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Rule 68-69.pdf

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RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE Two (2) types of foreclosure Judicial Foreclosure= is governed by Rule 68 Extrajudicial Foreclosure= when so provided in the contracts in accordance with Act 3135 as amended by Act 4118. Q= Where to brought action? A= In the RTC where the land or any part thereof is situated. Q= How if the Mortgage Contract covers several distinct parcels of land situated in different premises? A= It can be filed at any branch of RTC of the province where
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  RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE  Two (2) types of foreclosureJudicial Foreclosure= is governed by Rule 68  Extrajudicial Foreclosure= when so provided in the contracts in accordance with  Act 3135 as amended by Act 4118. Q= Where to brought action?A=  In the RTC   where the land or any part thereof is situated. Q= How if the Mortgage Contract covers several distinct parcels of land situated in different premises?  A= It can be filed at any   branch of RTC of the province where any of the land is situated. Q= What action may a mortgagee can be filed for the amount due instead of the foreclosure suit?A=  Personal Action ( Movido vs. RFC, et al., 105 Phil 886). Q= What is the effect of the Personal Action?  A= Mortgagee will be deemed to have waive his right   to proceed against the property in foreclosure proceeding. Q= What is the essence and effect of Republication of Notice of Sheriff’s sale?A=  Republication is necessary   for the validity   of the sale. Another publication is required in case the auction sale is re-scheduled. Q=If there is no republication?A=  It invalidates  the foreclosure sale. Q= How about Unregistered REM?  A= It can be foreclosed  . General Rule=  cause of action rise  from non-payment   of mortgage. In addition, the violation  of some of the other conditions. Q= Who are defendants in foreclosure action?A=  1. Person oblige to pay debts; 2. Person who own, occupy, and control the property under mortgage; 3. Transferee or grantee; 4. Second mortgage, junior encumbrancer, third party claiming right and interest. Q= Suppose the action is brought by the junior encumbrancer?  A= First mortgage may also  joined   as a defendant. Q= Prescription of action for foreclosure of mortgage.  A=   Ten (10) years   (Art. 1142 of NCC) , an exception to  Art.1141 of NCC  , which speaks of real actions over immovable or rights (Jaime Beltran Luz vs. National Amnesty Commission, GR 159708). Dragnet Clause= (Mortgage Blanket Clause)Q= How Dragnet Clause Operates?A=  It is a convenience  and accommodation  to the borrowers as it makes available additional funds without   their having to execute additional security documents. Q= What is the effect if junior encumbrancer was not impleaded?A=  Junior encumbrancer will remain  his foreclosed right of redemption which is enforceable against first mortgage  or the  purchase of the foreclosure sale  under S.27(b), R39 which has suppletory effect   to R68 pursuant to S.2(a) R1. Right of Redemption vs. Equity of Redemption The former   is the right granted to the debtor-mortgagor, his successor in interest, or any judicial creditor or any person having a lien over the property subsequent to its mortgage to redeem the property within one (1) year   from the registration of the sheriff’s certificate of foreclosure sale.The latter   refers to the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the amount fixed in the decision of the court within ninety (90)   to one hundred twenty (120) days  after the entry of judgment or even after the foreclosure sale but prior to its confirmation. Writ of Possession in Judicial Foreclosure If foreclosure sale is confirmed, the court, upon motion, may issue WOP to install the buyer at auction into possession of the property sold. Deficiency Judgment= Motion may be made after the sale  and after it becomes know that a deficiency exists . It also can be rendered against a non-resident defendant  . DJ  cannot be rendered against the owner who is (a) not a mortgagor   and (b) has not assumed personal liability for the debt. Q= How if the debtor dies ?A= Deficiency may be filed against his estate . R86, S.17 S.2 Judgment on foreclosure for payment sale. Judgment oblige  to pay the  judgment account   within a  period   of not less than 90 days nor more than 120 days  from the entry   of the judgment. Q= Reglamentary period for appeal.A=  Thirty (30)  days, and record on appeal   shall be required. Q= What is the exception  in judicial foreclosure as regards with the right of redemption ?A=  As a rule, there is no such right of redemption  in judicial foreclosure, except   in the case of the mortgagee is a banking institution  as provided by the General Banking Act.  Judicially   or extrajudicially   foreclosure of mortgage to banking institution, is subject   to legal redemption. But the redeeming party must pay   the amount fixed by the court   in the order   of execution, not the amount for which the property was purchased public auction (Ponce de Leon vs. RFC, L-24571). S.3 Sale of mortgage property; effect.Last redemptioner, entitled to the possession of the propertyGR=  The  purchaser is entitled   to possession of the property sold to him upon finality   of the order of the confirmation of the sale; and the same is true  with respect to the last redemptioner  , upon the expiration of the period   of redemption. EXCEPTION=  Unless a third party   is actually holding   the same adversely to the  judgment obligor. R68, S.2.2 Q= What is the remedy under S.2 in foreclosure if the debt is not paid?A=  It is the ministerial duty   of the court to order the foreclosure sale  of the property. A motion  for such order is non-ligitable  and may be made ex-parte   (Govt. of Philippine Islands vs. De las Cajigas, 55 Phil.677). The motion for the confirmation of the sale requires a hearing.REASON=  To grant an opportunity   to the mortgagor to show cause  why the sale should not   be confirmed  (Tiglao vs. Botones, 90 Phil. 275). Order confirming the foreclosure sale appealable. Order confirming the foreclosure sale made by the sheriff is appealable. Upon foreclosure sale, titles vests in favor of the purchaser retroactive to the date of actual sale. Upon the foreclosure sale, the equity of redemption  is cut off   and titles vests in favor   of the purchaser retroactive  to the date of the actual sale (Grimalt vs. Velasquez, et al., 36 Phil. 936). RULE 69  PARTITION  Q= What is partition?A=  In general, is the separation, division and assignment of the thing held in common among to those whom it may belong (Art.1079, NCC). Two stages of the action. First Stage - Determination of the propriety of partition Involves a determination whether or not the subject property owned in common and whether the co-owners are made parties in the case. Q= Is the order of partition appealable?  A=  Yes (Miranda vs. CA, L-33007). Q= If not appealed?A=  The parties may partition the property in a way they want  . Q= If cannot agree?A=  The case goes into second stage . However, the order of accounting may in the meantime  be executed. Second Stage - The partitioning of the subject property This is also a complete  proceeding and the order or decision is appealable . Prescription of Action  Action for partition  is imprescriptible  for as long as the co-owners expressly or impliedly recognize  the co-ownership (Art.494, NCC). Q= How if a co-owner repudiates the co-ownership and makes know such repudiation to the other co-owners?A=  Partition is no longer a proper remedy of the aggrieved co-owner. REMEDY=  File accion reinvidicatoria. REASON=  Accion Reinvidicatoria is  prescriptible. Prior Partition  is valid even if title over the whole lot remains uncancelled. Q= Is the so-called Oral Partition  valid?A= Yes. When it is fully consummated upon the parties thereto, therefore, binding. Order of Partition  if after the trial court finds that the plaintiff has the right thereto, shall order the partition of the real estate among all the parties in interest (S.2 and 12). Q= Can the Parties make partition among themselves?A= Yes, provided the court shall confirm the partition  in an order in relation to the agreement of the parties. Q= Is there a need for recording?A=  Yes. In the Registry of Deed   where the property is situated (S.2). Q= Is the final order decreeing partition and accounting may be appealed and by whom?A= Yes, by the aggrieved   party. Q= Where to file action in order to acquire jurisdiction?A=   RTC  , where the property or a portion thereof is situated (R4, S.1). S.3 Commissioners to make partition.Q= When to appoint commissioners?A=  When the parties fails  to agree. Q= Whom to be appointed as commissioners?A=  Three (3) competent   and disinterested   persons. Q= What are the duties of the commissioners?A=  1. Shall set-off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct; 2. Commissioners shall take oath  before performing their duties (S.4).
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