Rule 68. Foreclosure of Real Estate Rule 69. Partition Rule 70 Forcible Entry and Unlawful Rule 71.

ible Entry and Unlawful Rule 71. Contempt

Mortgage Detainer
Definition A real estate mortgage is an instrument Partition is the separation, division and Ejectment cases are summary Contempt of court is disobedience to the
used to create a security for the payment assignment of a thing held in common proceedings intended to provide an court by acting in opposition to its
of an indebtedness by creating a lien among those to whom it may belong. expeditious means of protecting actual authority, justice, and dignity.
over a real property. Every act which is intended to put an end possession of property. [Tubiano v. Razo,
to indivision among co-heirs and G.R. No. 132598 (2000)] It signifies not only a willful disregard or
Foreclosure of mortgage is the process legatees or devisees is deemed to be a disobedience to the court’s orders but
by which a mortgagee acquires an partition. Forcible entry (detentacion) also conduct tending to bring the
absolute title to the property of which he Possession of land by the defendant is authority of the court and administration
had previously been only the conditional unlawful from the beginning as he of law into disrepute, or, in some
owner, or upon which he had previously acquires possession by force, manner, to impede the due
a mere lien or encumbrance. intimidation, strategy, threat, or stealth administration of justice. [Siy v. NLRC,
(FISTS) [Dikit v. Ycasiano, G.R. No. L-3621 G.R. No. 158971 (2012)]
(1951)]

Unlawful detainer (desahucio)

Possession is initially lawful but it
becomes illegal by reason of the
termination of his right to possession of
the property under his contract (express
or implied) with the plaintiff [Dikit v.
Ycasiano, G.R. No. L-3621 (1951)]

Cause of Action / Non-payment of the mortgage loan, but Compel the partition of real estate Recovery of physical possession where
Purpose it may be on other grounds which under the dispossession has not lasted for more
the contract warrant the foreclosure, than one year
such as the violation of the other
conditions therein.
When applicable The mortgage can be foreclosed only a. Partition of real estate Forcible Entry Unlawful Detainer
when: b. The provisions of Rule 69 shall apply When a person When a lessor,
a. The debt remains unpaid at the time to partitions of estates composed of deprived of the vendor, vendee, or
it is due [Producers Bank v. CA, G.R. personal property, or of both real possession of any other person
No. 111584 (2001)], or and personal property, in so far as land or building by against whom the
b. In case of default in the payment of the same may be applicable [Sec. 13, force, intimidation, possession of any
obligation [PNB v. CA, G.R. No. Rule 69] threat, strategy, or land or building is
126908 (2003)] stealth unlawfully withheld
or his legal
representatives or
assigns
Judicial Extrajudicial Judicial Extrajudicial A. According to Nature
Kinds - Governed by - governed by Act - Governed by - No court Criminal contempt Civil Contempt
Rule 68 3135, as Rule 69 intervention is
amended required
 Conduct directed Failure to do
- Requires court - No court against the something ordered
intervention intervention authority and to be done by a
necessary dignity of the court court or by a judge
- equity of or a judge acting for the benefit of
- Right of
redemption judicially. the opposing
redemption
party.
- There could be a - Punitive in
- No deficiency
deficiency nature - Remedial in
judgment, no
judgment nature
judicial - Purpose is to
proceeding preserve the - Purpose is to
- Deficiency court’s authority provide a
- Recovery of
judgment shall and to punish remedy for an
deficiency is
be rendered, on for disobedience injured suitor
through an
motion. of its orders and to coerce
independent
compliance with
Exception: action
an order; for the
- right of - Exception:
preservation of
redemption w/in - [Sec. 47, R.A. the rights of
1 yr when loan 8791]
- Intent is private persons
or credit is necessary
granted by a - Intent is not
bank necessary
[Sec. 47, R.A. B. According to Manner of Commission
8791] Direct Contempt Indirect Contempt
Act committed in One not
the presence of or committed in the
so near the court presence of the
or judge as to court. It is an act
obstruct or done at a distance
interrupt the which tends to
proceedings before belittle, degrade,
the same. obstruct, or
embarrass the
court and justice.
 - - - -

- - - -

- - - -

- - - -

R.A. 8791 – The General Banking Law of

2000
Nature of the Real action Action quasi in rem Accion Interdictal (ejectment) The power to declare a person in
action In the nature of settlement of estate contempt of court and in dealing with
The issue is the right of physical or him accordingly is an inherent power of
material possession of the subject real the court. It is used as a means to protect
property independent of any claim of and preserve the dignity of the court, the
ownership by the parties involved. solemnity of the proceedings, and
administration of justice. [Montenegro v.
Montenegro, G.R. No. 156829 (2004)]

Jurisdiction Action involves title to, or possession of, MTC or the RTC depending on the value MTC
real property of the property.
⤷ exclusive original jurisdiction would
fall either in the MTC or the RTC
depending on the assessed value.
Venue RTC of the province where the land or
any
part thereof is situated.

If a mortgage contract covers several

distinct parcels of land situated in
different provinces, the action may be
brought in the RTC of any of the
provinces and the judgment will be
enforceable against any of the parcels of
land involved. [Monte de Piedad v.
Rodrigo, G.R. No. L-42928 (1936)]
Who may file / Mortgagee A person having the right to compel the Forcible Entry Unlawful Detainer
Plaintiff partition of real estate. [Sec. 1, Rule 69] a person deprived - a lessor, vendor,
of the possession vendee, or other
of any land or person against
building by force, whom the
intimidation, possession of
threat, strategy, or any land or
stealth building is
unlawfully
withheld; or

- his legal
representatives
or assigns
Defendant Mortgagor All other persons interested in the Person or persons unlawfully withholding Generally, a non-party may not be liable
property. [Sec. 1, Rule 69] or depriving of possession, or any for contempt unless he is guilty of
Necessary parties person/s claiming under them. conspiracy with any of the parties in
violating the court’s orders. [Desa
all persons having or claiming an interest
Enterprises Inc. v. SEC, G.R. No. L-45430
in the property subordinate in right to
(1982)]
that of the holder of the mortgage, all of
whom shall be made defendants in the
action.

Prescription The right of action to demand partition Forcible Entry Unlawful Detainer
does not prescribe. [De Castro v. Echarri, The 1-year period The 1-year period
G.R. No. 5609 (1911)] is generally is counted from the
⤷ Exception: Where one of the counted from the date of last
interested parties openly and date of actual demand
adversely occupies the property entry on land
without recognizing the co-ownership ⤷ Exception: In
[Cordova v. Cordova, G.R. No. L-9936 case of stealth
(1958)] or strategy,
from the time
Prescription does not run in favor of a co- plaintiff learned
owner or co-heirs as long as there is a of entry.
recognition of the co-ownership,
expressly or impliedly.
⤷ Exception: If a co-owner asserts
adverse title to the property, in which
case, the prescription period runs
from such time of assertion of the
adverse title.

Form The complaint shall set forth: Matters to allege in the complaint for Forcible Entry Unlawful Detainer
 1) date and due execution of the partition: a. That the plaintiff a. Initially,
mortgage; 1) The nature and extent of his title; had prior possession of
2) its assignments, if any; 2) Adequate description of the real physical property by the
3) the names and residences of the estate of which partition is possession of defendant was
mortgagor and the mortgagee; demanded; and the property; by contract with
4) description of the mortgaged 3) Join as defendants all other persons b. That the or by tolerance
property; interested in the property. [Sec. 1, defendant of the plaintiff;
5) statement of the date of the note or Rule 69] deprived him of b. Eventually, such
other documentary evidence of the 4) Demand for accounting of the rents, such possession possession
obligation secured by the mortgage, profits, and other income from the by means of became illegal
the amount claimed to be unpaid property to which he may be entitled FISTS; upon notice by
thereon; and to as his share [Sec. 8, Rule 69] c. That the plaintiff to
6) the names and residences of all complaint was defendant of
persons having or claiming an filed within 1 the termination
interest in the property subordinate year from of the latter's
in right to that of the holder of the dispossession right of
mortgage, all of whom shall be made possession
defendants in the action. Note: First two c. Thereafter, the
requirements are defendant
jurisdictional [Abad remained in
v. Farrales, G.R. No. possession of
178635 (2011)] the property
and deprived
the plaintiff of
the enjoyment
thereof, and
d. Within one year
from the last
demand on
defendant to
vacate the
property, the
plaintiff
instituted the
complaint for
ejectment
Procedure See below Two Stages in Every Action for Partition:
First stage – Determination of the
propriety of partition

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.
Second stage - Actual partitioning of the
subject property
FORECLOSURE OF REAL ESTATE MORTGAGE

JUDICIAL EXTRAJUDICIAL
Governing R39, ROC Act. No. 3135
law/rules

Special w/o special power w/ special power or authority to sell

Power inserted in the real estate mortgage
contract or executed in a separate
instrument and annexed thereto,
allowing the mortgagee to institute
an extrajudicial foreclosure sale

In the absence of such authority, the

foreclosure must be done judicially as
provided under Rule 68.

Nature of Real action Real action

the action

Jurisdiction exclusive original jurisdiction of either exclusive original jurisdiction of either

in the MTC or the RTC depending on in the MTC or the RTC depending on
the assessed value. the assessed value.

Posting Before the sale of real property, it is Notice shall be given by posting
requiremen required that there be posting for 20 notices of the sale for not less than 20
t days in 3 public places, preferably in days in at least 3 public places of the
conspicuous areas of the municipal or municipality or city where the
city hall, post office, and public property is situated. [Sec. 3, Act 3135]
market in the municipality or city
where the sale is to take place. Such Failure to abide by the general rule,
notice must particularly describe the or its exception, renders the
property and state where the foreclosure proceedings null and
property is to be sold. [Sec 15(c), Rule void. [Paradigm v. BPI, G.R. No.
39] 191174 (2017)]

Effect of failure to Post Notice

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. [DBP v. Aguirre, G.R. No. 144877 (2001)]

Publication Newspaper publication

requiremen
t
If the assessed value of the property If such property is worth more than
exceeds P50,000, one must also P400, such notice shall also be
publish a copy of the notice once a published once a week for at least 3
week for 2 consecutive weeks in one consecutive weeks in a newspaper of
newspaper having general circulation general circulation in the municipality
in the province or city. [Sec. 15(c), or city. [Sec. 3, Act 3135]
Rule 39]

Republication / Reposting
Republication as well as reposting of
the notice of sale is required if the
foreclosure does not proceed on the
date originally intended. The lack of
republication of the notice of the
foreclosure sale renders it void.
[Metrobank v. Nikko, G.R. No.
178479, (2009)]

Personal The mortgagor is notified through the General Rule: Personal notice to the
notice to service of summons. [Sec. 1, Rule 68] mortgagor in extrajudicial foreclosure
mortgagor proceedings is not necessary, and
posting and publication will suffice.

Exception: When the parties stipulate

that personal notice is additionally
required to be given the mortgagor.
Failure to abide by the general rule,
or its exception, renders the
foreclosure proceedings null and
void. [Paradigm v. BPI, G.R. No.
191174 (2017)]

Where to sold in the manner and under the Said sale cannot be made legally
sell provisions of Rule 39 and other outside of the province in which the
regulations governing sales of real property sold is situated; and in case
estate under execution. [Sec. 3, Rule the place within said province in
68] which the sale is to be made is
subject to stipulation, such sale shall
Also see S19 onwards, , R39. be made in said place or in the
municipal building of the municipality
in which the property or part thereof
 is situated. (S2)
The place of the sale may be agreed
upon by the parties. In the absence of
such agreement, the sale of the real
property shall be held in the office of
the clerk of court of the RTC or MTC
which issued the writ

Possession General Rule: Upon the: The purchaser may petition the RTC
by a. finality of the order of of the province or place where the
Purchaser of confirmation or property or any part thereof is
Foreclosed b. expiration of the period of situated, to give him possession
Property redemption the purchaser at the thereof during the redemption
auction sale or last redemptioner, period, furnishing bond in an amount
if any, shall be entitled to the equivalent to the use of the property
possession of the property. for a period of twelve months, to
indemnify the debtor in case it be
Exception: shown that the sale was made
When a third party is actually holding without violating the mortgage or
the same adversely to the judgement without complying with the
obligor. In such a case, the purchaser requirements of this Act. [Sec. 7, Act
or the last redemptioner may secure 3135]
a writ of possession, upon motion,
from the court. [Sec. 3, Rule 68]

Remedy The debtor-mortgagor is allowed the The debtor may, in the proceedings
(foreclosure opportunity to show why the sale in which possession was requested,
not proper) should not be confirmed during the but not later than 30 days after the
hearing on the motion of purchaser was given possession,
confirmation of the sale. petition that the sale be set aside and
the writ of possession cancelled,
specifying the damages suffered by
him, because the mortgage was not
violated or the sale was not made in
accordance with the provisions
hereof. [Sec. 8, Act 3135]

Rules on a. Equity of redemption Right of redemption

redemption exercised prior to the order of 1 year from the date of the
confirmation of the foreclosure sale registration of sale

Exception Exception
b. Right of redemption Juridical persons shall have the right
Mortgagor may exercise right of to redeem until, but not after, the
redemption within one year after the registration of the certificate of
sale, when the loan or credit foreclosure sale with the Register of
accommodation is granted by a bank Deeds which in no case shall be more
[Sec. 47 par. 1, R.A. 8791] than 3 months after foreclosure,
whichever is earlier. [Sec. 47 par.2,
R.A. 8791]

Ordinary extrajudicial foreclosure: 1

year
Juridical persons: 3 mos. or before
registration with RD

Equity of Redemption Right of Redemption

Right of defendant mortgagor to Right of the debtor, his successor in
extinguish the mortgage and retain interest, or any judicial creditor of
ownership of the property by paying said debtor or any person having a
the secured debt within the 90 to lien on the property subsequent to
120-day period after entry of the mortgage.
judgment or even after the ⤷ Governed by Secs. 29-31, Rule 39
foreclosure sale but prior to its
confirmation.
⤷ Governed by Rule 68

When available: Only for real property

Who may redeem

a. judgment obligor / mortgagor a. debtor
b. his successor in interest b. his successor in interest
c. creditor / redemptioner having a c. judicial creditor or judgment
lien by virtue of an attachment, creditor of said debtor, or any
judgment, or mortgage on the person having a lien on the
property or some parts thereof property subsequent to the
subsequent to the lien under mortgage or deed of trust under
which the property was sold. which the property is sold, may
redeem the same. [Sec. 6, Act
3135]
Amount of redemption price
Debt amount a. Bank redemptioner
1. The amount due under the
mortgage deed,
2. Interest rate specified in the
 mortgage, and
3. Expenses incurred by the bank
from the sale of the property.

b. Non-bank redemptioner
1. Full amount paid by the
purchaser,
2. 1% interest per month on the
purchase price, up to the time
of redemption,
3. Taxes assessed that purchaser
paid, and
4. d. Interest of 1% on the taxes
assessed.
Period for redemption
Period is 90-120 days after entry of Period is 1 year from date of
judgment or even after foreclosure registration of certificate of sale.
sale but prior to confirmation.

When to redeem
a. judgment obligor Within 1 year from the date of
registration of the certificate of sale
b. first redemptioner Within 1 year from the date of
registration of the certificate of sale
c. all subsequent redemptioners Within 60 days from last redemption

Writ of
possession
 FLOWCHART
JUDICIAL FORECLOSURE

1) Mortgagee action for the foreclosure of

a mortgage

2) Service of summons

3) Trial

4) Judgement → If mortgagor failed to pay amount due

a. amount due within period prescribed in the judgment
b. payment to court or to judgment
obligee ↓
⤷ period: not less than ninety (90)
Mortgagee files a motion for foreclosure
days nor more than one hundred
sale
twenty (120) days from the entry
of judgment ↓
► Period to exercise equity of redemption Court orders for the property to be sold in
commences (after entry of judgment) public auction (R39, ROC, RA 8791)

5) Foreclosure sale
a. Posting of notice of public auction
b. Publication in newspaper of general
circulation
c. Republication / reposting

6) Mortgagee files motion for the ► Period to exercise equity of

confirmation of the sale redemption continues (prior
confirmation of sale)
a. after the foreclosure sale but
before its confirmation, the
mortgagor may exercise his right to
pay the proceeds of the sale and
prevent the confirmation of the
sale.
b. Exception: There is a right of
redemption in a judicial foreclosure
(period of 1 year) if the foreclosure
is in favor of banks, as provided for
in the General Banking Law. [Sec.
 47]

7) Notice and hearing → Action for Annulment of Sale

- mortgagor will be allowed to show why
the sale should not be confirmed The pendency of a suit for annulment of
the foreclosure proceedings does not
defeat the right of the purchaser to a writ
of possession to which the purchaser
becomes entitled to as a matter of right.

An injunction to prohibit the enforcement

of the writ is entirely out of place. [Carpo
v. Chua, 471 SCRA 471 (2005)]

A failure to give notice of the hearing for

motion of confirmation is good cause for
setting aside the sale. [Grimalt v.
Velasquez, 36 Phil 936 (1917)]

8) Order of confirmation → Appeal

- removes from the parties the right to
the property
- grants such right to the purchaser,
subject to redemption
↓
a. finality of the order of confirmation
or
b. expiration of the period of
redemption

9) Issuance of writ of possession → Exception: Third party is actually holding

the same adversely to the judgement
Purchaser / redemptioner to file a motion obligor
for the issuance of writ of possession
↓
The pendency of a suit for annulment of the
foreclosure proceedings does not defeat Redemption to file motion for possession
the right of the purchaser to a writ of
possession to which the purchaser becomes ↓
entitled to as a matter of right.
Court to issue writ of possession

10) Disposition of proceeds of sale

a. proceeds to be paid to the person
 foreclosing the mortgage after
deducting costs of sale
b. balance or residue shall be paid to
junior encumbrancers
c. if there is no junior encumbrancers,
or there is balance/residue after
making payments, such amount shall
be paid to the mortgagor
 FLOWCHART
EXTRAJUDICIAL FORECLOSURE

1) Mortgagee files an extrajudicial

foreclosure of real estate mortgage
with the Executive Judge through the
COC

2) Service of notice of the public auction

3) Posting of notice of the public auction

4) Foreclosure sale
5) Trial

6) Judgement → If mortgagor failed to pay amount due

c. amount due within period prescribed in the judgment
d. payment to court or to judgment
obligee ↓
⤷ period: not less than ninety (90)
Mortgagee files a motion for foreclosure
days nor more than one hundred
sale !!!
twenty (120) days from the entry
of judgment ↓
► Period to exercise equity of redemption Court orders for the property to be sold in
commences (after entry of judgment) public auction (R39, ROC, RA 8791)

7) Foreclosure sale
d. Posting of notice of public auction
e. Publication in newspaper of general
circulation
f. Republication / reposting

8) Mortgagee files motion for the ► Period to exercise equity of

confirmation of the sale redemption continues (prior
confirmation of sale)
c. after the foreclosure sale but
before its confirmation, the
mortgagor may exercise his right to
pay the proceeds of the sale and
prevent the confirmation of the
sale.
 d. Exception: There is a right of
redemption in a judicial foreclosure
(period of 1 year) if the foreclosure
is in favor of banks, as provided for
in the General Banking Law. [Sec.
47]

9) Notice and hearing → Action for Annulment of Sale

- mortgagor will be allowed to show why
the sale should not be confirmed The pendency of a suit for annulment of
the foreclosure proceedings does not
defeat the right of the purchaser to a writ
of possession to which the purchaser
becomes entitled to as a matter of right.

An injunction to prohibit the enforcement

of the writ is entirely out of place. [Carpo
v. Chua, 471 SCRA 471 (2005)]

A failure to give notice of the hearing for

motion of confirmation is good cause for
setting aside the sale. [Grimalt v.
Velasquez, 36 Phil 936 (1917)]

10) Order of confirmation → Appeal

- removes from the parties the right to
the property
- grants such right to the purchaser,
subject to redemption
↓
c. finality of the order of confirmation
or
d. expiration of the period of
redemption

11) Issuance of writ of possession → Exception: Third party is actually holding

the same adversely to the judgement
Purchaser / redemptioner to file a motion obligor
for the issuance of writ of possession
↓
The pendency of a suit for annulment of the
foreclosure proceedings does not defeat Redemption to file motion for possession
the right of the purchaser to a writ of
possession to which the purchaser becomes ↓
entitled to as a matter of right.
Court to issue writ of possession

12) Disposition of proceeds of sale

d. proceeds to be paid to the person
foreclosing the mortgage after
deducting costs of sale
e. balance or residue shall be paid to
junior encumbrancers
f. if there is no junior encumbrancers,
or there is balance/residue after
making payments, such amount shall
be paid to the mortgagor

Foreclosure sale

Mortgagee files motion for the confirmation

of the sale

Notice and hearing

- mortgagor will be allowed to show why
the sale should not be confirmed
↓

Order of confirmation → Appeal

- removes from the parties the right to the
property
- grants such right to the purchaser,
subject to redemption
↓

e. finality of the order of confirmation or

f. expiration of the period of
redemption
↓

Possession → The debtor may, in the proceedings in

a. purchaser may petition the RTC to give which
him possession thereof during the possession was requested, but not later
redemption period than
b. post a bond in an amount equivalent to 30 days after the purchaser was given
the use of the property for a period of possession, petition that the sale be set
twelve months aside
and the writ of possession cancelled,
specifying the damages suffered by him,
because the mortgage was not violated
or the
sale was not made in accordance with
the
provisions hereof. [Sec. 8, Act 3135]
 FLOWCHART
PARTITION

1) Mortgagee action for the foreclosure of a real estate mortgage

FIRST STAGE
Determination of the propriety of partition
2) Filing of complaint for partition
3) Summons
4) Answer
5) Preliminary conference
6) Trial
7) Order of Partition and Accounting → Appeal
Order of Partition and Partition by Commissioners
Partition
by Agreement A. Appointment of Commissioners [Sec. 3, Rule
A. Partition by Agreement 69]
[Sec. 2, Rule 69] B. Oath of commissioners [Sec. 4, Rule 69]
► partition among C. Duties [Sec. 4, Rule 69]:
parties by proper 1. View and examine the real estate (after
instruments of due notice to the parties)
conveyance 2. Hear the parties as to their preference in
B. Court confirmation the portion of the property
C. Recording with the 3. Set apart the same to the parties in lots or
Registry of Deeds parcels
Assignment of real Property be sold
estate to one party instead
a. real estate, or a a. one of the
portion thereof, interested parties
cannot be divided asks that the
b. court may order it property be sold
assigned to one of instead
the parties willing to b. court shall order
take the same the commissioners
c. provided he pays to to sell the real
the other parties estate at public sale
such amounts as the
commissioners deem
equitable

4. Commissioner’s Report
5. COC shall serve copies of the report on all
the interested parties, with notice that
 they are allowed 10 days within which to
file objections to the findings of the report.

D. Hearing on the report

► Upon expiration of period to file objection, or
before the expiration of such period but after
the interested parties have filed their
objections to or statement of agreement on
the report

E. Court may:
a. Render judgment
b. Recommit the report to the Commissioners
for further report of facts
c. Set aside the report and appoint new
commissioners
d. Accept the report in part and reject it in
part
8) Court Confirmation / Judgment
If actual partition is properly If the whole property is If the property is sold and
made assigned to one of the parties the sale confirmed by the
after payment court
Contents of Effects of Contents of Effects of Contents of Effects of
judgment judgment judgment judgment judgment judgment
Judgment shall Judgment Judgment shall Judgment Judgment Judgment
state definitely, shall vest state the fact of shall vest shall state shall vest the
by metes and in each such payment in the the name of real estate in
bounds and party to and of the party the the
adequate the action assignment of making the purchaser or purchaser or
description, the in the real estate payment purchasers purchasers
particular severalty to the party the whole and a making the
portion of the the making the of the real definite payment or
real estate portion of payment estate free description payments,
assigned to each the real from any of the free from the
party estate interest on parcels of claims of any
assigned the part of real estate of the parties
to the other sold to each to the action
him parties to purchaser
the action
9) Recording in the Registry of Deeds
Such partition, together with the order of the court (certified copy)
confirming the same, shall be recorded in the registry of deeds of the
place in which the property is situated. [Sec. 11, Rule 69]
RULE 70: FORCIBLE ENTRY AND UNLAWFUL DETAINER

FORCIBLE ENTRY (DETENTACION) UNLAWFUL DETAINER (DESAHUCIO)

As to Possession of land by the defendant Possession is initially lawful but it
possession by is unlawful from the beginning as he becomes illegal by reason of the
the defendant
acquires possession by force, termination of his right to possession
intimidation, strategy, threat, or of the property under his contract
stealth (FISTS) (express or implied) with the plaintiff

As to prior Plaintiff must prove that he was in Plaintiff need not have been in prior
physical prior physical possession of the physical possession
possession by
premises until he was deprived
the plaintiff
thereof by defendant

Distinguished Accion Interdictal Accion Publiciana Accion Reivindicatoria

from Accion Summary action for Plenary action for An action for recovery
Publiciana and
recovery of physical recovery of real right of of
Accion
Reivindicatori possession where the possession when possession based on
a dispossession has not dispossession has lasted ownership
lasted for more than 1 for more than 1 year
year

MTC has jurisdiction Assessed value of the Assessed value exceeds

property or any interest P400,000.00
therein does not exceed
P400,000.00

As to No previous demand for the Demand is jurisdictional

demand defendant to vacate the premises is ⤷ Period to comply: after fifteen
necessary. (15) days in the case of land or
five (5) days in the case of
Note: with exceptions: buildings.
FISTS ⤷ Contents:
Stealth/Strategy – there should be a. Pay or comply with the
still be a demand conditions of the lease, or
b. Vacate [Sec. 2, Rule 70]
Notes:
⤷ Form:
1. Sec. 15: if with the MTC –
a. By service of written notice of
pendente lite, disturbance of social
such demand upon the person
order
found on the premises, or
2. Sec. 20: if with the RTC - appeal
b. By posting of the written
- Sec. 16 notice on the premises if no
 person be found thereon, or
[Sec. 2, Rule 70]
c. Orally
⤷ When not required:
a. When parties stipulate that
demand shall not be necessary
[Sec. 2, Rule 70]; or
b. When action is predicated on
the expiration of the lease.
[Labastida v. CA, G.R. No.
110174 (1998)]

Prescription The 1-year period is generally Period is counted from the date of
counted last
from the date of actual entry on land Demand

Jurisdiction MTC has jurisdiction MTC has jurisdiction

Nature of Real action;

the action
Summary procedure
Exceptions:
a. In cases covered by agricultural tenancy laws; or
b. When the law otherwise expressly provides.

Pleadings The only pleadings allowed to be filed are the:

Allowed a. Complaint
b. Compulsory counterclaim pleaded in the answer
c. Cross-claim pleaded in the answer, and
d. Answers thereto [Sec. 4, Rule 70]

Note: Pleadings must be verified.

Prohibited [Sec. 13, Rule 70]

Pleadings 1. Motion to dismiss the complaint except on the ground of lack of
and jurisdiction over the subject matter, or failure to comply with section 12
Motions (Referral for conciliation);
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other
paper;
 6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10.Reply;
11.Third-party complaints;
12.Interventions.
Availability a. Within 5 days from the filing of the complaint [Sec. 15, Rule 70]
of b. On appeal to the RTC upon motion of the plaintiff within 10 days from
preliminary perfection of appeal [Sec. 20, Rule 70]
mandatory
injunction Granted if the court is satisfied that:
a. Defendant’s appeal is frivolous or dilatory, or
b. The appeal of plaintiff is prima facie meritorious. [Sec. 20, Rule 70]

Notes:
1. Sec. 15: if with the MTC – pendente lite, disturbance of social order
2. Sec. 20: if with the RTC - appeal

MTC can also issue a preliminary mandatory injunction in an unlawful

detainer case. [Day v. RTC of Zamboanga, G.R. No. 71119 (1990)]

Preliminary preventive injunction is available in either case. Note that Sec. 15

makes the provisions of Rule 58 applicable to Rule 70. [1 Regalado 891, 2010
Ed.]
Resolving When the defendant raises the questions of ownership in his pleadings and
Defense of the question of possession cannot be resolved without deciding the issue of
Ownership ownership, the issue of ownership shall be resolved only to determine the
issue of possession. [Sec. 33(2), B.P. 129, as amended by R.A. 7691]

Guidelines:
1) The primal rule is that the principal issue must be that of possession, and
that ownership is merely ancillary thereto.
2) It must sufficiently appear from the allegations in the complaint that
what the plaintiff really and primarily seeks is the restoration of
possession.
3) The inferior court cannot adjudicate on the nature of ownership where
the relationship of lessor and lessee has been sufficiently established.
4) The rule in forcible entry cases, but not in those for unlawful detainer, is
that a party who can prove prior possession can recover such possession
even against the owner himself.
5) Any such pronouncement made affecting ownership of the disputed
portion is to be regarded merely as PROVISIONAL, hence, does not bar
nor prejudice an action between the same parties involving title to the
land.
 FLOWCHART
FORCIBLE ENTRY AND UNLAWFUL DETAINER

1) Plaintiff files a complaint → ► Court may motu proprio dismiss the

case on any of the grounds for the
dismissal of a civil action [Sec. 5, Rule
70]

→ ► Preliminary mandatory injunction

Plaintiff may also file a motion for
preliminary injunction
⤷ within 5 days from the filing of the
complaint
⤷ resolved by the court w/in 30 days
2) Issuance of summons
If no ground for dismissal is found, the
court shall forthwith issue summons. [Sec.
5, Rule 70]

3) Answer → ► Compulsory Counterclaim and Cross-

► within 10 days from service of summons Claim
► serve copy of Answer to plaintiff Defendant may file his compulsory
► Affirmative and negative defenses not counterclaim and cross-claim; serve
pleaded therein shall be deemed copy to plaintiff
waived ⤷ plaintiff/party to answer within 10
⤷ except lack of jurisdiction over the days from service of the answer in
subject matter which they are pleaded [Sec. 6, Rule
► Cross-claims and compulsory 70]
counterclaims not asserted in the
answer shall be considered barred [Sec.
6, Rule 70]

→ ► Judgement; failure to answer

Should the defendant fail to answer the
complaint within the period provided,
the court, motu proprio or on motion
of the plaintiff, shall render judgment
as may be warranted by the facts
alleged in the complaint and limited to
what is prayed for therein. [Sec. 7, Rule
70]
 ⤷ The court may in its discretion
reduce the amount of damages and
attorney's fees claimed [Sec. 7, Rule
70]
⤷ If a sole defendant shall fail to
appear, the plaintiff shall likewise be
entitled to judgment

4) Preliminary Conference (Sec. 8) → ► plaintiff fails to appear = DISMISSAL

► Not later than 30 days after last answer ⤷ defendant who appears in the
► The provisions of Rule 18 on pre-trial absence of the plaintiff shall be
shall be applicable, unless inconsistent entitled to judgment on his
with the provisions of Rule 70 counterclaim (in re Sec. 7)
► No postponement of the preliminary ⤷ All cross-claims shall be dismissed
conference shall be granted except for
highly meritorious grounds

→ ► sole defendant fails to appear

⤷ plaintiff shall be entitled to
judgment on his counterclaim (in re
Sec. 7)
→ ► one of two or more defendants sued
under a common cause of action
defense appears
⤷ procedure above shall NOT apply
5) Order of preliminary conference → ► Judgment
► Issued within five (5) days after the If judgment may be rendered without the
termination of the preliminary need of further proceedings, it shall be
conference rendered within thirty (30) days from
issuance of the order
Statement on the following matters:
a. Whether the parties have arrived at an
amicable settlement, and if so, the
terms thereof;
b. The stipulations or admissions entered
into by the parties;
c. Whether judgment may be rendered
without the need of further
proceedings on the basis of the
pleadings and the stipulations and
admission made by the parties, in which
event the judgment shall be rendered
 within thirty (30) days from issuance of
the order;
d. A clear specification of material facts
which remain converted; and
e. Such other matters intended to
expedite the disposition of the case.

6) Submission of affidavits and position

papers
► within 10 days from receipt of the
receipt of the order of preliminary
conference
► submit:
a. affidavits of witnesses;
b. Other evidence on the factual issues
defined in the order;
c. Position papers setting forth the law
and the facts relied upon by them.
[Sec. 10, Rule 70]

7) Judgment → ► If court finds it necessary to clarify

► Within 30 days from receipt of affidavits certain material facts, it may, during
and position papers, or the said period, issue an order:
► After the expiration of the period for c. Specifying the matters to be
filing the same. clarified; and
► Judgment is immediately executory d. Require the parties to submit
upon motion of the plaintiff affidavits or other evidence on the
said matters within 10 days from
receipt of said order
↓
Judgement
⤷ within 15 days after the receipt of the
last affidavit or the expiration of the
period for filing the same. [Sec. 11, Rule
70]

► Plaintiff may file a motion for

execution of judgment
⤷ immediately executory

→ ► Defendant party may appeal with RTC

How to Stay the Immediate Execution of
 Judgment (all requisites must concur)
1) An appeal has been perfected;
2) Defendant should post supersedeas
bond (appeal bond/pertains to unpaid
rentals) with MTC, executed in favor of
the plaintiff to pay the rents, damages,
and costs accruing down to the time of
the judgment appealed from;
3) Defendant to make periodical deposits
pertaining to rent to RTC (w/ contract);
or reasonable value of use and
occupation (w/o contract)

Judgement of RTC
⤷ Judgment will be immediately
executory

Appeal (CA or SC)

→ ► Plaintiff may file for preliminary

mandatory injunction within 10 days
from perfection of appeal
⤷ Defendant to make periodical
deposits pertaining to rent to RTC
(w/ contract); or
⤷ Reasonable value of use and
occupation (w/o contract)
↓

⤷ If defendant fails to make

payments, plaintiff may file a
motion for execution of judgment;
must provide proof of such failure
⤷ Judgment will be immediately
executory
RULE 71: CONTEMPT

Kinds A. According to nature

1. Criminal Contempt
2. Civil Contempt

B. According to manner of commission

1. Direct contempt
2. Indirect contempt

CRIMINAL CONTEMPT CIVIL CONTEMPT

a. Punitive in nature a. Remedial in nature

b. Purpose is to preserve the court’s b. Purpose is to provide a remedy for

authority and to punish for an injured suitor and to coerce
disobedience of its orders compliance with an order; for the
preservation of the rights of
private persons
c. Intent is necessary c. Intent is NOT necessary
d. State is the real prosecutor d. Instituted by the aggrieved party,
or his successor, or someone who
has a pecuniary interest in the
right to be protected
e. Proof required is proof beyond
reasonable doubt e. Proof required is more than mere
preponderance of evidence
f. If accused is acquitted, there can
be NO appeal f. If judgment is for respondent,
there can be an appeal

DIRECT CONTEMPT INDIRECT CONTEMPT

a. Summary in nature a. There is charge and hearing

b. Punishment: See Sec. 1 b. Punishment: See Sec. 7

c. Remedy is certiorari or prohibition c. Remedy is appeal

d. Otherwise known as Contempt in

Facie Curiae d. Otherwise known as Constructive
Contempt
Grounds DIRECT CONTEMPT INDIRECT CONTEMPT
Misbehavior in the presence of or so a. Misbehavior of an officer of a
near a court as to obstruct or court in the performance of his
interrupt the proceedings before the official duties or in his official
same, including: transactions;
a. Disrespect toward the court b. Disobedience of or resistance to a
b. Offensive personalities toward lawful writ, process, order, or
others, or judgment of a court, including the
c. Refusal to be sworn or to answer act of a person who, after being
as a witness, or to subscribe an dispossessed or ejected from any
affidavit or deposition when real property by the judgment or
lawfully required to do so. (S1) process of any court of competent
d. Willful and deliberate forum jurisdiction, enters or attempts or
shopping [Sec. 5, Rule 7] induces another to enter into or
e. Submission of pleadings upon such real property, for the
containing derogatory, offensive, purpose of executing acts of
and malicious statements ownership or possession, or in any
submitted to the court [Re: Letter manner disturbs the possession
of Atty. Noel Sorreda, A.M. No. 05- given to the person adjudged to
3-4-SC (2005)] be entitled thereto;
c. 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;
d. Any improper conduct tending,
directly or indirectly, to impede,
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;
f. Failure to obey a subpoena duly
served;
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.

Other examples
a. Submission, of a false certification
 of nonforum shopping or non-
compliance with any of the
undertakings [Sec. 5, Rule 7]
b. Upon a judgment obligor’s failure
to pay any such installment when
due without good excuse, if the
court orders him to pay the
judgment in fixed monthly
installments [Sec. 40, Rule 39]

Effect of ► The execution of the judgment ► Execution of the judgment or final

Petition shall be suspended pending order shall NOT be suspended
resolution of such petition until a bond is filed by the person
► Person adjudged in direct adjudged in contempt
contempt to file a bond fixed by
court

How a. Criminal: State is the real a. Motu proprio by the court

commenced prosecutor b. Verified petition
b. Civil: instituted by the aggrieved
party, or his successor, or
someone who has pecuniary
interest in the right to be
protected.

Jurisdiction a. Committed against a RTC or a

court of equivalent or higher
rank, or against an officer
appointed by it, the charge may
be filed with such court.
b. Committed against a lower court,
the charge may be filed with the
RTC 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
RTC of such place in the same
manner as provided in Sec. 2,
Rule 71.