clear specification of material facts which remain
controverted;
(5) Other matters intended to expedite the disposition of
the case
This order will be furnished to the parties
SEC. 10 Within 10 days, upon receipt of the order, the parties
will submit the AFFIDAVITS/position papers as to the legal
issues or as to the factual matters of the controversy as well
as the law/s on which they are based
Contents of affidavit:
Sec. 14
If not based on personal knowledge,
Effects : parties and counsel may be disciplined by the Court
: the inadmissible portion (hearsay) will be expunged
from the records
Affidavits are not usually madeinstead, a position paper is
made and the authentic documents are attached to it and is
thereafter verified, which gives the same effect as in an
affidavit
SEC. 11
upon receipt of the position papers/after the
expiration of the 30-day period, the court shall:
(1) Render judgment/resolve the case if the court
believes that there is no more need of clarification
(2) (30 d) if the court believes that there are still
matters to be clarified, the court will make an order
for such requiring the submission of clarificatory
affidavits within 10 days from receipt of the order
(3) Court will then resolve the case within the period of
15 days
SEC. 12 Motion to DISMISS referral for conciliation
SEC. 13 EXCEPTIONS to the proh. Pleading of MTDismiss
-lack of jurisdiction over the subject matter
-failure to comply with Sec. 12/failure of referral
conciliation

for

~Sec. 4
SEC. 8 NO postponement
Dilatory motions prohibited in Rules of Summary Procedure
Sec. 8 (Limited pleadings allowed) ~ Sec. 4 (Only pleadings
required)
Are the parties required to submit pre-trial brief under rule
70?
GR: This is not required in lieu of Sec. 4
Pre-trial brief is still necessary because this is provided (in
Sec. 8)
Rule 18 if this is not inconsistent with the provisions of this
rule
Rule 70, Sec. 13

SEC. 14 ~ Sec. 10
Affiant must only be testifying based on his/her own personal
knowledge
Effects: parties & counsel may be disciplined by the court
: the inadmissible portion will be expunged from the
records
What if J wants to ask for a preliminary mandatory injunction
(PMI) against M, can he do so?
What if M did not move away & J wants to ask for PMI, can
this be done?

Sec. 8 PRELIMINARY CONFERENCE

Or what if J wants to extend his possession, may he file a

PMI?

SEC. 9 After preliminary conference, the court will issue an

ORDER for the record of prelim. Conference (within 5 days)

If there are no further acts of dispossession, is PMI proper?

Yes.

Contents of record:
(1) Whether the parties have arrived at an amicable
settlement, and if so, the terms;
(2) The stipulations entered into by the parties;

~Sec. 12 do away with it

SEC. 15
R.A. 7160 PMI, invoking Sec. 12 is an exception
so as to prevent further acts of dispossession

SEC. 16
In resolving the question of Possession, there is a need to
resolve by deciding the issue of ownership if ownership is a
defense
~SEC. 18 the decision in Rule 70 cannot bar the institution of
another case, e.g. accion publiciana/accion reinvindicatoria
SEC. 17
Judgment/decision if the allegations of the complaint are
true
SEC. 18
MTC decision is appealable to RTC
Will RTC have to conduct hearing? No, they will only resolve
the case based on the record of the proceedings and the
briefs
SEC. 19
GR: MTC decision is executor (can be prevented by)
How could the defendant prevent the | decision from being
executed?
|
3 requirements:
\/
1. Perfect the appeal to the RTC
2. Posting supersedeas bond (court of origin)
3. Depositing of the rent (periodic deposits appellate
court)
Basis in determining supersedeas bond: charges that the
Court will grant
Catungal v. Hao 355 SCRA 29
Damages in an ejectment case is limited to rent
or fair rental value or the reasonable compensation for the
use and occupation of the property.
SEC. 20 PMI in case of appeal
SEC. 21
RTC decision is already executor even if elevated to appeal
Parties have no other remedy to prevent the execution of the
decision except TRO to be filed in the CA
-no more remedies
CONTEMPT an inherent power of the court (Montenegro v.
Montenegro: The court has thus repeatedly declared that the
power to punish for contempt is inherent in all courts and is
essential to the preservation of order in judicial proceedings
and to the enforcement of judgments, orders, and mandates
of the court, and consequently, to the due administration of
justice).
Direct Contempt (Sec. 1)
Indirect Contempt (Sec. 3)
Power to punish contempt
Two-fold aspect: (Slade Perkins v. Director of Prisons)
1) Punishment for disrespect to the court or its order
2) To compel his performance of some act or duty
required of him by the court
e.g. J order to trun over TCT 1234 to Mario. Order: executor;
not appealed to higher court. J refused. M can go to court
and ask that J be cited for contempt and so that J may be
compelled to deliver the TCT to M. Js failure to do so may
result to his detention
SEC. 1
DIRECT CONTEMPT
-action/s that were committed in the presence of the court or
so NEAR the court
-court can summarily act on that

-commission of DISRESPECT
DIRECT
Committed in the
presence or so
NEAR the court
Punished
SUMMARILY

INDIRECT
NOT committed in the presence or not
so near the court
Can only be punished after being
CHARGED IN WRITING and opportunity
has been given to the respondent to
comment thereon and to be heard
(notice & hearing)

Defiance of a court order-Direct-punishment done summarily

by the
RTC/equivalent court/higher court:
FINE=not > P2000
IMPRISONMENT =not > 10 days; or
Both
MTC: FINE = not > P200
IMPRISONMENT = not > 1 day; or
Both
SEC. 2
REMEDY for DC
Decision is NOT appealable
Remedy: petition for certiorari/prohibition R65
Filing will not prevent the execution, there is a need to file a
bond and a statement that he will fulfill the condition and
abide with the order
Conditions:
SEC. 3
INDIRECT CONTEMPT
Acts that can be considered or that can constitute IC
e.g. (e), Sec. 3
In the presence of the Judge & J and in open court, M merely
pretended to be a counsel of the accused. Can J cite him for
contempt?
Judgment disobedience is not punished by IC because you
have the option to execute/exercise it
EXCEPTION: SEC. 9, Rule 39 (Angela G. de Quinon v. PNB 85
Phil 459 : A judgment debtor cannot be punished for
contempt under par. (b) of Sec. 3, Rule 64, for disobedience
of or resistance to the judgment of the trial court when the
judgment is not a special judgment enforceable under Sec. 9
of Rule 39 of the Rules of Court)
Writ noncompliance/disobedience to writ/order is
|punishable by Indirect contempt
| -must be valid or lawful (Segara v. Maronilla : The
|writ or order must be lawful in order that resistance
Order- may be punished as contempt. Courts have no power
to demand compliance with an order issued without
authority)
Order ~ Sec. 8
SEC. 4
IC, HOW COMMENCED?
(1) Motu proprio by the court by an order or other
formal charge requiring the respondent to show
cause why he should not be punished for contempt
(2) By verified petition with supporting particulars to be
filed by the party
WHERE to file?
SEC. 5

(1) RTC/such court where the charge has been

committed
(2) Lower court: RTC of the place in which the lower
court is sitting or the lower court subject to appeal to
the RTC of such place in the manner provided in Sec.
2 of this Rule
appeal as provided in Sec. 2
LIMITATION:
-judgment is immediately executory unless one can post a
bond
-pertains of elevation
-DC thru certiorari/prohibition
~Sec. 11 appeal for judgment in IC proceedings
LIMITATION:
-elevation thru appeal
-appealable as in a criminal case
-immediately executory unless one can post a bond
Will double jeopardy lie in IC? (Sec. 8)
It depends.
In IC civil contempt - DJ will not lie; failure to do something
as ordered by the court for the benefit of a party and the
respondent failed to comply with that
In IC crim. Contempt purpose: vindicate the authority of
the court and protect its dignity; aggrieved party: Court; DJ
will lie
When double jeopardy exists?
Davao Timber Corp. v. Syhunliong G.R. 8683 : A contempt
charge partakes of the nature of a criminal action even where
the action complained of is an incident of a civil action. An
appeal does not lie from an order dismissing a charge of
contempt of court. Thus, the reconsideration by the trial
court of its order denying the motion for contempt had the
effect of placing the respondents in double jeopardy,
considering that the denial of the motion for contempt on
grounds of failure of movants to appear and prosecute such
motion is equivalent to a judgment of acquittal.
Hearing released on bail
Sec. 11 remedy for IC appeal to the proper court
(Remedy for DC Sec. 2)
LIMITATION: appeal does not mean that it will stay the
proceedings or cause the non-execution of the judgment
-execution can be had if a supersedeas bond will be posted
BOND

Sec. 2

\ there was already a judgment; certiorari/

\ prohibition will be made
/
Sec. 11 / or an appeal thru filing a supersedeas bond

BAIL

Sec. 6

\ on-going proceedings; pending IC

\ proceeding/hearing; person may be
/ released on bail

Sec. 9 /
SEC. 12
CONTEMPT against QUASI-JUDICIAL entities
In what court can you file an action for the contemptuous
act?
RTC equivalent court of the quasi-judicial body
Can contempt be had for all quasi-judicial bodies?
If it is in the organic law of the quasi-judicial body or entity,
Sec. 71 can then be made applicable to it unless otherwise
provided for by law

The organic law has a suppletory effect to such rules