Civil Procedure Presentation

7/29/2019 Civil Procedure Presentation

1/117

Enforcement of Judgment


2/117

Upon judgment or Final Order

Rule 39, Section 1

Execution shall issue as a matter of right, on motion, upon ajudgment or order that disposes of the action or proceeding uponthe expiration of the period to appeal therefrom if no appeal hasbeen duly perfected.

If the appeal has been duly perfected and finally resolved, theexecution may forthwith be applied for in the court of origin, onmotion of the judgment obligee, submitting therewith certified truecopies of the judgment or judgments or final order or orders soughtto be enforced and of the entry thereof, with notice to the adverseparty.

The appellate court may, on motion in the same case, when theinterest of justice so requires, direct the court of origin to issue thewrit.


3/117

The general rule is that execution is a matter of right.

Issuance of a writ of execution becomes a ministerial duty of

the court once a decision becomes final and executory.

Judgments and orders become final and executory by operation

of law in to aspects:

A) For purposes ofbinding effect, finality arises when the

reglementary period for appeal lapses , and no appeal is

perfected within such period.

B) For purposes ofappeal, an order is final if it disposes ofthe action, when nothing is left to be done in the trial

court with respect to the merits of the case.


4/117

There is therefore a need to file a motion for the issuance of a writof execution.

Even in judgments which are immediately executory, there must be amotion to that effect and a hearing called for the purpose.

Once an appeal has been duly perfected and resolved, theprevailing party can do the following:

1. secure certified true copies of the judgment or final order of theappellate court;

2. and the entry thereof, and

3. submit the same to the court of origin with and to justify hismotion for a writ of execution.

The prevailing party need not wait anymore for the records of thecase to be remanded to the court of origin.


5/117

That motion must contain a notice to the adverse party.

A motion which does not contain a notice of hearingof the time and place for the hearing of the motion isa worthless piece of paper which the court has no

right to receive and which the court has no authorityto act upon.

The Appellate Court also has the power to requireexecution and can direct the issuance of the writ of

execution. But this is only in cases when the interest of justice so

requires.


6/117

Effect of Judgment

Section 46, Rule 39:

Judgment rendered against a SURETY PRINCIPAL ISALSO BOUND from the time that he has (a) notice ofthe action or proceeding and (b) an opportunity at thesuretys request to join in the defense.

Judgment rendered against a PRINCIPAL SURETY CAN

BE BOUND ONLY IF HE IS IMPLEADED in the action orgiven the opportunity to be heard. Otherwise, the writof execution will be void against the surety.


7/117

Section 47, Rule 39

(A) Rule on RES JUDICATA in judgments in rem - CONCLUSIVE:

If the judgment or final order is on a specific thing, the same isconclusive upon the title to the thing.

If the judgment or final order is in respect to the probate of a will,or the administration of the estate of a deceased person, the sameis conclusive upon the will or administration (but not a conclusivepresumption of death).

If the judgment or final order is in respect to the personal, politicalor legal condition or status of a particular person or his relationshipto another, the judgment or final order is conclusive upon thecondition, status or relationship.


8/117

(B) Rule of res judicata in judgments in personam (bar by priorjudgment):

In other cases, if the judgment be with respect to the matter directlyadjudged or as to any other matter that could have been raised inrelation thereto, the judgment or final order is conclusive between

the parties and their successors in interest by title subsequent tothe commencement of the action or special proceeding, litigatingfor the same thing and under the same title and in the samecapacity.

(C) Rule of conclusiveness of judgment:

In any other litigation between the same parties or their successorsin interest, that only is deemed to be adjudged in a former judgmentor final order which appears upon its face to have been so adjudged,or which was actually and necessarily included therein or necessarythereto.


9/117

Section 48, Rule 39

Rule on foreign judgments:

Foreign judgments are conclusive if in rem and presumptive if inpersonam.

The judgment of a foreign tribunal cannot be enforced by execution in thePhilippines.

It is necessary that a civil action be filed in our courts, primarily to allow the losingparty an opportunity to challenge the judgment on any of the following groundsprovided by the rules which includes: want of jurisdiction,

want of notice to the party,

collusion,

fraud, and

clear mistake of law or fact.


10/117

Discretionary Execution Pending

Appeal

Sec. 2 of Rule 39

The court may allow an execution even before theexpiration of the period for appeal or pending appealwhen there is compliance of the following requisites:

1. There must be a motion filed by the prevailing partywith notice to the adverse party;

2. There must be a hearing of the motion for discretionaryexecution.

3. There must be good reasons to justify the discretionaryexecution.

4. The good reasons must be stated in a special order.


11/117

The good reasons are what confer discretionary powerupon the court to issue a writ of execution pending appeal.

Examples of what constitutes good reasons fromjurisprudence include:

a) proven insolvency of the judgment debtor,b) prevention of irreparable injury,

c) the fact that goods subject of the judgment will perish ordeteriorate during the pendency of the appeal, a fact whichwould render the judgment in favour of the prevailing partyineffective

d) Section 19, Rule 70 (1) failure in an unlawful detainer caseto make the required periodic deposits to cover the amountof rentals due under the contract or for payment of thereasonable value of the use and occupation of the premises orthe (2) failure to post a supersedeas bond


12/117

Ong v CA

In Ong v CA, the Supreme Court did not consider as goodreasons that a) that the appeal was frivolous and dilatory,and that b) sufficient bond required by the court had beenposted.

A) Deprivation of the right to appeal. The authority todisapprove an appeal rightfully pertains to the appellatecourt.

B) . . . to consider the mere posting of a bond a "goodreason" would precisely make immediate execution of a

judgment pending appeal routinary, the rule rather than theexception. not intended by law (it should bediscretionary)


13/117

A motion for discretionary execution must be filed in

the trial court while it has jurisdiction over the case

and is in possession of either the original record or

the record on appeal as the case may be.

After the trial court has lost jurisdiction, the motion

for execution pending appeal may be filed in the

appellate court.


14/117

Universal Far East v CA

Trial court had jurisdiction to issue the order of execution pendingappeal because the motion for execution was filed before Chinghad perfected his appealand it was resolved before the trial courtwhich on Ching's appeal elevated the record to the Appellate Court.

The Court reasoned that while it may be argued that the trial courtshould dispose of the motion for execution within the reglementaryfifteen-day period, such a rule would be difficult, if not impossible,to follow. The motion for execution has to be set for hearing.

The judgment debtor has to be heard.

The good reasons for execution pending appeal have to be scrutinized.

These things cannot be done within the short period of fifteen days.


15/117

Where Discretionary Exectuion is

Reserved or Annulled

Section 5, Rule 39

Trial court, may on motion, issue such order ofrestitution or reparation for the damages as equityand justice may warrant under the circumstances.

1. RESTITUTION - the property itself must be returned tothe judgment debtor, if the same is still in thepossession of the judgment creditor, pluscompensation to the former for the deprivation anduse of the property.

2. REPARATION


16/117

If RESTITUTION not possible REPARATION by the JUDGMENTCREDITOR :

If purchaser at the public auction is thejudgment creditor,

- Pay the value of the property at the time of its seizure, plus

interest thereon;

If the purchaser at the public auction was a third person,

- Pay the judgment debtor the amount realized from the sale ofsaid property at the sheriffs sale, with interest thereon;

If thejudgment award was reduced on appeal,

- Return the excess which he received over and above what he wasentitled to with interest thereon.


17/117

Stay of Execution

Section 4, Rule 39:

General rule : An appeal perfected in due time stays the execution ofjudgment.

Exceptions:

Those judgments which by express provision of the rules are immediatelyexecutory and not stayed by an appeal as provided for in Section 4, Rule39 which include a) judgment for injunction, b) judgment for receivership,c) judgment for accounting, and d) judgment for support.

NOT AN ABSOLUTE RULE because the court is authorized to order

otherwise. The stay of the execution of the above judgments, if ordered bythe trial court, shall be upon such terms as to bond or otherwise as maybe considered proper for the security of the protection of the rights of theadverse party.


18/117

And those judgments that have become the object ofdiscretionary execution.

Section 3, Rule 39:Discretionary execution may also be stayed but only uponapproval by the proper court of a sufficient supersedeasbond filed by the party against whom it is directed,conditioned upon the performance of the judgment or

order allowed to be executed in case it shall be finallysustained in whole or in part. The bond thus given may beproceeded against on motion with notice to the surety.


19/117

Modes of Execution

Rule 39, Section 6

By motion - within five (5) years after the date

of entry of the final judgment or order

By independent action or action for revival of

judgment after the lapse of the 5-year

period, but within ten (10) years after date of

entry of final judgment or order


20/117

By Motion

When is the 5-year period interrupted?

Delay caused by the judgment obligor or for

his benefit

When the execution is stayed by:

- by the parties agreement for a definite time

- by injunction- by taking an appeal


21/117

Venue for action for revival of

judgment (Rule 39, Sec. 6)

Is it a real or personal action? (Infante vs. Aran

Builders, Inc., 2007)


22/117

When the 5 and 10-year period do

not apply

Special proceedings

Judgment for supports which do not become

dormant because it is a continuing obligation


23/117

Revival of Judgment

Section 6 vs. Section 34

- sought by judgment - sought by the

obligee purchaser of real

property that was

sold in an execution

sale

- Judgment not executed - Judgment actually

on motion executed

- independent action - motion


24/117

Execution in case of death of a party

Rule 39, Section 8

Death of judgment obligee: Execution NOT prevented

application by executor, administrator or successor ininterest

Death of judgment obligor: Execution NOT preventeda. before levy: issued against executor or administrator

or enforcement of a lien

b. after levy: property may be sold for the satisfaction

of the judgment obligation- any surplus is returned to the executor or

administrator


25/117

Forms and Contents of Writ

1. Issued in the name of the Republic of the

Philippines from the court which granted the

motion

2. State the name of the court, case number andtitle, the dispositive part of the subject

judgment or order; and

3. Require the sheriff or other proper officer towhom it is directed to enforce the writ according

to its terms, in the manner provided below.


26/117

a. Against the property of the judgment obligor: to satisfy thejudgment out of the real or personal property of such judgmentobligor, with interest;

b. Against real or personal property in the hands of personalrepresentatives, heirs, devisees, legatees, tenants, or trustees ofthe judgment obligor: to satisfy the judgment out of suchproperty, with interest;

c. For the sale of real or personal property: to sell such property,

describing it, and apply the proceeds in conformity with thejudgment, the material parts of which shall be recited in the writof execution;

d. For the delivery of the possession of real or personal property: todeliver the possession of the same, describing it, to the partyentitled thereto, and to satisfy any costs, damages, rents, or

profits covered by the judgment out of the personal property ofthe person against whom it was rendered, and if sufficientpersonal property cannot be found, then out of the real property.


27/117

The writ of execution shall specifically state:

a. the amount of the interest,

b. costs,

c. damages,

d. rents, ore. profits due as of the date of the issuance of the

writ, aside from the principal obligation under thejudgment.

Thus, the motion for execution shall specify the amountsof the foregoing reliefs sought by the movant.


28/117

Form 17. Order of Execution.

To the Sheriff (or his deputy)

Province of _____________

You are hereby commanded that, of the goodsand chattels of ____________ (defendant), you causeto be made the sum of __________ pesos fordamages, together with interest thereon from thedate of this execution until the date of payment, at therate of sixper centum per annum; and the further sum

of ___________ pesos for costs of suit, together withyour lawful fees for the service of this execution, all inthe Philippine currency, which ____________(plaintiff) recovered in our Regional Trial Court of


29/117

________ on the____ day of _______, 20__, against_________ (defendant) for damages, interest, and costs,and that you render the same to the said _________(plaintiff) aside from your own fees on this execution, anddo you likewise return this writ into court within _____days from date, with your proceedings endorsed thereon.But, if sufficient personal property cannot be found

whereof to satisfy this execution and lawful fees thereon,then you are commanded that the lands and buildings ofthe said defendant you make the said sums of money inthe manner required by the Rules of Court, and makereturn of your proceedings with this writ within ______

days from date.

Witness the Honorable ________ Judge of saidcourt, this __ day of ______, 20__.


30/117

3 Types of Awards depending on the

Relief Sought

Execution for judgments of money (Rule 39,

Section 9)

Execution of Judgments from Specific Act

(Rule 39, Section 10)

Execution of Special Judgments (Rule 39,

Section 11)


31/117

A. Execution for judgments of money

(Rule 39, Section 9)

a. immediate payment on demand, Section 9 (a)

b. satisfaction by levy, Section 9 (b)

c. garnishment of debts and credits, Section 9 (c)


32/117

a. Immediate Payment on DemandSection 9 (a)

Sheriff demands from the judgment obligor

the immediate payment of the full amount

stated in the judgment and all lawful fees in:

a. cash

b. certified check payable to the judgment

obligee or

c. any other form of payment acceptable

to such judgment obligee.


33/117

Judgment debt and lawful fees

At the time of payment, judgment obligee or his

duly authorized representative may either be:

- present

- Not present


34/117

b. Satisfaction by Levy

Section 9 (b)

Levy on execution is the writ issued by the court

after judgment by which the property of the

judgment obligor is taken into custody of the

court before the sale of the property on

execution for the satisfaction of a final

judgment.


35/117


Section 9 (b)

What properties may be levied upon?

Real property

Stocks

Shares Debts

Credits

And other personal property, or any interesttherein, which may be disposed of for valueand not otherwise exempt from execution


36/117


Section 9 (b)

Judgment obligor: chooses which of his

properties would be levied

Otherwise, sheriff shall first levy on his:

a. Personal propertiesb. If (a) is insufficient, then, real properties


37/117

c. Garnishment of Debts and Credits

Section 9 (c)

Garnishment is a kind of attachment in which

the plaintiff seeks to subject either the

property of the defendant in the hands of a

third person called the garnishee, to his claim

or the money which said third person owes

the defendant.


38/117

c. Garnishment of Debts and Credits

Section 9 (c)

How made?

by serving notice upon the third person having inpossession or control of the credits in favor of the

judgment obligor

written report within 5 days from service ofnotice stating WON amount held is sufficient

a. Sufficient: deliver cash or certified check tojudgment obligee within 10 working daysfrom service of notice; lawful fees directlypaid to court

b. Insufficient: report the amount held


39/117

B. Execution of Judgments from

Specific Act, Rule 39, Section 10

1. Conveyance, delivery of deeds, or other

specific acts; vesting title

2. Sale of real or personal property

3. Delivery or restitution of real property

4. Removal of improvements on property

subject of execution

5. Delivery of personal property


40/117

Execution of special judgments (Rule

39, Sec. 11)

Judgment requires performance of any act other

than those in Sec. 9 (money judgments) and Sec.

10 (sale or delivery of property)

A certified copy of the judgment is attached tothe writ of execution and served upon the party

against whom the judgment is rendered, or upon

any other person required to obey the same The party may be punished for contempt for

disobeying the judgment


41/117

Return of writ of execution (Rule 39,

Sec. 14)

Judgment has been satisfied in part or in full

- The writ is returnable to the court issuing it

immediately


42/117


Sec. 14)

Judgment cannot be satisfied in full within 30

days from receipt by the officer

- The officer shall report to the court and state

the reason for failure to satisfy the judgment

- The officer shall make a report to the court

every 30 days on the proceedings taken until

the judgment is satisfied in full, or until itseffectivity expires


43/117


Sec. 14)

Returns or periodic reports

- Shall set forth the whole of the proceedings

taken

- Shall be filed with the court

- Copies shall be promptly furnished the parties


44/117

Property exempt from execution

(Rule 39, Sec. 13)

Except as otherwise expressly provided by law,

the properties enumerated, and no other,

shall be exempt from execution

The properties enumerated are not exempt

from execution if the judgment is for the

recovery of the price of said properties or

upon a foreclosure of mortgage thereon

f


45/117


(Rule 39, Sec. 13)

Family home or homestead in which thejudgment obligor resides, and land necessarilyused in connection therewith

- The family home is the dwelling house wherethe family reside, and the land on which it issituated (Art. 152, FC)

- It is exempt from execution except as providedby the Family Code and to the extent of thevalue allowed by law (Art. 153, FC)

f


46/117


(Rule 39, Sec. 13)


- The family home is exempt from execution,except: (1) for non-payment of taxes; (2) for debtsincurred prior to the constitution of the familyhome; (3) for debts secured by mortgages on the

premises before or after its constitution; and (4)for debts arising from the construction of thebuilding (Art. 155, FC)

f i


47/117


(Rule 39, Sec. 13)


- The actual value of the family home shall not

exceed P300,000 in urban areas, and P200,000 inrural areas, or such amounts as may be fixed bylaw

- If the value of currency changes after the

adoption of the FC, the value most favorable forthe constitution of a family home shall be thebasis of evaluation (Art. 157, FC)

P f i


48/117


(Rule 39, Sec. 13)


- If the claim is not among those mentioned in Art.

155, FC, and the creditor has reasonable groundsto believe that the actual value of the familyhome is more than the maximum amount fixed,the creditor may apply to the court for an order

directing the sale of the property under execution- The minimum amount of bid to be considered is

the value allowed for a family home (Art. 160, FC)

P f i


49/117


(Rule 39, Sec. 13)

Ordinary tools and implements personally used in

trade, employment or livelihood

3 horses, or cows, or carabaos, or other beasts of

burden, such as the judgment obligor may selectnecessarily used in ordinary occupation

Necessary clothing and articles for ordinary

personal use, excluding jewelry Household furniture and utensils necessary for

housekeeping, of a value not exceeding P100,000

P f i


50/117


(Rule 39, Sec. 13)

Provisions for individual or family use sufficientfor 4 months

Professional libraries and equipment of

professionals, value not exceeding P300,000 1 fishing boat and accessories owned by a

fisherman, used for livelihood, value notexceeding P100,000

Salaries, wages, earnings for personal serviceswithin 4 months preceding the levy as arenecessary of the support of his/her family

P t t f ti


51/117


(Rule 39, Sec. 13)

Lettered gravestones

Monies, benefits, privileges, annuities

accruing or growing out of any life insurance

Right to receive legal support, or money or

property obtained as support, or any pension

or gratuity from the Government

P t t f ti


52/117


(Rule 39, Sec. 13)

Properties specially exempted by law

- RA 4917 Retirement benefits received by

officials and employees of private firms in

accordance with a reasonable private benefit

plan, subject to the conditions provided

Eff t f l ti (R l 39


53/117

Effect of levy on execution (Rule 39,

Sec. 12)

Levy on execution shall create on the property

a lien in favor of the judgment obligee over

the right, title and interest of the judgment

obligor in such property

The lien in favor of the judgment obligee is

subject to liens and encumbrances existing at

the time of levy


54/117

THIRD PARTY CLAIMS


55/117

When Available

Sheriff erroneously levies on and seizes

property

of a third person in which said defendant holds no right or

interest


56/117

Remedies Availableto a 3rd Party Claimant or any 3rd Person

1. Terceria

In same court where execution judgment had

2. Filing of a separate action (by 3rd-Party

Claimant)

distinct and separate from that in which

judgment is being enforced

3. Filing of claim for damages (by a judgmentobligee)


57/117

Proceedings to be undertaken

(Terceria)Third party claimant to execute an Affidavit

stating grounds of such title or right of

possession over property levied

copy must be served upon

1) officer making levy

2) judgement obligee


58/117

EFFECT of FILING (Terceria)

a) (Levying) Officer shall not be bound to keepthe property, unless

judgment obligee

upon demand of the officer files a bond (indemnity bond)

approved by the Court

to indemnify 3rd party claimant

in sum not less than value of property levied on

but Sheriff has discretion to dispense withindemnity bond


59/117


b. No claim for damages for the taking or

keeping of the property may be enforced

against the bond unless action therefor is filed

within 120 days from date of filing of the bond


60/117


c. Officer not liable for damages for the taking

or keeping of the property, to the 3rd party

claimant, if such bond is filed.

Wh FILING f S t A ti


61/117

When FILING of Separate ActionAvailable by 3P Claimant

Purposes :

a) to recover possession of property seized by Sheriff

b) damages resulting from wrongful seizure and

detention thereof despite 3rd-party claim

c) may be brought against Sheriff and such other parties

who may have colluded with him in wrongful execution

proceedings (i.e., judgment creditor himself)

When FILING by a Judgment Obligee


62/117

When FILING by a Judgment Obligee

Available

Frivolous and plainly spurious claim was filed bya 3rd-Party Claimant

filed in

a) same court where 3rd

-party claim ispending; or

b) in a separate action for damages

Purpose: in order for Court to require filing ofproper pleadings and hold trial, so as to giveparties to submit their respective evidence


63/117

EXECUTION SALE

f l f d


64/117

Notice of sale of property on execution required

(a) Perishable Property posting of written notice of time & place of sale

in 3 public places

preferably conspicuous areas of- municipal/city hall

- post office

- public market

of municipality/city where sale to take place for such reasonable time considering character and

condition of property

N ti f l f t ti


65/117

Notice of sale of property on execution

required

(b) Personal property posting of written notice of time & place of sale

in 3 public places

preferably conspicuous areas of- municipal/city hall

- post office

- public market

of municipality/city where sale to take place

for not less than 5 days

Notice of sale of propert on e ec tion


66/117


required

(c) Real Property posting of written notice of time & place of sale

- particularly describing property

- stating where property is to be sold

- if assessed value exceeds P50K, publish copy of notice once a week for 2 consecutive weeks

in newspaper of general circulation in city/municipality

selected by raffle

in 3 public places

preferably conspicuous areas of

- municipal/city hall

- post office- public market

of municipality/city where sale to take place

for 20 days



67/117


required

In all cases,

1) written notice to be given to judgment

obligor

at least 3 days before the sale

except, in case of (a) perishable property

in same manner as personal service of pleadings

and other papers as provided by Sec 6, Rule 13



68/117


required

2) place, date and exact time of sale, w/c should

be between 9 A.M.-2 P.M. must be specified

a. real property not capable of manual delivery

parties may agree on place of sale

absent which, sale shall be held in OCC, RTC/MTC

which issued writ or designated by appellate court

b. personal property capable of manual delivery

sale shall be held in place where property located


69/117

Penalty for Sale without Notice

Recoverable by motion in the same action

P5,000.00 punitive damages due to any

person injured thereby

actual damages


70/117

Penalty for Defacing Notice

What is penalized

willfully removing or defacing notice posted

if done before the sale or before satisfaction of

judgment if it be satisfied before the sale

Recoverable by motion in the same action

P5,000.00 punitive damages due to any personinjured thereby

actual damages


71/117

Execution Sale, how prevented

at any time before sale of property on

execution

judgment obligor may prevent sale

by paying amount required by execution plus

costs incurred


72/117

Execution Sale: Proceedings

All sales of property under execution must

1. be made at public auction

2. to highest bidder

3. to start at exact time fixed in the notice

4. after sufficient property has been sold tosatisfy the execution

no more shall be sold Any excess property/sale proceeds to be promptly

delivered to judgment obligor/authorized rep


73/117

Execution Sale: Order of Sale

1. Real Property consisting of several known

lots

a) must be sold separately

b) when portion claimed by a 3rd person,

he may require it to be sold separately


74/117

Execution Sale: Order of Sale

1. Personal Property consisting capable of

manual delivery

a) must be sold within view of those

attending sale

b) in such parcels as are likely to bring highest

price

he may require it to be sold separately

Execution Sale: Who May Direct Manner and


75/117

Execution Sale: Who May Direct Manner and

Order of Sale

Judgment obligor, if present at sale, may direct

order of sale of real or personal property

when such property consists of several know lots

or parcels which can be sold to advantage separately

Execution Sale: Who are Prohibited to


76/117

Execution Sale: Who are Prohibited to

Purchase

Neither the

1.Officer conducting the execution sale or

2.his deputies

can

become purchaser

nor be interested directly or indirectly in anypurchase at such sale


77/117

Execution Sale: Refusal of Purchaser to Pay

If purchaser refuses to pay amount bid by him, Officer may again sell property to highest bidder

shall not be responsible for any loss occasionedthereby

may thereafter reject any subsequent bid of suchrefusing purchaser

but court may

order refusing purchaser to pay into the court

amount of such loss and punish him for contempt of court if he disobeys order


78/117

Execution Sale: Refusal of Purchaser to Pay

To whom amount of such payment due

1. person entitled to proceeds of execution

unless execution has been fully satisfied,

otherwise, to

2. judgment obligor


79/117

Execution Sale

when judgment obligee is purchaser

and no 3rd party claim has been filed

he need not pay amount of bid

- provided, it does not exceed amount of

his judgment

- if it exceeds, need pay only the excess


80/117

Execution Sale: Adjournment

1. by agreement of judgment obligor andobligee

written consent

to any date and time agreed upon

2. may adjourn from day to day

if it becomes necessary to do so

for lack of time to complete sale on day fixed innotice or day to which it was adjourned

Execution Sale:


81/117

Execution Sale:

Conveyance to Purchaser

1. Purchaser of Personal Property capable ofmanual delivery

Officer making sale must deliver property and

if desired, execute and deliver to him a Certificate ofSale

Sale conveys to purchaser all rights whichjudgment obligor had in such property as of dateof levy on execution.

Execution Sale:


82/117

Execution Sale:


2. Purchaser of Personal Property not capable ofmanual delivery

Officer making sale must execute anddeliver a Certificate of Sale

Sale conveys to purchaser all rights whichjudgment obligor had in such property as ofdate of levy on execution.

Execution Sale:


83/117

Execution Sale:


3. Purchaser of Real Property

Officer making sale must give to purchaser a Certificateof Sale containing:

particular description of real propertyprice paid for each distinct lot/parcel

whole price paid

statement that right of redemption expires 1 yr from dateof registration of certificate of sale

Certificate must be registered in registry of property ofdeeds of place where property situated.

Execution Sale: Recovery of Price


84/117


If purchaser of real property sold on execution orhis successor-in-interest

1. fails to recover possession thereof

2. or is evicted therefrom

in consequence of

1. irregularities in sale proceedings

2. judgment has been reversed/set aside3. property sold exempt from execution

4. a 3rd person has vindicated his claim to the property



85/117


he may,1. on motion in same action, or

2. in separate action,

recover from judgment obligee

price he paid w/ interestor so much thereof as has not been delivered to

judgment obligor

3. or have original judgment revived in his name

for the whole price w/ interest

or so much thereof as has not been delivered tojudgment obligor



86/117


Judgment so revived shall have same force and

effect as an original judgment would have as of

the date of revival and no more.

(Rule 39, Sec. 34)

Execution Sale:

h b


87/117

Right to contribution

When property liable to an execution againstseveral persons is sold thereon

and more than a due proportion of judgment issatisfied

out of proceeds of sale of the property of one ofthem

or one of them pays, without a sale, more than

his proportionhe may compel a contribution from the others

(Rule 39, Sec. 35)

Execution Sale:

Ri h i b


88/117

Right to reimbursement

When a judgment is upon an obligation of oneof them

as security for another

And the surety pays the amount, or any partthereof

Either by sale of his property or before sale

he may compel repayment from the principal(Rule 39, Sec. 35)

Redemption from Execution Sale


89/117

Rule 39

Section 27. Who may redeem real property so sold.

Real property sold, or any part thereof sold separately, may beredeemed by the following:

(a) Judgment obligor or his successor in interest

successor in interest include:

Person to whom he has transferred his right of redemption

One to whom he has conveyed his interests in the property for purposes of redemption

One who succeeds to his property by operation of law

Person with joint interest in the property

Spouse or heirs

(b) Redemptioner creditor having a lien by virtue of an attachment,

judgment or mortgage on the property sold or any part thereof,subsequent to the lien under which the property was sold.

If lien of a creditor is prior to the judgment under which the property was

sold, not a redemptioner.



90/117

Rule 39

Section 28. Time and manner of, and amounts payable on, successiveredemptions; notice to be given and filed.

Time:

Redemption of property from the purchaser at any time within one(1) year from the date of the registration of the certificate of sale

Amounts Payable:

Amount of purchase

Additional one per centum per month interest up to the time ofredemption

Amount of any assessment or taxes paid after purchase and interestat same rate

If purchaser is also a creditor having a prior lien, amount of suchother lien with interest



91/117

Rule 39

Section 28. Time and manner of, and amounts payable on,

successive redemptions; notice to be given and filed.

Successive Redemption:

Property so redeemed may again be redeemed within 60 days

after the last redemption

Amounts Payable:

Sum paid on last redemption with additional two per centum thereon

Amount of any assessment or taxes paid after purchase and interest

Amount of any liens held by last redemptioner prior to his own with

interest



92/117

p

Rule 39

Section 28. Time and manner of, and amounts payable on,successive redemptions; notice to be given and filed.

Notice:

Notice of the following to be given to the officer who made thesale and duplicate filed with the registry of deeds of the place:

any redemption

payment of any assessments or taxes by the redemptioner

any lien acquired other than that upon which the redemption was

made

If no notice filed, property may be redeemed without payingsuch assessments, taxes or liens



93/117

p

Rule 39

Section 29. Effect of redemption by judgment obligor, and a certificate to be

delivered and recorded thereupon; to whom payment on redemption made.

If judgment obligor redeems: must make same payments as required toeffect a redemption by a redemptioner

No further redemption allowed and he is restored to his estate.

Person to whom redemption payment is made: must execute and deliver acertificate of redemption acknowledged before a notary public orauthorized officer

Certificate must be filed and recorded in the registry of deeds of place where theproperty is situated

Registrar of deeds must note the record thereof on the margin of the record of the

certificate of sale.

Redemption payments may be made to the following:

Purchaser

Redemptioner

Officer who made the sale (for the purchaser/redemptioner)

Redemption from Execution SaleRule 39


94/117

Rule 39

Section 30. Proof required of redemptioner.

A redemptioner must produce to the officer, or person from

whom he seeks to redeem, and serve notice to the officer, the

following:

Copy of judgment of final order under which he claims the right to redeem,

certified by the clerk of court wherein the judgment or final order isentered; or,

If redeems upon a mortgage or other lien, a memorandum of record

thereof, certified by the registrar of deed; or,

Original or certified copy of any assignment necessary to establish his

claim;

and

Affidavit executed by him or his agent showing the amount actually due on

the lien.



95/117

Rule 39

Section 31. Manner of using pending redemption; waste

restrained.

Manner of Using pending redemption:

Until the expiration of the time allowed for redemption, court may restrainthe commission of waste on the property by injunction, on the application

of the purchaser or the judgment obligee

Not waste for a person in possession of property at time of sale,or entitled to possession afterwards, during the period allowedfor redemption to undertake the following:

to continue to use it in the same manner in which it was previously used;

to use it in the ordinary course of husbandry; or

to make the necessary repairs to buildings thereon while he occupies theproperty



96/117


Rule 39Section 32. Rents, earnings and income of property pending

redemption.

Purchaser or redemptioner: not entitled to rents, earnings andincome of property sold on execution, or value of the use and

occupation thereof when property is in possession of a tenant.

Judgment obligor: entitled to all rents, earnings and income

derived from the property until expiration of period of

redemption



97/117

Rule 39

Section 33. Deed and possession to be given at expiration of redemption period; by whom

executed or given.

Judgment obligor has entire period of 1 year from date of registration of the certificate of

sale to redeem the property.

If no redemption made within 1 year from date of registration of certificate of sale:

purchaser entitled to conveyance and possession of property.

If redeemed whenever 60 days have elapsed and no other redemption made at expiration of

redemption period: last redemptioner entitled to conveyance and possession.

Upon expiration of right of redemption, purchaser or redemptioner substituted to and

acquire all rights, title, interest and claim of judgment obligor to the property as of the time

of the levy.

Officer making the sale or his successor in office to execute the deed of conveyance and

possession.

Possession to be given to purchaser or last redemptioner unless a third party is actually

holding the property adversely to the judgment obligor.

Redemption from Execution SaleCase 1:


98/117

Josefina B. Cenas and The Provincial Sheriff of Rizal, petitioners, vs.

Spouses Antonio P. Santos and Dra. Rosario M. Santos and Hon. Pedro C. Navarro, Presiding Judge,

CFI-Rizal, Branch III, respondents

(G.R. No. L-49576, 21 November 1991)

Facts:

In May 1976, spouses Pulido mortgaged to Pasay City Savings and Loan Association their land to secure a

loan of P10,000.00. Mortgage was registered with the Registry of Deeds and annotated in the title of the

property.

City Sheriff levied on the mortgaged land pursuant to a writ of execution issued by CFI-QC in a civil case

involving Pulido (wife). Land was sold to petitioner Cenas who was the highest bidder in the execution

sale.

Loan Association assigned to petitioner Cenas all its rights, interests and participation to the said

mortgage for the sum of P8,110.00 representing the unpaid obligation of Pulidos.

In July 1977, private respondent Dra. Santos redeemed the property, paying a sum of P15,718.00. The

City Sheriff issued a Certificate of Redemption.

In April 1978, petitioner Cenas filed with the Office of the Provincial Sheriff of Rizal a verified petition for

extra-judicial foreclosure of mortgage. Property was advertised for auction sale.

Apprised of the impending auction sale, private respondents Santoses filed an affidavit of adverse claim

with the Provincial Sheriff and a verified Petition for Prohibition with Preliminary Injunction with the

respondent court to enjoin the Provincial Sheriff from proceeding with the auction sale.

CFI rendered judgment in favor of private respondents, holding that the redemption of property by the

private respondents wiped-out and extinguished the mortgage in favor of the loan association.



99/117

Case 1:


Spouses Antonio P. Santos and Dra. Rosario M. Santos and Hon. Pedro C. Navarro, Presiding Judge,

CFI-Rizal, Branch III, respondents(G.R. No. L-49576, 21 November 1991)

Issue:

Whether or not the redemption of the subject property by the private respondents wiped-out and

extinguished the pre-existing mortgage obligation of the judgment debtor.

Held: NO.

Under Section 30, Rule 39 of the Rules of Court, if the purchaser is also a creditor having a prior

lien to that of the redemptioner, other than the judgment under which such a purchase was

made, the redemptioner has to pay, in addition to the prescribed amounts, such other prior lien of

the creditor-purchaser with interest.

Petitioner Cenas, as assignee of the mortgage constituted over the subject property, is also a

creditor having a prior lien to that of Dra. Santos. The acceptance of the redemption amount bythe petitioner, without demanding payment of her prior lien cannot wipe out and extinguish said

mortgage obligation.

The mortgage directly and immediately subjects the property upon which it is imposed, whoever

the possessor may be, to the fulfillment of the obligation for whose security it was constituted

(Article 2126, Civil Code). A mortgage creates a real right which is enforceable against a whole

world.



100/117

Case 1:


Spouses Antonio P. Santos and Dra. Rosario M. Santos and Hon. Pedro C. Navarro,Presiding Judge, CFI-Rizal, Branch III, respondents

(G.R. No. L-49576, 21 November 1991)

Issue:

Whether or not the redemption of the subject property by the private respondentswiped-out and extinguished the pre-existing mortgage obligation of the judgment

debtor.

Held: NO.

Private respondents redeemed the property in question as successor in interest of

the judgment debtor. They are deemed subrogated to the rights and obligations of thejudgment debtor and bound by exactly the same condition that bound the judgment

debtor.

Considering the lapse of time and erroneous belief of the private respondents that the

property was freed from any lien after redemption, equity dictates that the foreclosure

be allowed after they be given the chance to settle the mortgage obligation


i i ld l


101/117

Hi-Yield Realty, Inc. petitioner, vs.

Court of Appeals, Honorable Mauricio Rivera as Presiding Judge of RTC-Antipolo City, Branch 73,

and Noli Francico, respondents

(G.R. No. 138978, 12 September 2002)

Facts:

In August 1987, private respondent Francisco, as attorney-in-fact of spouses Carawatan , mortaged a

property owned by the spouses in Cainta to petitioner Hi-Yield Realty to secure a loan of P100,000.00

from the realty.

Private respondent failed to pay despite repeated demands by petitioner.

Petitioner extrajudicially foreclosed the property. The property was sold for P285,000.00 with petitioneras the highest bidder. A Certificate of Sale was issued to the petitioner which was registered on 13

August 1992.

On 13 August 1993, private respondent filed a petition with RTCAntipolo praying that the petitioner be

ordered to have the property be redeemed by private respondent after paying the amount of

P285,000.00 plus 1% interest per month. Private respondent claimed that he offered to redeem the

property twice prior to expiration of redemption period but petitioner refused to accept the offer but

instead demanded more than P1.5 million redemption price. On 15 March 1994, RTC ordered the petitioner to submit an updated statement of account as basis for

the payment of the redemption price and for private respondent to pay the redemption price within 15

days from receipt of the order.

Petitioner submitted a detailed computation. Private respondent received his copy on 24 March 1994

and had until 8 April 1994 to pay the redemption price. Private respondent failed to pay on said date.

Instead, he filed an Urgent Motion for Extension of Time asking for a 45-day extension because he did

not have sufficient money to tender.


Hi Yi ld R l I i i


102/117




(G.R. No. 138978, 12 September 2002)

Facts:

RTC denied the motion and recognized the right of petitioner to consolidate the title to the property in

its name.

Private respondent moved to reconsider, offering to pay the amount of P510,000.00 (managers check)

and P38,872.93 (personal check).

RTC issued an order contradicting its previous order. It ordered the private respondent to pay petitionerthe redemption price of P548,872.93 plus 1% interest per month within 5 days from receipt of the order.

Petitioner was ordered to accept the payment.

When petitioner refused to accept the tender of payment, private respondent filed a motion to consign

the redemption price.

Petitioner moved to reconsider arguing that the period of redemption could not be extended as it is fixed

by law. Trial court denied the motion for reconsideration but granted the motion to consign the

redemption price. Petitioner filed a petition for certiorari with the CA. CA denied the petition ratiocinating that the one-

year redemption period should be reckoned from 13 August 1992. The filing of the action within the

redemption period is equivalent to a formal offer to redeem. Francisco was able to effectively exercise

his right of redemption on 13 August 1993.



103/117

Case 2:




(G.R. No. 138978, 12 September 2002)

Issue:

Whether or not the extension of the redemptive period by the trial court was well within private

respondents preserved right to redeem.

Held: NO.

Pursuant to Section 28, Rule 39 of the Rules of Court, the right of redemption should be exercised

within the specific time limit, which is one year from the date of registration of the certificate of

sale. Moreover, the redemptioner should make an actual tender in good faith of the full amount

of the purchase price (auction price of property plus legitimate expenses such as taxes,

registration fees, etc.)

In case of disagreement on the redemption price between the parties, the redemptioner maypreserve his right of redemption through judicial action which must be filed within the one year

period of redemption.

The filling of action, being equivalent to a formal offer to redeem, would have the effect of

preserving his redemptive rights and freezing the expiration of the one year period. This is a fair

interpretation provided the action is filed on time and in good faith, the redemption price is finally

determined and paid within a reasonable time, and the rights of the parties are respected.



104/117

Case 2:


Court of Appeals, Honorable Mauricio Rivera as Presiding Judge of RTC-Antipolo City,Branch 73, and Noli Francico, respondents

(G.R. No. 138978, 12 September 2002)

Issue:

Whether or not the extension of the redemptive period by the trial court was well

within private respondents preserved right to redeem.

Held: NO.

Had private respondents act of filing a suit for redemption really been in good faith,

private respondent could have at least consigned or deposited what he thought to be

the correct amount simultaneously with the filing of the action to redeem on 13

August 1993 to show not only good faith but also his intention and capability of paying

in full what he believed to be the reasonable price.

For failure of private respondent to redeem the property within the period set by the

trial court in its order dated 15 March 1994, the petitioner is allowed to consolidate the

title to the property in its name.

Proceedings Supplementary to Execution


105/117

g pp y

Rule 39

Section 36. Examination of judgment obligor when judgment unsatisfied.

When return of a writ of execution against property of a judgment obligor or

any one of several obligors shows that judgment remains unsatisfied:

Judgment obligee entitled to an order from court that rendered judgment

requiring judgment obligor to appear and be examined concerning hisproperty and income

Examination of judgment obligor made by the court or an appointed

commissioner at a specified time and place

Judgment obligor cannot be required to appear before a court or commissioneroutside the province or city in which he resides or is found.

Proceedings may thereupon be had for the application of the property and

income of the judgment obligor



106/117

g pp y

Rule 39

Section 37. Examination of obligor of judgment obligor.

When return of a writ of execution against property of a judgment

remains unsatisfied in whole or in part:

Upon proof to the satisfaction of the court that issued the writ, mayrequire a person, corporation, or other juridical entity that has

property of the judgment obligor or is indebted to him to be

examined regarding the same

Examination made before a court or commissioner at a time andplace within the province or city where the debtor resides or is

found

Order binds all credits, money, property due the judgment obligor



107/117

Rule 39

Section 38. Enforcement of attendance and conduct of examination.

Court may compel, by an order or subpoena, a party or other personto attend and testify as provided in Sections 36 and 37.

Failure to obey order or subpoena, to answer as witness, or to

subscribe his deposition is punishable with contempt.

Examination shall not be unduly prolonged but may be adjournedfrom time to time until completed.

Examination before a commissioner in writing and certified to thecourt.

Examination under oath and corporation/juridical entity representedby an authorized officer or agent.



108/117

g pp y

Rule 39Section 39. Obligor may pay execution against obligee.

After a writ of execution against property has been issued, a

person indebted to judgment obligor may pay to the sheriffholding the writ the amount of debt or so much to satisfy the

judgment (following Section 9 of Rule 39).

Sheriffs receipt sufficient discharge for the amount paid by

the judgment obligee on the execution



109/117

Rule 39Section 40. Order for application of property and income to satisfaction

of judgment.

Court, may order any property/money of judgment obligor, not

exempt from execution, in his hands or another person, corporationor juridical entity, to be applied to the satisfaction of the judgment,

subject to any prior rights over the property.

Upon investigation and it appears that judgment obligors earnings

are more than necessary for family support, court may order

judgment obligor to pay in fixed monthly installments. Failure to pay installment without good excuse punishable by indirect

contempt.



110/117

Rule 39Section 41. Appointment of receiver.

Court may appoint a receiver of the property of the judgment

obligor Court may also forbid transfer or other disposition or any

interference with property not exempt from execution.

Jurisprudence: Rule 59 (Receivership) applicable to this

Section.



111/117

Rule 39Section 42. Sale of ascertainable interest of judgment obligor in

real estate.

If interest of judgment obligor in a real estate (as mortgagor ormortgagee or otherwise) in the place of proceedings can be

ascertained, receiver may be ordered to sell and convey real

estate or interest therein.

Proceedings for sale subject to approval by the court beforethe execution of the deed.



112/117

Rule 39

Section 43. Proceedings when indebtedness denied or anotherperson claims the property.

A person or corporation alleged to have property of thejudgment obligor or indebted to him, claims an interest in the

property adverse to him or denies the debt:

By court order,- judgment obligee may be authorized to institute an action against such

person or corporation for the recovery of such interest or debt- forbid transfer or other disposition within 120 days from notice of order

- punish disobedience of order as for contempt.

Order may be modified or vacated by court that issued it orcourt which action is brought

Proceedings Supplementary to ExecutionCase:


113/117

The Economic Insurance Company, Inc., petitioner, vs.

Judge Guillermo E. Torres of CFI-Rizal; Visayan Marketing Corporation; and the Sheriff of

the Province of Rizal, respondents(G.R. No. L-28488, 02 October 1977)

Facts:

Private respondent Visayan Marketing filed a motion for examination of petitioner The Economic

Insurance to determine whether it had property or money belonging to I-Feng Enamelling Co.

(Phil.), Inc, who was adjudged in a civil case filed with CFI-Rizal to owe private respondent a sum ofmoney. Judgment in said case was only partially satisfied.

The President of petitioner company was examined and denied that any sum of money was due to

I-Feng.

The record discloses that petitioner insurance company was the second mortgagee under a chattel

mortgage executed by I-Feng over its personal properties as security of an obligation of

P300,000.00.

The Philippine Bank of Communication (PBC) was the first chattel mortgagee of I-Feng to secure an

obligation of P202,512.57. When PBC sought to foreclose the first mortgage, Economic Insurance

paid off the bank in the sum of P202,512.57 becoming the sole chattel-mortgagee.

Petitioner Economic Insurance executed an assignment of mortgage in favor of Atlas Glass &

Enamelling Co. for a total consideration of P523,000.00. Subsequently, Atlas Glass foreclosed the

chattel mortgages and took possession of the properties.



114/117

Case:

The Economic Insurance Company, Inc., petitioner, vs.Judge Guillermo E. Torres of CFI-Rizal; Visayan Marketing Corporation; and the Sheriff of

the Province of Rizal, respondents

(G.R. No. L-28488, 02 October 1977)

Facts:

Respondent Visayan is contending that since petitioner Economic Insurance realized an

amount of P52,987.43 in excess of its mortgage credit against I-Feng, Economic

Insurance is bound under the chattel mortgage law to turn over the excess to

mortgagor I-Feng.

Respondent Judge ordered the Economic Insurance to deliver to Visayan Marketing the

amount of P52,987.43 as partial satisfaction of the unsatisfied judgment-credit with

legal interest from date of filling of action and P1,000 attorneys fees and costs.

Petitioner is contending that there was grave abuse of discretion since no action was

filed against it by respondent Visayan as required by Section 45 of Rule 39 , that the

amount due from it was arbitrarily fixed, and that it did not foreclose the chattel

mortgage.

Proceedings Supplementary to ExecutionCase:


115/117

The Economic Insurance Company, Inc., petitioner, vs.

Judge Guillermo E. Torres of CFI-Rizal; Visayan Marketing Corporation; and the Sheriff of

the Province of Rizal, respondents(G.R. No. L-28488, 02 October 1977)

Issue:

Whether or not the petitioner is liable to deliver the alleged property of the judgment

debtor.

Held: NO.

It is clear from Section 45, Rule 39 that if a person is alleged to have a property of the

judgment debtor or to be indebted to him claims in interest in the property adverse to

him or denies the debt, the court may only authorize the judgment creditor to institute

an action against such person for the recovery of such interest or debt. Said section does not authorize the court to make a finding that the third person has in

his possession property belonging to the judgment debtor or is indebted to him and to

order said third person to pay judgment creditor.

Contention that profit made by petitioner in assigning its chattel mortgage rights to

Atlas Glass belongs to judgment debtor has no merit. Chattel mortgage was foreclosed

by Atlas Glass not by the petitioner.

Satisfaction of Judgment


116/117

Rule 39Section 44. Entry of satisfaction of judgment by clerk of court.

Entry of satisfaction of judgment shall be entered by the clerk

of court in the court docket and execution book on the basesof the following:- Upon return of writ showing full satisfaction of judgment; or

- Upon filing of an admission to the satisfaction of judgment executed

and acknowledged in the same manner as a conveyance of real

property by judgment obligee or his counsel; or

- Upon endorsement of admission by judgment obligee or counsel on the

face of the record of judgment

Satisfaction of Judgment


117/117

Rule 39Section 44. Entry of satisfaction with or without admission.

Whenever a judgment is satisfied in fact:

- Judgment obligee or counsel must execute and acknowledge or indorse

an admission of the satisfaction (Section 43), and after notice and upon

motion, the court may order either the judgment obligee or counsel to

do so; or,

- Court may order the entry of satisfaction even without such admission.

Date post:	04-Apr-2018
Category:	Documents
Upload:	naty8331
View:	229 times
Download:	0 times

Civil Procedure Presentation

Documents