Provisional Remedies

Preliminary Attachment --- at the commencement of the action or at any time before entry of
judgment.

Grounds:

a) Action for recovery of specified sum of money or damages other than moral or
exemplary damages arising from any recognized legal source of obligation.
b) Money or property is embezzled or fraudulently misapplied or converted.
c) Recovery of possession of property which have been unjustly or fraudulently
taken, detained or converted.
d) Guilty of fraud in contracting the debt or incurring the obligation.
e) Party, with intent to defraud, removed or disposed his property.

Issuance and contents:

1. Ex parte, upon motion;

2. Property not exempt from execution
3. Party may make deposit or give a bond equal to the amount fixed
by the court which may be:
a) Applicants demand; or
b) Value of the property attached.

Affidavit:

1. Sufficient Cause of Action;

2. No other sufficient security.

There must be prior or contemporaneous service of summons, unless:

a) It could not be served personally; or

b) By substituted service of summons;
c) The defendant is absent in the Philippines
d) The defendant is a non-resident; and
e) The action is in rem or quasi in rem.

The attachment of the interest of an heir should not impair the rights of the Administrator or
Executor.

Discharge:

a) Upon the giving of counter-bond or cash deposit

b) Improperly or irregularly issued
c) Bond is insufficient
d) The excess if the attachment is excessive; and
 e) The cash deposit or bond shall secure the payment of any judgment that the attaching
party may recover.

Application for damages on account of Improper; irregular; or excessive attachment.

Filing:

a) Before the trial;

b) Before appeal is perfected; and
c) Before judgment becomes executory.

Third party claimant:

makes an affidavit of his title thereto, or right to possession thereof.

Served upon the sheriff:

Not bound to keep the property unless the attaching party shall file a bond approved by the
court.

Note: nothing shall prevent the claimant from enforcing his claim in a separate action or
prevent the attaching party from filing a claim of damages arising from the claim of the

Preliminary Injunction – nature: at any stage of an action or proceeding prior to the or judgment

or final order.
requiring a party, court, agency or person to refrain from a
particular act or acts / requiring the performance of a particular
acts or act (preliminary mandatory injunction)

Granted by the court where the action or a proceeding is

pending.

Grounds:

a) Applicant is entitled to the relief demanded, and the whole or part of such relief consists:
1. Restraining the commission or continuance of the acts complained of; or
2. Requiring the performance of an act.
b) The commission, continuance or non-performance of the acts complained of will work
injustice.
c) The party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some acts or acts probably in violation of the rights of
the applicants respecting the subject of the action or tendering to render the judgment
ineffectual.

Order:

a) With hearing and prior notice;

b) Without hearing and prior notice – ex parte.
 Upon affidavit/verified application, there is great or irreparable injury that will result to
the applicant before the matter can be heard on notice.

Temporary Restraining Order (TRO) only for a period of twenty (20) days from service on
the party sought to be enjoined.

The matter is of extreme urgency and the applicant will suffer grave injustice and
irreparable injury.

TRO effective for only seventy-two (72) hours form issuance.

The judge shall conduct a summary hearing to determine for the extension of the TRO to
20 days, the 72 hours is included.
If issued by the Court of Appeals, the TRO shall be effective for 60 days.
If issued by the Supreme Court, effective until further orders.
within 6 months from the issuance the issuing court must decide the main
action.

Objection Denied ---- insufficiency

Dissolved upon affidavits
issuance would cause irreparable damage and upon posting of a bond.

Receivership
Grounds:
a) The party has an interest in the property or fund which is the subject of the
action and the property is in danger of being lost, removed, or materially injured.
b) Upon foreclosure of the mortgaged property, it is in danger of being wasted or
dissipated or materially injured.
c) After judgment: preserve the property pending appeal
Dispose according to the judgment
To aid execution
Refuse to apply the property for satisfaction
d) most convenient mean of preserving, administering or disposing of the property
in litigation.
Bond: Applicant
Adverse party
Receiver
Powers:
1. bring and defend action in his name;
2. keep possession of the property;
3. receive rents;
4. collect debts due;
5. to compound for and compromise the same;
6. to make transfers;
7. to pay outstanding debts;
8. divide and distribute money upon liquidation; and
9. to do such acts as the court may authorize.

 No funds to be invested unless upon order of the court upon written consent
of all the parties.
 No action to be filed against the receiver without leave of court.
Refusal: contempt or liable for the money or value of the property.

Replevin
At the commencement of the action or at any time before answer.
Affidavit:
a) Applicant is the owner
b) Property is wrongfully detained
c) Property is not: distrained
Take for tax assessment
Seized under writ of execution
Seized under preliminary attachment
Custodia legis
Exempt from execution
d) Actual market value
Bond is double the value of the property.
Delivery to the applicant:
 a. Adverse party does not object to the bond
b. Affirmation of the applicant’s bond.
c. Counter bond is denied or insufficient.

Support Pendente Lite

 at any time before the judgment or final order or at the commencement of

the action.
 application and comment on application must be verified.
 Enforcement order: fails to comply with the order, the court shall issue an
order of execution, without prejudice to contempt
a.) Motu proprio
b.) Upon motion
fails to comply or refuses, a third person
furnished support to the applicant may obtain a
writ of execution for a claim of reimbursement.

 Support in criminal case where civil liability attaches

 Restitution: recipient may obtain reimbursement to the person legally
obliged to give support.
Return to the person who gave support the amount already
paid.

maintain separate action in case the recipient

Failed to reimburse.
 Special Civil Actions

Interpleader

 Whenever conflicting claims upon the same subject matter are or may be
made against a person who claims no interest whatever in the subject matter,
or an interest which in whole or in part is not disputed by claimants.
 Motion to Dismiss:
a) Impropriety, or No FPR
b) Grounds under Rule 16
 If any claimant fails to file an answer, the court, on motion, may declare the
party in default.

Declaratory Relief
Who may file: any person
Other actions:
interested in any deed, will, contract or other written
instrument; or
Whose rights are affected by a statute, executive order
or regulation, ordinance, or any other governmental
regulation.
reformation of instrument
Quieting of title of real property
remove clouds therefrom
consolidate ownership

Bring an action before the RTC for the de-

termination thereunder of any:
1) Question of construction
2) Validity
3) Declaration of rights
Notice: Prosecutor/Attorney of the LGU;
validity of any ordinance.
Solicitor General; validity of law, Executive Order
Governmental regulation or ordinance is unconstitutional
Court action: In reformation; consolidation; quieting of title: mandatory
Other actions: the court may refuse to exercise the power to declare rights or
to construe the instrument when a decision would not terminate the
uncertainty or controversy or when it is not necessary.

By motion; or Ex parte

 If before the termination there is already breach or violation of the

instrument, statute or ordinance, the action is thereupon converted into
ordinary action.

Review of Judgments and Final Orders of COMELEC and COA

 Filed within thirty (30) days from notice of judgment sought to be reviewed
 Respondent to file comment within ten (10) days from notice thereof
 The filing of the petition shall not stay the execution of the judgment or final
order or resolution sought to be reviewed, unless the Supreme Court directs
otherwise.

Certiorari, Prohibition, and Mandamus

any tribunal, board/officer exercising judicial or quasi-judicial functions
acted without or in excess of its jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction.
Certiorari: There is no appeal, nor any plain speedy or adequate remedy in the
ordinary course of law.
Praying that judgment be annulled or modify the proceedings thereof
and
granting incidental reliefs as law and justice may require.

When the proceedings of any tribunal, corporation, board, officer or

person exercising judicial, quasi-judicial or ministerial functions.
Prohibition: Same with Certiorari;
Same with Certiorari;
 Judgment be rendered commanding the respondent to desist from
further proceedings in the action or matter specified therein or granting
reliefs incidental thereto.

When any tribunal, corporation, board, officer or person unlawfully

neglects the performance of an act which the law specifically enjoins as a

duty resulting from an office, trust, or station, or unlawfully excludes

another from the use and enjoyment of a right or office to which such
Mandamus: other is entitled.
Third element same with certiorari;
Judgment: commanding the respondent, immediately or at
same
other time to be specified by the court, to do the act
required to be done to protect the rights of the
petitioner; and
To pay damages sustained by reason of the wrongful
act.
When to file:

 Sixty (60) days from the notice of judgment

 In case of a motion for new trial or reconsideration, 60 days from the notice
of the denial.
Where to file:

 RTC: petition relates to act or an omission of an MTC, corporation, board,

officer/person.
 COMELEC: exclusive; in election cases involving act or omission of MTC/RTC
 CA: petition includes act or omission of a quasi-judicial agency.
The cost awarded in the proceeding shall be against the private respondents only, and not
against the judge, court, quasi-judicial agency, etc.

Public respondents shall not appear in or file an answer or comment to the petition.
Injunctive relief:
  Court may issue TRO/Preliminary Injunction for the preservation of the rights
of the parties.
 Unless granted, TRO/Preliminary Injunction, the petition shall not interrupt
the course of the principal case.
Court may moto proprio based on res ipsa loquitor impose disciplinary action against erring
lawyers.

Quo Warranto

 Action for usurpation of a public office, position or franchise.

a) Any person who usurps, intrudes into, or unlawfully holds a public office,
position or position.
b) Any public office who performs an act that constitutes ground for
forfeiture of his office
c) An association which acts as a corporation without any legal authority or
not having regally incorporated.
Who commences:

 Solicitor General or public prosecutor – upon direction of the President

- He has good reason to believe
 A party claiming to be entitled to the office.
Venue:

 RTC, CA, SC
Where respondent resides; If brought by the SolGen, RTC Manila.
Limitations:

 For claim of damages within one (1) year from entity of judgment
 Within one (1) year after cause of ouster.
Expropriation

 Complaint: State the right, purpose, describe the property, and join all
persons having interest therein.
The fact that the title belongs to the Republic of the
Philippines although occupied by private individuals, or
that
title is obscure or doubtful must be stated in the
complaint.
Right to enter: R.A. No. 8974 government is required to make immediate direct
payment
to the property owner upon the filing of the complaint to
be
entitled to a writ of possession.
Standard initial compensation; market value of the
property
a) tax declaration; b) relevant zonal
valuation
Purpose is for national infrastructure project
Rule 67: Government has only to make an initial deposit with an authorized
government
depository.
Initial deposit merely equivalent to the assessed value of the property for
purposes of taxation.
Purpose is other than for national infrastructure project.
Payment of Just Compensation:

 Determined as of the date of taking of the property or the filing of the

complaint, whatever came first.
 The commissioners shall assess the consequential damages shall be deducted
from the consequential benefits derived from the public use/purpose taken.
The right of the plaintiff to enter the property and appropriate the same shall not be delayed by
an appeal from the judgment.
The expropriation shall be recorded in the Register of Deeds for the consolidation or in order to
vest title to the plaintiff.
Trial Court has the jurisdiction to determine the issue of ownership.

Foreclosure of Real Estate Mortgage

 Grounds: Non-payment of the mortgaged loan

Violation of other conditions therein
 Judgment: sum so found due must be paid within a period not less
than ninety (90) days nor more than 120 days.

In default thereof the property shall be sold to public

auction.
 Deficiency judgment:
- Third party mortgagor not liable for
the deficiency.
- Execution for the deficiency may be
issued immediately when the
balance is all due at the time of the
rendition of the decision, otherwise,
plaintiff is entitled only to the
execution from the moment the
balance becomes due under the
terms of the contract.
 Registration: Certificate of Title shall be issued to the purchaser.

There is right of redemption; the certificate of sale and

order confirming the sale shall be recorded but the
certificate of title shall not be cancelled unless it is not
redeemed.
 Effect of the Sale: The Sale shall be by motion.
 The purchaser shall be entitled to possession of the
property:
-upon finality of the order of confirmation; or
- Expiration of the redemption period.
No right of possession if a third party is actually holding
the same adversely to the judgment debtor.
Balance to be applied to the judgment creditor; excess ---- mortgagor junior encumbrance
Extra-judicial Foreclosure is proper only when so provided in the contract.

 Extra-judicial Foreclosure: 1 year from registration of deed of sale.

 Judicial Foreclosure: no right of redemption, except: - only equity redemption
- DBP and PNB (1year)
In banking institution, foreclosure being judicial/extra-judicial, the party has the right of
redemption; redemption price is that fixed by the court.

Partition

 The parties may make partition among themselves with the confirmation of
the court which shall be recorded.
- The order may be appealed by the
aggrieved party.
 Parties unable to agree the same shall be submitted to the commissioners.
- Not more than three (3) competent
and disinterested person persons.
- When it cannot be divided without
prejudice to the interests the court
may:
a) Assign it to one upon
payment of such amount, or
b) Order the property sold if one
of the parties asks.

Forcible Entry and Unlawful Detainer

 Forcible Entry: A person deprived of possession of any land/building

by Force, Intimidation, Threat, Strategy, or Stealth.
  Unlawful Detainer: The possession of any land or building is unlawfully
withheld after the termination or expiration of the
right to hold possession by virtue of a contract.

Commenced only after a demand to pay or comply

with the conditions of the lease AND to vacate is made

upon the lessee either by:

- Serving notice, or
- Posting such notice on the premises
If the lessee fails to comply therewith after 15 days
(land) or 5 days if (building)
At any time within one (1) year after such unlawful deprivation or withholding of possession.
Irrespective of the amount or unpaid rentals, the case shall be governed by the rules on
Summary Procedure; no third-party complaint.
Cases requiring referral for conciliation, where there is no showing of compliance with such
requirement shall be dismissed with prejudice.
Within five (5) days the plaintiff may present a motion for the issuance of Preliminary
Mandatory Injunction to restore him in his possession.
The issue of ownership shall be resolved only to determine the issue of possession.

 Execution: MTC – immediately executory except:

- Perfected an appeal
- Posting of supersedeas bond
- Bond is for the rents, damages cost.
RTC – immediately executory without prejudice to a
further appeal.

Contempt

 Direct – a person guilty of misbehavior in the presence of or so near the court

- Obstruct/interrupt the proceedings,
including disrespect towards the
court or offensive personalities
towards others.
 - Refusal to be sworn as witness or to
subscribe an affidavit or deposition.
- RTC- a fine of not exceeding two
thousand pesos (2,000) or not
exceeding 10 days’ imprisonment,
or both.
- Lower Court – fine not exceeding 200
pesos or imprisonment not
exceeding 1 day.
(No appeal, remedy is Certiorari and
Prohibition)

 Indirect:
a) Misbehavior in the performance of his official duties.
b) Disobedience of or resistance to a lawful writ, process, or order.
c) Abuse or interference with the processes/proceedings of a court not a
direct contempt.
d) Improper conduct tending, directly/indirectly, to impede, obstruct, or
degrade the administration of justice.
e) Assuming to be an attorney or officer of the court acting without
authority.
f) Failure to obey subpoena, and
g) Rescue or attempt to rescue a person/property in custody of the law.

 Proceeding: - moto proprio or formal charge

- in the RTC/equivalent rank
- RTC/lower court
 Punishment: - RTC/equivalent
- Thirty thousand (30k)/ 6 months of
imprisonment.
Lower Court – five thousand (5k)/ 1 month of imprisonment.
If the contempt is in violation of Injunction, TRO, Status Quo
Order – (restitution).
Final Order is appealable in Criminal Cases.