Provisional Remedies

Question 1

Purpose of preliminary attachment

Answer 1

1. Seizes upon the property of an alleged debtor and holds it subject to appropriation preventing loss or dissipation
2. Subjects it to payment of a creditor’s claim in cases where service cannot be obtained upon the debtor

Question 2

Preliminary Attachment

Answer 2

Attachment is defined as a provisional remedy by which the property of an adverse party is taken into legal custody, either at the commencement of an action or at any time thereafter, as a security for the satisfaction of any judgment that may be recovered by the plaintiff or any proper party

Question 3

Three Stages of PA

Answer 3

The grant of the provisional remedy of attachment involves three stage:
1. The court issues the order granting the application;
2. The writ of attachment issues pursuant to the order granting the writ;
3. The writ is implemented.

For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained.

Question 4

Grounds for Issuance of PA

FRENDS

Answer 4

FRAUD - In an action against a party who has been guilty in the performance or incurrence of an obligation

RECOVER POSSESSION - In an action to recover position of property unjustly taken and which has been concealed or diposed of to prevent its being found or taken by the applicant

EMBEZZLEMENT - In an action for embezzlement against a person acting in a fiduciary capacity or for willfull violation of duty

DEPART - In action for sum of money or damages (other than moral or exemplary) against a party who is about to depart from the Philippines with intent to defraud his creditors

SUMMONS BY PUBLICATION - In an action against a party on whom summons may be served through publication. These are defendants whose identity or whereabouts are unknown.

Question 5

May PA be issued ex parte?

Answer 5

It may be issued ex parte because to require
notice to the adverse party would defeat the
purpose of attachment and enable the adverse
party to abscond or dispose of the property
before the issuance of the writ

Question 6

When may PA be issued?

Answer 6

It should be resorted to only when necessary and as a last remedy because it exposes the debtor to humiliation and annoyance.

Question 7

Requisites for issuance of a WPA

Answer 7

a. The applicant must have a clear and unmistakable right to be protected, that isaright in esse;
b. There is a material and substantial invasion of such right;
c. There is an urgent need for the writ to prevent irreparable injurytotheapplicant; and
d. No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury.

Question 8

Clear and unmistakable right

Answer 8

“Clear legal right,” within the meaning of Rule58, contemplates a right “clearly founded in or granted by law.” Any hint of or dispute doubt on the asserted legal right precludes the grant of preliminary injunctive relief.

Question 9

When is PA available?

Answer 9

It is to be resorted to by a litigant to prevent or preserve a right or interest where there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard of compensation. An application for a writ of preliminary injunction rests upon an alleged existence of an emergency or of a special reason for such a writ before the case can be regularly tried.

Question 10

Requirements for enforcement of levy on attachment

Answer 10

No levy on attachment shall be enforced unless it is preceded or contemporaneously accompanied by service of summons together with CABAWO

Copy of the Complaint
Application for Attachment
Bond
Affidavit
Writ of Attachment
Order of Attachment

Question 11

Exceptions to Contemporaneous or prior service of summons

Answer 11

SNIT

Summons could not be served personally or through substituted service despite diligent efforts
Non-resident Defendant
In Rem or Quasi In Rem action
Temporarily outside resident of the Philippines

Question 12

Outline the manner in which the sheriff shall attach real and personal property

Answer 12

1. Real property or growing crops thereon
2. Personal property capable of manual delivery
3. Stocks or Shares in a company
4. Debts and Credits and other personal property not capable of manual delivery

Question 13

May property in Custodia Legis be attached?

Answer 13

Yes. A copy of the Writ shall be filed with the proper court AND notice of attachment be served upon the custodian of the property.

Question 14

Remedies of a party whose property has been attached

Answer 14

1. Prevent enforcement or move for its lifting if he files a counterbond in an amount equal to that fixed in the order of attachment
2. Move to discharge the attachment by filing a bond
3. Move to discharge the attachment on the ground that it was improperly or irregularly filed or issued

Question 15

May a deposit be in the form of real property?

Answer 15

No. Deposit is understood to refer to cash under rule 57/

Question 16

Define a Preliminary Injunction

Answer 16

A preliminary injunction is an order granted by the court at any stage of an action, or proceeding prior to the judgment or final order, requiring a party, court, agency or person to perform or refrain from performing a particular act or acts.

Question 17

Distinguish Preliminary and Final injunctions

Answer 17

Preliminary Injunction is one issued prior to judgment or final order, while a final injunction is issued if after the trial it appears that the applicant is entitled to have the acts complained of permanently enjoined

Question 18

Status Quo Order

Answer 18

A status quo ante order is an equitable remedy intended to maintain the status quo (the last, actual, peaceable, uncontested state of things which preceded the controversy)

Unlike a TRO, a SQO does not need a bond

Question 19

.Can the RTC issue TRO’s over courts of the same level of jurisdiction?

Answer 19

No. The RTC has no power to issue a TRO or WPI to interfere with or restrain the decisions of courts of the same level (courts whose decisions may be appealed to the CA)

Question 20

Who may grant a preliminary injunction

Answer 20

A preliminary injunction may be granted by the court where the action or proceeding is pending. Any member of the CA or SC may also issue the same.

Question 21

Grounds for the issuance of a WPA

Answer 21

a) That the plaintiff is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the acts complained of, or in the performance of an act or acts, either for a limitedperiod or perpetually;

b) That the commission or continuance of some act complained of during the litigation or the non-performance thereof would probably work injustice to the plaintiff, or

c) That the defendant is doing, threatens, or is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual.

Question 22

May a WPI be issued ex parte?

Answer 22

No. PI shall not be granted without hearing and notice to the party sought to be enjoined.

Question 23

May a TRO be issued ex parte?

Answer 23

GR: There must be a summary hearing for the application of a TRO and shall be acted upon only after all parties are heard in a summary hearing which shall be conducted within 24 hours of the Sheriff’s return of service

Question 24

Instances when a TRO may be issued ex parte

Answer 24

1. When it shall appear from the facts that GREAT OR IRREPARABLE INJURY would result to the applicant before the matter can be heard on notice. TRO is effective for 20 days starting on day of service of party sought to be enjoined
2. f the matter is of EXTREME URGENCY and the applicant will suffer GRAVE INJUSTICE AND IRREPARABLE INJURY. TRO is effective from ISSUANCE if issued by an Executive Judge

Question 25

Grounds for dissolving a Preliminary Injucntion

Answer 25

1. Application for injunction may be denied on the ground of its INSUFFICIENCY
2. The application may likewise be denied if the shows that although the applicant is entitled thereto, the continuance thereof shall cause irreparable damage to the person enjoined but the applicant may be FULLY COMPENSATED. Enjoined party must file a bond

Question 26

Receivership

Answer 26

Rule 59 is a provisional remedy aimed at the preservation of, and at making more secure, existing rights. It cannot be used as an instrument for the destruction of those rights.

Question 27

May a party to an action be appointed receiver?

Answer 27

No. The receiver should be neutral or impartial.

Question 28

Who may appoint a receiver?

Answer 28

1. Court where the action is pending
2. CA or any member thereof
3. SC or any member thereof

Question 29

Purpose of receivership

Answer 29

-Its purpose is to preserve the property during the pendency of the litigation or to dispose of
it according to the judgement when it is finally rendered or otherwise to carry the judgement
into effect.

Question 30

Grounds for appointment of a receiver

Answer 30

(a) When the applicant has an interest in 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;

(b) When in foreclosure of a mortgage, the property is in danger of being wasted or dissipated 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 an appeal, or to dispose of it according to the judgment, or to aid execution when the execution 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) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.

Question 31

During the pendency of an appeal, where should an action to appoint a receiver be filed?

Answer 31

In the appellate court. Such court may allow the application to be filed and decided by the court of origin and the receiver appointed to be subject to the control of the court of origin

Question 32

If an appeal has been perfected and the trial court is deprived of its jurisdiction, may it still appoint a receiver?

Answer 32

Yes if the order is necessary for the protection and preservation of the rights of the parties and provided the original record or record on appeal has NOT YET been transmitted to the appellate court

Question 33

Applicant’s Bond

Answer 33

Before issuing the order appointing a receiver the court shall require the applicant to file a
bond executed to the party against whom the application is presented, in an amount to be
fixed by the court, to the effect that the applicant will pay such party all damages he may
sustain by reason of the appointment of such receiver in case the applicant shall have
procured such appointment without sufficient causePo

Question 34

Powers of a Receiver RAP CCT PDA

Answer 34

a. To bring and defend actions in his own name in his capacity as receiver;
b. To take and keep possession of the property subject of the controversy;
c. To receive rents;
d. To collect debts due to himself as receiver or tot the fund, property, estate, person, or
corporation of which he is the receiver;
e. To compound for and compromise the same;
f. To make transfers;
g. To pay outstanding debts;
h. To divide the money and property that shall remain among the persons legally entitled
to receive the same;
i. Generally, to do such acts respecting the property as the court may authorize.

Question 35

Acts of a receiver which need court approval

Answer 35

1. Funds in the hands of a receiver may be invested only by order of the court upon written consent of all the parties to the action

2

Question 36

Replevin

Answer 36

Replevin is a proceeding by which the owner or one who has a general or special property in the thing taken or detained seeks to recover possession in specie, the recovery of damages being only incidental.

Question 37

Replevin as a provisional relief vs main action

Answer 37

When utilized as a principal remedy, the objective is to recover possession of personal property that may have been wrongfully detained by another.

When sought as a provisional relief, it allows a plaintiff to retain the contested property during the pendency of the action

Question 38

Replevin as a Main Action

Answer 38

Replevin, as main action, is a suit at law (action of replevin) whereby goods or chattels that have been unlawfully taken from one may be recovered. Not only ordinary articles of movable personal property may be recovered but such things as records of a corporation, local official records, trees cut down or cut into boards, or even money if it can be found and identified as the same money which was taken.

Question 39

When is Replevin available

Answer 39

A party praying for the recovery of possession of personal property may, apply for an order for the delivery of such property to him, in the manner hereinafter provided:

1) At the commencement of the action; or

2) At any time before answer.

Question 40

Process of Replevin

Answer 40

As a provisional remedy, a party may apply for an order for the delivery of the property before the commencement of the action or at any time before an answer is filed

Rule 60 of the Rules of Court outlines the procedure for the application of a writ of replevin.

Rule 60, Section 2 requires that the party seeking the issuance of the writ must first file the required affidavit and a bond in an amount that is double the value of the property

Once the affidavit is filed and the bond is approved by the court, the court issues an order and a writ of seizure requiring the sheriff to take the property into his or her custody.

If there is no further objection to the bond filed within five (5) days from the taking of the property, the sheriff shall deliver it to the applicant.

The contested property remains in the applicant’s custody until the court determines, after a trial on the issues, which among the parties has the right to possession.

Question 41

Requirements for Replevin

Answer 41

1) He must show by his own affidavit or that of some other person who personally knows the facts:

a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;
b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief;
c) That 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 otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and
d) The actual market value of the property.

2) The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action.

Question 42

Is ownership over the property needed for an application for Replevin?

Answer 42

No. The applicant need not be an owner of the property. It is enough that he has the right to the possession.

Question 43

Replevin and Custodia Legis

Answer 43

Replevin cannot be available when the property is in custodia legis, is under attachment or has been seized pursuant to law. The reason posited for this principle is that if it was otherwise, there would be interference with the possession before the function of the law had been performed as to the process under which the property was taken.

Question 44

What are the duties of the Sheriff upon receipt of the order in Replevin?

Answer 44

1) Serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond;

2) He must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody;

3) If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession; and

4) After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same

Question 45

What are the remedies of the adverse party against whom a replevin was issued and implemented?

Answer 45

1) Object to the sufficiency of the applicant’s bond, or of the surety or sureties thereon, he cannot immediately require the return of the property;

2) (REDELIVERY BOND) If he does not so object, at any time before the delivery of the property to the applicant, require the return thereof, by filing with the court where the action is pending a bond executed to the applicant, in double the value of the property as stated in the applicant’s affidavit for the delivery thereof to the applicant, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the adverse party, and by serving a copy of such bond on the applicant.

Question 46

What is support Pendente Lite

Answer 46

Support provided to a party during the pendency of the litigation

Question 47

In what actions may SPL be applied for

Answer 47

1. In an action for support
2. Criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect thereof has not been waived

Question 48

Define Appeal

Answer 48

Appeal is a proceeding by which a party seeks from a higher court