Rule 60 - (4/5) Replevin

Question 1

Kinds of Replevin & its distinctions

with legal basis

Answer 1

BA Finance Corp v. CA

Main Action -resolving the issue as to ownership for the recovery of property only AFTER finality of judgment

Pro Rem - recover property during pendency of main action not resolving issue of ownership

Question 2

Rplvn (R60)

vs

Attchmnt (57)

swak.pcb

Answer 2

[Purpose]
Rplvn - to recover possession
Attchmnt - to place property under court custody to secure satisfaction of judgment

[To Whom Property Belongs]
Rplvn - either to plaintiff [or] the person which plaintiff has a right of possession
Attchmnt - property belongs to defendant

[When Availed]
Rplvn - Def’n has actual or constructive possession of the personal property
Attchmnt - Availed even when property w/in custody of 3rd persons

[Kind of Properties]
Rplvn - property capable of manual delivery
Attchmnt - Real & Personal; credit, interests, etc

[Status of Properties]
Rplvn - availed w/o showing prop is [crd] to the prejudice of the applicant
Attchmnt - certain cases, need to show prop is [crd]

[As to Custodia Legis]
Rplvn - prop in C.L. cannot be the object of a rplvn
Attchmnt - availed even when in C.L.

[As to Value of the Bond]
Rplvn - DOUBLE the value of the property stated in the Affidavit in Support of Application
Attchmnt - Court will fix to satisfy the applicant’s demand or the value of the to be-attached-property

Question 3

A filed writ of Replevin in RTC 12 praying that he can take back his goods from the Bureau of Customs.

the RTC issued the same. is the issuance valid?

Answer 3

No

Asian Terminals v. Bautista

SC held that RTCs canNOT issue writ of Rplvn for recovery of confiscated goods by the Bureau of Customs becase BoC has the exclusive JD to forfeit smuggled goods.

forfeit - (take possession in favor of gov’t)

Question 4

Zuno v. Cabredo

distinguish

Asian Terminals v. Bautista

Answer 4

Zuno v. Cabredo
- cannot PI goods in the bureau

Asian Terminals v. Bautista
- cannot Rplvn in the bureau

Question 5

2 Purposes of a Rplvn Bond

Answer 5

1. to answer for damages caused to the party
2. to guarantee the return of the property taken by the sheriff or to return the value in case the court finds applicant not entitled to

Question 6

when to apply for Writ of Rplvn

Answer 6

1. At the commencement of the action
2. any time BEFORE the answer is filed

Question 7

Can we apply for the issuance of the writ of replevin during trial?

Answer 7

No, rule provides it be only at commencement or before answer is filed

Question 8

WHO [&] WHAT must the application for replevin state?

MEMORIZE 3

Answer 8

the applicant must show in his affidavit [OR] another who personally knows the facts THAT:

1. the applicant is the owner of the property claimed, particularly describing it [or] is entitled to possession thereof
2. the property wrongfully detained by adverse party [and] alleging the cause of detention to the best of his knowledge, information, and belief
3. the property has NOT been [stfde]

• distrained, or
• taken for tax assessment,
• fined in pursuant to law, and
• seized under a [writ of execution/preliminary attachment]
• if seized, it is exempt from seizure

4. actual market value of the property
5. willing & able to put up bond required by court

Question 9

why is the bond in a Rplvn double?

Answer 9

1. serves as guaranty for return of property if such return be ordered
2. intended to secure payment for damages caused to the adverse party

Question 10

Tor filed recovery of personal property & applied for Rplvn thus putting up a bond to answer for damages should there be any.

Gal filed a permissive counterclaim against Tor (not related to the main action)

[A]
After trial, court rendered judgment in favor of Gal for unpaid loan. Can Gal recover the judgment award by the Rpvln bond of Tor?

Answer 10

Sapugay v. CA

Rplvn bond shall NOT be held to answer for the payment of damages rendered on a COUNTERCLAIM [or] PUNITIVE DAMAGES for fraudulent/wrongful acts committed by the plaintiff [and] unconnected with the defendant’s deprivation of possession by the plaintiff

IOW, Rplvn bond shall not be held to answer for claims for damages which are not connected with the defendant’s deprivation of possession.

Question 11

Tor filed recovery of personal property & applied for Rplvn thus putting up a bond to answer for damages should there be any.

Gal filed a permissive counterclaim against Tor (not related to the main action)

Gal argues that the deprivation of property resulted in loss of profit.

Can Gal be awarded damages from the applicant’s bond?

Answer 11

Since the loss of profit is related/connected with the deprivation of the property, then the award pertaining to unearned income may be put up against the bond

Question 12

distinction between Rplvn & PA insofar as the description of property is concerned

Answer 12

Rplvn - particularly described or specificed

PA - not need to be particularly desecribed the idea of planting rice

Question 13

What is the duty of the sheriff after receiving the order of replevin?

Answer 13

1. serve unto the adverse party:

• a copy of writ of Rpvln
• copy of application
• affidavit
• bond

2a. take the property & retain in his custody.

2b. if property concealed in bldg. Shrf demands its delivery, if not heeded, he must apply for Break Open Order before breaking open to take property into his possession

3. deliver after 5 days to the party entitled upon receiving his fees & necessary expenses for taking & keeping the same

Question 14

why should the shrf wait 5 days?

Answer 14

adverse party may:
- object to the sufficiency of the bond or the sureties thereon
- but cannot immediately require the return of the property

W/in 5 days from taking of property by sheriff IF;

• adverse party does NOT object to the sufficiency of the bond, or
• AP objects to the bond [and] court affirms its approval of the applicant’s bond or approves a new bond and applicant pays the new bond
• AP requires return of the prop but his bond is objected to [and] found insufficient, and he does not immediately file an approved bond,

THEN the property shall be delivered to the APPLICANT

Question 15

what can the adverse party do beyond 5 days?

Answer 15

BEFORE delivery to the applicant, adverse party may require the return of property by filing with the court where the action is pending a bond executed to the applicant, in DOUBLE the value of the property stated in the applicant’s affidavit, and if the court orders the delivery in favor of the adverse party, and the same pays the amount answerable to the damages, and serving a copy of such redelivery bond to the applicant

Question 16

Suppose the person against whom the writ of replevin had been issued did not interpose the objection to the sufficiency of the applcian’t bond w/in 5 days.

Does that mean he is already precluded from demanding the return of his property?

Answer 16

No, even after 5 days as long as the properties has not been delivered by the sheriff to the applicant, the person(could be adverse/3rd person) from whom the property were taken may still demand for the return

If for any reason, the property is NOT delivered to the applicant, the sheriff MUST return it to the adverse party. (Sec. 6, Rule 60)

Question 17

What are the remedies of a 3rd party whose property is wrongfully taken by the sheriff?

Answer 17

1. Terceria
2. Separate Action for recovery of property
3. Motion for release of the property
4. Motion for Intervention

Question 18

3rd Party Remedies against Rplvn > Terceria > How to

Answer 18

1. making an affidavit of title to the property [or] affidavit of right to possess and serve on the SHRF (not court)

TN:
- in terceria, shrf is NOT required to keep property under rplvn unless APPLICANT files an indemnity bond approved by the court (sum not less than value of the prop)

• if indemnity bond is posted, shrf shall not be liable for damages for the taking & keeping of the property
• NO CLAIM for damages for taking/keeping prop may be enforced against the bond unless action is filed w/in 120 days from DATE OF FILING (indemnity) bond

TN: The claim is against the bond because the bond is a form of security that guarantees compensation for wrongful actions related to the property. In this case, the indemnity bond (posted by the applicant) is meant to protect the sheriff from liability and to ensure that if the property is wrongfully taken or kept, the party wronged (e.g., adverse party or third-party claimant) can recover damages from the (indemnity) bond

Question 19

3rd person remedy > your client’s property has been taken by a writ of rplvn. your client wishes to file a separate action for recovery.

how will you effect the same?

Answer 19

Where the writ was issued in RTC, we go to another branch seeking nullification of the action by applying a writ of injunction against the SHRF

this is NOT judicial interference as we are not parties to the case

Question 20

how to effect motion to release property?

Answer 20

file the motion in the court which issued Rplvn invoking that the court has JD

Question 21

Suppose your motion for release of property is denied as a 3rd party to a Rplvn case.

what is your remedy after denial?

Answer 21

The denial of the motion is NOT conclusive nor will it be deemed as res judicata to prevent a filing of an independent action

Question 22

3rd party remedies:

Separate Action for Recovery

vs.

Motion for Intervention

note
Rule 19. Intervention. Section 2. Time to Intervene — The motion to intervene may be filed at any time BEFORE rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion (for intervention) [and] served on the original parties.

Answer 22

SARP
- pay docket fees
- filed in different court
- safer as judge reviews actions of shrf in a different court

MI
- no docket fees
- same court where Rpvln issued
- disadvantage as judge will have to admit mistake of his own shrf