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Ateneo 2007 Provrem 1 PDF
Ateneo 2007 Provrem 1 PDF
Remedial Law
SUMMER REVIEWER
RULE 57
PROVISIONAL REMEDIES - writs and processes PRELIMINARY ATTACHMENT
available during the pendency of the action which
may be resorted to by a litigant to preserve and Section 1. Grounds upon which attachment may
protect his rights and interests therein, pending issue
rendition, and for the purpose of ultimately affecting a
final judgment in the case. When May Application for Attachment Be Made
1. At the commencement of the action; or
Provisional - constituting temporary measures 2. At any time before entry of judgment.
availed of during the pendency of the action.
In What Actions Attachment Proper
Ancillary - incidents in and dependent on the result a) In an action for the recovery of specified
of the main action. amount of money and damages, except
moral or exemplary, on a cause of action
PROVISIONAL REMEDIES AVAILABLE UNDER arising from law, contract, quasi-contract,
THE RULES OF COURT delict or quasi-delict against a party who is
Rule 57: Preliminary Attachment about to depart from the Phils with intent to
Rule 58: Preliminary Injunction defraud creditors;
Rule 59: Receivership b) In an action for money or property
Rule 60: Replevin embezzled; fraudulently misapplied or
Rule 61: Support Pendente Lite converted to own use by a public officer, or
an officer of a corporation, or an attorney,
When Provisional Remedies Available factor, broker, agent, or clerk in course of
1. Attachment, injunction, and support pendente employment; or any person acting in fiduciary
lite may be applied for before final judgment. capacity, or for willful violation of duty;
2. Replevin may be applied before the answer. c) In an action to recover the possession of
3. Receivership may be applied for at any stage property unjustly or fraudulently taken,
of the action and even after final judgment. detained or converted, when the property is
removed, concealed or disposed of to
When Bond is Required and How Amount of prevent its being found or taken by the
Bond is Determined applicant or an authorized person;
1. For attachment and injunction, bond is d) In an action against party who has been
always required from the plaintiff but the guilty of fraud in contracting the debt or
amount of the bound to be filed by the incurring the obligation upon which action is
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discretion ofarethe court.
needed to see this picture. e) In an action against party who has removed
2. In preliminary attachment and replevin, if or disposed of property, or is about to do so,
the applicant is the Republic of the with intent to defraud creditors; or
Philippines, no bond shall be required. f) In an action against party who does not
3. In receivership, the bond as fixed by the reside and is not found in the Phils, or on
court is not always required of the petitioner, whom summons may be served by
whether or not the appointment of a receiver publication.
has been applied for ex parte.
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
Remedial Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
When civil action has been waived or reserved, and so also removed from the jurisdiction of the court
no application for attachment in the criminal action a quo.
can be allowed and granted.
Properties Exempt from Execution
All properties exempt from execution are likewise
Ramcar, Inc. v. De Leon 78 Phil. 449 (1947) exempt from attachment. (Sec. 13, Rule 59)
When civil action is suspended due to the filing of
the criminal action, no attachment may issue in the Section 3. Affidavit and Bond Required
criminal action because civil action remains pending
in court. REQUIREMENTS FOR ISSUANCE OF WRIT OF
ATTACHMENT
Adlawan v. Torres 233 SCRA 645 (1994) 1. Affidavit of the applicant, or some other
Mortgage of property does not amount to person who personally knows the facts,
removal/disposal so as to come w/in the purview of showing that:
Sec1(e) Rule57. a. sufficient cause of action exists;
b. the case is one of those mentioned
Carpio v. Macadaeg 9 SCRA 552 (1963) in Section 1; and
Mere removal or disposal of property does not c. There is no other sufficient security
justify an attachment. There must be a showing of for the claim sought to be enforced
intent to defraud defendants creditors before the writ by the action, and that the amount
of attachment may issue. due the applicant, or the value of the
property the possession of which he
Two-Fold Purpose of Attachment is entitled to recover, is as much as
1. To seize the property of the debtor in the sum for which the order is
advance of final judgment and to hold it for granted above all legal
purposes of satisfying the said judgment; counterclaims.
2. To enable the court to acquire jurisdiction 2. Bond
over the action by the actual or constructive
seizure of the property in those instances Section 4. Condition of applicants bond
where personal service of summons on the
creditor cannot be effected. Conditions of the Applicants Bond
The bond shall answer for:
Section 2. Issuance and contents of order 1. All the costs which may be adjudged to the
adverse party; and
How Order of Attachment Issued 2. All damages which he may sustain by
1. Ex parte; or reasons of the attachment.
2. Upon motion with notice and hearing.
Section 5. Manner of Attaching Property
By Whom Order Attachment Issued
1. The court in which the action is pending; PRINCIPLE OF PRIOR or CONTEMPORANEOUS
2. The Court of Appeals; or JURISDICTION
3. The Supreme Court. Enforcement of writ of preliminary attachment must
be preceded by or simultaneously accompanied by
Uy v. CA 215 SCRA 859 (1992) service of summons, copy of complaint, application
The trial court may validly issue a writ of and affidavits for the attachment and the bond upon
preliminary attachment even
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and a case is on appeal. the adverse party.
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The trial court may issue orders picture.
are needed to see this for the protection and
preservation of the rights of the parties which do not BUT the requirement of prior or contemporaneous
involve any matter litigated on appeal. service of summons shall not apply where:
a. the summons could not be served despite
Olib v Pastoral 188 SCRA 692 (1990) diligent efforts; or
Where the main action is appealed, the b. the defendant is a resident of the Phils
attachment which may have been issued as an temporarily absent therefrom; or
incident of that action is also considered appealed c. the defendant is a non-resident of the Phils;
or
d. the action is in rem or quasi in rem.
Section 8. Effect of attachment of debts, credits Calderon v IAC 155 SCRA 531 (1987)
and all other similar personal property The dissolution of a writ of attachment by virtue
of the filing of a counterbond by the defendant does
Perla Compania v. Ramolete 203 SCRA 487 (1991) not dissolve the applicants bond and the same may
In order to bind the garnishee on a writ of be proceeded against by the defendant.
garnishment, previous service of summons is not
required; only service upon him of the writ of Section 14. Proceedings where property claimed
garnishment is needed. by third person
another court applies only in cases where the b. When damages was sustained by a third
property belongs to the defendant or one in which he person not a party to the action.
has an interest.
Where the main action is the annulment of the case of persecution rather than
action of the respondent and the injunction is merely prosecution,
corollary, trial court of locality where questioned act charges manifestly false and motivated
is to be implemented has jurisdiction. by lust for vengeance,
there is clearly no prima facie case
Section 3. Grounds for issuance of preliminary against accused and,
injunction motion to quash on said ground is
denied, and
GROUNDS FOR ISSUANCE preliminary injunction issued by SC to
a. Plaintiff is entitled to relief demanded which prevent threatened unlawful arrest of
consists in restraining or requiring the petitioners.
performance of acts (the latter is preliminary
mandatory injunction); Actions Where Preliminary Injunction Does Not
b. The commission of acts or non-performance Lie
during pendency of litigation would probably a. Injunction will generally not be granted to
work injustice to the plaintiff; OR take property out of the possession of one
c. Defendant is doing, threatening, attempting party and place it in another whose title not
or is procuring or suffering to be done some clearly established;
act/s in violation of plaintiffs rights respecting b. When action for damages would adequately
the subject of the action and tending to compensate injuries caused (Golding v.
render judgment ineffectual. Balatbat, 36 Phil. 941);
c. To prevent directors from discharging their
Actions Where Preliminary Injunction Lies offices and restoring former directors;
a. In petitions for relief from judgment entered d. To restrain criminal prosecution where the
through fraud, accident, mistake or Ombudsman had authorized the Special
excusable negligence; prosecutor to conduct a preliminary
b. In petitions for certiorari, prohibition, and investigation or to file an injunction.
mandamus;
c. In actions for annulment of judgments Allure Manufacturing v. CA 199 SCRA 285 (1991)
obtained through fraud; As a rule, injunction is not proper where its
d. In actions for annulment of judgments which purpose is to take property out of the possession or
are not patent nullities (want of jurisdiction, control of one party and place it in the hands of
lack of due process of law) (Banco Espanol another party whose title has not been clearly
v. Palanca, 37 Phil. 921); established by law.
e. To restrain continued breach of valid
negative obligation; Cagayan de Oro Landless Residents Association
f. To enjoin repeated trespass on land; v. CA 254 SCRA 200 (1996)
g. To restrain city from proceeding with Although as a general rule, a court should not, by
abatement of nuisance per accidens before it means of preliminary injunction, transfer property in
has been judicially declared as such; litigation from the possession of one party to another,
h. To restrain voting of disputed shares of this rule admits of some exceptions. For example,
stocks; when there is a clear finding of ownership and
i. To restrain sheriff from selling property on possession of the land or unless the subject land is
execution not belonging to judgment debtor; covered by a torrens title pointing to one of the
j. To restrain criminal prosecutions as an parties as the undisputed owner.
exception, in theQuickTime
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to afford adequate
are needed to see this picture. protection to Sydicated Media Access Corp. v. CA 219 SCRA
constitutional rights of accused, 794 (1993)
when there is a pre-judicial question To be entitled to an injunctive write, a party must
which is sub judice, show that: (1) the invasion of right sought to be
prosecution under an invalid law, protected is material and substantial; (2) the right of
double jeopardy is clearly apparent, complainant is clear and unmistakable; and (3) there
court without jurisdiction over the is an urgent and paramount necessity for the writ to
offense, prevent serious damage.
Section 4. Verified application and bond for GENERAL RULE: No preliminary injunction shall be
preliminary injunction or temporary restraining granted without hearing and prior notice to the party
order or person sought to be enjoined.
Section 5. Preliminary injunction not granted
without notice; exception EXCEPTION: When temporary restraining order may
be issued ex parte.
General Procedure
1. Verified application Duration of Temporary Restraining Order
2. Injunction bond If great or irreparable injury would result to the
3. Raffle of case requires notice and presence applicant before the matter can be heard on notice,
of party enjoined only in multiple sala court the court may issue a temporary restraining order,
when the application is included in a effective only 20 days from notice on the party sought
complaint or any initiatory pleading to be enjoined.
4. Service of summons to precede or
accompany notice of raffle If the matter is of extreme urgency and the applicant
5. Summary hearing for all parties necessary will suffer grave injustice and irreparable injury, the
before issuing TRO judge may issue ex parte a TRO effective only for 72
hours from issuance. Its effectivity may be extended
EX-PARTE TRO after conducting a summary hearing within the 72
a. Matter of extreme urgency, and applicant will hours period until the application for preliminary
suffer grave injustice and irreparable injury; injunction can be heard.
b. Executive judge of multiple-sala court or
presiding judge of single sala court may The total period of effectivity of the TRO shall not
issue ex-parte TRO effective for 72 hours exceed 20 days including the 72 hours.
from issuance;
c. Judge shall immediately cause upon adverse Federation of Land Reform Farmers of the
party service of summons, complaint, Philippines v. CA 246 SCRA 175 (1995)
affidavit, and bond; While the efficacy of a TRO is, ordinarily, non-
d. Within 72 hours, the judge shall conduct a extendible and trial courts have no discretion to
summary hearing to determine whether the extend it considering the mandatory tenor of Rule 58,
TRO shall be extended until application for there is no reason to prevent a court from extending
preliminary injunction can be heard (total the 20-day period when it is the parties themselves
period of TRO up to 20 days only including who ask for such extension or for the maintenance of
the 72 hours); the status quo.
e. If application for preliminary injunction is
denied or not resolved within said period, Paras v. Roura 163 SCRA 1 (1988)
TRO deemed automatically vacated (except, A TRO issued by the trial court or CA expires
if it is issued by CA or member- effective for automatically upon the lapse of the 20 day period and
60 days from service of copy; if issued by SC 60 day period respectively. There is no need for any
or member- effective until further orders). judicial declaration of dissolution.
a. Appointment sought is without sufficient Person who neglects or refuses upon reasonable
cause; demand to deliver to receiver property subject of the
b. Adverse party files sufficient bond for receivership may be sanctioned as follows:
damages; a. may be punished for contempt; and
c. Applicant bond is insufficient; or b. shall be liable to the receiver for the money
d. Receivers bond is insufficient. 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 Section 8. Termination of receivership;
sound discretion of the court. It is not a matter of compensation of receiver
absolute right even when stipulated for by the parties.
Termination of Receivership
Ylarde v. Enriquez 78 Phil. 527 (1947) Termination of receivership may be ordered by court
An order appointing a receiver is interlocutory. motu proprio or upon motion of either party after
Certiorari, not appeal, is the proper remedy. determining, after due notice and hearing, that
necessity for receiver no longer exists.
Section 4. Oath and bond of receiver
Section 9. Judgment to include recovery against
Bond sureties
Both the applicant for receivership and the receiver
appointed must file separate bonds. Claims Against Bond
In claims against the bond, it shall be filed,
Section 5. Service of copies of bonds; effect of ascertained and granted under the same procedure
disapproval of same as Section 20, Rule 57, whether it be damages
against the applicants bond for the unlawful
Section 6. General powers of receiver appointment of the receiver or for enforcing the
liability of the sureties of the receivers bond by
GENERAL POWERS OF A RECEIVER reason of the receivers management (in the latter
1. Bring and defend, in such capacity, actions in case, no longer need to file a separate action).
his own name;
2. Take and keep possession of property in
controversy;
3. Receive rents; RULE 60
4. Collect debts due to himself as receiver or to REPLEVIN
the fund, property, estate, person, or
corporation of which he is a receiver; Calo v. Roldan 76 Phil. 445 (1946)
5. Compound for and compromise the same; Delivery of personal property as a provisional
6. Make transfers; remedy consists in the delivery, by order of the court
7. Pay outstanding debts; of a personal property by the defendant to the
8. Divide the money and other property that plaintiff, who shall give a bond to assure the return
shall remain among persons legally entitled thereof or the payment of damages to the defendant
to receive the same; if plaintiffs action to recovery possession of the same
9. Invest funds in his hands
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court upon arewritten consent
needed to see this picture. of all the parties possession of said property, or prevent the defendant
to action; from damaging, destroying or disposing of the same
10. Do acts respecting the property as court may during the pendency of the suit.
authorize.
BA Finance v. CA 258 SCRA 102 (1996)
Section 7. Liability for refusal or neglect to deliver It is both a form of principal remedy and a
property to receiver provisional relief. It is also described as a mixed
action because it is partly in rem and partly in
Neglect or Refusal to Deliver Property personam. It is in rem insofar as recovery of specific
personal property is concerned, and it is in personam him results in dismissal of the action against his co-
insofar as the claim for damages is concerned. defendant third party possessor.
f.the property has not been distrained as a result of the replevin, he shall be represented by
or taken for a tax assessment or a the Solicitor General, and if held liable therefore, the
fine pursuant to law, or seized under actual damages adjudged by the court shall be paid
a writ of execution or preliminary by the National Treasurer out of the funds to be
attachment, or placed under custodia appropriated for the purpose.
legis, or if so seized, that it is exempt
from such seizure custody; and Section 8. Return of Papers
g. the actual market value of the Section 9. Judgment
property. Section 10. Judgment to include recovery against
2. Bond which shall be double the value of the sureties
property as stated in the affidavit.
Sec. 20, Rule 57 Made Applicable
Section 3. Order The amount, if any, to be awarded to any party upon
any bond shall be claimed, ascertained, and granted
Section 4. Duty of the sheriff under the same procedure as prescribed in Sec. 20,
Rule 57. The procedure in Sec. 20, Rule 57 is
Sebastian v. Balino 224 SCRA 256 (1993) applicable not only to the replevin bond of the plaintiff
After property is seized under a writ of replevin, it but also to the redelivery bond posted by the
is not to be delivered immediately to the plaintiff. The defendant for the filing of the writ.
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. RULE 61
The remedy is to store it in a bonded warehouse. SUPPORT PENDENTE LITE
It may be sought by a verified application filed in the circumstances as may aid in the proper
court where the proper action is pending. The verified resolution of the question involved.
application may be made in the verified complaint or
petition in the suit itself, or in a separate motion, or Effect When Application is Granted
petition supported by affidavits. If application is granted: court shall fix the amount of
money to be provisionally paid or such other forms of
Contents of Application support as should be provided. The court shall take
The application must state: into account:
1. The grounds for the claim; a. necessities of the applicant;
2. The financial conditions of both parties; b. resources or means of the adverse party;
and
The application shall be accompanied by affidavits, c. terms of payment or mode for providing
depositions, or other authentic documents in support support.
thereof.
Effect When Application is Denied
When Filed If application is denied: principal case shall be tried
a. At the commencement of the proper action or and decided as early as possible.
proceeding; OR
b. At any time prior to the judgment or final Section 5. Enforcement of Order
order.
Enforcement of Order
Jurisdiction Over Action for Support a. If the adverse party fails to comply with an
RTC has exclusive original jurisdiction because the order granting support pendente lite: order of
subject of an action for support, regardless of the execution, without prejudice to liability for
amount claimed, is not capable of pecuniary action. contempt;
An action for support does not only involve the b. If the person ordered to give support
determination of the amount to be given as support, pendente lite refuses or fails to do so and a
but also the relation of the parties, the right to support 3rd party furnished that support to the
created by the relation, the needs of the claimant, the applicant: 3rd party may, after due notice and
financial resources of the person from whom support hearing in the same case, obtain a writ of
is sought, all of which are not capable of pecuniary execution to enforce his right of
estimation. (Baito v. Sarmiento, 109 Phil. 148) reimbursement.
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.
Section 7. Restitution
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