Tuesday, July 28, 2015

Nuisance Petition of Injunction with Prayer for issuance of TRO in Extrajudicial / Judicial Foreclosure of Real Estate Mortgages

All too often when a mortgagor is at the end of his leash he will secure the services of a lawyer to file an injunction suit against a recently filed Petition for Judicial Foreclosure of Real Estate Mortgage or an application for Extrajudicial Foreclosure of Real Estate Mortgage.

Before said injunction suit will be given due course or even the prayer for issuance of a temporary restraining order, the trial court will have to determine whether or not the same complies with the Rules set forth in AM No. 99-10-05-O otherwise the petition will be thrown out. To be sure, to prevent the filing of NUISANCE petitions, counsel must make sure to comply with the requirements set forth in paragraphs 1 and 2 of the Admin Matter. Now what is this Administrative Matter all about? Here's the full text of the AM:


EN BANC

[A.M. No. 99-10-05-O : February 20, 2007]

RE: PROCEDURE IN EXTRAJUDICIAL OR JUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGES 



RESOLUTION

Acting on the recommendation of the Committee on Revision of the Rules of Court, the Court RESOLVED to adopt the following additional rules with respect to Extrajudicial or Judicial Foreclosure of Real Estate Mortgages:

(1) No temporary restraining order or writ of preliminary injunction against the extrajudicial foreclosure of real estate mortgage shall be issued on the allegation that the loan secured by the mortgage has been paid or is not delinquent unless the application is verified and supported by evidence of payment.

(2) No temporary restraining order or writ of preliminary injunction against the extrajudicial foreclosure of real estate mortgage shall be issued on the allegation that the interest on the loan is unconscionable, unless the debtor pays the mortgagee at least twelve percent per annum interest on the principal obligation as stated in the application for foreclosure sale, which shall be updated monthly while the case is pending.

(3) Where a writ of preliminary injunction has been issued against a foreclosure of mortgage, the disposition of the case shall be speedily resolved. To this end, the court concerned shall submit to the Supreme Court, through the Office of the Court Administrator, quarterly reports on the progress of the cases involving ten million pesos and above.

(4) All requirements and restrictions prescribed for the issuance of a temporary restraining order/writ of preliminary injunction, such as the posting of a bond, which shall be equal to the amount of the outstanding debt, and the time limitation for its effectivity, shall apply as well to a status quo order.

Upon effectivity of these additional rules, all rules resolutions, orders and circulars of this Court, which are inconsistent therewith, are hereby repealed or modified accordingly.

These additional Rules in the Procedure in Extrajudicial or Judicial Foreclosure of Real Estate Mortgages shall take effect on March 10, 2007 following their publication in a newspaper of general circulation not later than February 28, 2007.

February 20, 2007.

(Sgd.) REYNATO S. PUNO
Chief Justice


(Sgd.) LEONARDO A. QUISUMBING
Associate Justice
(Sgd.) CONSUELO Y√ĎARES-SANTIAGO 
Associate Justice


(Sgd.) ANGELINA SANDOVAL- GUTIERREZ
Associate Justice
(Sgd.) ANTONIO T. CARPIO
Associate Justice


(Sgd.) MA. ALICIA AUSTRIA-MARTINEZ 
Associate Justice
(Sgd.) RENATO C. CORONA
Associate Justice



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