Wednesday, December 15, 2010

after the EPIC quiz- Rule 39 - December 15 Remlaw session

    Rule 39 Execution, Satisfaction and Effect of Judgments
    Have in mind the kinds of execution, kinds of judgment...
    • Money judgment
      Pay money
      Levy on property, satisfy judgment using it
      ...by sale in public auction
      Garnishment of debts and credits
      Transfer of title...
      Give order to register of deeds...
      Decision that compels action on the losing party
      Serve the writ, comply with it
      If does not do it, ask someone else to do it at the losing party's expense
    So for the rest, on how execution is made...
    *look at the back of the title...for annotations...
    ...the claims annotated...right to redeem
    *notice that the most important provisions are the last two: res judicata and recognition of foreign judgment
    *on recognition of foreign judgment: used to include arbitral judgments rendered abroad. Now, under ADR law, there is another manner of confirming those awards
    ...domestic arbitral awards needs to be confirmed by RTC to be final and executory
    ...counter move in arbitration: may file own petition to vacate (or counterpetition to vacate) arbitral award
    *what is discretionary execution? Execution pending appeal - see stronghold
    No modification. Computation should be from the time the employee was dismissed until finality of judgment (taken from when CA made judgment on the merits - the period until which the counting of the period should be taken)
    *Judgments which are immediately executory, even pending appeal
    >accounting
    >injunction
    >support
    >receivership
    *there are two kinds of res judicata...
    F: there were 2 disputes: for same parcel of land...
    1. Revocation of foreclosure sale
    2. Recovery of ownership on the ground that he redeemed...
    H: Bar by prior judgment
    Changing the titles of the cases will not be a ground for hearing the 2nd case because it was already barred by prior judgment - same parties, same subject matter, same relief - stop the involuntary transfer of the property
    F: foreign element involved
    1. Appeal from order of swiss government
    2. B4 RP court: PSGG asked to officially advice the swiss government that they are not included in the freeze order
    -refer to the same deposit
    H: Res Judicata DOES NOT PRECLUDE THE HEARING OF PRESENT ACTION
    4 ELEMENTS:
    1. Final judgment
    2. On the merits
    3. Issued by court of competent court
    4. Similarity in identity of parties, subject matter, COA - not present here: no similar parties!
    -absolute similarity not required, shared identity will suffice: SWISS government different from interest of PCGG
    F:
    1. Annulment of consolidation of title - foreclosure sale but not redeemed
    2. Annulment of title and cancellation of mortgage of DBP -earlier case
    H: no res judicata - no identity of COA ...precisely the act of consolidation which was being questioned in the second case...did not exist
    F: About heirs...in this case, there were 2 complaints;
    1. Annulment of deed of sale of the child who was able to transfer the title to his name - held that he falsified the deed - deed of sale null and void
    2. By mother and children trying to recover property from the purchasers of the property fraudulently sold by the child to 3p
    H: Difference between conclusiveness of judgment & res judicata
    Res judicata
    Conclusiveness of judgment
    1. Identity of parties, subject matter and COA
      2. -if identity of the three, complete bar
    -there may not be identity of COA
    -issues raised in first cases would be the only issues binding in the 2nd case
    -indeed, the issue is foreclosed; but the question of WON the subsequent purchasers were purchasers in GF is still not resolved - here held that they were not purchasers of GF because there was an annotation?
    *Lesson: Don't give up! Can still try to raise same subject matter, but just innovate another COA! Just barred by conclusiveness of judgment, not by res judicata
    Caution: should be specified in CNFS and Verification - so if caught forum shopping, may be punished
    F: Action for sum of money. RTC makati granted motion for summary judgment ifo mrs. Garon. Stronghold opposed decision, but petition was dismissed...mrs. Garon filed motion for execution pending appeal...Stronghold appealed RTC decision allowing execution pending appeal - Mrs. Garon needs the money to support her family, as well as to pay the medical expenses of her husband
    WON the execution pending appeal should be allowed?
    H: NONE
    -more of an exception, rather than a rule; should be strictly construed because it affects the rights of the parties which are not yet certain
    -good reason: for the benefit of the movant...but in this case, it wasn't the movant who needs the money but her husband
    Cf: Archinet v. Becco
    F: Case w/ re construction of condo unit owned by Becco, whose sister company is the contractor...Becco subcontracted Archinet..Archinet filed case for money judgment against Becco for failure of Becco to pay for the installments of materials and other claims. RTC ruled ifo Archinet. Becco moved for reconsideration, appealed as well, Archinet filed motion for the issuance of a writ  of execution pending appeal, based on the reason that the president of becco already a fugitive of justice who was also a foreign nationa. + company being dissolved + Becco in danger of being insolvent. TC found that these are good reasons enough to grant execution pending appeal. CA reversed: There was already a certificate saying that they withdraw the application for dissolution of the partnership + units being sold to another
    H: RTC ruling reinstated. These reasons are enough already. CA reasons was misplaced:
    1. Cert of secretary: not presented in evidence when they alleged such fact - only an afterthought that they were not going to push through
    *liberalized rule on execution pending appeal. Previously, in all cases for motion pending appeal granted, one of the parties (winner) wants to get benefit before they die...granted...
    F: Title...Paramount attached lots and caused annotation. Filed action to annul liens of paramount over same lots. RTC ifo Florendo. When Paramount filed appeal, Florendo filed for motion for ....reasons: advance age + illnesses; dilatory appeal; willingness to pose bond; insolvency of Paramount. RTC granted.
    H: Reasons given by Florendos not good enough. The decision was indescriptive. Only the mother was of advance age and ill, the others were not able toi show illness
    As to insolvency, not able to show the same.
    Plus it was the Florendos who were ordered to pay, not the RTC
    Give bond: no assurance that they would really post bond
    *so conclusion ni ma'am: try motion for execution pending appeal (filed before the court which rendered decision loses its jurisdiction over the case - before records transferred, before it lose jurisdiction - or else, file it with the court which has jurisdiction to rule on the motion...)
    *if execution of a final and executory judgment, still has to file a motion for the issuance of a writ of execution - and you have to notify the other party! There must always be notice to the other party
    PROBLEM: Spawned delay! Note that now, you can no longer appeal if you are the judgment obligor/debtor an order issuing a writ of execution
    ...but you could always try to file P4C based on R65 + TRO
    ....Motion for clarification...
    *when you are praying for writ of execution, be very specific so that it would be easier to execute
    ...if it is money judgment, it would be easier if you look for properties of the judgment debtor
    ...can even ask the judgment debtor, other people to be examined in court to find the properties
    ...garnishment: on the banks...comply w/n 5 days to tell the court if the debtor has deposits (what about the bank secrecy law?)....then turn over bank deposits...
    SECTION 6
    F: petitioner Yau won, final and executory...writ of execution issued. Money bank deposits garnished, shares of stocks sold. But judgment was just partially satisfied. In the interim, 2 board of directors questioned decision + writ of execution. Only in 1999 when another writ of execution was ordered, they found 3 houses which could be levied, and were indeed levied. Claimed that execution already functus officio...
    WON the execution of the judgment can still be enforced
    H: Computation for time should not include when execution stayed - from date of final and executory judgment - date of entry = date of finality
    Enumerated when execution stayed
    -here, there is an interruption or delay because due to the pleadings filed by the 2 board members, they were able to maneuver the execution to be already 16 years
    *sheriff should try to execute w/n 60 days
    Initial period given to the sheriff:
    -Sheriff needs to report to the court every 30 days status.
    Writ of execution needs to be satisfied w/n 5 years. Can no longer execute it by motion...you now file a new action after to revive the judgment!
    ...should file the action to revive in the place where the real property is located
    Cf; Luzon Surety vs. ....you can only revive once (1995) - based in US Jurisprudence where it is very difficult to hide the properties - all the deeds of sale of all properties are even uploaded in the internet!
    But in 1997: changed the rule...can revive more than once...
    Reason: in RP, the judgment debtors have a very easy way of hiding properties...so why reward them and stop the right of a judgment creditor to claim the judgment award?
    Action to revive judgment: just revive judgment, not zeroing property...if granted, file motion for issuance of writ of execution over property...this would be valid for 5 years. If tapos na, wala pa ring property, file again revival of judgment. Judgment would last for 10 years. Hanggang maubos, pwede irevive nang irevive judgment.
    *problems in redemption: judgment debtor usually prolongs redemption period or probably is haggling with judgment creditor to lower the amount...usually banks agree to it because they are prohibited from holding real estate properties for a fixed period...
    F:
    H: Judicial action to compel redemption
    Requirements:
    1. Judicial action filed w/n the 1 year from the registration of cert of sale
    2. There must be GF or purpose of judicial action is solely for determining redemption price
    3. Upon the determination by the court of the redemption price, there must be prompt payment in full of redemption price
    *redemption period does not start to run, until cert of sale registered.
    Who's entitled to fruits of property during redemption period: judgment debtor/ whoever is in possession
    *Family home exempt from execution - but the judgment debtor should raise it to the sheriff
    *should leave something for the judgment debtor to live, leave certain items in the household
    *proceeds from life insurance are exempt from execution - but would only work if revocable life isurance sabi ni ma'am because if irrevocable, would belong to the beneficiary na
    -3P Claimant party is originally in a suit but...original case for quieting of title. Ruled ifo plaintiff. Able to get writ of execution. Fermin et al. Entry of judgment. WoE. Execution order...Fermin et al claim that they would be prejudiced because sheriff wants to demolish their houses
    H: For Fermin et al. The suit only binds parties in the suit, not strangers. Special order of demolition cannot bind 3P not affected.
    ...Terceria was not covered by S 43, but by section 60....
    *if the judgment is for people to vacte premises: sheriff would notify them that there is already a writ of execution - give them 3 days to vacate. If 3 days lapsed, did not vacate yet,forcibly eject them with help of police. If improvements to be removed, ask for demolition...
    *3P claimant is somebody who claims that the property being executed is his. File affidavit of 3p claim first. If sheriff gets it, defer execution unless the judgment creditor posts a bond...3P could either intervene if still proper, or ...
    ...it 3P proves his claim, but property already sold in foreclosure sale. What is the remedy of the winning bidder: go after the bond posted by the obligee...so important that bonds should be put up...
    -if the foreclosed property only the land, and did not remove the buildings there, can be removed at his expense...?
    *if sheriff given judgment money, sheriff  has to return it to clerk of court....deposit with bank...? BUT CANNOT REFUSE TO GIVE IT TO THE JUDGMENT OBLIGEE...
    Who would tell the sheriff which properties to levy? If both parties are dead: Judgment obligor! Judgment obligor could also say how the properties would be sold?
    If judgment creditor also the highest bidder, do not have to pay, unless price higher. Pay excess to debtor.
    Time: 9am - 2pm
    If perishable goods to be sold: sell immediately? Weh check R39!
    *unless you want to be a sheriff in you future life...[you don't need to read the rest of R39]
    Next year: til Rule 44...or the whole of appeal
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