Remrev-sca-nos-9-10-11.docx

9. Discuss the distinction of quo warranto as a special civil action under Rule 66 and as an electoral proceeding under the Omnibus Election Code as to:

The governing rule: (wala ko kasabot ani, not sure)

Rule 66 ROC: Issue is legality of the occupancy of the office by virtue of a legal appointment; Omnibus Election Code: Issue is eligibility of the person elected

Or kini? If the dispute is as to the counting of votes or on matters connected with the conduct of the election, quo warranto is not the proper remedy but an election protest.

Period:

Rule 66: Presupposes that the respondent is already actually holding office and action must be commenced within 1 year from cause of ouster or from the time the right of petitioner to hold office arose. Omnibus: Petition must be filed within 10 days from the proclamation of the candidate.

Who may file:

Rule 66: Petitioner is person entitled to office. Omnibus: Petitioner may be any voter even if he is not entitled to the office.

Availability of action for action for damages:

Rule 66: Person adjudged entitled to the office may bring a separate action against the respondent to recover damage. (Sec 11, Rule 66). Omnibus: Actual or compensatory damages are recoverable in quo warranto proceedings under the Omnibus Election Code.

10. a) What is expropriation? What court has jurisdiction over expropriation proceedings?

Expropriation is the procedure for enforcing the right of eminent domain. It is proper only when (1) The owner refuses to sell; or (2) If the latter agrees, agreement as to the price cannot be reached.

Requisites of the Exercise of a Valid Expropriation (DCP)

1. Due process of law; 2. Payment of just compensation; and 3. Taking must be for public use.

It is filed with RTC because it is an action incapable of pecuniary estimation regardless of the value of the subject property.

b) what are the two stages of expropriation proceedings?

1. First stage – the determination of the authority of the plaintiff to expropriate. This determination includes an inquiry into the propriety of the expropriation – its necessity and the public purpose.

NOTE: The first stage will end in the issuance of an order of expropriation if the court finds for plaintiff or in dismissal of the complaint if it finds otherwise.

2. Second stage – the determination of just compensation through the court-appointed commissioners.

c) What are the prohibited pleadings in an expropriation proceedings?

By reason of expediency, counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading. (Sec. 3, Rule 67)

d) Distinguish expropriation under Rule 67 from expropriation under R.A. 8974 as to:

d.1 - nature of government projects involved;

Rule 67: Applies to expropriation by Government for purposes other than national infrastructure. RA 8974: Applies to expropriation by Government for purposes of national infrastructure projects.

d.2- as to whom payment should be made for the writ of possession to issue;

Rule 67: The government is required only to make an initial deposit with an authorized government depositary to be entitled to a writ of possession. RA 8974: The government is required to make immediate payment to the property owner upon filing of the complaint to be entitled to a writ of possession.

d.3 – as to the basis for determination of amount of payment (Republic of the Philippines, et. al. vs. Gingoyon. Et. al. GR No. 166429, Dec. 19, 2005)

Rule 67: The initial deposit is equivalent to the assessed value of the property for the purposes of taxation. RA 8974: As the relevant standard for initial compensation, the market value of the property as stated in the tax declaration or the current relevant zonal valuation of BIR, whichever is higher and the value of the improvements and/or structures using the replacement cost method.

11. a) Distinguish Judicial foreclosure from extrajudicial foreclosure.

Judicial: Involves the filing of an independent action. Extrajudicial: Does not require the filing of an action

Judicial: There is only an equity of redemption and no right of redemption except when the mortgagee is a banking institution. Extrajudicial: Right of redemption exists

Judicial: There could be a deficiency judgment rendered by the court in the same proceeding. Recovery of deficiency is by mere motion. Extrajudicial:There can be no judgment for a deficiency because there is no judicial proceeding although recovery of deficiency is allowed and through an independent action.

b) What court has jurisdiction over foreclosure proceedings?

It is the RTC of the province where the land or any part thereof is situated.

NOTE: Foreclosure of REM is incapable of pecuniary estimation because the court in this action would have to resolve the issue of whether or not there is a legal basis for foreclosure.

c) Distinguish right of redemption from equity of redemption as to:

C.1. What rule shall govern the proceedings;

Equity: Governed by Rule 68 Right: Governed by Secs. 29-31, Rule 39

C.2. Period within which to exercise the right (Top Rate International Services, Inc. vs. IAC, et. al. GR No. 67496, July 7, 1986)

Right: Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within a period of not less than 90 nor more than 120 days from the entry of judgment or even after the foreclosure sale but prior to confirmation. Equity: Right of the debtor, his successor in interest or any judicial creditor or judgment creditor of said 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 1 year from the registration of the Sheriff􀇯s certificate of foreclosure sale.