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which to file objections to the findings of the report,
if they so desire. (Id.).
Action Upon the Report
Upon the expiration of the period of 10 days referred
to in the preceding section, or even before the
expiration of such period but after all the interested
parties have filed their objections to the report or
their statement of agreement therewith, the court
may, after hearing:
1. Accept the report and render judgment in
accordance therewith; or
2. For cause shown, it may recommit the same to
the commissioners for further report of facts; or
3. It may set aside the report and appoint new
commissioners; or
4. It may accept the report in part and reject it in
part; and
5. It may make such order or render such
judgment as shall secure to the plaintiff the
property essential to the exercise of his right of
expropriation, and to the defendant just
compensation for the property so taken. (Sec.
8, Rule 67)
f. RIGHTS OF PLAINTIFF UPON JUDGMENT
AND PAYMENT
After payment of the just compensation as
determined in the judgment, the plaintiff shall have
the right to enter upon the property expropriated and
to appropriate the same for the public use or
purpose defined in the judgment or to retain
possession already previously made in accordance
with Section 2, Rule 67 of the Rules of Court. (Sec.
10, Rule 67)
Title to the property expropriated passes from the
owner to the expropriator upon full payment of just
compensation. (Federated Realty Corp. v. CA, G.R.
No. 127967, 2005)
It is arbitrary and capricious for a government
agency to initiate expropriation proceedings, seize a
person’s property, allow the judgment of the court to
become final and executory and then refuse to pay
on the ground that there are no appropriations for
the property earlier taken and profitably used. Levy
and garnishment of NHA funds and property must
be executed by the sheriff as ordered by the court to
compensate respondents. (NHA v. Heirs of
Guivelondo, G.R. No. 154411, 2003).
When Title in Expropriation Becomes Vested
1. Personal property - upon payment of just
compensation;
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2. Real property - upon payment of just
compensation AND registration. (Secs. 10 and
13, Rule 67)
g. EFFECT OF RECORDING OF JUDGMENT
Contents of Judgment
1. An adequate description of the particular
property or interest therein expropriated; and
2. The nature of the public use or purpose for which
it is expropriated.
When real estate is expropriated, a certified copy of
such judgment shall be recorded in the registry of
deeds of the place in which the property is situated,
and its effect shall be to vest in the plaintiff the title
to the real estate so described for such public use
or purpose. (Sec. 13, Rule 67)
Remedies of a Property Owner for Non-Payment
of the Just Compensation for the Taking of his
Property:
General rule: The private landowner cannot
execute on the judgment or recover the property.
Non-payment merely entitles the private landowner
to interest on the just compensation, until fully paid.
Exceptions:
1. If the expropriated property earns income or the
government has allocated/appropriated funds
for the just compensation, the landowner may
execute on such funds within five (5) years
from finality of the decision. (Coscolluela v. CA,
G.R. No. 77765, August 15, 1988)
2. An action for reconveyance or recovery of
possession, if payment of just compensation has
not been made after the lapse of five (5) years from
finality of the judgment fixing just compensation,
under special circumstances, including the fact that
the property taken is no longer devoted to public
use. (Republic v. Lim, G.R. No. 161656, June 29,
2005)
————- end of topic ————-
G. FORECLOSURE OF REAL
ESTATE MORTGAGE
Foreclosure
Foreclosure of mortgage means the termination of
all rights of the mortgagor in the property covered by
the mortgage. It denotes the procedure adopted by
the mortgagee to terminate the rights of the
mortgagor on the property and includes the sale
itself. (DBP v. Zaragoza, G.R. No. 23493, 1978)
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1. JUDICIAL AND EXTRAJUDICIAL Buyer at public auction Buyer at public auction

FORECLOSURE becomes absolute becomes absolute
owner only after owner only after finality
Modes of Foreclosure of Real Estate Mortgage confirmation of the sale. of an action for
1. Judicial Foreclosure pursuant to Rule 68; consolidation of
2. Extrajudicial Foreclosure pursuant to Act No. ownership.
3135 as amended by Act 4118, and A.M. No.
Mortgagee need not be Mortgagee is given a
99-10-05-0. (Acbang v. Luczon, G.R. No. given a special power special power of
164246, 2014) of attorney. attorney in the
mortgage contract to
The availment of the remedy under Rule 68 bars foreclose the
recourse to the subsequent filing of a personal mortgaged property in
action for collection of the same debt, in this case, case of default.
under the principle of litis pendentia, considering
that the foreclosure case only remains pending as it a. NEED FOR SPECIAL POWER OF
was not shown to have attained finality. (Marilag v. ATTORNEY
Martinez, G.R. No. 201892, 2015)
Accordingly, Section 1 of Act No. 3135, which
JUDICIAL FORECLOSURE VERSUS prescribes for the procedure for the extra-judicial
EXTRAJUDICIAL FORECLOSURE foreclosure of real properties subject to real estate
JUDICIAL EXTRA-JUDICIAL mortgage, in relation to Circular No. 7-2002 and SC
FORECLOSURE (Rule FORECLOSURE (Act A.M. No. 99-10-05-0 requires that the petition for
68) No. 3135) extra-judicial foreclosure be supported by evidence
that petitioners hold a special power or authority to
Complaint is filed with No complaint is filed. foreclose. (Welbit Construction Corp. v. Heirs of De
the courts. No court intervention. Castro, G.R. No. 210286, 2018)

There is only an equity There is a right of In judicial foreclosure unlike extra-judicial

of redemption. No right redemption. Mortgagor foreclosure, mortgagee need not be given a special
of redemption except has a right of power of attorney in the mortgage contract to
when mortgagee is a redemption for one year
foreclose the mortgaged property in case of default.
banking institution; from registration of the
equity of redemption is sale (except where the
90 to 120 days, and any mortgagee is a bank b. AUTHORITY TO FORECLOSE
time before and the mortgagor is a EXTRAJUDICIALLY
confirmation of juridical entity, the right
foreclosure sale. to redeem may be Proceedings for the extrajudicial foreclosure of real
exercised until, but not estate mortgages are governed by Act 3135, as
Exception: after, the registration of amended, entitled An Act to Regulate the Sale of
Where the mortgagee the certificate of Property under Special Powers Inserted in or
is a bank, the right of sale/foreclosure with Annexed to Real Estate Mortgages. As the title itself
redemption may be the Register of Deeds,
suggests and as provided in Sec. 1 of the Act,
exercised within 1 year which in no case shall
extrajudicial foreclosure sales are proper only when
after the sale of the be more than three (3)
property (General months after the so provided in the real estate mortgage contract.
Banking Law of 2000, foreclosure, whichever (Casano v. Magat, A.M. No. P-02-1539, Jan. 24,
Sec. 47) is earlier. (General 2002)
Banking Law, Sec. 47)
c. PROCEDURE
Mortgagee can move Mortgagee has to file a
for deficiency separate action to
Complaint in Action for Judicial Foreclosure
judgment in the same recover any deficiency.
action. In an action for the foreclosure of a mortgage or
other encumbrance upon real estate, the complaint
shall set forth:
1. The date and due execution of the mortgage;

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2. Its assignments, if any;
3. The names and residences of the mortgagor
and the mortgagee;
4. A description of the mortgaged property;
5. A statement of the date of the note or other
documentary evidence of the obligation secured
by the mortgage, the amount claimed to be
unpaid thereon; and
6. The names and residences of all persons
having or claiming an interest in the property
subordinate in right to that of the holder of the
mortgage, all of whom shall be made
defendants in the action. (Sec. 1, Rule 68)
Defendants in Judicial Foreclosure
1. Persons obliged to pay the mortgage debt;
2. Persons who own, occupy, or control the
mortgaged premises or any part thereof;
3. Transferee or grantee of the property;
4. Second mortgagee or junior encumbrancers or
any person claiming a right or interest in the
property subordinate to the mortgage sought to
be foreclosed to foreclose their equity of
redemption; but if the action is by the junior
encumbrancer, first mortgagee MAY also be
joined as defendant; and
5. The mortgagor even if not owner of the
mortgaged property should be included (to
satisfy the deficiency).
Effect of Junior Encumbrancer Not Impleaded
After completed foreclosure under a senior
mortgage, a junior encumbrancer may be given, by
the court, the right to redeem the senior mortgage
and protect his own lien. Where a junior
encumbrancer has been given, by the court, the
right to redeem after the completed foreclosure
under a senior mortgage, he must exercise his right
within the time limited or be barred thereof. (Sunlife
Assurance v. Diez, G.R. No. 29027, 1928)
Application to Initiate Extra-judicial Foreclosure
Proceedings for the extrajudicial foreclosure of
mortgages, as the name already suggests, are not
suits filed in a court. They are commenced not by
the filing of a complaint, but by submitting an
application before an executive judge who, in turn,
receives the same neither in a judicial capacity nor
on behalf of the court. Necessarily, the orders of the
executive judge in such proceedings, whether they
be to allow or disallow the extrajudicial foreclosure
of the mortgage, are not issued in the exercise of a
judicial function but||| issued by the RTC Executive
Judge in the exercise of his administrative function
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to supervise the ministerial duty of the Clerk of Court
as Ex Officio Sheriff in the conduct of an extrajudicial
foreclosure sale.. (Ingles v. Estrada, G.R. No.
141809, 2013)
a.) WHERE TO FILE
A mortgage may be foreclosed judicially by bringing
an action for that purpose, in the proper court which
has jurisdiction over the area wherein the real
property involved or a portion thereof, is situated.
(Sec.1, Rule 4).
The venue of the extra-judicial foreclosure
proceedings is the place where each of the
mortgaged property is located. (Benguet
Management Corp. v. Court of Appeals, G.R. No.
153571, 2003)
Judgment on Judicial Foreclosure for Payment
of Sale
If after the trial, the court finds that the matters set
forth in the complaint are true, it shall render a
judgment containing the following matters:
1. An ascertainment of the amount due to the
plaintiff upon the mortgage debt or obligation,
including interest and other charges as
approved by the court, as well as costs;
2. A judgment of the sum found due;
3. An order that the amount found due be paid to
the court or to the judgment obligee within the
period of not less than 90 days nor more than
120 days from the entry of judgment; and
4. An admonition that in default of such payment
the property shall be sold at public auction to
satisfy the judgment. (Sec. 2, Rule 68)
The judgment of the court on the above matters is
considered a final adjudication of the case and
hence, is subject to challenge by the aggrieved party
by appeal or by other post-judgment remedies.
The period granted to the mortgagor for the payment
of the amount found due by the court is not just a
procedural requirement but a substantive right given
by law to the mortgagee as his first chance to save
his property from final disposition at the foreclosure
sale. Hence, this period cannot be omitted. (De
Leon v. Ibañez, G.R. No. L-6967, 1954)
Judicial Foreclosure Sale
If the defendant fails to pay the amount adjudged
within the period given, the court will order the
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foreclosure and execution sale of the mortgaged
property. The court, upon motion, shall order the
property to be sold in the manner and under the
provisions of Rule 39 and other regulations
governing sales of real estate under execution.
(Sec. 3, Rule 68)
Duty of Clerk of Court in an Extra-judicial
Foreclosure Sale
Upon the filing of the application, it shall be the duty
of the Clerk of Court:
1. Receive and docket the application;
2. Collect the filing fees;
3. Examine whether the applicant has complied
with the requirements of Act 3135 before
conducting the public auction;
4. Sign and issue a certificate of sale, subject to the
approval of the executive judge; and
5. After the certificate of sale has been issued to the
highest bidder, keep the complete records, while
awaiting any redemption within a period of 1 from
date of registration of the certificate of sale with
the Register of Deeds concerned, after which,
the records shall be archived.|(A.M. No. 99-10-
05-0)
b.) WHERE TO SELL
In a judicial foreclosure, the place of the sale may
be agreed upon by the parties. In the absence of
such agreement, the sale of real property or
personal property not capable of manual delivery
shall be held in the office of the clerk of court of the
Regional Trial Court or the Municipal Trial Court
which made the order. (Sec. 15, Rule 39)
As for an extra-judicial foreclosure, it cannot be
made legally outside of the province in which the
property sold is situated; and in case the place
within said province in which the sale is to be made
is the subject of stipulation, such sale shall be made
in said place or in the municipal building of the
municipality in which the property or part thereof is
situated (Sec. 2, Act No. 3135)
c.) POSTING REQUIREMENT
Notice Requirement in Judicial Foreclosure
The foreclosure sale shall be conducted in the
manner provided for an execution sale of real
property under Rule 39, to wit:
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1. The court, upon motion, shall order the
foreclosure sale;
2. There must be a notice of sale posted for 20
days in the 3 public places in conspicuous areas
of municipal or city hall, post office and public
market in the municipality or city where the sale
is to take place, describing the property and
stating where the property is to be sold;
3. If the assessed value of the property exceeds
P50,000.00 pesos, the notice must be published
once a week for 2 consecutive weeks in one
newspaper selected by raffle, whether in
English, Filipino, or any major regional language
published, edited and circulated or, in the
absence thereof, having general circulation in
the province or city;
4. Written notice of the sale shall be given to the
mortgagor, at least 3 days before the sale;
5. The notice shall specify the place, date and
exact time of the sale which should not be earlier
than nine o'clock in the morning and not later
than two o'clock in the afternoon; (Sec. 15, Rule
39 vis-à-vis Sec. 3, Rule 68)
A motion is needed. Such motion is non-litigious and
may be made ex parte. (GPI v. De Las Cajigas, G.R.
No. L-33913, 1931)
Notice Requirement in Extra-judicial
Foreclosure
1. Notice shall be given by posting notices of the
sale for not less than 20 days in at least 3 public
places of the municipality or city where the
property is situated;
2. If such property is worth more than P400, such
notice shall also be published once a week for
at least 3 consecutive weeks in a newspaper of
general circulation in the municipality or city;
3. The sale shall be made at public auction,
between the hours of nine in the morning and
four in the afternoon; and shall be under the
direction of the sheriff of the province, the
justice or auxiliary justice of the peace of the
municipality in which such sale has to be made,
or a notary public of said municipality, who shall
be entitled to collect a fee of five pesos for each
day of actual work performed, in addition to his
expenses. (Secs. 3 & 4, Act No. 3135).
d.) PUBLICATION REQUIREMENT
Statutory provisions governing publication of notice
of mortgage foreclosure sales must be strictly
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complied with and slight deviations therefrom will
invalidate the notice and render the sale, at the very
least, voidable. Certainly, the statutory requirements
of posting and publication are mandated and
imbued with public policy considerations. Failure to
advertise a mortgage foreclosure sale in compliance
with the statutory requirements constitutes a
jurisdictional defect, and any substantial error in a
notice of sale will render the notice insufficient and
will consequently vitiate the sale. (Caubang v.
Spouses Crisologo, G.R. No. 174581, Feb. 4,
2015).
Note: The publication requirements apply to both
judicial and extra-judicial foreclosure.
The failure to post a notice is not per se a ground for
invalidating the sale provided that the notice thereof
is duly published in a newspaper of general
circulation. (Development Bank of the Philippines v.
Aguirre, G.R. No. 144877, 2001)
i. SUFFICIENCY OF NEWSPAPER
PUBLICATION
True, to be a newspaper of general circulation, it is
enough that it is published for the dissemination of
local news and general information, that it has a
bona fide subscription list of paying
subscribers, and that it is published at regular
intervals. Over and above all these, the newspaper
must be available to the public in general, and not
just to a select few chosen by the publisher.
Otherwise, the precise objective of publishing the
notice of sale in the newspaper will not be realized.
(Metropolitan Bank and Trust Co. v. Peñafiel, G.R.
No. 173976, 2009)
The crucial factor is not where the newspaper is
printed but whether the newspaper is being
circulated in the city or province where the property
is located. (Gotesco Properties, Inc. v. Solidbank
Corp., G.R. No. 209452, 2017)
In fact, to ensure a wide readership of the
newspaper, jurisprudence suggests that the
newspaper must also be appealing to the public in
general. The Court has, therefore, held in several
cases that the newspaper must not be devoted
solely to the interests, or published for the
entertainment, of a particular class, profession,
trade, calling, race, or religious denomination. The
newspaper need not have the largest circulation so
long as it is of general circulation. (Id.)
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ii. NEED FOR REPUBLICATION IN
CASE OF POSTPONEMENT
If the foreclosure sale does not push through as
scheduled, there is a need for re-publication and re-
posting of the notice thereof. (Metrobank v. Nikko
Securities Int’l Corp., G.R. No. 178479, 2009)
iii. PERSONAL NOTICE TO THE
MORTGAGOR – WHEN AND WHEN
NOT NEEDED
In an extra-judicial foreclosure, unless the parties
stipulate, personal notice to the mortgagor in
extrajudicial foreclosure proceedings is not
necessary because Section 3 of Act 3135 only
requires the posting of the notice of sale in three
public places and the publication of that notice in a
newspaper of general circulation.||(Lim v.
Development Bank of the Phils., G.R. No. 177050,
2013)
But in a judicial foreclosure, notice must be sent to
the mortgagor. (Sec. 15, Rule 39 vis-à-vis Sec. 3,
Rule 68)
Confirmation of the Judicial Foreclosure Sale
After the foreclosure sale has been effected, the
mortgagee shall file a MOTION FOR ITS
CONFIRMATION. (Sec. 3, Rule 68)
The motion for confirmation:
1. Is non-litiguous and may be made ex parte;
2. Requires notice and hearing;
3. Mortgagor will be allowed the opportunity to
show cause why the sale should not be
confirmed and to inform them when his right will
be cut off;
4. If the mortgagor was not notified of the hearing,
the subsequent confirmation of the sale is
vitiated as if no confirmation ever took place;
5. After the hearing and the court finds valid
grounds, it shall issue an order confirming the
foreclosure sale, which is a judgment in itself
and is deemed a final adjudication.
Order of Confirmation
The title vests in the purchaser upon a valid
confirmation of the sale and retroacts to the date of
sale. (Grimalt vs. Valazquez, G.R. No. L-11721,
1918)
The order of confirmation is appealable and if not
appealed within the period for appeal becomes final.
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d. POSSESSION BY PURCHASER OF
FORECLOSED PROPERTY
See also further discussion on Mortgage &
Foreclosure under Civil Law.
In an extrajudicial foreclosure of real property, the
purchaser becomes the absolute owner thereof if no
redemption is made within 1 year from the
registration of the certificate of sale by those entitled
to redeem. Being the absolute owner, he is entitled
to all the rights of ownership over a property. (Sps.
Reyes vs. Sps. Chung, G.R. No. 228112, 2017)
The purchaser may petition the court, to give him
possession thereof during the redemption period,
provided:
1. That he furnish a bond in an amount equivalent
to the use of the property for a period of twelve
months, to indemnify the debtor in case it be
shown that the sale was made without violating
the mortgage or without complying with the
requirements of this Act.
Note: No such bond is required after the
redemption period if the property is not
redeemed.
2. The petition shall be made under oath; and
3. The court shall, upon approval of the bond,
order that a writ of possession issue, addressed
to the sheriff of the province in which the
property is situated, who shall execute said
order immediately. (Sec. 7, Act No. 3135, as
amended)
The procedure under Section 7 of Act No. 3135, as
amended, may be availed of by a purchaser seeking
possession of the foreclosed property he bought at
the public auction sale after the redemption period
has expired without redemption having been made.
(Sps. Teves vs. IC&CS Co., G.R. No. 216714, 2018)
The purchaser at the auction sale concerned
whether in a judicial or extra-judicial foreclosure
shall have the right to enter upon and take
possession of such property immediately after
the date of the confirmation of the auction
sale and administer the same in accordance with
law. (Sec. 47, General Banking Law)
In case of refusal of a debtor to surrender the
property sold by the sheriff in a public auction, a writ
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of possession may also be issued in favor of the
mortgagee in cases of:
1. In an extra-judicial foreclosure of a realty
mortgage (Sec. 7, Act No. 3135); and
2. In a judicial foreclosure of mortgage, a quasi in
rem proceeding, provided that the mortgagor is
in possession of the mortgaged realty and no
third person, not a party to the foreclosure suit,
had intervened. (Mabale v. Apalisok, G.R. No.
L-46942, Feb. 6, 1979)
e. REMEDY OF DEBTOR IF
FORECLOSURE IS NOT PROPER
See further discussions on Mortgage & Foreclosure
under Civil Law.
If a mortgage creditor pursues foreclosure even
after previously instituting a personal action for
recovery of debt, mortgage debtor can allege in its
answer splitting of cause of action since the said
personal action constitutes a waiver of the right to
foreclosure. (Bachrach Motor Co., Inc vs. Icarañgal,
G.R. No. L-45350 1939)
Mortgage debtor can file opposition to the motion for
writ of possession alleging that notice and hearing
was not afforded before a confirmation sale is
ordered. Notice and hearing of motion for
confirmation are therefore essential to the validity of
the order of confirmation, not only to enable the
interested parties to resist the motion but also to
inform them of the time when their right of
redemption is cut off. (Tiglao vs. Botones, G.R. No.
L-3619, 1951)
f. REDEMPTION
Right of Redemption
Upon the finality of the order of confirmation or upon
the expiration of the period of redemption when
allowed by law, the purchaser at the auction sale or
last redemptioner, if any, shall be entitled to the
possession of the property and he may secure a writ
of possession, upon, motion, from the court which
ordered the foreclosure unless a third party is
actually holding the same adversely to the judgment
obligor. (Sec. 3, Rule 67)
The import of Sec. 3 includes one vital effect—the
equity of redemption of the mortgagor or
redemptioner is cut-off and there will be no further
redemption, unless allowed by law (as in the case of
banks as mortgagees). The equity of redemption
starts from the 90-120 day period set in the
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judgment of the court up to the time before the sale
is confirmed by an order of the court. Once
confirmed, no equity of redemption may further be
exercised.
General Rule: There is no right of redemption in a
judicial foreclosure.
Exception: Judicial foreclosures by banks: 1 year
redemption period. (Cayton v. Zeonnix Trading
Corp., G.R. No. 169541, 2009; Sec. 47, General
Banking Law of 2000)
While there is no right of redemption in judicial
foreclosure, there is in favor of the mortgagor an
equity of redemption. This is simply the right of the
defendant mortgagor to extinguish the mortgage
and retain ownership of the property by paying the
secured debt within the 90-day period after the
judgment becomes final, in accordance with Rule
68, or even after the foreclosure sale but prior to its
confirmation. (Huerta Alba Resort v. CA, G.R. No.
128567, 2000)

Equity of Redemption in Judicial Foreclosure

EQUITY OF REDEMPTION RIGHT OF REDEMPTION

Equity of the defendant mortgagor to extinguish the Prerogative or right to reacquire mortgaged property
mortgage and retain ownership of the property by after registration of the foreclosure sale.
paying the secured debt within the 90-120 day period
set by the court after the judgment becomes final.
(Sec. 2, Rule 68)

General rule: Must be exercised within the 90-120 General rule: Exists only in the case of extrajudicial
day period after the judgment becomes final foreclosure of the mortgage

Except: When, even after the foreclosure sale itself Except: When, in a judicial foreclosure, the
has been made, no order of confirmation of the sale mortgagee is PNB or a bank or banking institution
has been made. Otherwise, no redemption can be
made anymore. PNB’s charter and the General Banking Act confer on
the mortgagor, his successors-in-interest, or judgment
creditor the right to redeem the property sold on
foreclosure after confirmation by the court of the
foreclosure sale within one year from the date of the
registration of the certificate of sale in the Registry of
Property.

Exception to exception:
Where the mortgagor is a juridical entity whose
property has been the subject of an extrajudicial
foreclosure, the right to redeem may be exercised
until, but not after, the registration of the certificate of
sale/foreclosure with the Register of Deeds, which in
no case shall be more than three (3) months after the
foreclosure, whichever is earlier. (Sec. 47, General
Banking Act of 2000)

Summary of Redemption Periods Right of Redemption under Judicial Foreclosure

Equity of Redemption (Rule 68)
Regardless of who is the mortgagor or mortgagee, If the mortgagee is a bank or banking institution, the
the period for equity of redemption is: right of redemption is 1 year, counted from the
1. Not less than 90 days nor more than 120 days registration of the certificate of sale with the Register
from entry of judgment of foreclosure; or of Deeds (Sec. 47, General Banking Law of 2000;
2. Even after the foreclosure sale but before Huerta Alba Resort v. CA, G.R. No. 128567, 2000)
judicial confirmation of the sale (Huerta Alba
Resort v. CA, G.R. No. 128567, 2000) Right of Redemption under Extrajudicial
Foreclosure (Act. No. 3135)

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General Rule: Whether or not the mortgagee is a
non-bank or banking institution, the redemption
period is 1 year, counted from the registration of the
certificate of sale with the Register of Deeds.
Exception: If the mortgagor is a juridical person, the
redemption period is either:
1. Before registration of the certificate of
foreclosure sale with the Register of Deeds, or
2. No more than 3 months after the foreclosure
sale, whichever is earlier. (Sec. 47, General
Banking Law of 2000
DISPOSITION OF PROCEEDS OF SALE
Formula
Amount realized from the foreclosure sale, less
costs of the sale, shall be paid to the person
foreclosing.
Junior Encumbrancers
When there shall be any balance or residue after
paying off the mortgage debt due, the same shall be
paid to:
1. Junior encumbrancers in the order of their
priority;
2. If there be no junior encumbrancers or if there
is still a balance after paying off the junior
encumbrancers, the same shall be paid to the
mortgagor or any person entitled thereto. (Sec.
4, Rule 68)
DEFICIENCY JUDGMENT
If there be a balance due to the plaintiff after
applying the proceeds of the sale, the court, upon
motion, shall render judgment against the defendant
for any such balance.
Execution may issue immediately if the balance is
all due. The plaintiff shall be entitled to execution at
such time as the remaining balance shall become
due and such due date shall be stated in the
judgment. (Sec. 7, Rule 68) The deficiency
judgment is in itself a judgment; thus, it is also
appealable.
No independent action need be filed to recover the
deficiency from the mortgagor. The deficiency
judgment shall be rendered upon motion of the
mortgagee.
The motion must be made only after the sale and
after it is known that a deficiency exists. Before that,
any court order to recover the deficiency is void.
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(Gov’t. of the Philippines v. Torralba, G.R. No. L-
41573, 1935)
The mortgagor who is not the debtor and who
merely executed the mortgage to secure the
principal debtor’s obligation, is not liable for the
deficiency, unless he assumed liability for the same
in the contract. (Philippine Trust Co. v. Echaus Tan
Siua, G.R. No. L-29736, 1929)
Since a deficiency judgment cannot be obtained
against the mortgagor who is not the debtor in the
principal obligation, the mortgagee may have to file
a separate suit against the principal debtor.
Instances When Court Cannot Render
Deficiency Judgment
1. Cases under the Recto Law (New Civil Code,
Art. 1484, par. 3);
2. When the mortgagor is a non-resident and is not
found in the Philippines;
3. When mortgagor dies, mortgagee may file his
claim with the probate court (Sec. 7, Rule 86);
4. If mortgagor is a third-party mortgagor but not
solidarily liable with debtor (Phil Trust v. Tan
Suisa, G.R. No. L-29736, 1929);
5. In case of a mortgage debt due from the estate
of a deceased mortgagor and the mortgage
creditor availed of the third remedy which is to
rely upon his mortgage alone and foreclosing
the same within the statute of limitations (Sec.
7, Rule 86); and
6. When the deficiency arises under an
extrajudicial foreclosure. The mortgagee can
recover by action (not by motion) any deficiency
in the mortgage account which was not realized
in the foreclosure sale. (PNB v. CA, G.R. No.
103953, 1999)
Procedure When There is Surplus
It is the duty of the mortgagee to return to the
mortgagor any surplus in the selling price during the
foreclosure sale. (Sulit v. CA, G.R. No. 119247,
1997)
g. WRIT OF POSSESSION
See the prior discussion on Possession by
Purchaser of Foreclosed Property.
Upon the finality of the order of confirmation or upon
the expiration of the period of redemption when
allowed by law, the purchaser at the auction sale or
last redemptioner, if any, shall be entitled to the
possession of the property unless a third party is
actually holding the same adversely to the judgment
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obligor. The said purchaser or last redemptioner
may secure a writ of possession, upon motion,
from the court which ordered the foreclosure. (Sec.
3, Rule 68)
The writ of possession is a means of recognizing
and enforcing the rights of the purchaser
emphasized in Sec. 3 which provides that the
confirmation of the sale operates to divest all parties
to the action of their respective rights and vest them
in the purchaser. (RIANO, 2016)
General Rule: There is no need for the purchaser
to notify parties of the proceedings. The law
expressly authorizes the purchaser to petition for a
writ of possession by filing an ex parte motion.
(Carlos vs. CA, 537 SCRA 247)
As an exception, the ministerial duty of the court to
issue an ex parte writ of possession ceases once it
appears that a third party, not the debtor-mortgagor,
is in possession of the property under a claim of title
adverse to that of the applicant. (Sec. 33, Rule 39)
The remedy of a writ of possession, a remedy that
is available to the mortgagee-purchaser to acquire
possession of the foreclosed property from the
mortgagor, is made available to a subsequent
purchaser, but only after hearing and after
determining that the subject property is still in the
possession of the mortgagor. (Sps. Reyes vs. Sps.
Chung, G.R. No. 228112 2017, citing Okabe v.
Saturnina)
h. ANNULMENT OF SALE
See further discussions on Mortgage & Foreclosure
under Civil Law.
A judgment in the Annulment of Mortgage case will
amount to res judicata in the Annulment of
Foreclosure Sale case. (FCD Pawnshop vs. Union
Bank, G.R. No. 207914 2017)
The period within which to redeem the property sold
at a sheriff's sale is not suspended by the institution
of an action to annul the foreclosure sale
(Fundamentals of Redemption in Extra-Judicial
Foreclosures, citing De Connejero, et al. v. Court of
Appeals, et al., L-21812; Castillo v. Samonte, L-
13146, 1960; Daza v. Tomacruz, G.R. No. 37046,
1933; and Sumerariz v. Development Bank of the
Philippines, G.R. No. L-23764, 1967).
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Section 47. Foreclosure of Real Estate Mortgage. -
In the event of foreclosure, whether judicially or
extra-judicially, of any mortgage on real estate
which is security for any loan or other credit
accommodation granted, the mortgagor or debtor
whose real property has been sold for the full or
partial payment of his obligation shall have the right
within one year after the sale of the real estate, to
redeem the property by paying the amount due
under the mortgage deed, with interest thereon at
rate specified in the mortgage, and all the costs and
expenses incurred by the bank or institution from the
sale and custody of said property less the income
derived therefrom. However, the purchaser at the
auction sale concerned whether in a judicial or
extra-judicial foreclosure shall have the right to enter
upon and take possession of such property
immediately after the date of the confirmation of the
auction sale and administer the same in accordance
with law. Any petition in court to enjoin or restrain
the conduct of foreclosure proceedings instituted
pursuant to this provision shall be given due course
only upon the filing by the petitioner of a bond in an
amount fixed by the court conditioned that he will
pay all the damages which the bank may suffer by
the enjoining or the restraint of the foreclosure
proceeding. Notwithstanding Act 3135, juridical
persons whose property is being sold pursuant to an
extrajudicial foreclosure, shall have the right to
redeem the property in accordance with this
provision until, but not after, the registration of the
certificate of foreclosure sale with the applicable
Register of Deeds which in no case shall be more
than three (3) months after foreclosure, whichever is
earlier. Owners of property that has been sold in a
foreclosure sale prior to the effectivity of this Act
shall retain their redemption rights until their
expiration. (R.A. No. 8791, Sec. 47)
2. THE GENERAL BANKING
LAW OF 2000 (SEC. 47, R.A.
NO. 8791)
In the event of JUDICIAL or EXTRA-JUDICIAL
FORECLOSURE:
1. The mortgagor or debtor whose real
property has been sold for the full or partial
payment of his obligation shall have the
right WITHIN ONE YEAR AFTER THE
SALE to REDEEM the property by:
a. Paying the amount due under the
mortgage deed, with interest at the
rate specified in the mortgage; and
b. Paying all the costs and expenses
incurred by the bank or institution
from the sale and custody of the
property LESS the income derived
therefrom.
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2. The purchaser at the auction sale shall
have the right to ENTER UPON AND TAKE
POSSESSION OF SUCH PROPERTY
IMMEDIATELY after the date of the
confirmation of the auction sale and
ADMINISTER the same in accordance with
law.
3. Any petition in court to enjoin/restrain
the conduct of foreclosure proceedings
instituted pursuant to Sec. 47 of RA No.
8791 shall be given due course ONLY
UPON:
a. The filing by the petitioner of a
BOND in an amount fixed by the
court, CONDITIONED that he will
PAY ALL THE DAMAGES which the
bank may suffer by the
enjoining/restraint of the foreclosure
proceedings.
4. Owners of property that has been sold in a
foreclosure sale prior to the effectivity of RA
No. shall retain their redemption rights until
their expiration.
(R.A. No. 8791, Sec. 47)
For juridical persons whose property is being sold
pursuant to EXTRAJUDICIAL FORECLOSURE:
1. They shall have the RIGHT TO REDEEM
the property in accordance with Sec. 47
of RA No. 8791 UNTIL, BUT NOT
AFTER, the registration of the certificate
of foreclosure sale with the applicable
Register of Deeds,
a. WHICH IN NO CASE, shall be
more than three (3) months after
foreclosure, whichever is earlier
2. This shall be the case notwithstanding Act
3135.
(R.A. No. 8791, Sec. 47)
————- end of topic ————-
H. PARTITION (Rule 69)
Partition
It is the separation, division, and assignment of
property held in common among co-owners in
proportion to their respective interests in the said
property. (Civil Code, Art. 1079).
Note: The procedure for judicial partition is provided
under Rule 69. For extrajudicial partition, no court
intervention is required. This is recognized in Rule
69, Sec. 12.
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Nature of Partition
It is an action quasi in rem. (Valmonte v. CA, G.R.
No. 108538, 1996)
An action for partition implies that the property is still
owned in common. (Mangahas v. Brobio, G.R. No.
183852, 2010)
In a complaint for partition, the plaintiff seeks, first, a
declaration that he is a co-owner of the subject
properties, and second, the conveyance of his lawful
shares. (Heirs of Abalos v. Bucal, G.R. No. 156224,
2008)
Proof of legal acknowledgment as an heir is not a
prerequisite before an action for partition may be
filed. An action for partition is at once an action for
declaration of co-ownership and for segregation and
conveyance of a determined portion of the
properties involved. If the defendant asserts
exclusive title over the property, the action for
partition should not be dismissed.
Rather, the court should resolve the case and if the
plaintiff is unable to sustain his claimed status as a
co-owner, the court should dismiss the action, not
because the wrong remedy was availed of, but
because no basis exists for requiring the defendant
to submit to partition. If, on the other hand, the court
after trial should find the existence of co-ownership
among the parties, the court may and should order
the partition of the properties in the same action.
(Balo v. CA, G.R. 129704, 2005)
Partition in Succession
In intestate succession, partition is the proper
remedy for compulsory heirs to get their legitime.
In testate succession, there can be no valid partition
among heirs until the will has been probated. (Union
Bank v. Santibañez, G.R. No. 149926, 2005)
1. WHO MAY FILE COMPLAINT; WHO SHOULD
BE MADE DEFENDANTS
Plaintiff
The action shall be brought by the person who has
a right to compel the partition of real estate (Sec. 1,
Rule 69) or of an estate composed of personal
property, or both real and personal property (Sec.
13, Rule 69), i.e. a co-owner.
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The plaintiff is a person who is the supposed co-
owner of the property or estate sought to be
partitioned.
General Rule: Plaintiff is allowed to file a petition for
partition ANY TIME as the Civil Code provides that
NO co-owner shall be obliged to remain in the co-
ownership. It can be made any time as the right to
demand partition is imprescriptible. (Bautista v.
Grino-Aquino, G.R. No. 79958, 1988).
Exceptions:
1. If a co-owner asserts adverse title to the
property, in which case the period of
prescription runs from such time of assertion of
adverse title;
2. Existence of an agreement among co-owners to
retain the property undivided for not exceeding
ten (10) years (Civil Code, Art. 494);
3. When co-owners are prohibited by the donor or
testator for a period not exceeding twenty (20)
years (Civil Code, Arts. 494 & 1083);
4. When partition is prohibited by law (Civil Code,
Art. 494);
5. When the property is NOT subject to a physical
division and to do so would render it
unserviceable for the use which it is unintended;
(Civil Code, Art. 495); and
6. When the condition imposed upon voluntary
heirs before they can demand partition has not
yet been fulfilled (Civil Code, Art. 1084)
Defendant
The defendants are all the co-owners of the
disputed property. All the co-owners MUST be
joined. Accordingly, an action will not lie without the
joinder of all co-owners and other persons having
interest in the property. (Reyes v. Cordero, G.R. No.
L-14242, 1920).
All the co-owners, therefore, are INDISPENSABLE
parties.
Non-Inclusion of a Co-Owner
1. Non-inclusion of co-owner BEFORE judgment:
not a ground for motion to dismiss. The remedy
is to file a motion to include party;
2. Non-inclusion of co-owner AFTER judgment:
judgment is VOID because co-owners are
indispensable parties.
Note: Creditors/assignees of co-owners may
intervene and object to a partition effected
without their concurrence. However, the
creditors/assignees cannot impugn a partition
already executed, unless:
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1. There has been fraud; or
2. In case partition was made notwithstanding a
formal opposition presented to prevent it.
The intervenor must show a legitimate and proper
interest in the subject property (De Borja v. Jugo,
G.R.Nno. 45297, 1937)
Note: The Municipal Trial Court MAY HAVE
JURISDICTION in actions for partition if the value of
the real property is less than Three Hundred
Thousand (P300,000) if not in Metro Manila or less
than Four Hundred Thousand (P400,000) if located
in Metro Manila.
2. MATTERS TO ALLEGE IN THE COMPLAINT
FOR PARTITION
Complaint for Partition
1. Nature and extent of petitioner’s title;
2. Adequate description of the real estate of which
partition is demanded; and
3. A demand for the accounting of the rents,
profits, and other income from the property
which he may be entitled to.
Petitioner MUST join as defendants all other
persons interested in the property. (Sec. 1, Rule 69)
A demand for the accounting MUST be included as
they are parts of the cause of action for partition.
They cannot be demanded in another action and will
be BARRED if not set up in the same action. (Sec.
8, Rule 69)
3. TWO STAGES IN EVERY ACTION FOR
PARTITION
Two Stages
1. Determination of whether or not a co-ownership
exists, and if partition is proper; and
This involves a determination of whether the subject
property is owned in common and whether all the
co-owners are made parties in the case. (Lacbayan
v. Samoy, G.R. No. 165427, 2011)
The order may also require an accounting of rents
and profits recovered by the defendant. This order
of partition is appealable. (Miranda v. CA, G.R. No.
L-33007, 1976)
If not appealed, then the parties may partition the
common property in the way they want. If they
cannot agree, then the case goes into the second
stage. However, the order of accounting may in the
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meantime be executed. (De Mesa v. CA, G.R. No.
109387, 1994)
2. Accounting and actual partition of the property.
(Maglucot-Aw v. Maglucot, G.R. No. 132518,
2000)
NOTE: Multiple appeals are allowed. (Roman
Catholic Archbishop of Manila v. CA, G.R. No.
77425, 1991)
From the first or second stages BEFORE judgment
of partition, appeal is by notice of appeal within 15
days or by record on appeal within 30 days from
notice of court order. AFTER judgment is rendered,
the remedy against a judgment of partition is only by
notice of appeal within 15 day from receipt of
judgment.
4. ORDER OF PARTITION AND PARTITION BY
AGREEMENT
For an order of partition to issue, the court must
determine
1. Whether the plaintiff is truly a co-owner of the
property;
2. Whether there is indeed a co-ownership among
the parties; and
3. That a partition is not legally proscribed, thus
may be allowed.
The court shall order the partition of the property
among all the parties in interest, if AFTER TRIAL it
finds that the plaintiff has the right to partition. (Sec.
2, Rule 69).
A final order decreeing PARTITION and
ACCOUNTING may be APPEALED by any party
aggrieved thereby. (see Miranda v. CA, G.R. No. L-
33007, 1976)
Partition by Agreement
The parties may also make the partition among
themselves by proper instruments of conveyance.
If they do agree, the court shall then confirm the
partition so agreed upon by all of the parties, and
such partition, together with the order of the court
confirming the same, shall be recorded in the
registry of deeds of the place in which the property
is situated (Sec. 2, Rule 69)
If the parties CANNOT AGREE to the partition, the
appointment of commissioners shall be had to
preside over the partition proceedings.
In a situation where there remains an issue as to the
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expenses chargeable to the estate, partition is
inappropriate. In this case, petitioner does not
dispute the findings that “certain expenses”
including those related to her father’s final illness
and burial have not been properly settled. Thus, the
heirs have to submit their father’s estate to
settlement because the determination of these
expenses cannot be done in an action for partition.
But, the heirs or distributees of the properties may
take possession thereof even before the settlement
of accounts, as long as they first file a bond
conditioned on the payment of the estate’s
obligations. (Figuracion-Gerilla v. Vda. de
Figuracion, G.R. 154322, 2005)
Res Judicata in Partition Cases
There can still be res judicata in partition cases
concerning the same parties and the same subject
matter once the respective shares of the co-owners
have been determined with finality by a competent
court with jurisdiction or if the court determines that
partition is improper for co-ownership does not or no
longer exists. (Quintos vs. Nicolas, G.R. No.
210252, 2014)
5. PARTITION BY COMMISSIONERS;
APPOINTMENT OF COMMISSIONERS;
COMMISSIONER’S REPORT; COURT
ACTION UPON COMMISSIONER’S REPORT
Partition by Commissioners
If the parties are unable to agree upon the partition,
the court shall appoint not more than three (3)
competent and disinterested persons as
commissioners to make the partition, commanding
them to set off to the plaintiff and to each party in
interest such part and proportion of the property as
the court shall direct. (Sec. 3, Rule 69)
Commissioners are NOT ALLOWED to adjudicate
on questions of title or ownership of the property. It
is merely their duty to make OR effect the partition.
Commissioners are required to take an OATH that
they will faithfully perform their duties as
commissioners. Such oath shall be FILED in court.
In making the partition, the commissioners shall
view and examine the real estate, after due notice
to the parties to attend at such view and
examination, and shall hear the parties as to their
preference in the portion of the property to be set
apart to them and the comparative value thereof,
and shall set apart the same to the parties in lots or
parcels as will be most advantageous and
equitable, having due regard to the
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improvements, situation and quality of the
different parts thereof. (Id.)
Commissioner’s Report:
1. The commissioners shall make a full and
accurate report to the court of:
2. Partition proceedings;
3. Assignment of real estate to one of the parties;
or
4. The sale of the same. (Sec. 6, Rule 69)
Copies of the report shall be SERVED on ALL
INTERESTED PARTIES. Opposition to such
partition must be commenced by filing an objection
within ten (10) days from receipt of report.
Confirmation of the Court Required
No proceeding had before or conducted by the
commissioners shall pass the title to the property or
bind the parties UNTIL the court shall have
ACCEPTED the report of the commissioners and
RENDERED JUDGMENT thereon.
Court action upon commissioner’s report
After an objection has been filed OR the expiration
of the ten (10) day period allowed for such objection,
the court may, UPON HEARING:
1. Accept the report and render judgment in
accordance therewith; or,
2. For cause shown, recommit the same to the
commissioners for further report of facts; or
3. Set aside the report and appoint new
commissioners; or
4. Accept the report in part and reject it in part; and
5. Make such order and render such judgment as
shall effectuate a fair and just partition of the
real estate, or of its value, if assigned or sold as
above provided, between the several owners
thereof. (Sec. 8, Rule 69)
6. JUDGMENT AND ITS EFFECTS
The judgment shall state definitely, by metes and
bounds and adequate description, the particular
portion of the real estate assigned to each party.
The effect of the judgment shall be to vest in each
party to the action in severalty the portion of the real
estate assigned to him.
If the whole property is assigned to one of the parties
upon his paying to the others the sum or sums
ordered by the court the effect of the judgment shall
be to vest in the party making the payment the whole
of the real estate free from any interest on the part
of the other parties to the action.
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If the property is sold and the sale confirmed by the
court, the judgment shall state the name of the
purchaser or purchasers and a definite description
of the parcels of real estate sold to each purchaser,
and the effect of the judgment shall be to vest the
real estate in the purchaser or purchasers making
the payment or payments, free from the claims of
any of the parties to the action.
A certified copy of the judgment shall in either case
be recorded in the registry of deeds of the place
in which the real estate is situated, and the
expenses of such recording shall be taxed as part of
the costs of the action. (Sec. 11, Rule 69)
7. PARTITION OF PERSONAL PROPERTY
The provisions of this Rule shall apply to partitions
of estates composed of personal property, or of both
real and personal property, in so far as the same
may be applicable. (Sec. 13, Rule 69)
8. PRESCRIPTION OF ACTION
General Rule: The right of action to demand
partition does not prescribe (De Castro v. Echarri,
G.R. No. 5609, 1911)
Exception: Where one of the interested parties
openly and adversely occupies the property without
recognizing the co-ownership (Cordova v. Cordova,
G.R. No. L-9936,1958) in which case, acquisitive
prescription may set in.
If a co-owner repudiates the co-ownership and
makes known such repudiation to the other co-
owners, then partition is no longer a proper remedy
of the aggrieved co-owner. He should file an accion
reivindicatoria, which is prescriptible. (Roque v. IAC,
G.R. No. 75886, 1988)
————- end of topic ————-
I. FORCIBLE ENTRY AND
UNLAWFUL DETAINER
Nature of Ejectment Proceedings
Ejectment cases are summary proceedings
intended to provide an expeditious means of
protecting actual possession of property. (Tubiano
v. Razo, G.R. No. 132598, 2000)
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DEFINITIONS AND DISTINCTION Determining Forcible Entry or Unlawful Detainer

The allegation in the complaint that there was
Forcible Entry unlawful withholding of possession is sufficient to
Where one is deprived of physical possession of make out a case for unlawful detainer. Hence, the
real property by means of Force, Intimidation, phrase "unlawful withholding" has been held to
Strategy, Threats, or Stealth (FISTS). (Sec.1, Rule imply possession on the part of defendant, which
70,). was legal in the beginning, having no other source
than a contract, express or implied, and which later
Unlawful Detainer expired as a right and is being withheld by
Where one illegally withholds possession after the defendant. (Ross Rica v Sps. Ong G.R. 132197,
expiration or termination of his right to hold 2005)
possession under any contract, express or implied.
(Id.). In ejectment cases, the complaint should embody
such statement of facts as to bring the party clearly
within the class of cases for which Section 1 of Rule
FORCIBLE ENTRY UNLAWFUL
DETAINER 70 provides a summary remedy, and must show
enough on its face to give the court jurisdiction
Ground: Ground: without resort to parol evidence. Such remedy is
Deprivation of physical Unlawful withholding of either forcible entry or unlawful detainer. (Zacarias
possession of any land possession of any land v. Anacay, G.R. No. 202354, 2014)
or building by FISTS, or building after the
which shall include expiration or There are two reasons why the complaint was not
every situation or termination of the right for unlawful detainer. Firstly, by averring that the
condition under which to hold possession by respondent constructed his shanty on the lot without
one person can virtue of any contract, their consent and then praying that the MeTC direct
wrongfully enter upon express or implied. the respondent to pay them rent from the inception
real property and (Sps. Del Rosario vs. of the respondent’s occupation of the lot, no other
exclude another, who Gerry Roxas conclusion can be made except that the petitioners
has had prior Foundation, G.R. No. had always considered respondent’s occupation of
possession, therefrom. 170575, 2011). the same to be unlawful from the very beginning. It
is a settled rule that in order to justify an action for
The possession of the The possession of the
unlawful detainer, the owner’s permission or
defendant is unlawful defendant, which was tolerance must be present at the beginning of the
from the beginning; lawful in the
possession.
issue is which party has beginning, becomes
prior de facto illegal by reason of the
Secondly, what the petitioners actually filed was a
possession. expiration or
fatally defective complaint for forcible entry,
termination of his right
considering that there was no allegation therein
to the possession of the regarding the petitioners’ prior physical possession
property.
of the lot.
The law does not Plaintiff must first make
require previous such demand which is In actions for forcible entry, two allegations are
demand for the jurisdictional in nature. mandatory for the MTC to acquire jurisdiction: first,
defendant to vacate. the plaintiff must allege his prior physical possession
of the property; and second, he must also allege that
The plaintiff must prove The plaintiff need not he was deprived of his possession by any of the
that he was in prior have been in prior means provided for in Section 1, Rule 70 of the
physical possession of physical possession. Rules of Court.
the premises until he
was deprived by the The word “possession” as used in forcible entry and
defendant. unlawful detainer, means nothing more than
physical possession, not legal possession in
The 1 year period is The 1 year period is contemplated in civil law." (Sales v Barro, G.R.
generally counted from counted from the date 171678, 2008).
the date of actual entry of last demand.
on the property.

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1. DISTINGUISH: FORCIBLE ENTRY, a. JURISDICTION IN ACCION PUBLICIANA

UNLAWFUL DETAINER, ACCION AND ACCION REINVINDICATORIA
PUBLICIANA, AND ACCION
REINVINDICATORIA (Rule 70) Accion Interdictal
Exclusive original jurisdiction over forcible entry and
Three (3) Kinds of Actions Available to Recover unlawful detainer suits is with the MTC. (B.P. Blg.
Possession of Real Property 129, as amended, Sec. 33[2])
1. Accion interdictal - An action where the issue is
the right of physical or material possession of the Amount of rents and damages claimed does not
subject real property independent of any claim of affect the jurisdiction of the MTC because they are
ownership. This includes forcible entry and only incidental or accessory to the main action.
unlawful detainer;
2. Accion publiciana - It is plenary action to recover However, municipal courts have no jurisdiction over
the legal right of possession which may be a forcible entry/unlawful detainer case involving
brought when the dispossession has lasted for agricultural tenants. Jurisdiction is with the HLURB.
more than one (1) year. If at more than one (1)
year had elapsed, the action should be not Accion Publiciana and Accion Reinvindicatoria
forcible entry or unlawful detainer but an accion RTC has jurisdiction where the assessed value of
publiciana; and the property exceeds P20,000 or, in Metro Manila,
3. Accion reivindicatoria - This action involves not P50,000;
only possession but recovery of ownership of the
property. MTC has jurisdiction if the assessed value does not
exceed said amounts. (B.P. Blg. 129, as amended,
Sec. 33).
ACCION ACCION ACCION
INTERDICTAL PUBLICIANA REIVINDICATORIA
Where the basic issue is not possession but
Summary A plenary An action for the interpretation, enforcement and/or rescission of the
action for the action (i.e., recovery of contract, the same is no longer an ejectment suit.
recovery of full trial ownership, (Villena v. Chavez, G.R. No. 148126, 2003)
physical proceeding) which
possession for the necessarily b. WHO MAY INSTITUTE THE ACTION AND
where the recovery of includes the WHEN; AGAINST WHOM MAY THE ACTION
dispossession the REAL recovery of BE MAINTAINED
has not lasted right of possession.
more than one possession
Plaintiff
(1) year. when the
dispossessio 1. Forcible Entry: a person deprived of the
n has lasted possession of any land or building by force,
for more than intimidation, threat, strategy, or stealth; or
one (1) year. 2. Unlawful Detainer:
a. A lessor, vendor, vendee, or other person
Under MTC’s RTC’s RTC’s against whom the possession of any land
jurisdiction only. jurisdiction if jurisdiction if the
or building is unlawfully withheld after the
the value of value of property
property exceeds expiration or termination of the right to hold
exceeds P20,000, or possession, by virtue of any contract,
P20,000, or P50,000 in express or implied, or;
P50,000 in Metro Manila. b. His/her legal representatives or assigns.
Metro
Manila. Note: The plaintiff in forcible entry or unlawful
detainer actions must be entitled to the physical
possession of the property. He/she does not
necessarily have to be the owner of such.

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Defendant
One who is in possession of the property who may
either be a/an:
1. Lessee;
2. Sublessee; or
3. Intruder.
When Proceedings Instituted
Any time within one year after such unlawful
deprivation or withholding of possession. (Sec. 1,
Rule 70)
The failure to allege the TIME when unlawful
deprivation took place is fatal because this will
determine the start of the counting of the 1 year
period for the filing of the summary action. (Munoz
v. CA, G.R. No. 102693, 1992)
Distinction – Counting of 1-year Period
1. Forcible Entry
General Rule: Counted from the date of the
entry or taking of possession by use of force,
intimidation, threat, or strategy
The mere act of going to the property and
excluding the lawful possessor therefrom
necessarily implies the exertion of force. (Bunyi
v. Factor, G.R. No. 172547, 2009)
Exception: In case of stealth, the one-year
period should be counted from the demand to
vacate upon knowledge or discovery of such
entry.
It is essential in unlawful detainer cases of this
kind, that plaintiff's supposed acts of tolerance
must have been present right from the start of
the possession which is later sought to be
recovered. (Zacarias v. Anacay, G.R. No.
202354, 2014)
2. Unlawful Detainer
a. In unexpired lease contracts:
General Rule: Counted from the date of the last
demand to pay and vacate in case of non-
payment of rent or non-compliance with the
conditions of the lease. (Esteban v. MERALCO,
G.R. No. 197725, 2013)
Exception: When subsequent demands were
merely reminders of the original demand, the 1-
year period starts from the original demand.
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(Desbarats v. Vda. de Laureano, G.R. No. L-
21875, 1966)
b. In occupation by mere tolerance:
From the date of revocation of permit (i.e.
demand to vacate (See Republic v. Sunvar
Realty, G.R. No. 194880, 2012)
Jurisprudential Requisites for Forcible Entry
1. First, the plaintiffs must allege their prior
physical possession of the property;
2. Second, they must also assert that they were
deprived of possession either by force,
intimidation, threat, strategy, or stealth; and
3. Third, the action must be filed within one year
from the time the owners or legal possessors
learned of their deprivation of physical
possession of the land or building. (Dela Cruz v.
CA, G.R. No. 139442, 2006)
Jurisprudential Requisites for Unlawful Detainer
A complaint sufficiently alleges a cause of action for
unlawful detainer if it recites the following:
1. Initially, possession of property by the
defendant was by contract with or by tolerance
of the plaintiff;
2. Eventually, such possession became illegal
upon notice by plaintiff to defendant of the
termination of the latter’s right of possession;
3. Thereafter, the defendant remained in
possession of the property and deprived the
plaintiff of the enjoyment thereof; and
4. Within one year from the last demand on
defendant to vacate the property, the plaintiff
instituted the complaint for ejectment. (Zacarias
v. Anacay, G.R. No. 202354, 2014)
Prior Physical Possession; Exception
General Rule: Prior physical possession is required
for the action to prosper.
Exception: Possession can be acquired not only by
material occupation, but also by the fact that a thing
is subject to the action of one's will or by the proper
acts and legal formalities established for acquiring
such right. Because possession can also be
acquired by juridical acts to which the law gives the
force of acts of possession, e.g., donations,
succession, execution and registration of public
instruments, inscription of possessory information
titles and the like, it has been held that one need not
have actual or physical occupation of every square
inch of the property at all times to be considered in
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possession. (Nunez v. SLTEAS Phoenix, G.R. No.
180542, 2010)
c. PLEADINGS ALLOWED
The only pleadings allowed to be filed are the
complaint, compulsory counterclaim and cross-
claim pleaded in the answer, and the answers
thereto. All pleadings shall be verified. (Sec. 5, Rule
70)
d. ACTION ON THE COMPLAINT
The court may:
1. Dismiss the case outright on any of the
grounds for the dismissal of a civil action which
are apparent therein; or
2. If no ground for dismissal is found, it shall
forthwith issue summons. (Sec. 5, Rule 70)
e. WHEN DEMAND IS NECESSARY
Two-fold Demand
In unlawful detainer cases, unless there exists a
stipulation to the contrary, such actions shall only be
commenced after demand is made on the lessee in
any of the following forms:
1. To pay and vacate; or
2. To comply with the conditions of the lease and
vacate.
A mere notice giving the lessee the alternative either
to pay the rental or vacate the premises does not
comply with Section 2. (Vda. de Murga v. Chan,
G.R. No. L-24680, 1980)
The term “vacate” need not be stated if there are
other terms definitively implying that the tenant
should vacate (Golden Gate Realty Corporation v.
IAC, G.R. No. 74289, 1987) However, the Golden
Gate ruling will not apply if the demand is
ambiguous. (La Campana v. CA, G.R. No. L-88246,
1993).
Form of Demand
1. Written notice served upon the person found on
the premises, or by posting such notice on the
premises if no person be found thereon (Sec. 2,
Rule 70);
2. By substituted service or registered mail;
3. Jurisprudence provides that demand upon a
tenant may be oral, but sufficient evidence must
be adduced to show that there was indeed a
demand like testimonies from disinterested and
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unbiased witnesses. (Jakihaca v. Aquino, G.R.
No. 83982, 1990)
Note: If several demands were made, the one year
period is counted from the last demand letter
received, unless the subsequent demands were
merely in the nature of reminders of the original
demand, in which case the one-year period is
counted from the first demand.
Effect of non-compliance with demand
The lessor may proceed against the lessee if the
demand is not complied with AFTER:
1. 15 days in the case of land; or
2. 5 days in case of buildings.
Prior demand in unlawful detainer is NOT
required when:
1. The purpose of the action is to terminate the
lease because of expiry of term and not
because of failure to pay rentals;
2. Purpose of suit is not for ejectment but for
enforcement of terms of contract; or
3. When the defendant is not a tenant but a mere
intruder. In which case it is forcible entry, which
does not require prior demand. (RIANO 2016
ed., p. 353-354)
f. PRELIMINARY INJUNCTION AND
PRELIMINARY MANDATORY INJUNCTION
The court may grant preliminary injunction to
prevent the defendant from committing further acts
of dispossession against the plaintiff.
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 for the issuance of a writ of preliminary
mandatory injunction to restore him in his
possession.
The court shall decide the motion within 30 days
from the filing thereof. (Sec. 15, Rule 70)
Note: If the case is pending, the petition for
preliminary injunction may only be filed by the
plaintiff; if the case is on appeal, the petition may be
filed by either the plaintiff or the defendant. (Sec. 15,
Rule 70)
g. RESOLVING DEFENSE OF OWNERSHIP
When the defendant raises the issue of ownership,
the court may resolve the issue of ownership only
under the following conditions:
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1. When the issue of possession cannot be
resolved without resolving the issue of
ownership; and
2. The issue of ownership shall be resolved only
to determine the issue of possession. (Sec. 16,
Rule 70)
The assertion by the defendant of ownership over
the disputed property does not serve to divest the
inferior court of its jurisdiction. The defendant cannot
deprive the court of jurisdiction by merely claiming
ownership of the property involved. (Rural Bank of
Sta. Ignacia v. Dimatulac, G.R. No. 142015, 2003;
Perez v. Cruz, G.R. No. 142503, 2003)
Questions to be Resolved in an Forcible Entry
1. Who had actual possession over the piece of
real property?
2. Was the possessor ousted therefrom within one
year from the filing of the complaint by force,
threat, strategy or stealth?
3. Does he ask for the restoration of his
possession? (Dizon v. Concina, G.R. No. L-
23756, 1969)
h. HOW TO STAY THE IMMEDIATE
EXECUTION OF JUDGMENT
the appeal of the plaintiff is prima facie meritorious.
(Sec. 20, Rule 70)
Note: In forcible entry and unlawful detainer cases,
the judgment of the RTC against the defendant shall
be immediately executory, without prejudice to a
further appeal that may be taken therefrom. (Sec.
21, Rule 70)
The judgment is immediately executory in order to
avoid injustice to a lawful possessor.
NOTE: The judgment is immediately executory only
when the judgment is against the defendant. If the
judgment is in favor of the defendant, such is not
immediately executory and can be executed only
after the lapse of the regular 15-day period to appeal
without the plaintiff having perfected the same.
Even if RTC judgments in unlawful detainer cases
are immediately executory, preliminary injunction
may still be granted. There need only be clear
showing that there exists a right to be protected and
that the acts against which the writ is to be directed
violate said right. (Benedicto v. CA, G.R. No.
157604, 2005)

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Defendant must take the following steps to stay the
execution of the judgment:
1. Perfect an appeal;
J. CONTEMPT (Rule 71)
2 File a supersedeas bond to pay for the rents,
Definition of Contempt of Court
damages and costs accruing down to the time
Contempt is disobedience and utter disregard to the
of the judgment appealed from; and
court by acting in opposition to its authority, justice
3 Deposit periodically with the RTC, during the
and dignity. It also includes conduct which tends to
pendency of the appeal, the adjudged amount
bring the authority of the court and the
of rent due under the contract as determined in
administration of law into disrepute or in a manner
the judgment of the MTC, or if there be no
which impedes the due administration of justice. (Siy
contract, the reasonable value of the use and
v. NLRC, G.R. No. 158971, 2005)
occupation of the premises. (Sec. 19, Rule 70)
Two-fold Aspect:
NOTE: If the defendant can no longer pay this shall
1. Proper punishment for the disrespect to the court
not defeat the appeal. He will, however, be
or its order; and
compelled to surrender possession of the property
2. To compel the guilty party’s performance of some
as the plaintiff will be entitled to execution as a
act or duty required of him by the court. (Halili v.
matter of right.
CIR, G.R. No. L-24864, 1985)
Upon motion of the plaintiff, within 10 days from the
1. KINDS OF CONTEMPT
perfection of the appeal to the RTC in forcible entry
a. Civil
and unlawful detainer cases, the latter may issue a
b. Criminal
writ of preliminary mandatory injunction to restore
c. Direct
the plaintiff in possession if the court is satisfied that
d. Indirect
the defendant’s appeal is frivolous or dilatory, or that

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2. PURPOSE AND NATURE OF EACH According to Manner of Commission

According to Nature 1. Direct; or
1. Criminal; or 2. Indirect.
2. Civil.

Civil and Criminal Contempt Distinguished

CIVIL CONTEMPT CRIMINAL CONTEMPT

It is the failure to do something ordered to be done by It is a conduct directed against the authority and dignity
a court or a judge for the benefit of the opposing party of the court or a judge acting judicially; it is an
therein and is therefore an offense against the party obstruction of the administration of justice which tends
in whose behalf the violated order was made. to bring the court into disrepute or disrespect.

The purpose is to compensate for the benefit of a The purpose is to punish, to vindicate the authority of
party. the court and protect its outraged dignity.

The rules of procedure governing contempt Should be conducted in accordance with the principles
proceedings or criminal prosecutions ordinarily are and rules applicable to criminal cases, insofar as such
inapplicable to civil contempt proceedings. procedure is consistent with the summary nature of
contempt proceedings.

Direct and Indirect Contempt Distinguished

DIRECT CONTEMPT INDIRECT CONTEMPT

In general, it is committed in the presence of or so It is not committed in the presence of the court, but done
near the court or judge as to obstruct or interrupt at a distance which tends to belittle, degrade, obstruct or
the proceedings before it. embarrass the court and justice.

Acts constituting direct contempt are:
1. Misbehavior in the presence of or so near the
court as to obstruct or interrupt the
proceedings before it;
2. Disrespect toward the court;
3. Offensive personalities towards others;
4. Refusal to be sworn as a witness or to answer
as a witness;
5. Refusal to subscribe an affidavit or deposition
when lawfully required to do so;
6. Acts of a party or a counsel which constitute
willful and deliberate forum shopping; and
2. Unfounded accusations or allegations or
words in a pleading tending to embarrass the
court or to bring it into disrepute. (Re: Letter
dated 21 Feb. 2005 of Atty. Noel Sorreda, A.M.
No. 05-3-04-SC, 2005)
Acts constituting indirect contempt are:
1. Misbehavior of an officer of a court in the
performance of his official duties or in his official
transactions;
2. 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 by the judgment or
process of any court of competent jurisdiction,
enters or attempts or induces another to enter into
or upon such real property, for the purpose of
executing acts of ownership or possession, or in any
manner disturbs the possession given to the person
adjudged to be entitled thereto;
3. Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting
direct contempt under Section 1 of this Rule;
4. Any improper conduct tending, directly or indirectly,
to impede, obstruct, or degrade the administration of
justice;
5. Assuming to be an attorney or an officer of a court,
and acting as such without authority;
6. Failure to obey a subpoena duly served; and
7. 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.

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3. REMEDY AGAINST DIRECT CONTEMPT;
PENALTY
Proceeding for Direct Contempt
Summary in nature; see grounds in previous table
Remedy
1. He cannot appeal, but he may file certiorari or
prohibition under Rule 65.
2. Execution of judgment shall be suspended
pending resolution of the petition, provided:
a. He files a bond fixed by the court which
rendered the judgment; and
b. Conditioned that he will abide by and
perform the judgment should the petition be
decided against him (Sec. 2, Rule 71)
Punishment for Contempt
1. RTC or court of equal or higher rank: Fine not
exceeding P2,000 or imprisonment not
exceeding 10 days or both.
2. MTC: Fine not exceeding P200 or imprisonment
not exceeding 1 day or both. (Sec. 1, Rule 71)
Note: If contempt consists in the refusal or omission
to do an act which is yet within the power of the
respondent to perform, he may be imprisoned by
order of the court concerned until he performs it.
4. REMEDY AGAINST INDIRECT CONTEMPT;
PENALTY
Proceeding for Indirect Contempt
Punished after charge and hearing (Sec. 3, Rule
71);
Please see the grounds for indirect contempt in the
previous table.
Remedy
May be appealed to the proper court as in criminal
cases, but execution shall not be suspended until
bond is filed. (Sec. 11, Rule 71)
Punishment if committed against:
1. RTC or a court of equivalent or higher rank: Fine
not exceeding P30,000 or imprisonment not
exceeding 6 months or both.
2. MTC: Fine not exceeding P5,000 or
imprisonment not exceeding 1 month or both.
(Sec. 7, Rule 71)
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Note: The penalty is immediately executory, unless
a bond is filed.
5. HOW CONTEMPT PROCEEDINGS ARE
COMMENCED
Two Modes of Commencing Proceeding for
Indirect Contempt:
1. Motu proprio by the court through an order or
any other formal charge requiring the
respondent to show cause why he should not
be punished for contempt; and
2. Through a verified petition charging for
indirect contempt with supporting particulars
and certified true copies of documents or
papers involved therein, and upon full
compliance with the requirements for filing
initiatory pleadings for civil actions in the court
concerned. (Sec. 4, Rule 71)
Requisites Before Accused May be Punished
For Indirect Contempt:
1. Charge in writing to be filed or a show cause
order issued by the court;
2. Opportunity for person charged to appear and
explain his conduct; and
3. To be heard by himself or counsel. (Regalado
v. Go, G.R. No. 167988, 2007)
Where Charge is to be Filed
Where the charge for indirect contempt has been
committed against a Regional Trial Court or a court
of equivalent or higher rank, or against an officer
appointed by it, the charge may be filed with such
court.
Where such contempt has been committed against
a lower court, the charge may be filed with the
Regional Trial Court of the place in which the lower
court is sitting; but
The proceedings may also be instituted in such
lower court subject to appeal to the Regional Trial
Court of such place in the same manner as provided
in Section 11 of this Rule. (Sec. 5, Rule 71)
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6. ACTS DEEMED PUNISHABLE AS INDIRECT
CONTEMPT
Punishable Act
A person guilty of any of the following acts may be
punished for indirect contempt:
1. Misbehavior an officer of a court in the
performance of his official duties or in his official
transactions;
2. 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
by the judgment or process of any court of
competent jurisdiction, enters or attempts or
induces another to enter into or upon such real
property, for the purpose of executing acts of
ownership or possession, or in any manner
disturbs the possession given to the person
adjudged to be entitled thereto;
3. Any abuse of or any unlawful interference with
the processes or proceedings of a court not
constituting direct contempt under section 1 of
this Rule;
4. Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade the
administration of justice;
5. Assuming to be an attorney or an officer of a
court, and acting as such without authority;
6. Failure to obey a subpoena duly served;
7. 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; (Sec.
3, Rule 71) and
8. Failure by counsel to inform the court of the
death of his client, since it constitutes an
improper conduct tending to impede the
administration of justice. (Sec. 3, Rule 71)
The SC not only has plenary disciplinary authority
over attorneys but also has the inherent power to
punish for contempt. The former stems from the
Court’s constitutional mandate to regulate
admission into the practice of law, which includes as
well authority to regulate the practice itself of law;
the latter is “necessary for its own protection against
an improper interference with the due administration
of justice.” (Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, 1988)
Generally, non-parties may not be held for
contempt. However, if he is guilty of conspiracy with
any one of the parties in violating the court’s orders,
he may be liable. (Desa Enterprise v. SEC, G.R. No.
L-45430, 1982)
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7. WHEN IMPRISONMENT SHALL BE
IMPOSED
When the contempt consists in the refusal or
omission to do an act which is yet in the power of
the respondent to perform, he may be imprisoned by
order of the court concerned until he performs it.
(Sec. 8, Rule 71)
The reason for indefinite incarceration in civil
contempt proceedings, in proper cases, is that it is
remedial, preservative, or coercive in nature. The
punishment is imposed for the benefit of a
complainant or a party to a suit who has been
injured. Its object is to compel performance of the
orders or decrees of the court, which the contemnor
refuses to obey although able to do so. In effect, it
is within the power of the person adjudged guilty of
contempt to set himself free. (Montenegro v.
Montenegro, G.R. No. 156829, 2004)
8. CONTEMPT AGAINST QUASI-JUDICIAL
BODIES
Unless otherwise provided by law, this Rule shall
apply to contempt committed against persons,
entities, bodies or agencies exercising quasi-judicial
functions, or shall have suppletory effect to such
rules as they may have adopted pursuant to
authority granted to them by law to punish for
contempt. The Regional Trial Court of the place
wherein the contempt has been committed shall
have jurisdiction over such charges as may be filed
therefor. (Sec. 13, Rule 71)
Power of Contempt by the Senate in Inquiries in
Aid of Legislation
The period of imprisonment under the inherent
power of contempt by the Senate during inquiries in
aid of legislation should only last until the
termination of the legislative inquiry under which the
said power is invoked. Accordingly, as long as there
is a legitimate legislative inquiry, then the inherent
power of contempt by the Senate may be properly
exercised. Conversely, once the said legislative
inquiry concludes, the exercise of the inherent
power of contempt ceases and there is no more
genuine necessity to penalize the detained witness.
(Balag v. Senate of the Philippines, G.R. No.
234608, 2018).
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