Provisional Remedies

ATENEO CENTRAL BAR OPERATIONS 2007

Rem ed ial Law Law SUMMER REVIEWER

PROVISIONAL REMEDIES

PROVISIONAL REMEDIES - writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect his rights and interests therein, pending rendition, and for the purpose of ultimately affecting a final judgment in the case. Provisional - constituting temporary measures availed of during the pendency of the action. Ancillary - incidents in and dependent on the result of the main action. PROVISIONAL REMEDIES AVAILABLE UNDER THE RULES OF COURT Rule 57: Preliminary Attachment Rule 58: Preliminary Injunction Rule 59: Receivership Rule 60: Replevin Rule 61: Support Pendente Lite When Provisional Remedies Available 1. Attachment, injunction, and support pendente lite may be applied for before final judgment. 2. Replevin may be applied before the answer. 3. Receivership may be applied for at any stage of the action and even after final judgment. When Bond is Required and How Amount of Bond is Determined 1. For attachment and injunction , bond is always required from the plaintiff but the amount of the bound to be filed by the QuickTime™ and a applicant TIFFis(Uncompress addressed to the sound (Uncompressed) ed) decompresso decompressorr are needed to see this picture. discretion of the court. 2. In preliminary attachment and replevin, if the applicant is the Republic of the Philippines, no bond shall be required. 3. In receivership, the bond as fixed by the court is not always required of the petitioner, whether or not the appointment of a receiver has been applied for ex parte .

4. In replevin, the bond to be posted by the applicant is an amount double the value of the personal property to be seized. 5. In applications for support pendente lite , no bond is generally required from the applicant.

RULE 57 PRELIMINARY ATTACHMENT Section 1. Grounds upon which attachment may issue When May Application for Attachment Be Made 1. At the commencement of the action; or 2. At any time time before entry of judgment. In What Actions Attachment Proper a) In an action for the recovery of specified specified amount of money and damages, except moral or exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Phils with intent to defraud creditors; b) In an action for money or property embezzled; fraudulently misapplied or converted to own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk in course of employment; or any person acting in fiduciary capacity, or for willful violation of duty; c) In an action action to recover recover the possession possession of property unjustly or fraudulently taken, detained or converted, when the property is removed, concealed or disposed of to prevent its being found or taken by the applicant or an authorized person; d) In an action against party who has been guilty of fraud in contracting the debt or incurring the obligation upon which action is brought; or in the performance thereof; e) In an action against party who has removed removed or disposed of property, or is about to do so, with intent to defraud creditors; or f) In an action against party who does not reside and is not found in the Phils, or on whom summons may be served by publication. Erana v. Vera 74 Phil. 272 (1944)

—Ad vise vise rs: rs: Atty. Tranq Hea d: Mary Eliz Tranq uil Salv Salv ad or III ; Hea Elizab ab eth M. Belmo Belmo nte, Renee Renee Lynn C. Mic iano, Ma . Cec illia illia G. Und erstud erstud ies: ies: Neliz Natividad ; Und Neliza Mac apa yag , Benjamin Benjamin C. Yan Yan —

Rem ed ia l La La w Sum Sum m er Rev Rev iew er ATENEO CENTRAL BAR OPERATIONS 2007

When civil action has been waived or reserved, no application for attachment in the criminal action can be allowed and granted.

Ramcar, Inc. v. De Leon 78 Phil. 449 (1947) When civil action is suspended due to the filing of the criminal action, no attachment may issue in the criminal action because civil action remains pending in court. Adlawan v. Torres 233 SCRA 645 (1994) Mortgage of property does not amount to removal/disposal so as to come w/in the purview of Sec1(e) Rule57. Carpio v. Macadaeg 9 SCRA 552 (1963) Mere removal or disposal of property does not justify an attachment. There must be a showing of intent to defraud defendant’s creditors before the writ of attachment may issue. Two-Fold Purpose of Attachment 1. To seize the property of the debtor debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment; j udgment; 2. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. Section 2. Issuance and contents of order How Order of Attachment Issued 1. Ex parte ; or 2. Upon motion with notice and hearing.

and so also removed from the jurisdiction of the court a quo. Properties Exempt from Execution All properties exempt from execution are likewise exempt from attachment. (Sec. 13, Rule 59) Section 3. Affidavit and Bond Required REQUIREMENTS FOR ISSUANCE OF WRIT OF ATTACHMENT 1. Affidavit of the applicant, or some other person who personally knows the facts, showing that: a. sufficient cause of action exists; b. the case case is one of those mentioned mentioned in Section 1; and c. There is no other sufficient security for the claim sought to be enforced by the action, and that the amount due the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. 2. Bond Section 4. Condition of applicant’s bond Conditions of the Applicant’s Bond The bond shall answer for: 1. All the costs which may be adjudged to the adverse party; and 2. All damages which he may sustain by reasons of the attachment. Section 5. Manner of Attaching Property

By Whom Order Attachment Issued 1. The court court in which the action is pending; pending; 2. The Court of Appeals; or 3. The Supreme Court. Uy v. CA 215 SCRA 859 (1992) The trial court may validly issue a writ of QuickTime™ and a case is on appeal. preliminary attachment even ifdecompressor the TIFF (Uncompress (Uncompressed) ed) decompresso r neededorders to see this picture. The trial court may are issue for the protection and preservation of the rights of the parties which do not involve any matter litigated on appeal. Olib v Pastoral 188 SCRA 692 (1990) Where the main action is appealed, the attachment which may have been issued as an incident of that action is also considered appealed

PRINCIPLE OF PRIOR or CONTEMPORANEOUS JURISDICTION Enforcement of writ of preliminary attachment must be preceded by or simultaneously accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party. BUT the requirement of prior or contemporaneous service of summons shall not apply where: a. the summons summons could not be served despite diligent efforts; or b. the defendant is a resident of the Phils temporarily absent therefrom; or c. the defendant is a non-resident of the Phils; or d. the action is in rem or quasi in rem . Page 104 of 289


Davao Light v. CA 204 SCRA 343 (1991) Prior or contemporaneous service of summons is not necessary for the validity of the ISSUANCE of a writ of attachment. Onate v. Abrogar 241 SCRA 659 (1995) Prior or contemporaneous service of summons is necessary for the validity of the ENFORCEMENT of a writ of attachment. Section 6. Sheriff’s return Section 7. Manner of attaching property Manner of Attaching Property a. real property, growing crops, interest therein - Order and Notice to Register of Deeds and Occupant or his agent within the province; b. personal property capable of manual delivery - sheriff to take and safely keep it, then issue a receipt; c. stocks or shares - writ and notice to president or managing agent; d. debts, credits, bank deposits, royalties, commissions, personal property incapable of manual delivery - writ and notice to debtor or person in control thereof; e. interest in estate of deceased - writ and notice to executor/administrator, clerk of court where estate being settled, and heir/devisee/legatee; f. property in custodia legis - writ to the court/agency and notice to custodian. Section 8. Effect of attachment of debts, credits and all other similar personal property Perla Compania v. Ramolete 203 SCRA 487 (1991) In order to bind the garnishee on a writ of garnishment, previous service of summons is not required; only service upon him of the writ of garnishment is needed. and a Section 9. Effect of QuickTime™ attachment of interest in TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr are needed to see this picture. property belonging belonging to the estate of the decedent

Section 10. Examination of party whose property is attached and persons indebted to him or controlling his property; delivery of property to sheriff

Section 11. When attached property may be sold after levy on attachment and before entry of judgment When Property Attached May be Sold a. hearing and notice; b. property perishable or interests of all may be subserved by sale; c. sale by public auction; and d. proceeds deposited in court. Section 12. Discharge of attachment upon giving counterbound Section 13. Discharge of attachment on other grounds GROUNDS FOR DISCHARGE 1. Debtor has posted posted a counterbond or has made the requisite cash deposit; 2. Improper or irregular issuance of attachment; 3. Improprer or irregular enforcement of attachment; 4. Bond is insufficient; 5. Attachment is excessive, in which case the discharge is limited to the excess; 6. Property attached is exempt exempt from execution; or 7. Judgment is rendered against the the attaching attaching creditor. Mindanao Savings and Loan Association, Inc. v. CA 172 SCRA 480 (1989) Objections to the impropriety or irregularity of writ of attachment may no longer be invoked once a counterbond is filed. Calderon v IAC 155 SCRA 531 (1987) The dissolution of a writ of attachment by virtue of the filing of a counterbond by the defendant does not dissolve the applicant’s bond and the same may be proceeded against by the defendant. Section 14. Proceedings where property claimed by third person Terceria The third-party claimant or any third person may vindicate his claim to the property in the same or separate action. ( Sec. 16, Rule 39 ) Uy v. CA 191 SCRA 275 (1990) Where the sheriff attaches a property claimed by a third person, such person may institute a separate action to vindicate his right. The rule that property in custody of the law may not be interfered with by

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another court applies only in cases where the property belongs to the defendant or one in which he has an interest. Section 15. Satisfaction of judgment out of property attached; return of sheriff Section 16. Balance due collected upon an execution; excess delivered to judgment obligor

b. When damages was sustained by a third person not a party to the action.

RULE 58 PRELIMINARY INJUNCTION Section 1. Preliminary injunction defined; classes

Satisfaction of Judgment a. proceeds of sales of perishable or other properties; b. if there is a balance, sell real or personal properties (attached) in sheriff’s hand or with clerk of court; c. if there is a balance, collect garnished amounts; d. if there is a balance after (a) + (b) + (c) less expenses of proceedings upon judgment, ordinary execution. Section 17. Recovery upon the counter-bond Executory Judgment When judgment becomes executory, sureties on counterbond to lift attachment are charged and can be held liable for the amount of judgment and costs upon notice and summary hearing. There is no need to first execute judgment against the judgment obligor before proceeding against sureties. Section 18. Disposition of money deposited Section 19. Disposition of attached property where judgment is for party against whom attachment was issued

PRELIMINARY PROHIBITORY INJUNCTION An order granted at any stage of an action or proceeding prior to judgment or final order, requiring a party or court, agency or person to refrain from a particular act or acts. PRELIMINARY MANDATORY INJUNCTION An order granted at any stage of an action or proceeding prior to the judgment or final order, requiring the performance of a particular act or acts. PRELIMINARY PROHIBITION INJUNCTION Generally directed Directed against a court, against party to the tribunal, or a person action but may be against exercising judicial, quasiany person judicial, or ministerial functions Does NOT involve the May be on the ground jurisdiction of the court that the court against whom the writ is issue sought acted without or in excess of jurisdiction May be the main action Always a main action itself or just a provision remedy in the main action

Section 20. Claim for damages on account of improper, irregular or excessive attachment

Section 2. Who may grant preliminary injunction injunction

When to Apply for Damages Against the Attachment Bond a. Before trial; b. Before appeal is perfected; c. Before judgment becomes executory; or d. In the appellateQuickTime™ court for damages pending and a damages TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr appeal, before judgment becomes executory. are needed to see this picture.

Who May Grant 1. The court where the action or proceeding is pending; 2. If the the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof.

Claims for Damages Claims for damages cannot be subject of independent action EXCEPT: a. When principal principal case is dismissed by the the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages;

Acosta v Alvendia 109 Phil. 1017 (1960) The RTC cannot restrain or enjoin acts being perpetrated or to be perpetrated outside of its territorial boundaries. Decano v. Edu 99 SCRA 410 (1980)

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Where the main action is the annulment of the action of the respondent and the injunction is merely corollary, trial court of locality where questioned act is to be implemented has implemented has jurisdiction.

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Section 3. Grounds for issuance of preliminary injunction GROUNDS FOR ISSUANCE a. Plaintiff is entitled to to relief demanded which consists in restraining or requiring the performance of acts (the latter is preliminary mandatory injunction); b. The commission commission of acts or non-performance during pendency of litigation would probably work injustice to the plaintiff; OR c. Defendant is doing, threatening, threatening, attempting or is procuring or suffering to be done some act/s in violation of plaintiff’s rights respecting the subject of the action and tending to render judgment ineffectual. Actions Where Preliminary Injunction Lies a. In petitions for relief from judgment entered entered through fraud, accident, mistake or excusable negligence; b. In petitions for certiorari, prohibition, and mandamus; c. In actions for annulment of judgments obtained through fraud; d. In actions for annulment annulment of judgments which are not patent nullities (want of jurisdiction, lack of due process of law) ( Banco Espanol v. Palanca , 37 Phil. 921); e. To restrain continued breach of valid negative obligation; f. To enjoin repeated trespass on land; g. To restrain city from proceeding with abatement of nuisance per accidens before it has been judicially declared as such; h. To restrain voting of disputed shares of stocks; i. To restrain sheriff from selling property property on execution not belonging to judgment debtor; j. To restrain criminal prosecutions as an exception, in theQuickTime™ following and acases: TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr are needed to see this picture. to afford adequate protection to constitutional rights of accused, when there is a pre-judicial question which is sub judice, prosecution under an invalid law, double jeopardy is clearly apparent, court without jurisdiction over the offense, •

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case of persecution rather than prosecution, charges manifestly false and motivated by lust for vengeance, there is clearly no prima facie case against accused and, motion to quash on said ground is denied, and preliminary injunction issued by SC to prevent threatened unlawful arrest of petitioners.

Actions Where Preliminary Injunction Does Not Lie a. Injunction will generally not be granted to take property out of the possession of one party and place it in another whose title not clearly established; b. When action for damages would adequately compensate injuries caused ( Golding v. Balatbat , 36 Phil. 941); c. To prevent directors from discharging their offices and restoring former directors; d. To restrain restrain criminal prosecution where where the Ombudsman had authorized the Special prosecutor to conduct a preliminary investigation or to file an injunction. Allure Manufacturing Manufacturing v. CA 199 SCRA 285 (1991) As a rule, injunction is not proper where its purpose is to take property out of the possession or control of one party and place it in the hands of another party whose title has not been clearly established by law. Cagayan de Oro Landless Residents Association v. CA 254 SCRA 200 (1996) Although as a general rule, a court should not, by means of preliminary injunction, transfer property in litigation from the possession of one party to another, this rule admits of some exceptions. For example, when there is a clear finding of ownership and possession of the land or unless the subject land is covered by a torrens title pointing to one of the parties as the undisputed owner. Sydicated Media Access Corp. v. CA 219 SCRA 794 (1993) To be entitled to an injunctive write, a party must show that: (1) the invasion of right sought to be protected is material and substantial; (2) the right of complainant is clear and unmistakable; and (3) there is an urgent and paramount necessity for the writ to prevent serious damage.

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Section 4. Verified application and bond for preliminary injunction or temporary restraining order Section 5. Preliminary injunction not granted without notice; exception General Procedure 1. Verified application 2. Injunction bond 3. Raffle of case requires requires notice notice and presence of party enjoined only in multiple sala court when the application is included in a complaint or any initiatory pleading 4. Service of summons to precede or accompany notice of raffle 5. Summary hearing for all parties necessary before issuing TRO EX-PARTE TRO EX-PARTE TRO a. Matter of extreme urgency, and applicant applicant will suffer grave injustice and irreparable injury; b. Executive judge of multiple-sala multiple-sala court or presiding judge of single sala court may issue ex-parte TRO effective for 72 hours from issuance; c. Judge shall immediately cause upon adverse party service of summons, complaint, affidavit, and bond; d. Within 72 hours, the the judge shall conduct a summary hearing to determine whether the TRO shall be extended until application for preliminary injunction can be heard (total period of TRO up to 20 days only including the 72 hours); e. If application for preliminary injunction is denied or not resolved within said period, TRO deemed automatically vacated (except, if it is issued by CA or member- effective for 60 days from service of copy; if issued by SC or member- effective until further orders). IRREPARABLE INJURY By “irreparable injury” is not meant such injury as is beyond the possibility of repair, or beyond possible compensation in damages, nor necessarily great injury or great damage,QuickTime™ but that species of injury, and a TIFF (Uncompressed) (Uncompress ed) decompressor decompresso whether great or small, that ought not r to be submitted are needed to see this picture. to on the one hand or inflicted on the other; and because it is so large on the one hand, or so small on the other, is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in a court of law. Preliminary Notice

Injunction

Not

Granted

Without

GENERAL RULE: No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. EXCEPTION: When temporary restraining order may be issued ex parte .

Duration of Temporary Restraining Order If great or irreparable injury would result to the applicant before the matter can be heard on notice, the court may issue a temporary restraining order, effective only 20 days from notice on the party sought to be enjoined. If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury , the judge may issue ex parte a TRO effective only for 72 hours from issuance. Its effectivity may be extended after conducting a summary hearing within the 72 hours period until the application for preliminary injunction can be heard. The total period of effectivity of the TRO shall not exceed 20 days including the 72 hours.

Federation of Land Reform Farmers of the Philippines Philippines v. CA 246 SCRA 175 (1995) While the efficacy of a TRO is, ordinarily, non- extendible and trial courts have no discretion to extend it considering the mandatory tenor of Rule 58, there is no reason to prevent a court from extending the 20-day period when it is the parties themselves who ask for such extension or for the maintenance of the status quo. Paras v. Roura 163 SCRA 1 (1988) A TRO issued by the trial court or CA expires automatically upon the lapse of the 20 day period and 60 day period respectively. There is no need for any judicial declaration of dissolution. Section 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order Grounds for Denial of Application or Dissolution of Injunction a. Showing of insufficiency of application; b. Other grounds grounds upon affidavits of the party party or person enjoined, which may be opposed by the applicant also by affidavits; c. When Defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if injunction granted or continued while plaintiff can be fully compensated; d. Applicant’s bond is insufficient or defective . Page 108 of 289


Interim Rules of Procedure for Intra-Corporate Controversies A party may apply for any of the provisional remedies provided in the Rules of Court as may be available for the purposes of the action. However, no temporary restraining order or status quo order shall be issued save in exceptional cases and only after hearing the parties and the posting of a bond. ( Sec. 1, Rule 10 ) Garcia v. Burgos, reiterated in Admin. Circular No. 7-99, promulgated 25 June 1999 No TRO, preliminary injunction or preliminary mandatory injunction may issue against the government in cases involving implementation of government infrastructure projects. De la Cruz v. Tan Torres 107 Phil. 1163 (1960) Mere filing of a counterbond is not sufficient to dissolve a writ of preliminary injunction. The writ may be granted or dissolved only upon good and valid grounds. To warrant dissolution, aside from the counterbond, the party enjoined must also show that the injunction will cause him irreparable damage while applicant can be compensated for damages he may suffer (show through hearing). Filing a counterbond to dissolve injunction is not a matter of right . Section 7. Service of copies of bonds; effect of disapproval of same Section 8. Judgment to include damages against party and sureties Paramount Insurance Insurance v. CA 310 SCRA 377 (1999) The requisites for judgment for damages against the surety/ies are: (1) the application for damages must be filed in the same case where the bond was filed; (2) such application for damages must be filed before entry of judgment; and (3) there must be hearing and notice to the surety. Section 9. When final injunction granted QuickTime™ and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr are needed to see this picture.

RULE 59 RECEIVERSHIP Receiver An indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite , when it

does not seem reasonable to the court that either party should hold it.

Section 1. Appointment of receiver In What Cases Receiver May Be Appointed Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals, or by the Supreme Court, or a member thereof, in the following cases: a. The party party applying for the the appointment of a receiver has an interest in the property or fund subject of the action and such is in danger of being lost, removed, or materially injured unless a receiver is appointed; b. In an action by the mortgagee mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially injured and that its value is probably insufficient to discharge the mortgage debt, OR that the parties have so stipulated in the contract of mortgage; c. After judgment, to preserve preserve the property during the pendency of the appeal, or to dispose of it according to the judgment, or to aid in execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy judgment, or to carry out the judgment; d. In other cases where where it appears appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation. Descallar v. CA 224 SCRA 566 (1993) Appointment of a receiver is not proper where the rights of the parties are still to be determined by the trial court. There is no showing that grave or irremediable damage may result to the applicant unless a receiver is appointed. The real property in question is real property. Hence, it is neither perishable nor consumable. Even though it is mortgaged to a third person, there is no evidence that payment of the mortgage obligation is being neglected. In any event, applicant’s rights and interests may be adequately protected during the pendency of the action by causing his adverse claim to be annotated on the certificate of title. Section 2. Bond on appointment of receiver Section 3. Denial of application or discharge of receiver Causes for Denial of Application or Discharge of Receiver Page 109 of 289


a. Appointment sought is without sufficient cause; b. Adverse party files sufficient bond for damages; c. Applicant’ bond is insufficient; or d. Receiver’s bond is insufficient.

Person who neglects or refuses upon reasonable demand to deliver to receiver property subject of the receivership may be sanctioned as follows: a. may be punished for contempt; and b. shall be liable to the receiver for the money or the value of the property refused or neglected to be surrendered with all damages that may be sustained by party/ies entitled thereto as consequence of such neglect or refusal.

Sanson v. Barrios 63 Phil. 198 (1936) The appointment of a receiver lies within the sound discretion of the court. It is not a matter of absolute right even when stipulated for by the parties.

Section 8. Termination of receivership; compensation of receiver

Ylarde v. Enriquez 78 Phil. 527 (1947) An order appointing a receiver is interlocutory. Certiorari, not appeal, is the proper remedy.

Termination of Receivership Termination of receivership may be ordered by court motu proprio or upon motion of either party after determining, after due notice and hearing, that necessity for receiver no longer exists.

Section 4. Oath and bond of receiver Bond Both the applicant for receivership and the receiver appointed must file separate bonds. Section 5. Service of copies of bonds; effect of disapproval of same Section 6. General powers of receiver GENERAL POWERS OF A RECEIVER 1. Bring and defend, in such capacity, actions in his own name; 2. Take and keep possession of property in controversy; 3. Receive rents; 4. Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is a receiver; 5. Compound for and compromise the same; 6. Make transfers; 7. Pay outstanding debts; 8. Divide the money and other property that shall remain among persons legally entitled to receive the same; 9. Invest funds in his hands only by order of the QuickTime™ and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr court upon arewritten consent needed to see this picture. of all the parties to action; 10. Do acts respecting the property as court may authorize. Section 7. Liability for refusal or neglect to deliver property to receiver Neglect or Refusal to Deliver Property

Section 9. Judgment to include recovery against sureties Claims Against Bond In claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 20, Rule 57, whether it be damages against the applicant’s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver’s bond by reason of the receiver’s management (in the latter case, no longer need to file a separate action) .

RULE 60 REPLEVIN Calo v. Roldan 76 Phil. 445 (1946) Delivery of personal property as a provisional remedy consists in the delivery, by order of the court of a personal property by the defendant to the plaintiff, who shall give a bond to assure the return thereof or the payment of damages to the defendant if plaintiff’s action to recovery possession of the same property fails, in order to protect the plaintiff’s right of possession of said property, or prevent the defendant from damaging, destroying or disposing of the same during the pendency of the suit. BA Finance v. CA 258 SCRA 102 (1996) It is both a form of principal remedy and a provisional relief. It is also described as a mixed action because it is partly in rem and partly in personam. It is in rem insofar as recovery of specific

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personal property is concerned, and it is in personam insofar as the claim for damages is concerned.

him results in dismissal of the action against his co- defendant third party possessor.

BONDS a. Applicant’s Bond executed to the adverse party in double the value of the property as stated in affidavit for the return of such property and for payment of such sum as adverse party may recover from applicant in the action. (Sec.2, Rule 60 ) b. Counterbond for Adverse Party also called as the redelivery bond for the return of the property to the adverse party must be filed bond in the court where the action is pending at anytime before delivery of the property to the applicant in double the value of the property as stated in applicant’s affidavit for delivery of property to applicant if such delivery be adjudged, and for payment of such sum as may be recovered against him. (Sec. 5, Rule 60 ). ). c. Bond for Third-Party Claimant also called as the indemnity bond the sheriff shall not be bound to keep the property under replevin or to deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin as proved in the affidavit of applicant. (Rule 60 Sec. 7).

Chua v. CA 222 SCRA 85 (1993) Where personal property is seized under a search warrant and there is reason to believe that the seizure will not anymore be followed by the filing of a criminal action, and there are conflicting claims over the seized property, the proper remedy is the filing of the action for replevin, or an interpleader filed by the Government in the proper court, not necessarily the same one which issued the search warrant. However, where there is still probability that the seizure will be followed by the filing of a criminal action (eg. Preliminary investigation provisionally dismissed), or the criminal information has actually been commenced or filed, and actually prosecuted, and there are conflicting claims over the property seized, the proper remedy is to question the validity of the search warrant in the same court which issued it and not in any other branch of said court.

Section 1. Application When Replevin Available It is available only in an action where the principal relief is the recovery of possession of personal property. The plaintiff may apply for an order for the delivery of such property to him, at the commencement of the action or at any time before answer. QuickTime™ and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr

Machineries Engineering are needed to see Supply this picture. Corp. v. CA 96 Phil.70 (1955) Machineries bolted to the ground are real property that may not be subject to replevin. Servicewide Specialists v. CA 251 SCRA 70 (1995) The chattel mortgagor is an indispensable party in a replevin action preparatory to foreclosure proceedings. Dismissal of the replevin action as to

REPLEVIN Available only when the principal action is recovery of personal property Available only when the defendant is in actual possession of the property Cannot be availed of when the property is in custodia legis Available before defendant files answer Bond is double the value of the property

ATTACHMENT Available even if recovery of property is only incidental to the relief sought Available even if the property is in the possession of a third person Can be availed of even if the property is in custodia legis Available from commencement but before entry of judgment Bond is fixed by the court

Section 2. Affidavit and bond REQUISITES FOR REPLEVIN 1. Affidavit of the applicant, or some other person who personally knows the facts, showing that: d. the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; e. the property property is wrongfully detained by the adverse party, alleging the cause of its detention according to the best of his knowledge, information and belief; Page 111 of 289


f.

the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or placed under custodia legis, or if so seized, that it is exempt from such seizure custody; and g. the actual market value of the property. 2. Bond which shall be double the value of the property as stated in the affidavit.

Section 3. Order Section 4. Duty of the sheriff Sebastian v. Balino 224 SCRA 256 (1993) After property is seized under a writ of replevin, it is not to be delivered immediately to the plaintiff. The sheriff must retain it in his custody for five days and shall return it to the defendant if he posts a counterbond. Immediate turnover to the plaintiff is not justified by an absence to store the seized property. The remedy is to store it in a bonded warehouse. Section 5. Return of property When Defendant is Entitled to the Return of the Property Defendant entitled to return of property taken under writ if: a. he seasonably posts redelivery bond; b. plaintiff’s bond is found to be insufficient or defective and is not replaced with proper bond; or c. property is not delivered to plaintiff for any reason (includes situation where applicant failed to file bond to indemnify third party claimant). La Tondena v. CA 209 SCRA 553 (1992) The law does not allow the defendant to object to the insufficiency of the replevin bond or sureties, and then to post a counterbond. The remedies are alternative. QuickTime™ and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr are needed to see this picture.

Section 6. Disposition of property by sheriff Section 7. Proceedings where property claimed by third person No Bond if Plaintiff is Republic of the Philippines When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond hall not be required, and in case the sheriff is sued for damages

as a result of the replevin, he shall be represented by the Solicitor General, and if held liable therefore, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.

Section 8. Return of Papers Section 9. Judgment Section 10. Judgment to include recovery against sureties Sec. 20, Rule 57 Made Applicable The amount, if any, to be awarded to any party upon any bond shall be claimed, ascertained, and granted under the same procedure as prescribed in Sec. 20, Rule 57. The procedure in Sec. 20, Rule 57 is applicable not only to the replevin bond of the plaintiff but also to the redelivery bond posted by the defendant for the filing of the writ. w rit.

RULE 61 SUPPORT PENDENTE LITE COMPONENTS OF SUPPORT The support granted may be in money or other forms in accordance with Article 194 of the Family Code, which provides as follows (all in keeping with the financial capacity of the family): a. Everything indispensable for sustenance; b. Dwelling; c. Clothing; d. Medical attendance; e. Education; and f. Transportation. PARTIES OBLIGED TO GIVE SUPPORT Article 195 of the Family Code provides that the following persons are obliged to give support: The spouses; a. b. Legitimate ascendants and descendants; Parents and their legitimate children and the c. illegitimate children of the latter; and d. Legitimate brothers and sisters, whether of full or half-blood. Section 1. Application When Available This remedy is available only in an action for support or in an action where support is among the relief prayed for. How Applied For

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It may be sought by a verified application filed in the court where the proper action is pending. The verified application may be made in the verified complaint or petition in the suit itself, or in a separate motion, or petition supported by affidavits.

Contents of Application The application must state: 1. The grounds for the claim; 2. The financial conditions of both parties; The application shall be accompanied by affidavits, depositions, or other authentic documents in support thereof.

When Filed a. At the commencement of the proper action action or proceeding; OR b. At any time prior to the judgment or or final order. Jurisdiction Over Action for Support RTC has exclusive original jurisdiction because the subject of an action for support, regardless of the amount claimed, is not capable of pecuniary action. An action for support does not only involve the determination of the amount to be given as support, but also the relation of the parties, the right to support created by the relation, the needs of the claimant, the financial resources of the person from whom support is sought, all of which are not capable of pecuniary estimation. ( Baito v. Sarmiento, 109 Phil. 148 ) Section 2. Comment Section 3. Hearing Section 4. Order Procedure a. Application filed in court and served with adverse party. b. Adverse party files comment within 5 days (unless different period is fixed) from service of application. c. Application is set for hearing not more more than 3 days after comment is filed, or after the expiration of theQuickTime™ period for its filing. and a TIFF (Uncompressed) (Uncompress ed) decompressor decompresso r d. Order are needed to see this picture. Order The court shall: a. Determine provisionally the pertinent facts; and b. Render such orders as justice and equity may require, having due regard to the probable outcome of the case and such other

circumstances as may aid in the proper resolution of the question involved.

Effect When Application is Granted If application is granted: court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided. The court shall take into account: a. necessities of the applicant; b. resources or means of the adverse party; and c. terms of payment or mode for providing support. Effect When Application is Denied If application is denied: principal case shall be tried and decided as early as possible. Section 5. Enforcement of Order Enforcement of Order a. If the adverse party fails to comply with an order granting support pendente lite : order of execution, without prejudice to liability for contempt; b. If the person ordered to give support pendente lite refuses or fails to do so and a rd 3 party furnished that support to the rd applicant: 3 party may, after due notice and hearing in the same case, obtain a writ of execution to enforce his right of reimbursement. Saavedra v. Ibañez Estrada 56 Phil. 33 (1931) An order for support pendent elite is intended to be operative exclusively during the pendency of the litigation. Hence, the voluntary dismissal of the action by the plaintiff has the necessary effect of abrogating the order. Torres v. Hon. Teodoro Sr. 101 Phil. 422 (1957) Where the court ordered support pendente lite to be deposited each month, failure of the defendant to deposit for one month is a separate and distinct violation from a failure to deposit for another month. Convictions for indirect contempt for failure to deposit for separate months do not constitute double jeopardy. Mangoma v. Macadaeg 90 Phil. 508 (1952) Where the oppositor to an application for support pendente lite alleges sufficient ground to oppose support (eg. Adultery by wife), the oppositor should be given an opportunity to present evidence in support of his opposition.

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San Juan v. Valenzuela 117 SCRA 926 (1982) The trial court’s order fixing the amount of support pendente lite is not final in character because it can be subjected to modification depending on the changing conditions affecting the liability of the obligor to pay the amount fixed for support. Section 6. Support in Criminal Cases a. When applicable: 1. in criminal actions where the civil liability includes support for the offspring as a consequence of the crime; and 2. the civil aspect thereof has not been waive, reserved, or instituted prior to its filing. b. Who may file: (in successive order) 1. offended party 2. her parents 3. grandparents or guardian 4. State

Section 7. Restitution When Restitution Applicable When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefore. What Court may Order Recipient The court may order that the amounts already paid be returned with legal interest from the dates of actual payment and without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give support. If Recipient Fails to Reimburse If the recipient fails to reimburse, the person who provided the same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give support.

QuickTime™ and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr are needed to see this picture.

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QuickTime™ and a TIFF (Uncompress (Uncompressed) ed) decompresso decompressorr are needed to see this picture.

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Provisional Remedies

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