Scarp Finals

7/31/2019 Scarp Finals

1/12

Mailene A. Caparroso Finals ExamNew Era College of Law Atty. Jose Antonio T. Aliling

Answer Question No. 1

A. Provisional Remedies

REMEDY PURPOSE

PreliminaryAttachment

The chief purpose of the remedy of attachment is tosecure a contingent lien on the defendants propertyuntil plaintiff can by appropriate proceedings, obtain a

judgment and have such property applied to itssatisfaction, or to make some provision for unsecureddebts in case where the means of satisfaction thereofare liable to be removed beyond the jurisdiction, orimproperly disposed of or concealed, or otherwiseplaced beyond the reach of creditors.

Preliminary

Injunction

Its purpose is to preserve the status quo pending a full

trial that is the last actual, peaceful and uncontestedstatus that preceded the controversy, and provides anassurance that any eventual final judgment will not berendered useless and ineffectual.

Receivership A receiver is a person appointed by the court, or inthis instance, by a quasi- judicial administrativeagency, in behalf of all the parties for the purpose ofpreserving and conserving the property and preventingIts possible destruction or dissipation it were left inthe possession of any parties.

Replevin A form of action which lies to regain the possession ofpersonal chattels which have been taken from theplaintiff unlawfully x x x.

Support PendenteLite

To fix an amount of money for any of the supportwhile the main action is pending.

B. Special Civil Actions

Special Civil

Action

Purpose

Interpleader An action of interpleader is afforded to protect aperson not against double liabilitybut against doublevexation in respect of one liability. It requires, as anindispensable requisite, that conflicting claims uponthe same subject matter are or may be made againstthe plaintiff-in-interpleader who claim no interestwhatever in the subject or an interest which in wholeor in part is in possession of the property.

Declaratory Relief The purpose of the petition is to determine the rightsor legal obligation of a party and seek a declaratory

judgmentof the parties rights duties thereunder.

Certiorari For certiorari to lie, it must be shown that thetribunal, board or officer exercising judicial functionsacted without or in excess of jurisdiction and thatthere is no plain, speedy and adequate remedyfor thepurpose ofannulling or modifying the proceeding.

Prohibition Prohibition is the proper remedy to afford relief

against a person or entity acted without or in excess ofjurisdiction or power by an inferior court, or when inthe exercise of jurisdiction in handling matters clearlywithin its cognizance the inferior court transgressesthe bounds prescribed to it by law, or when there is noadequate remedy available in the ordinary course oflaw by which such relief can be obtained. Thepurpose of writ of prohibition is to prevent an act by arespondent.

Mandamus Mandamus is employed to compel the performance,when refused, of a ministerial duty, this being its chiefuse and not a discretionaryduty.


2/12

Quo Warranto It is important to note this, because as will presentlybe explained proceeding under S78 of the Omnibuselection code have for their purpose to disqualify aperson from being a candidate, whereas quo warrantoproceedings have for their purpose to disqualify aperson from holding an office.

Expropriation For purposes of exercising the States power ofeminent domain.

ForeclosureFor purpose of satisfaction ofdebt.

Partition The purpose of partition is to put an end to co-ownership. It seeks a severance of the individualinterests ofeach joint owner vesting in each of them asole estate in a specific property and a right to enjoythe allotted estate without supervision or interference.

Ejectment Settled is the rule that the issue in an ejectment caseis the right to physical possession of the premises orpossession de facto. The suit is intended to restore tothe aggrieved party the possession of the premiseswhich had been detained from him. It is dependent ofany claim of ownership or title that either party mayset forth in his pleadings or in other cases.

Contempt X x x x the salutary rule is the power to punish forcontempt must be exercised on the preservative notvindictive principle, and on the corrective and notretaliatory idea of punishment. The courts and othertribunals vested with the power of contempt mustexercise the power to punish for contempt forpurposes that are impersonal, because that power isintended as a safeguard not for the judges as personsbut for the functions that they exercise.


3/12

Answer to Question 2

1. Preliminary attachment is a provisional remedy issued upon order of the court wherean action is pending to be levied upon the property of the defendant so the propertymay be held by the sheriff as security for the satisfaction of whatever judgment may berendered in the case. While foreclosure is the process of taking possession of amortgaged property as a result of someone's failure to keep up mortgage payments.

2. A preliminary injunction is an order granted at any stage of an action or proceedingprior to the judgment or final order, requiring a party or a court, agency or a person torefrain from a particular act or acts. It may also require the performance of a particularact or acts, in which case it shall be known as a preliminary mandatory injunction (Sec.1). On the other hand a prohibition is an extraordinary writ commanding a tribunal,corporation, board or person, whether exercising judicial, quasi-judicial or ministerialfunctions, to desist from further proceedings when said proceedings are without or inexcess of its jurisdiction, or with abuse of its discretion, there being no appeal or anyother plain, speedy and adequate remedy in the ordinary course of law (Sec. 2, Rule 65).

3. Direct contempt is misbehavior in the presence of or so near a court as to obstruct orinterrupt the proceedings before the same. It includes disrespect toward the court,offensive personalities toward others, or refusal to be sworn or to answer as a witness,or to subscribe an affidavit or deposition when lawfully required to do so. (Section 1,Rule 71 of the 1997 Revised Rules on Civil Procedure). While indirect contemptprovides for an acts which are not committed in the court's presence and punished onlyafter due process. This includes the following acts; (a) Misbehavior of an officer of acourt in the performance of his official duties or in his official transactions;(b)Disobedience of or resistance to a lawful writ, process, order, or judgment of a court,including the act of a person who, after being dispossessed or ejected from any realproperty by the judgment or process of any court of competent jurisdiction, enters orattempts or induces another to enter into or upon such real property, for the purpose ofexecuting acts of ownership or possession, or in any manner disturbs the possessiongiven to the person adjudged to be entitled thereto;(c) Any abuse of or any unlawfulinterference with the processes or proceedings of a court not constituting directcontempt under section 1 of this Rule;(d) Any improper conduct tending, directly orindirectly, to impede, obstruct, or degrade the administration of justice;(e) Assuming tobe an attorney or an officer of a court, and acting as such without authority;(f) Failureto obey a subpoena duly served;(g) The rescue, or attempted rescue, of a person orproperty in the custody of an officer by virtue of an order or process of a court held byhim. (Section 3, Rule 71).

4. Declaratory reliefrefers to a judgment of a court which determines the rights of partieswithout ordering anything be done or awarding damages. By seeking a declaratory

judgment, the party making the request is seeking for an official declaration of thestatus of a matter in controversy. Optimally, the resolution of the rights of the partiesinvolved will prevent further litigation. For example, a party to a contract may seek thelegal interpretation of a contract to determine the parties' rights, or an insured mayseek a determination of insurance coverage under a policy. While advisory opinion is astatement of a court on how it may rule on a legal issues if it is brought before it. Thisopinion is binding neither on the court nor the parties requesting it, and is reliable onlyto extent the facts presented to the court are accurate and complete.

5. Judicial foreclosure is a judgment by a court in favor of foreclosure of a mortgage or

deed of trust, which orders that the real property which secured the debt be sold under

foreclosure proceedings to pay the debt. The party suing probably has chosen to seek a

judicial foreclosure rather than use the foreclosure provisions of the mortgage or deed of

trust. Usually this move is made to get a "deficiency judgment" for any amount still

owed after the foreclosure sale. Thus it results from a court action rather than from

the power of sale given to a trustee. Judicial foreclosures occur when a trust

deed or mortgage deed does not have a power ofsale clause, thus compellingthe lender to take the borrower to court.There is Equity of Redemption which is the

right of the defendant mortgagor to extinguish the mortgage and retain ownership of the

property by paying the debt within 90-120 days after the entry of judgment or even after

the sale but before confirmation. This is in contrast to extra-judicial foreclosure, in

which a foreclosure can be completed outside the court system. This process involves

the sale of the property by the mortgage holder without court supervision. This process

is generally much faster and cheaper than foreclosure by judicial sale. There exist

a Right of Redemption whichis the right of the debtor, his successor in interest or any
http://www.investorwords.com/7202/result.htmlhttp://www.investorwords.com/84/action.htmlhttp://www.investorwords.com/14658/power_of_sale.htmlhttp://www.investorwords.com/5086/trustee.htmlhttp://www.investorwords.com/2039/foreclosure.htmlhttp://www.investorwords.com/13966/trust_deed.htmlhttp://www.investorwords.com/13966/trust_deed.htmlhttp://www.investorwords.com/3124/mortgage.htmlhttp://www.investorwords.com/1341/deed.htmlhttp://www.investorwords.com/3762/power.htmlhttp://www.investorwords.com/4363/sale.htmlhttp://www.investorwords.com/13039/clause.htmlhttp://www.investorwords.com/2767/lender.htmlhttp://www.investorwords.com/7230/take.htmlhttp://www.investorwords.com/7518/borrower.htmlhttp://www.investorwords.com/10504/outside.htmlhttp://www.investorwords.com/10504/outside.htmlhttp://www.investorwords.com/7518/borrower.htmlhttp://www.investorwords.com/7230/take.htmlhttp://www.investorwords.com/2767/lender.htmlhttp://www.investorwords.com/13039/clause.htmlhttp://www.investorwords.com/4363/sale.htmlhttp://www.investorwords.com/3762/power.htmlhttp://www.investorwords.com/1341/deed.htmlhttp://www.investorwords.com/3124/mortgage.htmlhttp://www.investorwords.com/13966/trust_deed.htmlhttp://www.investorwords.com/13966/trust_deed.htmlhttp://www.investorwords.com/2039/foreclosure.htmlhttp://www.investorwords.com/5086/trustee.htmlhttp://www.investorwords.com/14658/power_of_sale.htmlhttp://www.investorwords.com/84/action.htmlhttp://www.investorwords.com/7202/result.html


4/12

judicial creditor or judgment creditor of the debtor or any person having a lien on the

property subsequent to the mortgage or deed of trust under which the property is sold

to redeem the property within one (1) year from the registration of the of the sheriffs

certificate of foreclosure sale.

Answer to Question no. 3

Provisional

Remedies

Purpose of the bond Who files the bond How much is the

amount of bond

Preliminary

Attachment

Use to answer for the

damages and costs,

which may be

adjudged, to the

adverse party.

The bond is filed by

the plaintiff, but the

defendant may also

file a counter bond in

order to discharge the

property attach.

The amount of bond

is addressed to the

sound discretion of

the court.

Preliminary

Injunction

To make sure that if

damages are suffered

while an injunction is

in place,

compensation will be

available to the

injured party if and

when the injunction

is lifted.

The plaintiff files the

bond.

The amount of bond

is addressed to the

sound discretion of

the court.

Receivership Its purpose is to

require the person

responsible for all

fiduciary duties,

especially as they

apply to the sale of

real estate, to

discharge them

according to law.

In order to sustain

damages that a

person may suffer by

reason of the

appointment of such

receiver in case the

applicant shall have

procured such

appointment without

sufficient cause

The applicant files the

bond.

The receiver is also

required to file a

bond.

Bond is mandatory

and the court fixes it.

Replevin Executed to

indemnify the person

from whose custody

the property was

taken for such

damages as he may

sustain.

A replevin bond is

filed by a plaintiff

where they are

asserting ownership

to property in the

hands of the

defendant.

The bond is double

the value of the

personal property

seized.

Foreclosure This protects the

creditor if the attempt

to stop foreclosure is

simply an attempt to

escape the foreclosure

of a property.

The debtor files the

foreclosure bond.

Foreclosure bond

must be equal to the

amount of debt.


5/12

REPUBLIC OF THE PHILIPPINES

NATIONAL JUDICIAL REGIONREGIONAL TRIAL COURTBRANCH 1, QUEZON CITY

UNIVERSAL SOLAR BANK,Plaintiff,

-versus-

Civil Case No. 12345FOR: SUM OF MONEY

AND DAMAGES

MERCURIO E. PLANETO,Defendant.

x-----------------------------------------------------x

C O M P L A I N T

Plaintiff, by Counsel, and unto this Honorable Court respectfullystates that;

1.That the plaintiff is a corporation duly organized and existingunder the laws of the Philippines, having its principal office atno. 3 Evangelista St. Commonwealth Ave. Quezon City;

2.That defendant Mercurio E. Planeto is of legal age, Filipinocitizen and a resident of 532 M.F. Jhocson St. Sampaloc Manilawhere he may be served with summons and other Court

processes;

3.That on April 24, 2011, the defendant obtained a loan from theplaintiff in the sum of One Hundred and Fifty Thousand pesos(P150, 000.00) to be fully paid on its due date which is on July24, 2011 as evidenced by a Promissory Note dated April 24,2011, photocopy of which is hereto attached as Annex A;

4.That defendant was able to pay only the amount of P15.000.00from the principal amount and despite the lapse of the period to

pay the loan, defendant failed to pay his total obligation therebyentitling the plaintiff to be paid of the unpaid principal inaddition to the agreed 20% per annum by way of interest and 20% per annum by way of penalty;

5.That said loan now long overdue despite of repeated demandsand he failed and refused and continue to fail and refuse to pay


6/12

the same as evidenced by the Demand Letter send by theBanks Legal Counsel, photocopy of which is hereto attached asAnnex B and made an integral part hereof;

6.That repeated demands were made for the defendant to pay hisobligation but he failed to pay;

7.There is no other sufficient security for the claim sought to beenforced by this action but to attach the real property of thedefendant located at 555 Halamanan St. Litex Road Quezon

City, with an assessed value amounting to One Hundred Forty-two Thousand and Three Hundred Eight Pesos (P142,308.00);

8.The amount due to the plaintiff is as much as the sum for whichthe order of attachment is herein sought, above all legalcounterclaims;

9.The plaintiff is also entitled to Writ of Preliminary Injunction torestrain any person from converting or disposing the propertysubject of attachment.

10. As shown by the foregoing allegations, a sufficient cause ofaction exist and this case is one of those enumerated in Section1, Rule 57 and Sec. 1 of Rule 58 of the 1997 Rules of CivilProcedure;

11. Plaintiff is willing to post a bond executed to the propertyattached and party enjoined, in an amount to be fixed by thisHonorable Court, to effect that the plaintiff will pay to such partyall damages which respondent or the government may sustainby reason of the attachment and the injunction if this HonorableCourt should finally decide that the plaintiff was not entitledthereto.

PRAYER

WHEREFORE, premises considered, respectfully prayed of thisHonorable Court to:

1. Immediately upon the filing of this Complaint, an order ofWrit of Preliminary Attachment and Writ of PreliminaryInjunction shall forthwith be issued;

2. After due trial, judgment be rendered ordering the defendantto pay plaintiff:

a.To pay Plaintiff the sum of One Hundred Thirty FiveThousand (P135,900.00) with interest at 20% per annumby way of interest and 20% per annum by way of penalty.


7/12

b. Attorneys Fees of 10% of the principal amount;

c.The cost of suit.

Other just and equitable reliefs are also prayed for.

Commonwealth, Quezon City, September 11, 2011.

KtarintingAtty. Kay A. Tarinting

-Counsel for Plaintiff-Commonwealth, Quezon CityPTR No. 98765Issued on; Nov. 13, 2003Issued at: Commonwealth,Quezon CityIBP No. 897654Issued on; Dec. 02, 2004Issued at: Quezon CityRoll No. 67854MCLE Compliance no: 183456


8/12

ANNEX A

UNIVERSAL SOLAR BANKPROMISSORY NOTE

Borrower Information:

Name: MERCURIO E. PLANETO Date: April 24, 2011

Street Address:532 M.F. Jhocson St.Sampaloc Manila

Date of Birth: July 28, 1969

City: Manila Area code/Telephone number: 1008/ 7353890

Province :Gumaca, Quezon Drivers License Number: N07-12-12345

Zip: Social Security Number: SSS-564271-76

Lender Information:

Name: UNIVERSAL SOLAR BANK Area code/Telephone number: 1122/ 4747093

Street Address: no. 3 Evangelista St.Commonwealth Ave.

If paying by check, make check payable to:

UNIVERSAL SOLAR BANK

Send payments to:

UNIVERSAL SOLAR BANK

City: Quezon city

Province: N/A

Zip:

Loan Information:

Loan Amount:

One Hundred and Fifty Thousandpesos (P150, 000.00).

Loan Period:

THREE MONTHS

Interest Rate:

20% per annum by way of interestand 20 % per annum by way ofpenalty.

Payment Schedule:

July 24, 2011

MercurioPlaneto

___________________

Borrowers Signature


9/12

ANNEX B

August 16, 2011

Dear Mr. MERCURIO E. PLANETO,

Our accounting department has turned your past due account over to me hoping

that I could persuade you to bring it current prior to forwarding your file to our

legal department.

When our firm extends credit to an individual such as yourself, it bases its

decision on that applicants previous credit history and ability to pay. When you

requested credit form us, you met all of this criteria. Today, however, your

account has reached the critical stage.

You can avoid any additional costs if you mail your check in the amount of

One Hundred Forty-Eight Thousand and Nine Hundred pesos (P148, 900.00)

including the accumulated interest.

I must hear from you within five days.

Sincerely,

Atty. Kay Tarinting

US BANK Legal Counsel


10/12

VERIFICATION /CERTIFICATION

That I, Kristal Mae A. Balagtas, after having duly sworn to in accordance withlaw, do hereby depose and say:

1. That I am the President / CEO / Chairperson of the Universal SolarBank with its principal office address at no. 3 Evangelista St.Commonwealth Ave. Quezon City.

2. That I caused the preparation and filing of the foregoing Complaint.

3. That all the allegations therein stated are true and correct to the best ofmy knowledge and information.

4. That I did not commence any other actions or proceeding involving thesame issues in any court, tribunals or agency;

5. That shall I learn thereafter that a similar action or proceeding has beenfiled or is pending before any court, tribunal, or agency, undertake toreport that fact within five (5) days to this Court.

Commonwealth, Quezon City, September 11, 2011.

KBalagtasKristal Mae A. Balagtas

CTC No. 9870677Issued on: 01-03-11Issued at: Quezon, City

SUBSCRIBED AND SWORN to before me this 11th

day of September 2011 atQuezon City.

JoseLopezAtty. Jose L. Lopez JR

NOTARY PUBLIC

Until December 31, 2011PTR No. 0138435

Dated: November 13, 2004COMMONWEALTH, QUEZON CITY

DOC. No. _55__PAGE No.__7__Book No. _XXV_Series of 2011

Copy furnished:Mercurio E. Planeto532 M. F. Jhocson St.Sampaloc Manila

By registered mail due to distance and lack of regular messenger to effectservice.

KtarintingAtty. Kay A. Tarinting


11/12


12/12

Scarp Finals

Documents

Transcript of Scarp Finals