Mailene A.

Caparroso New Era College of Law

Finals Exam Atty. Jose Antonio T. Aliling

Answer Question No. 1 A. Provisional Remedies REMEDY PURPOSE The chief purpose of the remedy of attachment is to Preliminary secure a contingent lien on the defendants property Attachment

Preliminary Injunction

Receivership

Replevin Support Pendente Lite B. Special Civil Actions Special Civil Action Interpleader

until plaintiff can by appropriate proceedings, obtain a judgment and have such property applied to its satisfaction, or to make some provision for unsecured debts in case where the means of satisfaction thereof are liable to be removed beyond the jurisdiction, or improperly disposed of or concealed, or otherwise placed beyond the reach of creditors. Its purpose is to preserve the status quo pending a full trial that is the last actual, peaceful and uncontested status that preceded the controversy, and provides an assurance that any eventual final judgment will not be rendered useless and ineffectual. A receiver is a person appointed by the court, or in this instance, by a quasi- judicial administrative agency, in behalf of all the parties for the purpose of preserving and conserving the property and preventing Its possible destruction or dissipation it were left in the possession of any parties. A form of action which lies to regain the possession of personal chattels which have been taken from the plaintiff unlawfully x x x. To fix an amount of money for any of the support while the main action is pending.

Purpose
An action of interpleader is afforded to protect a person not against double liability but against double vexation in respect of one liability. It requires, as an indispensable requisite, that conflicting claims upon the same subject matter are or may be made against the plaintiff-in-interpleader who claim no interest whatever in the subject or an interest which in whole or in part is in possession of the property. The purpose of the petition is to determine the rights or legal obligation of a party and seek a declaratory judgment of the parties rights duties thereunder. For certiorari to lie, it must be shown that the tribunal, board or officer exercising judicial functions acted without or in excess of jurisdiction and that there is no plain, speedy and adequate remedy for the purpose of annulling or modifying the proceeding. Prohibition is the proper remedy to afford relief against a person or entity acted without or in excess of jurisdiction or power by an inferior court, or when in the exercise of jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the bounds prescribed to it by law, or when there is no adequate remedy available in the ordinary course of law by which such relief can be obtained. The purpose of writ of prohibition is to prevent an act by a respondent. Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use and not a discretionary duty.

Declaratory Relief Certiorari

Prohibition

Mandamus

Quo Warranto

Expropriation Foreclosure Partition

Ejectment

Contempt

It is important to note this, because as will presently be explained proceeding under S78 of the Omnibus election code have for their purpose to disqualify a person from being a candidate, whereas quo warranto proceedings have for their purpose to disqualify a person from holding an office. For purposes of exercising the States power of eminent domain. For purpose of satisfaction of debt. The purpose of partition is to put an end to coownership. It seeks a severance of the individual interests of each joint owner vesting in each of them a sole estate in a specific property and a right to enjoy the allotted estate without supervision or interference. Settled is the rule that the issue in an ejectment case is the right to physical possession of the premises or possession de facto. The suit is intended to restore to the aggrieved party the possession of the premises which had been detained from him. It is dependent of any claim of ownership or title that either party may set forth in his pleadings or in other cases. X x x x the salutary rule is the power to punish for contempt must be exercised on the preservative not vindictive principle, and on the corrective and not retaliatory idea of punishment. The courts and other tribunals vested with the power of contempt must exercise the power to punish for contempt for purposes that are impersonal, because that power is intended as a safeguard not for the judges as persons but for the functions that they exercise.

Answer to Question 2 1. Preliminary attachment is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case. While foreclosure is the process of taking possession of a mortgaged property as a result of someone's failure to keep up mortgage payments. 2. A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction (Sec. 1). On the other hand a prohibition is an extraordinary writ commanding a tribunal, corporation, board or person, whether exercising judicial, quasi-judicial or ministerial functions, to desist from further proceedings when said proceedings are without or in excess of its jurisdiction, or with abuse of its discretion, there being no appeal or any other plain, speedy and adequate remedy in the ordinary course of law (Sec. 2, Rule 65). 3. Direct contempt is misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same. It includes disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so. (Section 1, Rule 71 of the 1997 Revised Rules on Civil Procedure). While indirect contempt provides for an acts which are not committed in the court's presence and punished only after due process. This includes the following acts; (a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property 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;(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. (Section 3, Rule 71). 4. Declaratory relief refers to a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. By seeking a declaratory judgment, the party making the request is seeking for an official declaration of the status of a matter in controversy. Optimally, the resolution of the rights of the parties involved will prevent further litigation. For example, a party to a contract may seek the legal interpretation of a contract to determine the parties' rights, or an insured may seek a determination of insurance coverage under a policy. While advisory opinion is a statement of a court on how it may rule on a legal issues if it is brought before it. This opinion is binding neither on the court nor the parties requesting it, and is reliable only to extent the facts presented to the court are accurate and complete. 5. Judicial foreclosure is a judgment by a court in favor of foreclosure of a mortgage or deed of trust, which orders that the real property which secured the debt be sold under foreclosure proceedings to pay the debt. The party suing probably has chosen to seek a judicial foreclosure rather than use the foreclosure provisions of the mortgage or deed of trust. Usually this move is made to get a "deficiency judgment" for any amount still owed after the foreclosure sale. Thus it results from a court action rather than from the power of sale given to a trustee. not have Judicial foreclosures occur a power of sale clause, when a trust deed or mortgage deed does thus compelling

the lender to take the borrower to court. There is Equity of Redemption which is the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within 90-120 days after the entry of judgment or even after the sale but before confirmation. This is in contrast to extra-judicial foreclosure, in which a foreclosure can be completed outside the court system. This process involves the sale of the property by the mortgage holder without court supervision. This process is generally much faster and cheaper than foreclosure by judicial sale. There exist a Right of Redemption which is the right of the debtor, his successor in interest or any

judicial creditor or judgment creditor of the debtor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property within one (1) year from the registration of the of the sheriffs certificate of foreclosure sale. Answer to Question no. 3 Provisional Remedies Preliminary Attachment Use to answer for the damages and costs, which adjudged, may to be the The bond is filed by the plaintiff, but the defendant may also file a counter bond in order to discharge the property attach. Preliminary Injunction To make sure that if damages are suffered while an injunction is in available to place, the compensation will be injured party if and when the injunction is lifted. Receivership Its purpose the is for as to all The receiver is also required bond. to file a they to them The applicant files the bond. Bond is mandatory require fiduciary especially real person duties, and the court fixes it. The plaintiff files the bond. The amount of bond is addressed to the sound discretion of the court. Purpose of the bond Who files the bond How much is the amount of bond The amount of bond is addressed to the sound discretion of the court.

adverse party.

responsible

apply to the sale of estate, discharge according to law. In order to sustain damages reason that of a the person may suffer by appointment of such receiver in case the applicant shall have procured sufficient cause Replevin Executed to such appointment without

replevin by a

bond

is are

The bond is double the value of the personal seized. property

indemnify the person from whose custody the taken sustain. Foreclosure This to protects the property for was such

filed where

plaintiff

they in

asserting to hands defendant.

ownership the the of

property

damages as he may

The debtor files the foreclosure bond.

Foreclosure amount of debt.

bond

creditor if the attempt stop foreclosure is simply an attempt to escape the foreclosure of a property.

must be equal to the

REPUBLIC OF THE PHILIPPINES NATIONAL JUDICIAL REGION REGIONAL TRIAL COURT BRANCH 1, QUEZON CITY

UNIVERSAL SOLAR BANK, Plaintiff, -versusCivil Case No. 12345 FOR: SUM OF MONEY AND DAMAGES MERCURIO E. PLANETO, Defendant.
x-----------------------------------------------------x

COMPLAINT
Plaintiff, by Counsel, and unto this Honorable Court respectfully states that; 1. That the plaintiff is a corporation duly organized and existing under the laws of the Philippines, having its principal office at no. 3 Evangelista St. Commonwealth Ave. Quezon City; 2. That defendant Mercurio E. Planeto is of legal age, Filipino citizen and a resident of 532 M.F. Jhocson St. Sampaloc Manila where he may be served with summons and other Court processes; 3. That on April 24, 2011, the defendant obtained a loan from the plaintiff in the sum of One Hundred and Fifty Thousand pesos (P150, 000.00) to be fully paid on its due date which is on July 24, 2011 as evidenced by a Promissory Note dated April 24, 2011, photocopy of which is hereto attached as Annex A; 4. That defendant was able to pay only the amount of P15.000.00 from the principal amount and despite the lapse of the period to pay the loan, defendant failed to pay his total obligation thereby entitling the plaintiff to be paid of the unpaid principal in addition to the agreed 20% per annum by way of interest and 20 % per annum by way of penalty; 5. That said loan now long overdue despite of repeated demands and he failed and refused and continue to fail and refuse to pay

the same as evidenced by the Demand Letter send by the Banks Legal Counsel, photocopy of which is hereto attached as Annex B and made an integral part hereof; 6. That repeated demands were made for the defendant to pay his obligation but he failed to pay; 7. There is no other sufficient security for the claim sought to be enforced by this action but to attach the real property of the defendant located at 555 Halamanan St. Litex Road Quezon City, with an assessed value amounting to One Hundred Fortytwo Thousand and Three Hundred Eight Pesos (P142,308.00); 8. The amount due to the plaintiff is as much as the sum for which the order of attachment is herein sought, above all legal counterclaims; 9. The plaintiff is also entitled to Writ of Preliminary Injunction to restrain any person from converting or disposing the property subject of attachment. 10. As shown by the foregoing allegations, a sufficient cause of action exist and this case is one of those enumerated in Section 1, Rule 57 and Sec. 1 of Rule 58 of the 1997 Rules of Civil Procedure; 11. Plaintiff is willing to post a bond executed to the property attached and party enjoined, in an amount to be fixed by this Honorable Court, to effect that the plaintiff will pay to such party all damages which respondent or the government may sustain by reason of the attachment and the injunction if this Honorable Court should finally decide that the plaintiff was not entitled thereto.

PRAYER

WHEREFORE, premises Honorable Court to:

considered,

respectfully

prayed

of

this

1. Immediately upon the filing of this Complaint, an order of Writ of Preliminary Attachment and Writ of Preliminary Injunction shall forthwith be issued; 2. After due trial, judgment be rendered ordering the defendant to pay plaintiff: a. To pay Plaintiff the sum of One Hundred Thirty Five Thousand (P135,900.00) with interest at 20% per annum by way of interest and 20% per annum by way of penalty.

b. Attorneys Fees of 10% of the principal amount; c. The cost of suit. Other just and equitable reliefs are also prayed for. Commonwealth, Quezon City, September 11, 2011. Ktarinting
Atty. Kay A. Tarinting -Counsel for PlaintiffCommonwealth, Quezon City PTR No. 98765 Issued on; Nov. 13, 2003 Issued at: Commonwealth, Quezon City IBP No. 897654 Issued on; Dec. 02, 2004 Issued at: Quezon City Roll No. 67854 MCLE Compliance no: 183456

ANNEX A

UNIVERSAL SOLAR BANK PROMISSORY NOTE

Name:

MERCURIO E. PLANETO

Borrower Information: Date: April 24, 2011 Date of Birth: July 28, 1969

532 M.F. Jhocson St. Sampaloc Manila

Street Address: City: Manila Province :Gumaca, Quezon Zip:

Area code/Telephone number: 1008/ 7353890 Drivers License Number: N07-12-12345 Social Security Number: SSS-564271-76

Name:

UNIVERSAL SOLAR

Lender Information: Area code/Telephone number: 1122/ 4747093 BANK If paying by check, make check payable to:

no. 3 Evangelista St. Commonwealth Ave.

Street Address: City: Quezon Province: N/A Zip:

UNIVERSAL SOLAR BANK

Send payments to:

city

UNIVERSAL SOLAR BANK

Loan Amount:

Loan Information: Loan Period: THREE MONTHS

One Hundred and Fifty Thousand pesos (P150, 000.00).

Interest Rate:

Payment Schedule:

20% per annum by way of interest and 20 % per annum by way of penalty.

July 24, 2011

MercurioPlaneto ___________________
Borrowers Signature

ANNEX B

August 16, 2011

Dear Mr. MERCURIO E. PLANETO, Our accounting department has turned your past due account over to me hoping that I could persuade you to bring it current prior to forwarding your file to our legal department. When our firm extends credit to an individual such as yourself, it bases its decision on that applicants previous credit history and ability to pay. When you requested credit form us, you met all of this criteria. Today, however, your account has reached the critical stage. You can avoid any additional costs if you mail your check in the amount of One Hundred Forty-Eight Thousand and Nine Hundred pesos (P148, 900.00) including the accumulated interest. I must hear from you within five days.

Sincerely, Atty. Kay Tarinting US BANK Legal Counsel

VERIFICATION /CERTIFICATION

That I, Kristal Mae A. Balagtas, after having duly sworn to in accordance with law, do hereby depose and say: 1. That I am the President / CEO / Chairperson of the Universal Solar Bank with its principal office address at no. 3 Evangelista St. Commonwealth Ave. Quezon City. 2. That I caused the preparation and filing of the foregoing Complaint. 3. That all the allegations therein stated are true and correct to the best of my knowledge and information. 4. That I did not commence any other actions or proceeding involving the same issues in any court, tribunals or agency; 5. That shall I learn thereafter that a similar action or proceeding has been filed or is pending before any court, tribunal, or agency, undertake to report that fact within five (5) days to this Court. Commonwealth, Quezon City, September 11, 2011.

KBalagtas
Kristal Mae A. Balagtas CTC No. 9870677 Issued on: 01-03-11 Issued at: Quezon, City SUBSCRIBED AND SWORN to before me this 11th day of September 2011 at Quezon City.

JoseLopez
Atty. Jose L. Lopez JR NOTARY PUBLIC Until December 31, 2011 PTR No. 0138435 Dated: November 13, 2004 DOC. No. _55__ PAGE No.__7__ Book No. _XXV_ Series of 2011 Copy furnished: Mercurio E. Planeto 532 M. F. Jhocson St. Sampaloc Manila By registered mail due to distance and lack of regular messenger to effect service. Ktarinting
Atty. Kay A. Tarinting

COMMONWEALTH, QUEZON CITY