Provisional Remedies (Please read the pertinent cases and codal provisions) Introduction 1. Rule Rule 127 provi provides des that that attac attachme hment nt may be be availed availed of of in the following cases, where the sheriff is authorized to levy the property for the satisfaction of the judgment: a! a! "hen "hen the the accu accuse sed d is abou aboutt to absc abscon ond d from from the the #hilippines$ b! "hen the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, bro%er, agent, or cler%, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty$ c! c! "hen "hen the the accu accuse sed d has has conc concea eale led, d, remo remove ved, d, or disposed of his property, or is about to do so$ and d! "hen the accused resides outside the #hilippines.
2. &nder Rule 111, 'ivil action deemed instituted in criminal action e(cept when: ). "aived *. Reserved the right to file '. +eparately filed before the 'riminal action Rule 57. Preliminary Attachment rounds: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from la, contract, !uasi"contract, delict or !uasi"delict against a party ho is a#out to depart from the Philippines ith intent to defraud his creditors$ he amo amount unt of dam damage ages mus must be spe specif cified ied in the complaint /ora oral and and e(e e(empla plary dama damage gess are not not inc include luded d because until they are awarded by the court they are not yet specified. 0t will will not not affe affect ct the the appli applica cati tion on prov provid ided ed ther theree are grounds he he cour courtt will will disr disreg egar ard d the the mora morall and and e(em e(empl plar ary y damages aspect and issue the writ of attachment (#) In an action action for money money or propert property y em#e%% em#e%%led led or fraudulently misapplied or converted to his on use #y a pu#li pu#licc offi office cerr, or an offi office cerr of a corp corpor orat ation ion,, or an attorney, attorney, factor, #ro&er, #ro&er, agent, or cler&, in the course of his employment as such, or #y any other person in a fiduciary capacity, capacity, or for a illful vi olation of duty$ iolation iolation of duty and fiduciary relationship. " " oes oes not cover cover neglig negligenc ence, e, but covers covers civil civil and criminal conducts (c) (c) In an action action to recov recover er the possessi possession on of prope property rty un'ust un' ustly ly or fraudu fraudulen lently tly ta&en, ta&en, det detaine ained d or conver converted ted,, hen hen the the prop proper erty ty,, or any any part part ther thereo eof, f, has has #een #een concealed, concealed, removed, removed, or disposed of to prevent its #eing found or ta&en #y the applicant or an authori%ed person$ 'overs personal property only " " here must be an intent to deceive (d) In an action against a party ho has #een guilty of a fraud in contracting the de#t or incurring the o#ligation
or personal use only. only. &nauthorized distribution prohibited
Richard Allan A. Lim upon hich the action is #rought, or in the performance thereof$ uilty uilty of fraud fraud in contract contracting ing the debt or incurrin incurring g " the obligation or in the performance thereof. " here must be circumstances to show the allegation of fraud (e) (e) In an acti action on agai agains nstt a part party y ho ho has has remo remove ved d or disposed of his property, or is a#out to do so, ith intent to defraud his creditors$ or (f) In an action action against a party party ho does not reside and is not found in the Philippines, or on hom summons may #e served #y pu#lication. (a) +ee also also Rule Rule 13, 13, +ec +ec 14 14 5(tr 5(trate aterri rritor torial ial +ervic +ervice! e! wher wheree the iden identi tity ty and and the whe where reab abou outs ts are are un%no un%nown wn and cannot be served ec *. +ondition for applicants #ond not not peg pegge ged d due due to to cir circu cums msta tanc nces es shall only cover properties not e(empt from e(ecution ec. 5. -anner of attachment only only so much much as is writ writte ten n in in the the writ writ ec. 7. Attachment real real prope propert rtyy- anno annota tate ted d on the the regis registr try y with with respe respect ct to the title onc once there here is fina finall judg judgm ment ent, it will will be levy levy on attachment the the sher sherif ifff is auth author oriz ized ed to deliv deliver er to the the winn winnin ing g party, party, any e(cess shall be returned to the defendant ec. . /ffect of attachment of de#ts, credits etc. beco become mess a fals falsee int inter erve veno norr. becomes subject to custodia legis and can be garnished ec. 0. /xamination of party hey may be called upon by the court for the e(amination regarding the property of the property may see% out and locate the property upon o motion loo% for the persons who have the property o of the same ec. 1. 2ischarge discharged by counterbond or deposit as the obligation is now secured ec. 3. 2issolution 2issolution- to as& for dissolution, some of the grounds can #e4 6o va valid gr grounds efective aff affidavit 0nvalid is issuance 6o appl applic ican antt bon bond d or or is is ins insuf uffi fici cien entt ec. *. Proceedings here claimed #y third person )ffi )ffida davi vitt filed filed by thir third d perso person, n, such such that that the the sheri sheriff ff shall shall not be bound bound to %eep %eep the property property attached attached unless unless the applicant applicant files a bond to indemnif indemnify y the third party. ec. 5. Perisha#le goods to be be sold sold or or levi levied ed,, if the there re is is bala balanc ncee that that must must be be satisfied, then it must be collected from the party for ban%, ban%, the amount amount shall shall be held held for final final judg judgmen mentt
1
Titles you can't find anywhere else
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Titles you can't find anywhere else
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Provisional Remedies otes 1. 'an be filed at any time before the entry of judgment judgment reaches finality and is entered in the boo%s! 2. here must be recital of the particular circumstances and facts to support the allegations, not just reproduction of the wording of the law. 8. *ond filed in an amount to cover all the costs and damages that may be suffered by the adverse party as a result of the attachme attachment. nt. 0f the defendant defendant files files a counterbo counterbond, nd, the writ cannot be enforced. 3. +tages in the issuance of the writ of preliminary attachment )! 9rder of the court for the issuance of the writ *! 0ssuance of the writ '! 0mplementation of the writ. he documents that must be served to the adverse party are: 1. he order issuing the "rit 2. he writ itself 8. +ummons 3. 'omplaint with affidavit 4. #roof of bond payment in the original complaint )t )! )! and *! jurisd jurisdict iction ion over the defendan defendantt is not yet acuired. 0t is only at '! when the court of coercively act against the defendant. 4. "rit can only be dissolved by payment of a counterbond. )s long as the reuirements under +ec. 1 and 2 are complied with, the writ can be applied for. ;urisdiction over the defendant is only needed at the time of implementation. implementation. <. "rit of attachment has no lifetime Important +ase 2octrines : P6+ vs. +A &nde nder +ec +ec. 1d! 1d!,, for for a debt debt to be cons consid ideered red as fraudulently incurred, there must be a pre-conceived plan not to comply comply with the debt or pay the same. same. /ere /ere alle allega gati tion onss and reci recita tall of the prov provis isio ions ns do not not suffi ufficce, ther theree must ust be recit ecital al of facts acts and circumstances circumstances to prove it. +8 vs. +A he fraud must relate to the e(ecution of the agreem agreement ent and must must have have been been the reaso reason n which which induced the other party into giving consent which he would would not have have otherw otherwise ise given given.. o consti constitu tute te a ground for attachment in +ection 1 d!, Rule 47 of the Rules Rules of 'ourt 'ourt,, fraud fraud should should be commit committed ted upon upon contracting the obligation sued upon. 2avao 9ight vs. +A "rit rit can can be appl applie ied d for for at the the comm commen ence ceme ment nt of the the action when the complaint is filed before issuance of summons!, in which case it is e(-parte 6o need for
Richard Allan A. Lim would be tantamount to a trial on merits if evidence were to be presented, hence only counterbond is the only means to dissolve! he three three stages stages for writ writ of attach attachmen mentt see see =3! Adlaan vs. :orres 0nsuf 0nsuffic ficien ientt bases bases is a ground ground for the dismis dismissal sal of the the application for the writ /ere inability to pay one>s creditors is not necessarily synonymous with a fraudulent intent not to honor an obligation +uartero vs. +A 6o noti notice ce to to the the other other par party ty is is reu reuir ired ed for for e( part partee writ of prelimin preliminary ary attachme attachment nt as it would would render render useless the aim of the said writ which is to prevent the disposal of the properties sought to be attached. ievert vs. +A alid service of summons and a copy of the complaint vests jurisdiction over the defendant both for the purpose of the main action and the provisional remedy. he court who has not acuired jurisdiction over the defendant cannot bind the same for either action "hen "hen the the petit petition ion for prelim prelimina inary ry atta attachm chment ent is with with a separate pleading, it must be served simultaneously with the summons and a copy of the pleading. 0f prayed for in the main pleading, a copy of the compla complaint int togeth together er with with the summon summonss suff suffice icess to obtain jurisdiction over the adverse party. P+9 vs. +A rau raudu dule lent nt inte intent nt cann cannot ot be infe inferr rred ed from from the the mere mere inability to pay or comply with its obligations ailu ailurre to state tate circ circum umst staances nces to show how tha that the the defend defendant ant had a precon preconce ceive ived d plan plan not to pay is insufficient ;.<. =lass vs. >alen%uela >alen%uela )ffi )ffida davi vitt for for atta attach chme ment nt must must stat statee the the foll follow owin ing, g, under +ec. 8 of the Rule: +ufficient +ufficient cause of action e(ists o he case is one of those mentioned in +ec 1a o of Rule 47 here here is no other other sufficie sufficient nt security security for the o claim sought to be enforced by the actiom he he amou amount nt due due to the the appl applic ican antt for for o attachment or the value of the property in the possessi possession on of which which he is entitl entitled ed to recover, is as much as the sum for which the order is granted above all legal counerclaims ail ailur uree to alleg allegee any of the the reui reuire reme ment ntss menti mention oned ed for the issuance of the writ of attachment renders the same fatally defective and the judge issuing the same desp despit itee the the defe defect ct is guil guilty ty of grav gravee abus abusee of
Titles you can't find anywhere else
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Provisional Remedies -
"rit of pre prelim limina inary ry atta attachm chment ent is a harsh harsh reme remedy dy and and must be construed in favor of the defendant Arellano vs. lo'o 0ssu 0ssuan ance ce of wri writt with withou outt servi service ce of sum summo mons ns and and an acceptable bond is invalid and judge who issues the same is guilty of grave abuse of discretion. )n unde underrta%i ta%ing ng cann cannot ot be consi onside derred as a bond bond sufficient sufficient for the issuance of writ @6 achary vs. +A 0ssuance of the writ is not the same as the enforcement of the same. or or the iss issua uanc nce, e, the the trial trial cour courtt has unli unlimi mite ted d power power to issue issue the writ writ of prelim prelimina inary ry attac attachme hment nt even even before jurisdiction jurisdiction over the defendant defendant is acuired. acuired. *ut as to enforcement, the court has no power over the defendant until jurisdiction over the same is acuired only after valid service service of summons summons and reuired reuired documents or by voluntary submission to the court>s authority Rule 5. Preliminary In'unction 1. wo %inds of preliminary injunction #roh #rohib ibit itor ory y 0nju 0njunc ncti tion on-- reu reuir ires es that that a part party y refr refrai ain n from doing certain act or acts /and /andat ator ory y 0njunc 0njuncti tion on-- reui reuire ress that that a party party perfo perform rm certain act or acts. 2. 0t can be applied for at any time before the final judgment or order or determination of the case disposes of the case! 8. 0njunction can be a main action or a provisional remedy #rovisional remedy /ain )ction /erely see%s status uo ante, he he main main reli relief ef or pray prayer er to put the parties where they embodied in the action were before the dispute 9nce issued upon the finality of judgment, it is no longer a provisional remedy remedy ec. 3. =rounds: a! hat the applicant applicant is entitled entitled to the relief demanded, demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in reuiring the performance of an act or acts either for a limited period or perpetually$ b! hat the commission, continuance or non-performance of the act or acts acts compla complaine ined d of during during the litig litigati ation on would would probably wor% injustice injustice to the applicant$ or c! c! hat hat a part party y, cour court, t, agen agency cy or a pers person on is doin doing, g, threatening, or is attempting to do, or is procuring or suffering to be done some act or acts probably in violation of the rights of the the appl applic ican antt resp respec ecti ting ng the the subj subjec ectt of the the acti action on or proceeding, and tending to render the judgment ineffectual. ineffectual. 8a! - to be entitled, there must be a clear showing of a positive
Richard Allan A. Lim -
-
-
-
+imil +imilar ar to writ writ of of prelim prelimina inary ry attac attachme hment, nt, juri jurisd sdict iction ion ove over adve dverse rse par party is acui cuirred onl only at the the implementation implementation of the writ. #rior #rior and and conte contempo mporan raneou eouss servic servicee befor beforee the raffle raffle,, and shoul should d includ includee the compla complaint int,, e(cept e(cept when when it could not be served when the party is out of the country temporarily or not a resident #ar d!- usually preliminary injunction is acco accomp mpan anie ied d by a R9 R9 whic which h can can be eith either er be mandatory prohibitory Reuirements: 1. erified complaint cannot be applied for e( parte! R9 where there is great and irreparable irreparable o injury not capable of estimation which shall last 2@ days a 72 hour R9 can be granted upon e(treme o urgency and showing that there will be great and irreparable injury. 2. *ond e(ecuted to the party enjoined 8. 0n a one sala court, the notice must be made before the heari hearing ng of the writ writ of prelim prelimina inary ry injunc injunctio tion n within 23 hours after the transmittal of the records by the 'ler% of 'ourt!.
=rounds for non"issuance of rit of preliminary in'unction 0mpr 0mprop oper er coll collec ecti tion on of ta(e ta(ess 5njo 5njoin in crim crimin inal al pros prosec ecut utio ion n e(cep e(ceptt in cases cases where where there is clear case of prosecution in more popular cases 173 +'R) 38A! #rejud ejudic icia iall ue uestio stions ns oubl oublee jeo jeopa parrdy app appaarent rent R.). R.). AB74 AB74 where where R9 R9 cann cannot ot be used used on gove governm rnment ent infrastructure projects projects e(cept when issued by the +' ec. *. >erified application and #ond erif erifie ied d appli applica cati tion on,, must must sho show w fact factss *ond *ond is file filed, d, unle unless ss e(em e(empt pted ed "hen "hen appli applica cati tion on for for prelim prelimin inar ary y inju injunc ncti tion on or R9 R9 is includ included ed in the main main compla complaint int,, for multimulti-sal salaa court, it shall be raffled raffled only after notice and presence of the adverse parties or persons enjoined. here must e prio priorr or cont contem empo pora rane neou ouss summ summon ons, s, copy copy of compla complaint int or iniato iniatory ry pleadi pleading ng and affid affidavi avitt and bond. ec. 5. o Preliminary in'unction granted ithout prior notice and hearing 5ffe 5ffect ctiv ivit ity y of R9 R9 is is for for 2@ days days,, and and at the the donf donf 2@ 2@ days, days, it automati automatical cally ly e(pire e(pires. s. or ') it it is for <@days, for the +', there is no limit. he R9 R9 cann cannot ot be gran grante ted d withou thoutt a sum summary mary
Titles you can't find anywhere else
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Provisional Remedies determine whether or not to e(tend the R9 to 2@ days until the filing of an application for preliminary injunction. Cowever, Cowever, the 72 hour period will included in the 2@ day life of R9 if e(tended. he judge has to act on the application for preliminary injunction within that 2@ day period. #arty enjoined must show cause as to why the writ of preliminary injunction shou should ld not not be gran grante ted. d. he he 72 hour hourss shal shalll be computed from the time of service upon the parties. ec. B. =rounds for <#'ection 1. 0nsufficiency- the court on its own could csonduct a hearing to see if the allegations are sufficient 2. /ay be denied 8. /ay be granted but dissolved if damage is compensable Important +ase 2octrines : Rosauro vs. +uneta 0nju 0njunc ncti tion on can can be be the the mai main n act actio ion n her heree are two two re reui uisi site tess for the the iss issua uanc ncee of the the writ writ of preliminary injunction hat the right to be protected e(ists o o hat the acts against which the injunction is to be directed are violative of the said right #arty #arty see%in see%ing g injun injuncti ction on must must be a party party in in inter interest est P>:A vs. 2elos Angeles he he filin filing g of ailie ailiege ged d insuf insuffici ficien entt or defec defecti tive ve bond bond does not dissolve absolutely and unconditionally the injunction 0njury 0njury is cons conside idered red irre irrepar parabl ablee if such such is of of const constant ant and freuent recurrence that no fair and reasonable redress can be had therefore therefore in the court of law. law. 0f the amou amount nt of dama damage ge can can be esti estima mate ted, d, then then a counterbond can dissolve the writ. "rit of prel prelimi iminar nary y injun injuncti ction on gran granted ted only only after after he invasion of the right is material and o substantial he right of the complainant is clear and o unmista%able here here is an alleged alleged urgent and permanen permanentt o nece necess ssit ity y of the the writ writ to prev preven entt seri seriou ouss damage. 8u vs. +A 'ons 'onsta tant nt recu recurr rrin ing g damag damage, e, conti continu nuin ing g acts acts that are are not cannot be determined precisely, and not capable of mathematical computation 0f dama damage ge irrep irrepar arab able le,, filin filing g of counte counterb rbon ond d will will not dissolve the writ of preliminary attachment 0nju njunct nction ion is the the reme emedy to pre preven vent a wrong rongfful interf interfere erence nce with with contr contract actss by stran stranger gerss to such such contracts where the legal remedy is insufficient and
Richard Allan A. Lim -
) R9 R9 is an inte interlo rlocut cutory ory order order or or writ writ issu issued ed by by the the court as restraint against the adverse party until the propriety of issuing a preliminary injunction can be determined, the purpose being to preserve status uo 6o prel prelim imin inar ary y injun injunct ctio ion n shall shall be grant granted ed with withou outt notice to the defendant he he 2@ day day peri period od of a R9 R9 is is non-e non-e(t (ten endi dibl ble, e, and and that that the order for the issua issuance nce of the prelim prelimina inary ry injunction must be made within that 2@ day period. *ut the said e(tensio e(tension n beyond beyond 2@ days days is not an absolute nullity, nullity, provided there is the e(istence of the grounds provided for as reuired under the rules. =aray#las vs. Atien%a 0njun njunct ctio ion n can be a main main act action ion or an anci ancill llar ary y remedy remedy incide incident nt of a main main indepe independe ndent nt action action or proceeding. he main main actio ction n for for injun njuncctio tion see see%s judg udgment ent embodying a final injunction. ) provisional remedy of preliminary injunction is where the sole object is to preserve status uo until the merits can be heard. 0t can be granted at any stage of the action prior to judgment or final order and persists persists until dissolved or the court does not issue a final injunction 6acolod +ity Cater 2istrict vs. 9a#ayen 0nju 0njunc ncti tion on can can be be a main main acti action on ) res restr trai aini ning ng orde orderr is issu issued ed to pres preser erve ve stat status us uo uo until the hearing for preliminary injunction because the latter cannot be issued e( parte. ) R9 R9 las lasts ts for for 2@ days days from from the the date date of iss issua uanc ncee and will automatically e(pire upon the end of the 2@ day period by force of law without need of judicial intervention. he he rule rule on nonnon-e( e(te tend ndib ibil ilit ity y of a 2@ day R9 R9 is is absolute for those issued by the R', for Rule 5D. Receivership Receiverships not covered #y Rule 5D . ec ec.. *, *, Rule Rule 3D 3D D covers the properties of the judgment obligor 1. P.2. D01"A D companies under rehabilitation plan, which includes corporations, partnerships and associations 3. R.A. 0*1 D the inancial Rehabilitation and 0nsolvency )ct R0)! for natural persons and sole proprietorships *. Receiv Receivers ers appoin appointed ted #y the +entral +entral 6an& 6an& for #an&s under li!uidation Ender Rule 5D Receiver D a person appointed by the court to administer, preserve, and dispose of the property that is subject of the litiga litigatio tion, n, action action or procee proceedin dings gs to preven preventt it being being lost, lost,
Titles you can't find anywhere else
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Provisional Remedies 8. )pplicant must have an interest in the property see 60' case! but need not be the owner of the property as in the case of a usufructuary of a usufruct or a lessee of a leased property 3. he general rule is that the receiver must be a third party who is neutral, however, the applicant can nominate a receiver provided the other party consents to the appointment. urthe urtherm rmore ore,, the partie partiess can stipul stipulate ate a recei receiver ver in their their agreement. 4. he receiver, who administers the property, is under the control of the court. <. he property or fund may be placed under custodia legis but must have the consent of the court. =rounds (ec )4 a! "hen it appears from the verified application, and such other proof as the court may reuire, that the party applying for for the the appo appoin intm tmen entt of a rece receiv iver er has has an inte intere rest st in the the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it$ b! "hen it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probable insufficient to discharge the mortgage debt, or that that the the part partie iess have have so stip stipul ulat ated ed in the the cont contra ract ct of mortgage$ c! c! )fter )fter judgm judgment ent,, to preser preserve ve the the proper property ty during during the pendency of an appeal, or to dispose of it according to the judgment, or to aid e(ecution when the e(ecution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect$ d! "henever in other cases it appears that the appointment of a receiv receiver er is the most conven convenien ientt and feasible feasible means means of preserving, administering, administering, or disposing of the property in litigation. ec. 1. 6ond for appointment of the receiver )mou )mount nt of of bond bond sha shall ll be be fi(e fi(ed d by the the cou court rt,, in ord order er to cover the damages hat may be suffered due to appointment of receiver. ec. 3. 2enial or application or discharge of receiver /ay be disc dischar harged ged upon upon the the filin filing g of a bond bond e(ec e(ecute uted d by the adverse party party Rece Receiv iver er may may be disc discha harg rged ed if the the appo appoin intm tmen entt was was shown to be without just cause. ec. *.
Richard Allan A. Lim -
Receiver should be a neutral third person see e(ceptions on =3! alientes vs. IA+ ) rec recei eive verr can be be appoi appoint nted ed even even afte afterr judgm judgmen entt has been rendered, as stated in +ec +ec 1 d!. a rece receiv iver er shal shalll have have the the pow power er to to brin bring g and and defe defend nd such actions in his own name subject to the control of the court where the action is pending see +ec. 7! I2+ vs. A!uino 0f the the part party y apply applyin ing g for a rec recei eive verr no long longer er have have a right or interest in the property, then they no longer a party in interest and cannot file or assail the appointment of a receiver. +uch right must be present and e(isting. 0mmine 0mminent nt dang danger er of of the the prope property rty being being lost lost,, destr destroye oyed d or materi materiall ally y injure injured d must must be clearl clearly y shown shown and proved before a receiver receiver can be appointed appointed
