RULE 66: QUO WARRANTO

1.Mendoza vs Allas: President Ramos became the president. Mendoza was transferred from Bureau of Customs in Manila Port Harbor to Cagayan De Oro. Allas replaced Mendoza’s position in an acting capacity. Mendoza filed a case of quo warranto in Parañaque. (General rule on venue: Section 4 of Rule 4, that which is provided for by law or the Rules. If there is no provision, agreement of the parties will be followed. If there is no agreement, distinction must be made as to what kind of action it is. Apply sections 1 and 2 of Rule 4. If it is a real action, it should be filed where the property is located. If it is a personal action, it should be filed at the residence of the plaintiff or the defendant, at the option of the plaintiff.) According to Rule 66, the venue of quo warranto is the residence of the respondent. Mendoza won. Allas appealed the case with the CA. Pending appeal, Allas was promoted, vacating therefore the office. However, Ramos had in mind Olores to take Allas’ place, pending appeal. What happened to the appeal? he appeal was dismissed because the subject matter no longer held the position. Because of the dismissal of the appeal, the judgment became final and executory. Mendoza asked for execution of the judgment. as a writ of execution issued? Yes. It could not be enforced. he doctrine is while quo warranto is directed to a public office (the object of quo warranto is a public office), a decision on quo warranto is not directed to the office, but rather to the public officer occupying the office. Considering the basic rule in position that a person not a party to the case cannot be subject of any judgment, Olores is not a subject of this judgment because he is not a party to that case.

5. DE CASTRO V CARLOS

FACTS: Petition for the issuance ofa writ ofquo warranto under Rule 66 filed by Emmanuel A. de Castro (petitioner) seeking to oust respondent Emerson S. Carlos (respondent) from the position of assistant general manager for operations (AGMO) of the Metropolitan Manila Development Authority (1\t~MDA).

On 29 July 2009, then Presideni Gloria Macapngnl Arroyo appointed 1petitioner as AGM0. His appointment was cvncurred in by the members of the Metro Manila Council in MMDA.

OP Memorandum Circular No. 2 states:

2. All non-Career Executive Service Officials (non-CESO) occupying Career Executive Service (CES) positions in all agencies of the executive branch shall remain in office and continue to perform their duties and discharge their responsibility until October 31, 2010 or until their resignations have been accepted and/or until their respective replacements have been appointed or designated, whichever comes first, unless they are reappointed in the meantime.4On 30 July 2010, Atty. Francis N. Tolentino, chairperson of the MMDA, issued Office Order No. 106,5 designating Corazon B. Cruz as officer-in-charge (OIC) of the Office of the AGMO. Petitioner was then reassigned to the Legal and Legislative Affairs Office, Office of the General Manager. The service vehicle and the office space previously assigned to him were withdrawn and assigned to other employees.

Subsequently, on 2 November 2010, Chairperson Tolentino designated respondent as OIC of the Office of the AGMO by virtue of Memorandum Order No. 24,6 which in turn cited OP Memorandum Circular No. 2 as basis. Thereafter, the name of petitioner was stricken off the MMDA payroll, and he was no longer paid his salary beginning November 2010.

Demanding payment of his salary and reinstatement in the monthly payroll,9 petitioner sent a letter on 5 December 2010 to Edenison Faisan, assistant general manager (AGM) for Finance and Administration; and Lydia Domingo, Director III, Administrative Services. For his failure to obtain an action or a response from MMDA, he then made a formal demand for his reinstatement as AGMO through a letter addressed to the Office of the President on 17 December 2010.10However, on 4 January 2011, President Benigno S. Aquino III (President Aquino) appointed respondent as the new AGMO of the MMDA.11 On 10 January 2011, the latter took his oath of office.

ISSUE: WON its proper for the petitioner to file the petition for quo warranto sirectly to the SC?

2 WON the AGMO is a non ces and therefore covered by OP memorandum circular 2.

HELD: NO. petitioner submits that a direct recourse to this Court is warranted by the urgent demands of public interest, particularly the veritable need for stability in the civil service and the protection of the rights of civil servants. Moreover, considering that no other than the President of the Philippines is the appointing authority, petitioner doubts if a trial court judge or an appellate court justice, with a prospect of promotion in the judiciary would be willing to go against a presidential appointment.

Although Section 5(1) of Article VIII of the 1987 Constitution explicitly provides that the Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus, the jurisdiction of this Court is not exclusive but is concurrent with that of the Court of Appeals and regional trial court and does not give petitioner unrestricted freedom of choice of court forum.16 The hierarchy of courts must be strictly observed.

Settled is the rule that “the Supreme Court is a court of last resort and must so remain if it is to satisfactorily perform the functions assigned to it by the fundamental charter and immemorial tradition.”17 A disregard of the doctrine of hierarchy of courts warrants, as a rule, the outright dismissal of a petition.18A direct invocation of this Court’s jurisdiction is allowed only when there are special and important reasons that are clearly and specifically set

forth in a petition.19 The rationale behind this policy arises from the necessity of preventing (1) inordinate demands upon the time and attention of the Court, which is better devoted to those matters within its exclusive jurisdiction; and (2) further overcrowding of the Court’s docket.20In this case, petitioner justified his act of directly filing with this Court only when he filed his Reply and after respondent had already raised the procedural infirmity that may cause the outright dismissal of the present Petition. Petitioner likewise cites stability in the civil service and protection of the rights of civil servants as rationale for disregarding the hierarchy of courts.Petitioner’s excuses are not special and important circumstances that would allow a direct recourse to this Court. More so, mere speculation and doubt to the exercise of judicial discretion of the lower courts are not and cannot be valid justifications to hurdle the hierarchy of courts. Thus, the Petition must be dismissed.

2. AGMO is a CES position therefore covered by OP memo circular 2. Petitioner position is co-terminious with the appointing official or president GMA in this case.

RULE 67:EXPRORIATION CASES

CITY OF MANILA V SERRANO

SEC. 10. Modes for Land Acquisition.--- The modes of acquiring lands for purposes of this Act shall include, amount others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint-venture agreement, negotiated purchase, and expropriation: Provided, however, That expropriation shall be resorted to only when other modes of acquisition have been exhausted: Provided, further, That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act: Provided, finally, That abandoned property, as herein defined, shall be reverted and escheated to the State in a proceeding analogous to the procedure laid down in Rule 91 of the Rules of Court.

Expropriation should be the final resort or the last recourse. SC did not accept the argument of the Serranos that their land is only 300+ sqm (which would be a lot smaller after it has been distributed among the family members). he Serranos still won because Manila immediately expropriated when it could still have looked for some other properties.

NAPOCOR VS CA REPUBLIC V ANDAYAIssue: Is the Republic liable for just compensation if in enforcing the legal easement of right-of-way on a property, the remaining area would be rendered unusable and uninhabitable?

It is undisputed that there is a legal easement of right-of-way in favor of the Republic. We are unable t sustain Republic's argument that it is not liable to pay consequential damages if in enforcing the legal easement of Andaya's property, the remaining area would be rendered unusable and uninhabitable.

TAKING in the exercise of the power of eminent domain occurs not only when the government actually deprives or dispossesses the property owner of his property or of its ordinary use, but also when there is practical destruction or material impairment of the value of his property. Using this standard, there was undoubtedly a taking of the remaining area of Andaya's property.

True, no burden was imposed thereon and Andaya still retained title and possession of the property. But the nature and the effect of the floodwalls would deprive Andaya of the normal use of the remaining areas. It would prevent ingress and egress to the property and turn it into a catch basin for the floodwaters coming form the Agusan River.

For this reason, in our view, Andaya is entitled to payment of just compensation, which must be neither more nor less that the monetary equivalent of the land.

JC (Just Compensation) = FMV (Fair Market Value) + CD (Consequential Damages) - CB (Consequential Benefits) (CB should not exceed CD)

Eminent Domain is the substantive law. Expropriation is the procedural law. Public use or public purpose may cater only to a minority.

ASIA’s EMERGING DRAGON VS DOTC

Section 1 of Commonwealth Act No. 538[10] enlightens, however: Section 1. When the Government seeks to acquire, through purchase or expropriation proceedings, lands belonging to any estate or chaplaincy (cappellania), any action for ejectment against the tenants occupying said lands shall be automatically suspended, for such time as may be required by the expropriation proceedings or the necessary negotiations for the purchase of the lands, in which latter case, the period of suspension shall not exceed one year. To avail himself of the benefits of the suspension, the tenants shall pay to the landowner the current rents as they become due or deposit the same with the court where the action for ejectment has been instituted. (emphasis and underscoring supplied)

Petitioners position does not lie.The exercise of expropriation by a local government unit is covered by Section 19 of the Local Government Code (LGC): SEC. 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value of the property.Lintag v. National Power Corporation[11] clearly outlines the stages of expropriation, viz: Expropriation of lands consists of two stages:The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not of dismissal of the action, "of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint x x x. The second phase of the eminent domain action is concerned with the determination by the court of "the just compensation for the property sought to be taken." This is done by the court with the assistance of not more than three (3) commissioners x x x .It is only upon the completion of these two stages that expropriation is said to have been completed. The process is not complete until payment of just compensation. Accordingly, the issuance of the writ of possession in this case does not write finis to the expropriation proceedings. To effectuate the transfer of ownership, it is necessary for the NPC to pay the property owners the final just compensation.[12] (emphasis and underscoring supplied) In the present case, the mere issuance of a writ of possession in the expropriation proceedings did not transfer ownership of the lots in favor of the City. Such issuance was only the first stage in expropriation. There is even no evidence that judicial deposit had been made in favor of respondents prior to the Citys possession of the lots, contrary to Section 19 of the LGC.

Respecting petitioners claim that they have been named beneficiaries of the lots, the city ordinance authorizing the initiation of expropriation proceedings does not state so.[13] Petitioners cannot thus claim any right over the lots on the basis of the ordinance.

Even if the lots are eventually transferred to the City, it is non sequitur for petitioners to claim that they are automatically entitled to be beneficiaries thereof. For certain requirements must be met and complied with before they can be considered to be beneficiaries. In another vein, petitioners posit that respondents failed to prove that their possession is by mere tolerance. This too fails. Apropos is the ruling in Calubayan v. Pascual:[14] In allowing several years to pass without requiring the occupant to vacate the premises nor filing an action to eject him, plaintiffs have acquiesced to defendants possession and use of the premises. It has been held that a person who occupies the land of another at the latters tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against them. The status of the defendant is analogous to that of a lessee or tenant whose term of lease has expired but whose occupancy continued by tolerance of the owner. In such a case, the unlawful deprivation or withholding of possession is to be counted from the date of the demand to vacate. (emphasis and underscoring supplied)

RULE 68: FORECLOSURE OF REAL ESTATE MORTGAGE

1 RAMIREZ VS MANILA BANKING CORPORATION

Doctrine: We have consistently held that unless the parties stipulate, personal notice to the mortgagor in extrajudicial foreclosure proceedings is not necessary because Section 31 of Act No. 31352 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.3

FACTS: Petitioner Jose T. Ramirez mortgaged two parcels of land located at Bayanbayanan, Marikina City and covered by Transfer Certificate of Title (TCT) Nos. N-107226 and N-230337 in favor of respondent The Manila Banking Corporation to secure his P265,000 loan. The real estate mortgage provides that all correspondence relative to the mortgage including notifications of extrajudicial actions shall be sent to petitioner Ramirez at his given address.

Respondent filed a request for extrajudicial foreclosure of real estate mortgage9 before Atty. Hipolito Sañez on the ground that Ramirez failed to pay his loan despite demands. During the auction sale on September 8, 1994, respondent was the only bidder for the mortgaged properties.10 Thereafter, a certificate of sale11 was issued in its favor as the highest bidder.

The trial court ruled that the extrajudicial foreclosure proceedings were null and void and the certificate of sale is invalid. The fallo of the Decision14 dated June 30, 2003 of the Regional Trial Court, Branch 193, Marikina City, in Civil Case No. 2001-701-MK reads:

The CA reversed the trial court’s decision and ruled that absence of personal notice of foreclosure to Ramirez as required by paragraph N of the real estate mortgage is not a ground to set aside the foreclosure sale.16 The fallo of the assailed CA Decision reads:

ISSUE: What is the legal effect of violating paragraph N of the deed of mortgage which requires personal notice to the petitioner-mortgagor by the respondent-mortgagee bank?

HELD: We agree with Ramirez and grant his petition.

The CA erred in ruling that absence of notice of extrajudicial foreclosure sale to Ramirez as required by paragraph N of the real estate mortgage will not invalidate the extrajudicial foreclosure sale. We rule that when respondent failed to send the notice of extrajudicial foreclosure sale to Ramirez, it committed a contractual breach of said paragraph N sufficient to render the extrajudicial foreclosure sale on September 8, 1994 null and void. Thus, we reverse the assailed CA Decision and Resolution.

2. MARQUEZ V ALINDOG

FACTS: Records show that sometime in June 1998, petitioner Anita J. Marquez (Anita) extended a loan in the amount of P500,000.00 to a certain Benjamin Gutierrez (Gutierrez). As security therefor, Gutierrez executed a Deed of Real Estate Mortgage6 dated June 16, 1998 over a parcel of land located in Tagaytay City with an area of 660 square meters, more or less, covered by Transfer Certificate of Title (TCT) No. T-134437 (subject property), registered under the name of Benjamin A. Gutierrez, married to Liwanag Camerin (Sps. Gutiererez). The mortgage was duly annotated on the dorsal portion of TCT No. T-13443, which Sps. Marquez had verified as clean prior to the mortgage.8

Since Gutierrez defaulted in the payment of his loan obligation, Anita sought the extra-judicial foreclosure of the subject property. At the public auction sale held on January 19, 2000, Anita emerged as the highest bidder for the amount of P1,171,000.00.9 Upon Gutierrez’s failure to redeem the same property within the prescribed period therefor, title was consolidated under TCT No. T-4193910 on November 5, 2001 (in the name of Anita J. Marquez, married to Nicasio C. Marquez) which, however, bore an annotation of adverse claim11 dated March 2, 2000 in the names of respondents-spouses Carlito and Carmen Alindog (Sps. Alindog). Said annotation was copied from an earlier annotation on TCT No. T-13443 made only after the subject property’s mortgage to Sps. Marquez.

Subsequently, or on March 21, 2000, Sps. Alindog filed a civil case for annulment of real estate mortgage and certificate of sale with prayer for damages against Sps. Marquez and a certain Agripina Gonzales (Gonzales) before the RTC, docketed as Civil Case No. TG-1966 (annulment case). In their complaint,12 Sps. Alindog alleged that they purchased13 the subject property from Gutierrez way back in September 1989, but were unable to secure a certificate of title in their names because Gonzales – to whom they have entrusted said task

– had deceived them in that they were assured that the said certificate was already being processed when such was not the case.14 Eventually, they found out that the property had already been mortgaged to Sps. Marquez, and that when they tried to contact Gonzales for an explanation, she could no longer be found. Separately, Sps. Alindog averred that when the mortgage was executed in favor of Sps. Marquez, Gutierrez was already dead.15

In their defense,16 Sps. Marquez disputed Sps. Alindog’s ownership over the subject property, arguing that the purported sale in the latter’s favor was never registered and therefore, not binding upon them. Further, they insisted that their certificate of title, TCT No. T-41939, was already indefeasible, and cannot be attacked collaterally.

Meanwhile, on March 16, 2005, Anita filed an ex-parte petition for the issuance of a writ of possession17 (ex-parte petition) before the RTC, docketed as LRC Case No. TG-05-1068, claiming that the same is ministerial on the court’s part following the consolidation of her and her husband’s title over the subject property. Impleaded in said petition are Sps. Gutierrez, including all persons claiming rights under them.

ISSUE: who has a beter right to the property?

whether or not the CA erred in finding no grave abuse of discretion on the part of the RTC when it issued the injunctive writ which enjoined Sps. Marquez from taking possession of the subject property.

HELD: The petition is meritorious.

It is an established rule that the purchaser in an extra-judicial foreclosure sale is entitled to the possession of the property and can demand that he be placed in possession of the same either during (with bond) or after the expiration (without bond) of the redemption period therefor. To this end, the Court, in China Banking Corp. v. Sps. Lozada41 (China Banking Corp.), citing several cases on the matter, explained that a writ of possession duly applied for by said purchaser should issue as a matter of course, and thus, merely constitutes a ministerial duty on the part of the court, viz.:42

The procedure for extrajudicial foreclosure of real estate mortgage is governed by Act No. 3135, as amended. The purchaser at the public auction sale of an extrajudicially foreclosed real property may seek possession thereof in accordance with Section 7 of Act No. 3135, as amended, which provides:

SEC. 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance of the province or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing 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. Such petition shall be made under oath and filed in form or an ex parte motion in the registration or cadastral proceedings if the property is registered, or in special proceedings in the case of property

registered under the Mortgage Law or under section one hundred and ninety-four of the Administrative Code, or of any other real property encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any existing law, and in each case the clerk of court shall, upon the filing of such petition, collect the fees specified in paragraph eleven of section one hundred and fourteen of Act Numbered Four hundred and ninety six as amended by Act Numbered Twenty-eight hundred and sixty-six, and 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.

The ministerial issuance of a writ of possession in favor of the purchaser in an extra-judicial foreclosure sale, however, admits of an exception. Section 33,45 Rule 39 of the Rules of Court (Rules) pertinently provides that the possession of the mortgaged property may be awarded to a purchaser in an extra-judicial foreclosure unless a third party is actually holding the property by adverse title or right. In the recent case of Rural Bank of Sta. Barbara (Iloilo), Inc. v. Centeno,46 citing the case of China Banking Corp., the Court illumined that "the phrase ‘a third party who is actually holding the property adversely to the judgment obligor’ contemplates a situation in which a third party holds the property by adverse title or right, such as that of a co-owner, tenant or usufructuary. The co-owner, agricultural tenant, and usufructuary possess the property in their own right, and they are not merely the successor or transferee of the right of possession of another co-owner or the owner of the property. Notably, the property should not only be possessed by a third party, but also held by the third party adversely to the judgment obligor."47 In other words, as mentioned in Villanueva v. Cherdan Lending Investors Corporation,48 the third person must therefore claim a right superior to that of the original mortgagor.

In this case, it is clear that the issuance of a writ of possession in favor of Sps. Marquez, who had already consolidated their title over the extra-judicially foreclosed property, is merely ministerial in nature. The general rule as herein stated – and not the exception found under Section 33, Rule 39 of the Rules – should apply since Sps. Alindog hinged their claim over the subject property on their purported purchase of the same from its previous owner, i.e., Sps. Gutierrez (with Gutierrez being the original mortgagor). Accordingly, it cannot be seriously doubted that Sps. Alindog are only the latter’s (Sps. Gutierrez) successors-in-interest who do not have a right superior to them.

3. ARDIENTE V PROVINCIAL SHERIFF 4. LZK HOLDINGS V PLANTERS DEV BANK

FACTS: LZK Holdings obtained a P40,000,000.00 loan from Planters Bank on December 16, 1996 and secured the same with a Real Estate Mortgage over its lot located in La Union. The lot measures 589 square meters and is covered by Transfer Certificate of Title No. T-45337.

On September 21, 1998, the lot was sold at a public auction after Planters Bank extrajudicially foreclosed the real estate mortgage thereon due to LZK Holdings' failure to pay its loan. Planters Bank emerged as the highest bidder during the auction sale and its certificate of sale was registered on March 16, 1999.

On April 5, 1999, LZK Holdings filed before the RTC of Makati City, Branch 150, a complaint for annulment of extra judicial foreclosure, mortgage contract, promissory note and damages. LZK Holdings also prayed for the issuance of a temporary restraining order (TRO) or writ of preliminary injunction to enjoin the consolidation of title over the lot by Planters Bank.

Meanwhile, upon motion of LZK Holdings, the RTC-Makati declared as null and void the consolidated title of Planters Bank in an Order5 dated June 2, 2000. Such ruling was affirmed by the CA in a Decision6 dated February 26, 2004 in CA-G.R. SP No. 59327. When the matter reached the Court via G.R. No. 164563, we sustained the CA's judgment in our Resolution7 dated September 13, 2004.

Planters Bank also appealed the May 11, 2000 Order of the RTC-San Fernando which held in abeyance the resolution of its ex parte motion for the issuance of a writ of possession. This time, Planters Bank was victorious. The CA granted the appeal and annulled the assailed order of the RTC-San Fernando. Aggrieved, LZK Holdings sought recourse with the Court in a petition for review docketed as G.R. No. 167998.8 In Our Decision dated April 27, 2007, we affirmed the CA's ruling and decreed that Planters Bank may apply for and is entitled to a writ of possession as the purchaser of the property in the foreclosure sale, viz:

"A writ of possession is a writ of execution employed to enforce a judgment to recover the possession of land. It commands the sheriff to enter the land and give possession of it to the person entitled under the judgment. It may be issued in case of an extrajudicial foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as amended by Act No. 4118.

Under said provision, the writ of possession may be issued to the purchaser in a foreclosure sale either within the one-year redemption period upon the filing of a bond, or after the lapse of the redemption period, without need of a bond.

ISSUE: WON a hearing is necessary in granting writ of possession

HELD: No

We cannot also uphold the contentions of LZK Holdings that the RTC, in issuing the writ of possession, transgressed Act No. 3135.23

No hearing is required prior to the issuance of a writ of possession. This is clear from the following disquisitions in Espinoza v. United Overseas Bank Phils.24 which reiterates the settled rules on writs of possession, to wit:

The proceeding in a petition for a writ of possession is ex parte and summary in nature.1âwphi1 It is a judicial proceeding brought for the benefit of one party only and without notice by the court to any person adverse of interest. It is a proceeding wherein relief is granted without giving the person against whom the relief is sought an opportunity to be heard.

By its very nature, an ex parte petition for issuance of a writ of possession is a non-litigious proceeding. It is a judicial proceeding for the enforcement of one's right of possession as purchaser in a foreclosure sale. It is not an ordinary suit filed in court, by which one party sues another for the enforcement of a wrong or protection of a right, or the prevention or redress of a wrong.25 (Citations omitted)

Given the ex-parte nature of the proceedings for a writ of possession, the R TC did not err in cancelling the previously scheduled hearing and in granting Planters Bank's motion without affording notice to LZK Holdings or allowing it to participate.

GOLDENWAY MERCHANDISING CORP V EQUITABLE PCI BANK

FACTS: