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    ATENEOCENTRAL BAROPERATIONS 2007

    Remedial LawSUMMER REVIEWER

    Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.

    Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan

    PROVISIONAL REMEDIES

    PROVISIONAL REMEDIES - writs and processesavailable during the pendency of the action whichmay be resorted to by a litigant to preserve andprotect his rights and interests therein, pendingrendition, and for the purpose of ultimately affecting afinal judgment in the case.

    Provisional - constituting temporary measures

    availed of during the pendency of the action.

    Ancillary - incidents in and dependent on the resultof the main action.

    PROVISIONAL REMEDIES AVAILABLE UNDERTHE RULES OF COURT

    Rule 57: Preliminary AttachmentRule 58: Preliminary InjunctionRule 59: ReceivershipRule 60: ReplevinRule 61: Support Pendente Lite

    When Provisional Remedies Available1. Attachment, injunction, and supportpendente

    lite may be applied for before final judgment.2. Replevin may be applied before the answer.3. Receivership may be applied for at any stage

    of the action and even after final judgment.

    When Bond is Required and How Amount ofBond is Determined

    1. For attachment and injunction, bond isalways required from the plaintiff but theamount of the bound to be filed by theapplicant is addressed to the sound

    discretion of the court.2. In preliminary attachment and replevin, ifthe applicant is the Republic of thePhilippines, no bond shall be required.

    3. In receivership, the bond as fixed by thecourt is not always required of the petitioner,whether or not the appointment of a receiverhas been applied forex parte.

    4. In replevin, the bond to be posted by theapplicant is an amount double the value ofthe personal property to be seized.

    5. In applications forsupportpendente lite, nobond is generally required from the applicant.

    RULE 57PRELIMINARY ATTACHMENT

    Section 1. Grounds upon which attachment mayissue

    When May Application for Attachment Be Made1. At the commencement of the action; or2. At any time before entry of judgment.

    In What Actions Attachment Propera) In an action for the recovery of specified

    amount of money and damages, exceptmoral or exemplary, on a cause of actionarising from law, contract, quasi-contract,delict or quasi-delict against a party who isabout to depart from the Phils with intent todefraud creditors;

    b) In an action for money or propertyembezzled; fraudulently misapplied orconverted to own use by a public officer, oran officer of a corporation, or an attorney,

    factor, broker, agent, or clerk in course ofemployment; or any person acting in fiduciarycapacity, or for willful violation of duty;

    c) In an action to recover the possession ofproperty unjustly or fraudulently taken,detained or converted, when the property isremoved, concealed or disposed of toprevent its being found or taken by theapplicant or an authorized person;

    d) In an action against party who has beenguilty of fraud in contracting the debt orincurring the obligation upon which action isbrought; or in the performance thereof;

    e) In an action against party who has removedor disposed of property, or is about to do so,with intent to defraud creditors; or

    f) In an action against party who does notreside and is not found in the Phils, or onwhom summons may be served bypublication.

    Erana v. Vera 74 Phil. 272 (1944)

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    When civil action has been waived or reserved,no application for attachment in the criminal actioncan be allowed and granted.

    Ramcar, Inc. v. De Leon 78 Phil. 449 (1947)When civil action is suspended due to the filing of

    the criminal action, no attachment may issue in thecriminal action because civil action remains pendingin court.

    Adlawan v. Torres 233 SCRA 645 (1994)Mortgage of property does not amount to

    removal/disposal so as to come w/in the purview ofSec1(e) Rule57.

    Carpio v. Macadaeg 9 SCRA 552 (1963)Mere removal or disposal of property does not

    justify an attachment. There must be a showing ofintent to defraud defendants creditors before the writof attachment may issue.

    Two-Fold Purpose of Attachment1. To seize the property of the debtor in

    advance of final judgment and to hold it forpurposes of satisfying the said judgment;

    2. To enable the court to acquire jurisdictionover the action by the actual or constructiveseizure of the property in those instanceswhere personal service of summons on thecreditor cannot be effected.

    Section 2. Issuance and contents of order

    How Order of Attachment Issued1. Ex parte; or2. Upon motion with notice and hearing.

    By Whom Order Attachment Issued1. The court in which the action is pending;2. The Court of Appeals; or3. The Supreme Court.

    Uy v. CA 215 SCRA 859 (1992)The trial court may validly issue a writ of

    preliminary attachment even if the case is on appeal.The trial court may issue orders for the protection and

    preservation of the rights of the parties which do notinvolve any matter litigated on appeal.

    Olib v Pastoral 188 SCRA 692 (1990)Where the main action is appealed, the

    attachment which may have been issued as anincident of that action is also considered appealed

    and so also removed from the jurisdiction of the courta quo.

    Properties Exempt from ExecutionAll properties exempt from execution are likewise

    exempt from attachment. (Sec. 13, Rule 59)

    Section 3. Affidavit and Bond Required

    REQUIREMENTS FOR ISSUANCE OF WRIT OFATTACHMENT

    1. Affidavit of the applicant, or some otherperson who personally knows the facts,showing that:

    a. sufficient cause of action exists;b. the case is one of those mentioned

    in Section 1; andc. There is no other sufficient security

    for the claim sought to be enforcedby the action, and that the amountdue the applicant, or the value of theproperty the possession of which heis entitled to recover, is as much asthe sum for which the order isgranted above all legalcounterclaims.

    2. Bond

    Section 4. Condition of applicants bond

    Conditions of the Applicants BondThe bond shall answer for:

    1. All the costs which may be adjudged to theadverse party; and

    2. All damages which he may sustain byreasons of the attachment.

    Section 5. Manner of Attaching Property

    PRINCIPLE OF PRIOR or CONTEMPORANEOUSJURISDICTIONEnforcement of writ of preliminary attachment mustbe preceded by or simultaneously accompanied byservice of summons, copy of complaint, applicationand affidavits for the attachment and the bond upon

    the adverse party.

    BUT the requirement of prior or contemporaneousservice of summons shall not apply where:

    a. the summons could not be served despitediligent efforts; or

    b. the defendant is a resident of the Philstemporarily absent therefrom; or

    c. the defendant is a non-resident of the Phils;or

    d. the action is in rem orquasi in rem.

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    Davao Light v. CA 204 SCRA 343 (1991)Prior or contemporaneous service of summons is

    not necessary for the validity of the ISSUANCE of awrit of attachment.

    Onate v. Abrogar 241 SCRA 659 (1995)Prior or contemporaneous service of summons is

    necessary for the validity of the ENFORCEMENT of awrit of attachment.

    Section 6. Sheriffs return

    Section 7. Manner of attaching property

    Manner of Attaching Propertya. real property, growing crops, interest

    therein - Order and Notice to Register of

    Deeds and Occupant or his agent within theprovince;b. personal property capable of manual

    delivery - sheriff to take and safely keep it,then issue a receipt;

    c. stocks or shares - writ and notice topresident or managing agent;

    d. debts, credits, bank deposits, royalties,commissions, personal propertyincapable of manual delivery - writ andnotice to debtor or person in control thereof;

    e. interest in estate of deceased - writ andnotice to executor/administrator, clerk ofcourt where estate being settled, andheir/devisee/legatee;

    f. property in custodia legis- writ to thecourt/agency and notice to custodian.

    Section 8. Effect of attachment of debts, creditsand all other similar personal property

    Perla Compania v. Ramolete 203 SCRA 487 (1991)In order to bind the garnishee on a writ of

    garnishment, previous service of summons is notrequired; only service upon him of the writ ofgarnishment is needed.

    Section 9. Effect of attachment of interest inproperty belonging to the estate of the decedent

    Section 10. Examination of party whose propertyis attached and persons indebted to him orcontrolling his property; delivery of property tosheriff

    Section 11. When attached property may be soldafter levy on attachment and before entry of

    judgment

    When Property Attached May be Sold

    a. hearing and notice;b. property perishable or interests of all may besubserved by sale;

    c. sale by public auction; andd. proceeds deposited in court.

    Section 12. Discharge of attachment upon givingcounterboundSection 13. Discharge of attachment on othergrounds

    GROUNDS FOR DISCHARGE1. Debtor has posted a counterbond or has

    made the requisite cash deposit;2. Improper or irregular issuance of attachment;3. Improprer or irregular enforcement of

    attachment;4. Bond is insufficient;5. Attachment is excessive, in which case the

    discharge is limited to the excess;6. Property attached is exempt from execution;

    or7. Judgment is rendered against the attaching

    creditor.

    Mindanao Savings and Loan Association, Inc. v.CA 172 SCRA 480 (1989)

    Objections to the impropriety or irregularity of writof attachment may no longer be invoked once acounterbond is filed.

    Calderon v IAC 155 SCRA 531 (1987)The dissolution of a writ of attachment by virtue

    of the filing of a counterbond by the defendant doesnot dissolve the applicants bond and the same maybe proceeded against by the defendant.

    Section 14. Proceedings where property claimedby third person

    TerceriaThe third-party claimant or any third person mayvindicate his claim to the property in the same orseparate action. (Sec. 16, Rule 39)

    Uy v. CA 191 SCRA 275 (1990)Where the sheriff attaches a property claimed by

    a third person, such person may institute a separateaction to vindicate his right. The rule that property incustody of the law may not be interfered with by

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    another court applies only in cases where theproperty belongs to the defendant or one in which hehas an interest.

    Section 15. Satisfaction of judgment out of

    property attached; return of sheriffSection 16. Balance due collected upon anexecution; excess delivered to judgment obligor

    Satisfaction of Judgmenta. proceeds of sales of perishable or other

    properties;b. if there is a balance, sell real or personal

    properties (attached) in sheriffs hand or withclerk of court;

    c. if there is a balance, collect garnishedamounts;

    d. if there is a balance after (a) + (b) + (c) lessexpenses of proceedings upon judgment,ordinary execution.

    Section 17. Recovery upon the counter-bond

    Executory JudgmentWhen judgment becomes executory, sureties oncounterbond to lift attachment are charged and canbe held liable for the amount of judgment and costsupon notice and summary hearing. There is no needto first execute judgment against the judgment obligorbefore proceeding against sureties.

    Section 18. Disposition of money deposited

    Section 19. Disposition of attached propertywhere judgment is for party against whomattachment was issued

    Section 20. Claim for damages on account ofimproper, irregular or excessive attachment

    When to Apply for Damages Against theAttachment Bond

    a. Before trial;b. Before appeal is perfected;c. Before judgment becomes executory; or

    d. In the appellate court for damages pendingappeal, before judgment becomes executory.

    Claims for DamagesClaims for damages cannot be subject ofindependent action EXCEPT:

    a. When principal case is dismissed by the trialcourt for lack of jurisdiction without giving theclaiming party opportunity to prove claim fordamages;

    b. When damages was sustained by a thirdperson not a party to the action.

    RULE 58PRELIMINARY INJUNCTION

    Section 1. Preliminary injunction defined; classes

    PRELIMINARY PROHIBITORY INJUNCTIONAn order granted at any stage of an action orproceeding prior to judgment or final order, requiringa party or court, agency or person to refrain from a

    particular act or acts.

    PRELIMINARY MANDATORY INJUNCTIONAn order granted at any stage of an action orproceeding prior to the judgment or final order,requiring theperformance of a particular act or acts.

    PRELIMINARYINJUNCTION

    PROHIBITION

    Generally directedagainst party to theaction but may be againstany person

    Directed against a court,tribunal, or a personexercising judicial, quasi-

    judicial, or ministerialfunctions

    Does NOT involve thejurisdiction of the court

    May be on the groundthat the court againstwhom the writ is issuesought acted without or

    in excess of jurisdictionMay be the main actionitself or just a provisionremedy in the mainaction

    Always a main action

    Section 2. Who may grant preliminary injunction

    Who May Grant1. The court where the action or proceeding is

    pending;2. If the action or proceeding is pending in the

    Court of Appeals or in the Supreme Court, it

    may be issued by said court or any memberthereof.

    Acosta v Alvendia 109 Phil. 1017 (1960)The RTC cannot restrain or enjoin acts being

    perpetrated or to be perpetrated outside of itsterritorial boundaries.

    Decano v. Edu 99 SCRA 410 (1980)

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    Where the main action is the annulment of theaction of the respondent and the injunction is merelycorollary, trial court of localitywhere questioned actis to be implementedhas jurisdiction.

    Section 3. Grounds for issuance of preliminaryinjunction

    GROUNDS FOR ISSUANCEa. Plaintiff is entitled to relief demanded which

    consists in restraining or requiring theperformance of acts (the latter is preliminarymandatory injunction);

    b. The commission of acts or non-performanceduring pendency of litigation would probablywork injustice to the plaintiff; OR

    c. Defendant is doing, threatening, attemptingor is procuring or suffering to be done some

    act/s in violation of plaintiffs rights respectingthe subject of the action and tending torender judgment ineffectual.

    Actions Where Preliminary Injunction Liesa. In petitions for relief from judgment entered

    through fraud, accident, mistake orexcusable negligence;

    b. In petitions for certiorari, prohibition, andmandamus;

    c. In actions for annulment of judgmentsobtained through fraud;

    d. In actions for annulment of judgments whichare not patent nullities (want of jurisdiction,lack of due process of law) (Banco Espanolv. Palanca, 37 Phil. 921);

    e. To restrain continued breach of validnegative obligation;

    f. To enjoin repeated trespass on land;g. To restrain city from proceeding with

    abatement of nuisanceper accidens before ithas been judicially declared as such;

    h. To restrain voting of disputed shares ofstocks;

    i. To restrain sheriff from selling property onexecution not belonging to judgment debtor;

    j. To restrain criminal prosecutions as an

    exception, in the following cases:! to afford adequate protection to

    constitutional rights of accused,

    ! when there is a pre-judicial questionwhich is sub judice,

    ! prosecution under an invalid law,

    ! double jeopardy is clearly apparent,

    ! court without jurisdiction over theoffense,

    ! case of persecution rather thanprosecution,

    ! charges manifestly false and motivatedby lust for vengeance,

    ! there is clearly no prima facie case

    against accused and,! motion to quash on said ground is

    denied, and

    ! preliminary injunction issued by SC toprevent threatened unlawful arrest ofpetitioners.

    Actions Where Preliminary Injunction Does NotLie

    a. Injunction will generally not be granted totake property out of the possession of oneparty and place it in another whose title notclearly established;

    b. When action for damages would adequatelycompensate injuries caused (Golding v.Balatbat, 36 Phil. 941);

    c. To prevent directors from discharging theiroffices and restoring former directors;

    d. To restrain criminal prosecution where theOmbudsman had authorized the Specialprosecutor to conduct a preliminaryinvestigation or to file an injunction.

    Allure Manufacturing v. CA 199 SCRA 285 (1991)As a rule, injunction is not proper where its

    purpose is to take property out of the possession orcontrol of one party and place it in the hands ofanother party whose title has not been clearlyestablished by law.

    Cagayan de Oro Landless Residents Associationv. CA 254 SCRA 200 (1996)

    Although as a general rule, a court should not, bymeans of preliminary injunction, transfer property inlitigation from the possession of one party to another,this rule admits of some exceptions. For example,when there is a clear finding of ownership and

    possession of the land or unless the subject land iscovered by a torrens title pointing to one of the

    parties as the undisputed owner.

    Sydicated Media Access Corp. v. CA 219 SCRA794 (1993)

    To be entitled to an injunctive write, a party mustshow that: (1) the invasion of right sought to be

    protected is material and substantial; (2) the right ofcomplainant is clear and unmistakable; and (3) thereis an urgent and paramount necessity for the writ to

    prevent serious damage.

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    Section 4. Verified application and bond forpreliminary injunction or temporary restrainingorderSection 5. Preliminary injunction not grantedwithout notice; exception

    General Procedure1. Verified application2. Injunction bond3. Raffle of case requires notice and presence

    of party enjoined only in multiple sala courtwhen the application is included in acomplaint or any initiatory pleading

    4. Service of summons to precede oraccompany notice of raffle

    5. Summary hearing for all parties necessarybefore issuing TRO

    EX-PARTETROa. Matter of extreme urgency, and applicant will

    suffer grave injustice and irreparable injury;b. Executive judge of multiple-sala court or

    presiding judge of single sala court mayissue ex-parte TRO effective for 72 hoursfrom issuance;

    c. Judge shall immediately cause upon adverseparty service of summons, complaint,affidavit, and bond;

    d. Within 72 hours, the judge shall conduct asummary hearing to determine whether theTRO shall be extended until application forpreliminary injunction can be heard (total

    period of TRO up to 20 days only includingthe 72 hours);

    e. If application for preliminary injunction isdenied or not resolved within said period,TRO deemed automatically vacated (except,if it is issued by CA or member- effective for60 days from service of copy; if issued by SCor member- effective until further orders).

    IRREPARABLE INJURYBy irreparable injury is not meant such injury as isbeyond the possibility of repair, or beyond possiblecompensation in damages, nor necessarily great

    injury or great damage, but that species of injury,whether great or small, that ought not to be submittedto on the one hand or inflicted on the other; andbecause it is so large on the one hand, or so small onthe other, is of such constant and frequentrecurrencethat no fair or reasonable redress can be hadtherefore in a court of law.

    Preliminary Injunction Not Granted WithoutNotice

    GENERAL RULE: No preliminary injunction shall begranted without hearing and prior notice to the partyor person sought to be enjoined.

    EXCEPTION:When temporary restraining order may

    be issued ex parte.

    Duration of Temporary Restraining OrderIf great or irreparable injury would result to theapplicant before the matter can be heard on notice,the court may issue a temporary restraining order,effective only 20 days from notice on the party soughtto be enjoined.

    If the matter is ofextreme urgency and the applicantwill suffer grave injustice and irreparable injury, the

    judge may issue ex parte a TRO effective only for 72hours from issuance. Its effectivity may be extendedafter conducting a summary hearing within the 72hours period until the application for preliminaryinjunction can be heard.

    The total period of effectivity of the TRO shall notexceed 20 days including the 72 hours.

    Federation of Land Reform Farmers of thePhilippines v. CA 246 SCRA 175 (1995)

    While the efficacy of a TRO is, ordinarily, non-extendible and trial courts have no discretion toextend it considering the mandatory tenor of Rule 58,there is no reason to prevent a court from extendingthe 20-day period when it is the parties themselves

    who ask for such extension or for the maintenance ofthe status quo.

    Paras v. Roura 163 SCRA 1 (1988)A TRO issued by the trial court or CA expires

    automatically upon the lapse of the 20 day period and60 day period respectively. There is no need for any

    judicial declaration of dissolution.Section 6. Grounds for objection to, or for motionof dissolution of, injunction or restraining order

    Grounds for Denial of Application or Dissolution

    of Injunctiona. Showing of insufficiency of application;b. Other grounds upon affidavits of the party or

    person enjoined, which may be opposed bythe applicant also by affidavits;

    c. When Defendant is permitted to post acounterbond it appearing that he wouldsustain great and irreparable injury ifinjunction granted or continued while plaintiffcan be fully compensated;

    d. Applicants bond is insufficient or defective.

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    Interim Rules of Procedure for Intra-CorporateControversies

    A party may apply for any of the provisional remediesprovided in the Rules of Court as may be available

    for the purposes of the action. However, notemporary restraining orderorstatus quo ordershallbe issued save in exceptional cases and only afterhearing the parties and the posting of a bond. (Sec.1, Rule 10)

    Garcia v. Burgos, reiterated in Admin. CircularNo. 7-99, promulgated 25 June 1999

    No TRO, preliminary injunction or preliminarymandatory injunction may issue against thegovernment in cases involving implementation ofgovernment infrastructure projects.

    De la Cruz v. Tan Torres 107 Phil. 1163 (1960)Mere filing of a counterbond is not sufficient todissolve a writ of preliminary injunction. The writ maybe granted or dissolved only upon good and validgrounds. To warrant dissolution, aside from thecounterbond, the party enjoined must also show thatthe injunction will cause him irreparable damagewhile applicant can be compensated for damages hemay suffer (show through hearing). Filing acounterbond to dissolve injunction is not a matter ofright.

    Section 7. Service of copies of bonds; effect of

    disapproval of same

    Section 8. Judgment to include damages againstparty and sureties

    Paramount Insurance v. CA 310 SCRA 377 (1999)The requisites for judgment for damages against

    the surety/ies are: (1) the application for damagesmust be filed in the same case where the bond wasfiled; (2) such application for damages must be filedbefore entry of judgment; and (3) there must behearing and notice to the surety.

    Section 9. When final injunction granted

    RULE 59RECEIVERSHIP

    ReceiverAn indifferent person between the parties to a cause,appointed by the court to receive and preserve theproperty or fund in litigation pendente lite, when it

    does not seem reasonable to the court that eitherparty should hold it.

    Section 1. Appointment of receiver

    In What Cases Receiver May Be AppointedUpon a verified application, one or more receivers ofthe property subject of the action or proceeding maybe appointed by the court where the action ispending, or by the Court of Appeals, or by theSupreme Court, or a member thereof, in the followingcases:

    a. The party applying for the appointment of areceiver has an interest in the property orfund subject of the action and such is indanger of being lost, removed, or materiallyinjured unless a receiver is appointed;

    b. In an action by the mortgagee for foreclosureof mortgage when the property is in dangerof being wasted or materially injured and thatits value is probably insufficient to dischargethe mortgage debt, OR that the parties haveso stipulated in the contract of mortgage;

    c. After judgment, to preserve the propertyduring the pendency of the appeal, or todispose of it according to the judgment, or toaid in execution when execution has beenreturned unsatisfied or the judgment debtorrefuses to apply his property to satisfy

    judgment, or to carry out the judgment;d. In other cases where it appears appointing

    one is the most convenient and feasible

    means to preserve, administer, or dispose ofthe property in litigation.

    Descallar v. CA 224 SCRA 566 (1993)Appointment of a receiver is not proper where the

    rights of the parties are still to be determined by thetrial court. There is no showing that grave orirremediable damage may result to the applicantunless a receiver is appointed. The real property inquestion is real property. Hence, it is neither

    perishable nor consumable. Even though it ismortgaged to a third person, there is no evidence that

    payment of the mortgage obligation is being

    neglected. In any event, applicants rights andinterests may be adequately protected during the

    pendency of the action by causing his adverse claimto be annotated on the certificate of title.

    Section 2. Bond on appointment of receiverSection 3. Denial of application or discharge ofreceiver

    Causes for Denial of Application or Discharge ofReceiver

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    a. Appointment sought is without sufficientcause;

    b. Adverse party files sufficient bond fordamages;

    c. Applicant bond is insufficient; or

    d. Receivers bond is insufficient.

    Sanson v. Barrios 63 Phil. 198 (1936)The appointment of a receiver lies within the

    sound discretion of the court. It is not a matter ofabsolute right even when stipulated for by the parties.

    Ylarde v. Enriquez 78 Phil. 527 (1947)An order appointing a receiver is interlocutory.

    Certiorari, not appeal, is the proper remedy.

    Section 4. Oath and bond of receiver

    BondBoth the applicant for receivership and the receiverappointed must file separate bonds.

    Section 5. Service of copies of bonds; effect ofdisapproval of same

    Section 6. General powers of receiver

    GENERAL POWERS OF A RECEIVER1. Bring and defend, in such capacity, actions in

    his own name;2. Take and keep possession of property in

    controversy;3. Receive rents;4. Collect debts due to himself as receiver or to

    the fund, property, estate, person, orcorporation of which he is a receiver;

    5. Compound for and compromise the same;6. Make transfers;7. Pay outstanding debts;8. Divide the money and other property that

    shall remain among persons legally entitledto receive the same;

    9. Invest funds in his hands only by order of thecourt upon written consent of all the partiesto action;

    10. Do acts respecting the property as court mayauthorize.

    Section 7. Liability for refusal or neglect to deliverproperty to receiver

    Neglect or Refusal to Deliver Property

    Person who neglects or refuses upon reasonabledemand to deliver to receiver property subject of thereceivership may be sanctioned as follows:

    a. may be punished for contempt; andb. shall be liable to the receiver for the money

    or the value of the property refused orneglected to be surrendered with alldamages that may be sustained by party/iesentitled thereto as consequence of suchneglect or refusal.

    Section 8. Termination of receivership;compensation of receiver

    Termination of ReceivershipTermination of receivership may be ordered by courtmotu proprio or upon motion of either party afterdetermining, after due notice and hearing, thatnecessity for receiver no longer exists.

    Section 9. Judgment to include recovery againstsureties

    Claims Against BondIn claims against the bond, it shall be filed,ascertained and granted under the same procedureas Section 20, Rule 57, whether it be damagesagainst the applicants bond for the unlawfulappointment of the receiver or for enforcing theliability of the sureties of the receivers bond byreason of the receivers management (in the latter

    case, no longer need to file a separate action).

    RULE 60REPLEVIN

    Calo v. Roldan 76 Phil. 445 (1946)Delivery of personal property as a provisional

    remedy consists in the delivery, by order of the courtof a personal property by the defendant to the

    plaintiff, who shall give a bond to assure the returnthereof or the payment of damages to the defendantif plaintiffs action to recovery possession of the same

    property fails, in order to protect the plaintiffs right ofpossession of said property, or prevent the defendantfrom damaging, destroying or disposing of the sameduring the pendency of the suit.

    BA Finance v. CA 258 SCRA 102 (1996)It is both a form of principal remedy and a

    provisional relief. It is also described as a mixedaction because it is partly in rem and partly in

    personam. It is in rem insofar as recovery of specific

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    personal property is concerned, and it is in personaminsofar as the claim for damages is concerned.

    BONDSa. Applicants Bond

    - executed to the adverse party in doublethe value of the property as stated inaffidavit for the return of such propertyand for payment of such sum as adverseparty may recover from applicant in theaction. (Sec.2, Rule 60)

    b. Counterbond for Adverse Party- also called as the redelivery bond- for the return of the property to the

    adverse party- must be filed bond in the court where the

    action is pending at anytime beforedelivery of the property to the applicant

    - in double the value of the property asstated in applicants affidavit for deliveryof property to applicant if such deliverybe adjudged, and for payment of suchsum as may be recovered against him.(Sec. 5, Rule 60).

    c. Bond for Third-Party Claimant- also called as the indemnity bond- the sheriff shall not be bound to keep the

    property under replevin or to deliver it tothe applicant unless the applicant or hisagent, on demand of said sheriff, shallfile a bond approved by the court toindemnify the third-party claimant in a

    sum not less than the value of theproperty under replevin as proved in theaffidavit of applicant. (Rule 60 Sec. 7).

    Section 1. Application

    When Replevin AvailableIt is available only in an action where the principalrelief is the recovery of possession of personalproperty. The plaintiff may apply for an order for thedelivery of such property to him, at thecommencement of the action or at any time beforeanswer.

    Machineries Engineering Supply Corp. v. CA 96Phil.70 (1955)

    Machineries bolted to the ground are realproperty that may not be subject to replevin.

    Servicewide Specialists v. CA 251 SCRA 70 (1995)The chattel mortgagor is an indispensable party

    in a replevin action preparatory to foreclosureproceedings. Dismissal of the replevin action as to

    him results in dismissal of the action against his co-defendant third party possessor.

    Chua v. CA 222 SCRA 85 (1993)Where personal property is seized under a search

    warrant and there is reason to believe that theseizure will not anymore be followed by the filing of acriminal action, and there are conflicting claims overthe seized property, the proper remedy is the filing ofthe action for replevin, or an interpleader filed by theGovernment in the proper court, not necessarily thesame one which issued the search warrant. However,where there is still probability that the seizure will befollowed by the filing of a criminal action (eg.Preliminary investigation provisionally dismissed), orthe criminal information has actually beencommenced or filed, and actually prosecuted, andthere are conflicting claims over the property seized,the proper remedy is to question the validity of thesearch warrant in the same court which issued it andnot in any other branch of said court.

    REPLEVIN ATTACHMENT

    Available only when theprincipal action isrecovery of personalproperty

    Available even ifrecovery of property isonly incidental to therelief sought

    Available only when thedefendant is in actualpossession of theproperty

    Available even if theproperty is in thepossession of a thirdperson

    Cannot be availed ofwhen the property is incustodia legis

    Can be availed of even ifthe property is incustodia legis

    Available beforedefendant files answer

    Available fromcommencement butbefore entry of judgment

    Bond is double the valueof the property

    Bond is fixed by the court

    Section 2. Affidavit and bond

    REQUISITES FOR REPLEVIN1. Affidavit of the applicant, or some other

    person who personally knows the facts,showing that:

    d. the applicant is the owner of theproperty claimed, particularlydescribing it, or is entitled to thepossession thereof;

    e. the property is wrongfully detainedby the adverse party, alleging thecause of its detention according tothe best of his knowledge,information and belief;

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    f. the property has not been distrainedor taken for a tax assessment or afine pursuant to law, or seized undera writ of execution or preliminaryattachment, or placed undercustodia

    legis, or if so seized, that it is exemptfrom such seizure custody; andg. the actual market value of the

    property.2. Bond which shall be double the value of the

    property as stated in the affidavit.

    Section 3. Order

    Section 4. Duty of the sheriff

    Sebastian v. Balino 224 SCRA 256 (1993)After property is seized under a writ of replevin, it

    is not to be delivered immediately to the plaintiff. Thesheriff must retain it in his custody for five days andshall return it to the defendant if he posts acounterbond. Immediate turnover to the plaintiff is not

    justified by an absence to store the seized property.The remedy is to store it in a bonded warehouse.

    Section 5. Return of property

    When Defendant is Entitled to the Return of thePropertyDefendant entitled to return of property taken underwrit if:

    a. he seasonably posts redelivery bond;b. plaintiffs bond is found to be insufficient or

    defective and is not replaced with properbond; or

    c. property is not delivered to plaintiff for anyreason (includes situation where applicantfailed to file bond to indemnify third partyclaimant).

    La Tondena v. CA 209 SCRA 553 (1992)The law does not allow the defendant to object to

    the insufficiency of the replevin bond or sureties, andthen to post a counterbond. The remedies arealternative.

    Section 6. Disposition of property by sheriffSection 7. Proceedings where property claimedby third person

    No Bond if Plaintiff is Republic of the PhilippinesWhen the writ of replevin is issued in favor of theRepublic of the Philippines, or any officer dulyrepresenting it, the filing of such bond hall not berequired, and in case the sheriff is sued for damages

    as a result of the replevin, he shall be represented bythe Solicitor General, and if held liable therefore, theactual damages adjudged by the court shall be paidby the National Treasurer out of the funds to beappropriated for the purpose.

    Section 8. Return of PapersSection 9. JudgmentSection 10. Judgment to include recovery againstsureties

    Sec. 20, Rule 57 Made ApplicableThe amount, if any, to be awarded to any party uponany bond shall be claimed, ascertained, and grantedunder the same procedure as prescribed in Sec. 20,Rule 57. The procedure in Sec. 20, Rule 57 isapplicable not only to the replevin bond of the plaintiffbut also to the redelivery bond posted by thedefendant for the filing of the writ.

    RULE 61SUPPORT PENDENTE LITE

    COMPONENTS OF SUPPORTThe support granted may be in money or other formsin accordance with Article 194 of the Family Code,which provides as follows (all in keeping with thefinancial capacity of the family):

    a. Everything indispensable for sustenance;b. Dwelling;

    c. Clothing;d. Medical attendance;e. Education; andf. Transportation.

    PARTIES OBLIGED TO GIVE SUPPORTArticle 195 of the Family Code provides that thefollowing persons are obliged to give support:

    a. The spouses;b. Legitimate ascendants and descendants;c. Parents and their legitimate children and the

    illegitimate children of the latter; andd. Legitimate brothers and sisters, whether of

    full or half-blood.

    Section 1. Application

    When AvailableThis remedy is available only in an action for supportor in an action where support is among the reliefprayed for.

    How Applied For

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    It may be sought by a verified application filed in thecourt where the proper action is pending. The verifiedapplication may be made in the verified complaint orpetition in the suit itself, or in a separate motion, orpetition supported by affidavits.

    Contents of ApplicationThe application must state:

    1. The grounds for the claim;2. The financial conditions of both parties;

    The application shall be accompanied by affidavits,depositions, or other authentic documents in supportthereof.

    When Fileda. At the commencement of the proper action or

    proceeding; ORb. At any time prior to the judgment or final

    order.

    Jurisdiction Over Action for SupportRTC has exclusive original jurisdiction because thesubject of an action for support, regardless of theamount claimed, is not capable of pecuniary action.

    An action for support does not only involve thedetermination of the amount to be given as support,but also the relation of the parties, the right to supportcreated by the relation, the needs of the claimant, thefinancial resources of the person from whom supportis sought, all of which are not capable of pecuniaryestimation. (Baito v. Sarmiento, 109 Phil. 148)

    Section 2. CommentSection 3. HearingSection 4. Order

    Procedurea. Application filed in court and served with

    adverse party.b. Adverse party files comment within 5 days

    (unless different period is fixed) from serviceof application.

    c. Application is set for hearing not more than 3days after comment is filed, or after the

    expiration of the period for its filing.d. Order

    OrderThe court shall:

    a. Determine provisionally the pertinent facts;and

    b. Render such orders as justice and equitymay require, having due regard to theprobable outcome of the case and such other

    circumstances as may aid in the properresolution of the question involved.

    Effect When Application is GrantedIf application is granted: court shall fix the amount of

    money to be provisionally paid or such other forms ofsupport as should be provided. The court shall takeinto account:

    a. necessities of the applicant;b. resources or means of the adverse party;

    and

    c. terms of payment or mode for providingsupport.

    Effect When Application is DeniedIf application is denied: principal case shall be triedand decided as early as possible.

    Section 5. Enforcement of Order

    Enforcement of Ordera. If the adverse party fails to comply with an

    order granting supportpendente lite: order ofexecution, without prejudice to liability forcontempt;

    b. If the person ordered to give supportpendente lite refuses or fails to do so and a3

    rdparty furnished that support to the

    applicant: 3rd

    party may, after due notice andhearing in the same case, obtain a writ ofexecution to enforce his right ofreimbursement.

    Saavedra v. Ibaez Estrada 56 Phil. 33 (1931)An order for support pendent elite is intended to

    be operative exclusively during the pendency of thelitigation. Hence, the voluntary dismissal of the actionby the plaintiff has the necessary effect of abrogatingthe order.

    Torres v. Hon. Teodoro Sr. 101 Phil. 422 (1957)Where the court ordered support pendente lite to

    be deposited each month, failure of the defendant todeposit for one month is a separate and distinctviolation from a failure to deposit for another month.

    Convictions for indirect contempt for failure to depositfor separate months do not constitute double

    jeopardy.

    Mangoma v. Macadaeg 90 Phil. 508 (1952)Where the oppositor to an application for support

    pendente lite alleges sufficient ground to opposesupport (eg. Adultery by wife), the oppositor shouldbe given an opportunity to present evidence insupport of his opposition.

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    San Juan v. Valenzuela 117 SCRA 926 (1982)The trial courts order fixing the amount of

    support pendente lite is not final in character becauseit can be subjected to modification depending on thechanging conditions affecting the liability of the

    obligor to pay the amount fixed for support.

    Section 6. Support in Criminal Cases

    a. When applicable:1. in criminal actions where the civil liability

    includes support for the offspring as aconsequence of the crime; and

    2. the civil aspect thereof has not beenwaive, reserved, or instituted prior to itsfiling.

    b. Who may file: (in successive order)

    1. offended party2. her parents3. grandparents or guardian4. State

    Section 7. Restitution

    When Restitution ApplicableWhen the judgment or final order of the court findsthat the person who has been providing support

    pendente lite is not liable therefore.

    What Court may Order RecipientThe court may order that the amounts already paidbe returned with legal interest from the dates ofactual payment and without prejudice to the right ofthe recipient to obtain reimbursement in a separateaction from the person legally obliged to give support.

    If Recipient Fails to ReimburseIf the recipient fails to reimburse, the person whoprovided the same may likewise seek reimbursementthereof in a separate action from the person legallyobliged to give support.

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