BASIC CONCEPTS IN CIVIL PROCEDURE PART II EJECTMENT 1. The issue in unlawful detainer is physical or material possession.

This is also the issue in an action for forcible entry. 2. In an action for unlawful detainer, it is not necessary for the plaintiff to allege that he was in prior physical possession of the premises subject of the action. This is not necessary because the plaintiff is not in prior possession. It is the defendant who initially has lawful possession of the property but whose possession became unlawful later. 3. In forcible entry, it is necessary that the plaintiff allege his prior physical possession. This is because he was really in prior physical possession and was deprived thereof of force, intimidation, threat, strategy or stealth (FISTS) (Rivera vs. Rivera, 405 SCRA 466, July 8, 2003; Cansino vs. CA, G.R. No. 125799, August 21, 2003). 4. In an unlawful detainer case, a demand to vacate, is, as a rule, indispensable. This demand must be made at least five (5) days, in case of buildings or fifteen (15) days in case of land, before the filing of the action. EXCEPTIONS: (a) When it is stipulated that a demand is no longer required; or (b) When the ground for the unlawful detainer suit is expiration of the lease. Thus, where the ground for unlawful datainer is payment of rentals or violation of the terms and conditions of the lease, demand is required. The demand must be in the following tenor: Pay and vacate. A demand to pay or vacate is not the demand for unlawful detainer. If the ground for ejectment is non-payment of rentals and there is no demand to vacate, the action is not one for unlawful detainer but one for a collection of a sum of money. The jurisdiction would then depend upon the amount of the money sought to be collected (Barrazona vs. RTC of Baguio, April 7, 2007). In forcible entry cases, no demand to vacate is required. 5. The MTC can determine an issue of ownership raised by way of defense. This defense of ownership cannot deprive the MTC of jurisdiction over the case. (Perez vs. Cruz, 404 SCRA 487). This power to determine questions of ownership is only for the purpose of determining character of possession and in a situation where the question of possession cannot be resolved without deciding the issue of ownership. The court, in this case, cannot declare with finality who the true and unlawful owner is. The determination is only provisional or initial. It does not bar an action involving title in another forum (Rivera vs. Rivera, 405 SCRA 466). 6. When the possession of the defendant is by mere tolerance of the owner, possession by the defendant becomes illegal when demand to vacate is made. There is an implied promise that he will vacate upon demand (Rivera vs. Rivera, 405 SCRA 466). 7. A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. This motion shall be decided within thirty (30) days from the filing thereof. (Sec. 15, Rule 70, Rules of Court). 8. A judgment for unlawful detainer is immediately executory upon motion. To stay execution, the defendant must perfect an appeal, file a sufficient supersedeas bond executed in favor of the plaintiff to pay the rents,

damages and costs accruing down to the time of the judgment appealed from. He must also, during the pendency of the appeal deposit with the appellate court the amount of rent due from time to time under the contract, if there is no contract, the deposit shall correspond to the reasonable value of the use and occupation of the property (Sec. 19, Rules of Court). 9. After the lapse of one-year from the accrual of the cause of action, the party dispossessed may file either an accion publiciana, which Is a plenary action to recover the right of possession or an accion reinvindicatoria, which is an action to recover ownership and the right to possession. These are not summary actions anymore (Bongato vs. Malvar, G.R. No. 141614, August 14, 2002). 10. May person who are not parties to the unlawful detainer case be ejected from the land subject of the case? YES. Although an action for ejectment is an action in personam wherein the judgment is binding only upon the parties properly impleaded and given the opportunity to be heard, the judgment becomes binding on anyone who has not been impleaded if he or she is (a) a trespasser, a squatter or agent of the defendant occupying the property; (b) a guest or occupant of the premises with the permission of the defendant; (c) a transferee pendente lite; (d) a sublessee; (e) a co-lessee, or (f) a member of the family, relative or privy of the defendant (Sunflower Neighborhood Association vs. CA, G.R. No. 136274, September 3, 2003). PARTITION 1. An action for partition is comprised of two phases: First, an order of partition which determines whether a co-ownership exists and whether partition is proper; Second, a decision confirming the sketch or subdivision submitted by the parties or the by the commissioners appointed by the court, as the case may be. In other words, an action for partition is at once an action for the declaration of the existence of a co-ownership and then for the segregation and conveyance of a determinate portion of the properties involved. The first may end up with a declaration that a co-ownership does not exists so plaintiff is not entitled to have a partition or that partition is legally prohibited. It may also end up with a declaration that a co-ownership exists and that and so an accounting of rents and profits received by the defendant is in order (De Daffon vs. CA, G.R. No. 12907, August 20, 2002). CONTEMPT 1. Contempt of court involves the doing of an act, or the failure to do an act, in such a manner as to create an affront to the court and the sovereign dignity with which it is clothed. It is defined as disobedience to the court by acting in opposition to its authority, justice and dignity. The power to punish contempt is inherent in all courts, because it is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of the courts; and, consequently, to the due administration of justice. 2. The Rules of Court penalizes two types of contempt, namely direct and indirect contempt. Direct contempt is committed in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, and includes disrespect toward the court, offensive towards others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit of deposition when lawfully required to do so. On the other hand, indirect contempt constitutes (a) misbehavior of an officer of a court in the performance of his official duties or in his official

transactions; (b) disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property, for the purpose of executing acts to ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; (c) any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt; (d) any improper conduct tending, directly or indirectly, to impeded, obstruct, or degrade the administration of justice; (e) assuming to be an attorney or an officer of a court, and acting as such without authority; failure to obey a subpoena duly served; and (g) the rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. 3. Indirect contempt may either be initiated (1) motu propio by the court by issuing an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt; (2) if initiated by someone other than the court, by the filing of the verified petition, complying with the requirements for filing initiatory pleadings. A hearing is required before punishment in meted out for indirect contempt. 4. The penalty for contempt could be imprisonment, making it a unique special civil action. Where the purpose is to vindicate the authority of the court and to protect its outraged dignity, the contempt can be criminal in nature as long as the substantive rights of the accused are safeguarded. SEE PENALTIES under Rule 71(Sec. 1, Sec. 7 of the Rules of Court.) 5. Do not use contempt proceedings to enforce a judgment. For example, a mere refusal of the judgment debtor to relinquish the property is not a ground for contempt. The sheriff should dispossess him of the property and deliver possession to the judgment creditor. If after the dispossession, the judgment debtor commits acts that disturb the possession of the judgment creditor, then contempt may be availed of (Pascua vs. Heirs of Segundo Simeon, 161 SCRA 1). FORECLOSURE OF MORTGAGE 1. The foreclosure of mortgage in Rule 68 has reference to a judicial foreclosure. An extrajudicial foreclosure is allowed only when the mortgage is by stipulation allowed to do so extra judicially through a special power of attorney authorizing extrajudicial foreclosure. Without this authorization, the foreclosure should be done judicially. 2. Judicial foreclosure has three (3) stages: (a) the determination of the right to foreclose and the ascertainment of the amount due (Sec. 2, Rule 68); (b) the foreclosure sale (Sec. 3, Rule 68); and the (c) recovery of the deficiency if any (Sec. 6, Rule 68). After the court determines the amount due, it will order the debtor to pay the obligation within a period of not less than 90 days nor more than 120 day from the entry of judgment. This is what is commonly termed equity of redemption. In case the debtor fails to so pay, the court will order the foreclosure sale of the property. This sale will be confirmed but prior for confirmation the debtor may still pay. This means that the equity of redemption is virtually extended even after the sale but before its confirmation. Once confirmed, the equity or redemption is cut-off. 3. Upon the finality of the order of confirmation, the purchaser shall be entitled to the possession of the property by securing a writ of possession, upon motion (Sec. 3, Rule 68). 4. In extrajudicial foreclosure, there is always a right of redemption to be exercised within one (1) year from the registration of the same. In judicial foreclosures, there is only an equity of redemption and not a right of

redemption. Exception: there is a right of redemption when the mortgagee is a bank (Sec. 46 of the General Banking Law of 2000). EXPROPRIATION 1. The scope of the power of eminent domain as exercised by Congress is plenary and is as broad as the police power. When exercised by the national government the power is inherent and needs no express conferment by law. Such power may be delegated to local government units, other public entities, and public utilities. When so delegated, the power is not eminent but inferior domain. With respect to local government units, the power to expropriate is found in Sec. 19 of the Local Government Code. 2. Before a local government unit may exercise the power to expropriate, an ordinance must be enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, to exercise the power of expropriation over a particular private property. A local government unit cannot therefore, authorize an expropriation through a mere resolution (Beluso vs. Municipality of Panay, Capiz, G.R. No. 153974, August 7, 2006). 3. When the national government expropriates private property, the implementing agency may enter into the possession of the property through a writ of possession upon the filing of the complaint as long as it makes immediate payment to the property owner the amount equivalent to 100% of the value of the property and the value of the improvements, based on the current relevant BIR zonal valuation (Sec. 4, R.A. 8974; Republic vs. Gingoyon,, G.R. No. 166429, December 19, 2005). This provision of R.A. 8974 modifies Sec. 2 of Rule 67 of the Rules of Court. Under the Rules, to be entitled to a writ of possession, it is enough for the implementing agency to make an initial deposit with an authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation. The rule for local government units remains the same and is covered by R.A. 8974. Under Sec. 19 of the Local Government Code, amount of deposit shall be at least 15% of the fair market value of property based on the current tax declaration of the property to expropriated. not the the be

3. When the owner is willing to part with his property, there is no need to file an action to expropriate the property. An action is necessary only when the owner does not agree to sell his property or if he is willing to sell, he does not agree with the price offered. Nature of Provisional Remedies 1. Provisional remedies are not main actions. They are merely ancillary actions attached to the main or general action. They are in aid of the principal action and cannot exist independently of the principal action. 2. The court which can grant any of the provisional remedies is the court which has jurisdiction over the main or original action. 3. Provisional remedies include ((a) preliminary attachment (b) preliminary injunction (c) receivership, (d) replevin, and (e) support pendente lite) 4. The provisional remedy is applied for and granted by the court which has jurisdiction over the principal action. The MTC may grant the remedy so long as the principal action is within its jurisdiction. The same is true with the RTC. The CA and the SC may grant the remedy in cases appealed to them.

Preliminary Attachment (Rule 57) 1. There is no separate action called preliminary attachment. It is availed of in relation to a principal action. For instance, if the plaintiff files an action to collect a sum of money, the action may be coupled with a prayer for the issuance of a writ of preliminary attachment directed against the property of the defendant in order to prevent him from disposing of his property during the pendency of the litigation to the prejudice of the plaintiff. 2. Attachment places the property under the custody of the court (custodia legis). The property is held by the court for the satisfaction of whatever may be obtained by the plaintiff in his favor. 3. Attachment is in the nature of a proceeding in rem or a quasi in rem. When availed of in an action purely in personam, it converts the action to one that is quasi in rem. It will be recalled that in an action in personam, jurisdiction over the defendant is mandatory. However, with attachment, the action becomes one in quasi in rem. This transformation of the nature of the action dispenses with the need for acquiring jurisdiction over the defendant. Since attachment is directed against the property of the defendant, the court may validly proceed with the action as long as jurisdiction over the property is acquired. In an action in rem or quasi in rem, jurisdiction over the res is sufficient. Cases Where Preliminary Attachment is Proper 1. One cannot secure preliminary attachment for every case. The Rules enumerate specific situations in which the remedy can be availed of (Sec. 1, Rule 57). a. Preliminary attachment is available where the action is for the recovery of a specified amount of money or damages where the defendant is a person who is about to DEPART from the Philippines with INTENT to defraud his creditors. The source of this action does not really matter. It may arise from any of the sources of obligations under the Civil Code of the Philippines. It is not enough that the action is for the recovery of money or damages. There must be a showing of an attempt to abscond or intent to defraud on the part of the defendant. Note also that under Sec. 1 of Rule 57, in the determination of the damages as basis for the writ of preliminary attachment, moral and exemplary damages are not included. b. Preliminary attachment is also available in an action for money or property embezzled, fraudulently misapplied by the defendant or converted to his own use. c. It is also available in an action to recover property unjustly or fraudulently taken by the defendant or property that is detained, converted, removed or disposed of to prevent its being found or taken by the plaintiff. d. Preliminary attachment is also available in an action against a defendant guilty of fraud in either contracting or performing an obligation. e. It is also a remedy in an action against a person who has removed or disposed of his property to defraud creditors. f. In an action against a defendant who is a non-resident and who is at the same time not found in the Philippines, attachment may be availed of in order to reach his property in the Philippines and to dispense with the need for acquiring jurisdiction over his person.

1. Preliminary attachment may be granted by the court which has

jurisdiction over the main action. When To Apply For Preliminary Attachment It may be applied for at the COMMENCEMENT of the action or at any time BEFORE entry of judgment (Sec. 1, Rule 57). Ex Parte Issuance Of Writ 1. The writ of preliminary attachment may be granted and issued even before summons is served upon the defendant and may be issued ex parte. However, the enforcement of the writ may not be enforced and may not be validly implemented unless preceded by a service of summons upon the defendant, or simultaneously accompanied by service of summons, a copy of the complaint, the application for attachment, the order of attachment and the attachment bond (Davao Light & Power Co., Inc. vs. Court of Appeals, 204 SCRA 343; Mangila vs. Court of Appeals, August 12, 2002). Implementation of the writ of attachment without the required jurisdiction over his person is null and void (BAC Mfg. & Sons Corp. vs. Court of Appeals, 200 SCRA 130). The examinee must make a distinction between the mere issuance of the writ and its enforcement. The issuance does not need prior jurisdiction over the defendant. However, jurisdiction over him is required for enforcement of the writ of attachment. 2. The requirement of prior or contemporaneous service of summons shall not apply in the following instances: (a) (b) (c) Where the summons could not be served personally or by substituted service despite diligent efforts. The defendant is a resident of the Philippines who is temporarily out of the country. The defendant is a non-resident; or The action is one in rem or quasi in rem.

(d)

Requisites for The Issuance Of An Order/Writ Of Preliminary Attachment 1. The case must be any of those where preliminary attachment is proper; 2. The applicant must file a motion (ex parte or with notice and hearing); 3. The applicant must show by affidavit (under oath)that there is no sufficient security for the claim sought to be enforced; that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims; and 4. A BOND is filed, executed to the adverse party. This is called an attachment bond.

How to Prevent The Attachment The party whose property is sought to be attached, may prevent the attachment by doing either of two things: (1) By depositing with the court an amount equal to the value of the property to be attached, or (2) by giving a counter-bond executed to the applicant, in an amount equal to the bond posted by the latter to secure the attachment (Sec. 5, Rule 57). How to Discharge The Attachment 1. If the attachment has already been effected, the party whose property has been attached must file a MOTION to discharge the attachment. This motion shall be with notice and hearing. After due notice and hearing, the

court shall discharge the attachment if the applicant if the movant makes a CASH DEPOSIT or files a COUNTER-BOND executed to the attaching party with the clerk of court where the application is made. (Sec. 12, Rule 57). 2. Attachment may likewise be discharged without the need for filing of a counter-bond. This is possible when the party whose property has been attached files a motion to discharge the attachment and during the hearing of the motion, he proves that the attachment was improperly or irregularly issued or enforced, or that the bond of the attaching creditor is insufficient. (Sec. 13, Rule 57). PRELIMINARY INJUNCTION (Rule 58) 1. Preliminary injunction is an order requiring a person, a party or even a court or tribunal either TO REFRAIN (prohibitory) from or TO PERFORM (mandatory) particular acts during the pendency of an action. In this sense, it is a provisional remedy. After judgment, the injunction now becomes involved as part of the relief granted to the applicant. In which case the injunction is no longer preliminary but a FINAL injunction. 2. An injunction may also be a main action for injunction. In this case, it is not the provisional remedy ancillary to the main action but is a main action in itself and is similar to the special civil action for prohibition. The purpose of the action for injunction is to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act. (Manila Banking Corporation vs. Court of Appeals, 187 SCRA 138). 3. As a provisional remedy, the purpose of preliminary injunction is to preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the action (First Global Realty and Development Corp. vs. San Agustin, G.R. No. 144499, February 19, 2002). When the injunction sought is mandatory, a writ of preliminary injunction tends to do more than to maintain the status quo because it commands the performance of specific acts and is issued only in cases of extreme urgency and where the right of the applicant is clear. 4. Preliminary injunction is granted at any stage of the proceedings prior to the judgment or final order. (Sec. 1, Rule 58). It is to be applied for and issued by the court where the action is pending (Sec. 2, Rule 58). The term court includes a Municipal or a Metropolitan Trial Court. Note that if the action is pending in the Court of Appeals, the application must be made with the Court of Appeals. If it is pending in the Supreme Court, then the application must be made in such court. If it is pending in the Supreme Court, then the application must be made in such court. The preliminary injunction applied for in the Court of Appeals may be issued by the said court or ANY member thereof. If applied for in the Supreme Court, it may be issued by the Supreme Court or ANY member thereof. (Sec. 2, Rule 58). This is a situation where a member of the court may issue a writ of preliminary injunction without the participation of other members of the court. Territorial Application of the Writ 1. Writs of injunction issued by the Supreme Court or by the Court of Appeals may be enforced anywhere in the country. 2. Writs of injunction issue by Regional Trial Courts may be enforced within their respective regions, not outside of their territorial jurisdictions. 3. Writs of injunction issued by the Municipal Trial Court are enforceable only within its territorial jurisdiction.

Requisites For Issuance Of A Writ Of Preliminary Injunction Or Temporary Restraining Order 1. There must be a verified application 2. There must be notice and hearing (unlike attachment which may be issued ex parte). 3. The applicant must establish that he has a right to relief. 4. The applicant must establish that there is a need to restrain the commission or continuance of the acts complied of and if not enjoined would work injustice to the applicant; (Kho vs. Court of Appeals, G.R. No. 115758, March 3, 2002). 5. Posting of a bond, unless exempted by the court. NOTES: (a) A writ of preliminary injunction cannot be issued without a prior notice and hearing (Sec. 5, Rule 58). EXCEPTION: If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court in which the application for preliminary injunction was made may issue a TRO ex parte for a period not exceeding 20 days from service to the party sought to be enjoined. If the matter is of extreme urgency, the executive judge or the presiding judge of a single-sala court may issue a TRO effective for only 72 hours from ISSUANCE, not service. Within this period the executive judge shall conduct a summary hearing to determine whether or not the TRO can be extended to 20 days. The 72 hours shall be included in the maximum 20 day period set by the Rules (Sec. 5, Rule 58) (b) A TRO may be issued by the Court of Appeals or any member thereof. If so issued, it shall be effective for 60 days from notice to the party sought to be enjoined. (c) A TRO may also be issued by the Supreme Court or a member thereof. If so issued, it shall be effective until FURTHER notice (Sec. 5, Rule 58). (d) Injunction can be an action in itself and in this sense is a main action. The provisional remedy is preliminary injunction. (e) preliminary mandatory injunction is available in a suit for forcible entry to restore the plaintiff in his possession (See Art. 539 of the Civil Code; also Sec. 15, Rule 70, Rules of Court) it also available in unlawful detainer actions pursuant to Sec. 15, Rule 70 of the Rules of Court. A finding that the applicant for preliminary injunction may suffer damage not capable of pecuniary estimation is not sufficient to support an injunction Manila International Airport Authority vs. Court of Appeals, G.R. No. 118249, February 2, 2002). Where the main action is within the jurisdiction of the MTC, then it is this court which shall issue the preliminary injunction. For example, under Rule 70 of the Rules of Court, in a forcible entry case, the plaintiff may, within five (5) days from the filing of the complaint, file a motion to secure from the court a writ of preliminary mandatory injunction to restore him in his possession. Since a forcible entry case is cognizable by the MTC, the injunction sought for in this action shall be issued by the MTC. How To Dissolve A Writ of Preliminary Injunction A writ of preliminary injunction or temporary restraining order may be dissolved. The party enjoined must file a motion to dissolve the injunction or TRO with notice and hearing of the motion upon showing by affidavits that the person enjoined would suffer irreparable damage while the applicant can be fully compensated fro such damages as he may suffer. The movant must file a BOND. RECEIVERSHIP (Rule 59) Nature Of A Receivership

1. The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action. Receivership is also aimed at preservation of, and at making more secure, existing rights. It cannot be used as an instrument for the destruction of those rights. 2. The receivership provided in Rule 59 refers to the property which is the subject of the action and does not refer to the receivership authorized under the banking laws and other rules or laws. This presupposes that there is an action and that the property subject of the action requires its preservation. Procedure For Appointment Of A Receiver 1. A verified application must be filed by the party applying for the appointment of a receiver; 2. The applicant must have an interest in the property or funds subject of the action; 3. The applicant must show that the property or funds is in danger of being lost, wasted or dissipated; 4. The application must be with notice and must be set for hearing;

5. Before issuing the appointment of a receiver, the court shall require the applicant to post a bond in favor of the adverse party. When the receiver is appointed, the receiver shall take his oath but before doing so, he shall file a bond. There are two bonds: the applicants bond and the receivers bond. 6. Before entering upon his duties, the receiver must be sworn to perform his duties faithfully. REPLEVIN (Rule 60) 1. Replevin is a broad term which may also be a main action where the ultimate goal is to recover personal property wrongfully detained by a person. Used in this sense, it is a suit in itself. The action is primarily possessory in nature and generally determines nothing more than the right of possession. But replevin may also be a provisional remedy to have possession of the personal property while the main issue of possession is pending. Also, the mortgagee is entitled to file a replevin suit preparatory to the foreclosure of the chattel mortgage,when the debtor defaults and the creditor decides to foreclose the mortgage but the debtor refuses to yield possession of the property, the creditor may institute an action to secure possession of the property in an action for replevin. 2. The application for replevin must be by affidavit on his ownership of the property and the actual value thereof. There must be a bond posted by the applicant. The bond is DOUBLE the value of the property. 3. Upon the approval of the bond, the court shall issue an order and the corresponding writ of replevin. The sheriff shall then take the property and keep it in a secure place and wait for five (5) days for the adverse party to get the property back by objecting to the sufficiency of the bond and posting a redelivery bond double the value of the property. If such party makes no move to have the property back, the sheriff shall deliver the property to the applicant

SUPPORT PENDENTE LITE (Rule 61) 1. Support pendente lite is an amount of support provisionally fixed by the court in favor of the person or persons entitled thereto during the pendency of an action for SUPPORT. Here, the main action is for support and support pendente lite is the provisional remedy. 2. In one case, temporary support was granted in an action for habeas corpus filed by the mother in behalf of a minor child against the father, where the father has recognized the child as his and has not been given support by the father pending the fixing the amount of support in another action for support. (David vs. CA, 250 SCRA 82). 3. Support pendente lite may be granted in rape cases for the offspring of the accused as a consequence of the rape (Sec. 6, Rule 61). 4. The application for support pendente lite must be verified with notice and hearing. 5. There can also be a main action for support. Since a protracted trial may ensue, the plaintiff may ask for support during the pendency of the action. It is the latter which is a provisional remedy. 6. An order granting support pendente lite must be immediately complied with. If not complied with as ordered, the court shall motu propio or upon motion issue an order of execution against the person so ordered to give support without prejudice to his being held liable for contempt. -o0o-

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