Rule 60 - (4/5) Replevin Flashcards
Kinds of Replevin & its distinctions
with legal basis
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
Rplvn (R60)
vs
Attchmnt (57)
swak.pcb
[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
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?
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)
Zuno v. Cabredo
distinguish
Asian Terminals v. Bautista
Zuno v. Cabredo
- cannot PI goods in the bureau
Asian Terminals v. Bautista
- cannot Rplvn in the bureau
2 Purposes of a Rplvn Bond
- to answer for damages caused to the party
- 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
when to apply for Writ of Rplvn
- At the commencement of the action
- any time BEFORE the answer is filed
Can we apply for the issuance of the writ of replevin during trial?
No, rule provides it be only at commencement or before answer is filed
WHO [&] WHAT must the application for replevin state?
MEMORIZE 3
the applicant must show in his affidavit [OR] another who personally knows the facts THAT:
- the applicant is the owner of the property claimed, particularly describing it [or] is entitled to possession thereof
- the property wrongfully detained by adverse party [and] alleging the cause of detention to the best of his knowledge, information, and belief
- 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
- actual market value of the property
- willing & able to put up bond required by court
why is the bond in a Rplvn double?
- serves as guaranty for return of property if such return be ordered
- intended to secure payment for damages caused to the adverse party
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?
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.
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?
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
distinction between Rplvn & PA insofar as the description of property is concerned
Rplvn - particularly described or specificed
PA - not need to be particularly desecribed the idea of planting rice
What is the duty of the sheriff after receiving the order of replevin?
- 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
- deliver after 5 days to the party entitled upon receiving his fees & necessary expenses for taking & keeping the same
RP — why should the shrf wait 5 days?
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
what can the adverse party do beyond 5 days?
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
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?
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)
What are the remedies of a 3rd party whose property is wrongfully taken by the sheriff?
- Terceria
- Separate Action for recovery of property
- Motion for release of the property
- Motion for Intervention
3rd Party Remedies against Rplvn > Terceria > How to
- 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
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?
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
how to effect motion to release property?
file the motion in the court which issued Rplvn invoking that the court has JD
Suppose your motion for release of property is denied as a 3rd party to a Rplvn case.
what is your remedy after denial?
The denial of the motion is NOT conclusive nor will it be deemed as res judicata to prevent a filing of an independent action
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.
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
