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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.
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 applicant TIFFis QuickTime and a to the sound addressed (Uncompressed) decompressor are needed to see this discretion of the court. picture. 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.
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 before entry of judgment. In What Actions Attachment Proper a) In an action for the recovery of 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 to recover the 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 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)
Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan
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 defendants creditors before the writ of attachment may issue. Two-Fold Purpose of Attachment 1. To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment; 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.
RULE 58 PRELIMINARY INJUNCTION Section 1. Preliminary injunction defined; classes 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 INJUNCTION Generally directed against party to the action but may be against any person Does NOT involve the jurisdiction of the court PROHIBITION Directed against a court, tribunal, or a person exercising judicial, quasijudicial, or ministerial functions May be on the ground that the court against whom the writ is issue sought acted without or in excess of jurisdiction Always a main action
Section 2. Who may grant preliminary injunction Who May Grant 1. The court where the action or proceeding is pending; 2. If 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. 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)
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 criminal prosecution where the Ombudsman had authorized the Special prosecutor to conduct a preliminary investigation or to file an injunction. Allure 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.
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 applying for 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 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 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 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, applicants 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
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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
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. Ylarde v. Enriquez 78 Phil. 527 (1947) An order appointing a receiver is interlocutory. Certiorari, not appeal, is the proper remedy. 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 a QuickTime and only by order of the TIFF (Uncompressed) decompressor court upon are needed to see this picture. of all the parties written consent 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
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 plaintiffs action to recovery possession of the same property fails, in order to protect the plaintiffs 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
him results in dismissal of the action against his codefendant third party possessor. 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. 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 is wrongfully detained by the adverse party, alleging the cause of its detention according to the best of his knowledge, information and belief;
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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
f.
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.
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: a. The spouses; b. Legitimate ascendants and descendants; c. Parents and their legitimate children and the 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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QuickTime and a TIFF (Uncompressed) decompressor are needed to see this picture.