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Recoletos Law Center “HOME OF THE NATION'S TOP REVIEWERS” REMEDIAL LAW Handout No. 001-B RECOLETOS LAW CENTER REMINDERS IN CIVIL PI E PARTIL Nature of provisional remedies I Provisional remedies are not main actions. The term “provisional” means temporary, preliminary or tentative (Tan vs. Adre, 450 SCRA 145). ‘They are merely ancillary actions attached to the main or general action. They are in aid of the principal action and cannot exist independently of the principal action. Jurisdiction over provisional remedies 1 be The court which can grant any of the provisional remedies is the court which has jurisdiction over the main or original action. Even an inferior court may grant a provisional remedy in an action pending with it and within its jurisdiction. Under the latest amendments to the Rules of Court, a litigant filing a petition for review on certiorari under Rule 45 may include in said petition an application fo: a provisional remedy like a writ of preliminary injunction (A.M. No. 07-7-12 SC, Effective December 27, 2007). This amendment leaves no more doubt as to the availability of provisional remedies under Rule 45. Preliminary Attachment (Rule 57) There is no separate action called preliminary attachment. It is availed of in relation to a principal action. For instance, if the plaintiff files an action to collect a sum of money, the action may be coupled with a prayer for the issuance of a writ of preliminary attachment directed against the property of the defendant in order to prevent him from disposing of his property during the pendency of the litigation to the prejudice of the plaintiff. Attachment places the property under the custody of the court (custodia legis). ‘The property is held by the court for the satisfaction of whatever may be obtained by the plaintiff in his favor. Attachment is in the nature of a proceeding in rem or a quasi in rem. When availed of in an action purely in personam, it converts the action to one that is quasi in rem. It will be recalled that in an action in personam, jurisdiction over the defendant is mandatory. However, with attachment, the action becomes one in quasi in rem. This transformation of the nature of the action dispenses with the need for acquiring jurisdiction over the person of the defendant. Since attachment is directed against the property of the defendant, the court may validly proceed with the action as long as jurisdiction over the property is acquired. In an action in rem or quasi in rem, REMEDIAL LAW jurisdiction over the res is sufficient. RECOLETOS LAW CENTER Grounds for the issuance of writ of attachment 1 One cannot secure preliminary attachment for every situation. The Rules ‘enumerate specific situations in which the remedy can be availed of (Sec. 1, Rule 57, Rules of Court). (@) Preliminary attachment is available where the action is for the recovery of a specified amount of money or damages, where the defendant is a person who is about to DEPART from the Philippines with INTENT to defraud his creditors, ‘The source of this action does not really matter. It may arise from any of the sources of obligations under the Civil Code of the Philippines. It is not however, enough that the action is for the recovery of money or damages. There must be a showing of an attempt to abscond or intent to defraud on the part of the defendant. Note also that under Sec. 1(a) of Rule 57, in the determination of the damages as basis for the writ of preliminary attachment, moral and exemplary damages are not included. (b) Preliminary attachment is also available in an action for money or property ‘embezzled or fraudulently misapplied by the defendant or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any person ina fiduciary capacity, or for a willful violation of duty. (©) his also available in an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed or disposed of to prevent its being found or taken by the applicant or an authorized person. (4) Preliminary attachment is also available in an action against a party who has been guilly of fraud in contracting the debt or incurring an obligation upon which the action is brought, or in the performance thereof. (©) _Itis also a remedy in an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. (® In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication, When to apply for preliminary attachment 1 It may be applied for (a) at the COMMENCEMENT of the action, or (b) at any time BEFORE entry of judgment (Ser. 1, Rule 57, Rules of Court). Hence, it may be availed of even if a judgment has already been rendered by the court provided that the judgment has not yet been entered. This means that the writ may be issued before the judgment has become final and executory. Remember that under Sec. 2 of Rule 36, the date of the entry of a judgment is the date of the finality of the judgment and final order. REMEDIAL LAW ar) RECOLETOS LAW CENTER Ex parte issuance of writ L The writ of preliminary attachment may be granted and issued even before summons is served upon the defendant and may be issued ex parte. However, the writ ‘may not be enforced and may not be validly implemented unless preceded by a service of summons upon the defendant, or simultaneously accompanied by service of summons, a copy of the complaint, the application for attachment, the order of attachment and the attachment bond (Davao Light & Power Co, Inc. us. Court of Appeals, 204 SCRA 343; Mangila vs. Court of Appeals, August 12, 2002). Implementation of the writ of attachment without the required jurisdiction over his person is null and void (BAC Mfg. & Sons Corp. us. Court of Appeals, 200 SCRA 130). The examinee must make a distinction between the mere issuance of the writ and its enforcement. The issuance does not need prior jurisdiction over the person of the defendant. However, jurisdiction over him is required for enforcement of the writ of attachment. 2 ‘The requirement of prior or contemporaneous service of summons mentioned in the preceding paragraph does not apply in the following instances (See. 5, Rule 57, Rules of Court: (2) Summons could not be served personally or by substituted service despite diligent efforts; (&) Defendant is a resident of the Philippines who is temporarily out of the country; (©) Defendant is a non-resident; or (@) Action is one in rem or quasi in rem. Requisites for the issuance of an order/writ of preliminary attachment 1 The case must be any of those where preliminary attachment is proper; 2. The applicant must file a motion (ex parte or with notice and hearing); 3. The applicant must show by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced; that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims; and ‘The applicant must post a BOND executed to the adverse party. This is called an attachment bond (Sec. 3, Rule 57, Rules of Court). How to prevent the attachment ‘The party whose property is sought to be attached, may prevent the attachment by doing either of two things: REMEDIAL LAW 7 G&G RECOLETOS LAW CENTER By depositing with the court an amount equal to the value of the property to be attached, or (b) By giving a counter-bond executed to the applicant, in an amount equal to the bond posted by the latter to secure the attachment (Sec. 5, Rule 57, Rules of Court). How to discharge the attachment 3 If the attachment has already been effected, the party whose property has been attached must file a MOTION to discharge the attachment. This motion shall be Rotice and hearing. After due notice and hearing, the court shall discharge the attachment if the movant makes a CASH DEPOSIT or files a COUNTER-BOND executed to the attaching, party with the clerk of court where the application is made (See, 12, Rule 57, Rulles of Court) Attachment may likewise be discharged without the need for filing of a counter- bond. This is possible when the party whose property has been attached files a motion to discharge the attachment and during the hearing of the motion, he proves that the attachment was improperly or irregularly issued or enforced, or that the bond of the attaching creditor is insufficient (Sec. 13, Rule 67, Rules of Court), Miscellaneous principles 1 Property already in custodia legis may be attached, When this occurs, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property (Sec. 7, Rule 57, Rules of Court) 2 ‘The sheriff enforcing the writ of preliminary attachment cannot attach every Property of the person against whom the writ was issued. He shall attach only so much of the property in the Philippines as may be sufficient to satisfy the demand of the applicant for the writ, Properties exempt from execution under Sec. 13 Of Rule 39, cannot be attached (Sec. 5, Rule 57, Rules of Court). 3. Real property or growing crops thereon, or any interest therein is made by filing with the registry of deeds a copy of the order of attachment (together with a description of the property attached) and a notice that itis attached. The same documents are to be left with the occupant of the property (Sec. 7(a), Rule 57, Rules of Court) 4 If the property is personal property capable of manual delivery, the sheriff shall take and safely keep the property in his custody after issuing a receipt therefor (Sec. 7 (), Rule 57, Rules of Court). 5. If the property is not capable of manual delivery like debts and credits, bank deposits, royalties, commissions and other similar personal property, the sheriff shall leave a copy of the writ and the notice of attachment with the person owing such debts or with the person having possession or control of the same (See. 7(d), Rule 57, Rules of Coust). This process is called garnishment, a species of attachment. The garnishment REMEDIAL LAW a. & RECOLETOS LAW CENTER does not involve an actual seizure of the property which is merely impounded in the possession of the garnishee until the main action is decided. The same process applies to the attachment of stocks or shares in a corporation and a copy of the writ and the notice of attachment are left with the president or managing agent of such shares or interest (Sec. (0), Rule 57, Rules of Court). 6. If the property attached is claimed by a third person, such person shall execute itle to or right of possession to the property attached stating in the affidavit the grounds of such right or title, He shall serve the affidavit upon the sheriff and a copy thereof to the attaching party. When so served, the sheriff shall not keep the property attached. This third-party claim is called a terceria, The attaching party may however, defeat the terveria if he files a bond to protect the sheriff who shall then not be liable for the taking or keeping of the property to the third-party claimant if such bond is an affidavit of his posted. The bond does not however, prevent the claimant from vindicating his claim to the property by filing an action against the sheriff. Even the attaching party may claim damages from the claimant if the latter’s claim is frivolous (Sec. 14, Rule 57, Rules of Court). Z ‘The party against whom the attachment was issued may claim damages against the attaching party on account of improper attachment, or excessive attachment, The application for damages must be filed before the trial or before appeal is perfected or before the judgment becomes executory. The application is subject to a heating and the award shall be included in the judgment on the main case (Sec. 20, Rule 57, Rules of Court. Preliminary Injunction (Rule 58) r Preliminary injunction is an order requiring 2 person, a party or even a court or tribunal either TO REFRAIN (prohibitory) from or TO PERFORM (mandatory) particular acts during the pendency of an action. In this sense, itis a provisional remedy. After judgment, the injunction now becomes involved as part of the relief granted to the applicant. In which case, the injunction is no longer preliminary but a FINAL injunction. 2 An injunction may also be a main action for injunction. In this case, it is not the provisional remedy ancillary to the main action but is a main action in itself and is similar to the special civil action for prohibition. The purpose of the action for injunction is to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act (Manila Banking Corporation vs. Court of Appeals, 187 SCRA 138). 3. Asa provisional remedy, the purpose of preliminary injunction is to preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or tights during the pendency of the action (First Global Realty and Development Corp. ws. San Agustin, G.R. No. 142499, February 19, 2002). When the injunction sought is mandatory, a writ of preliminary injunction tends to do more than to maintain the status REMEDIAL LAW ar) RECOLETOS LAW CENTER ‘quo because it commands the performance of specific acts and is issued only in cases of ‘extreme urgency and where the right of the applicant is clear. 4 Preliminary injunction is granted at any stage of the proceedings prior to the judgment or final order (Sec, 1, Rule 58, Rules of Court). It is to be applied for and issued by the court where the main action is pending (Sec. 2, Rule 58, Rules of Court). The term. “court” includes a Municipal or a Metropolitan Trial Court, Where the main action is within the jurisdiction of the MTC, then it is this court which shall issue the preliminary injunction. For example, under Rule 70 of the Rules of Court, in a forcible entry case, the plaintiff may, within five (6) days from the filing of the complaint, file a motion to secure from the court a writ of preliminary mandatory injunction to restore him in his possession. Since a forcible entry case is cognizable by the MTC, the injunction sought for in this action shall be issued by the MTC. But where the main action is one for ‘ junction’, the writ of preliminary injunction cannot issued by an MTC because it has no jurisdiction over the main action. This action is filed with the RTC being one incapable of pecuniary estimation, 5. Note that if the action is pending in the Court of Appeals, the application must be made with the Court of Appeals. If it is pending in the Supreme Court, then the application must be made in such court. The preliminary injunction applied for in the Court of Appeals may be issued by the said court or ANY member thereof. If applied for in the Supreme Court, it may be issued by the Supreme Court or ANY member thereof (Sec. 2, Rule 58, Rules of Court). This is a situation where a member of the court may issue € writ of preliminary injunction without the participation of other members of the court. Requisites for issuance of a writ of preliminary injunction or temporary restraining order 1 ‘There must be a verified application (Sec. 4, Rule 58, Rules of Court). Absence of a verification makes an application or petition for preliminary injunction patently insufficient both in form and substance (Rivera vs. Mirasol, 434 SCRA 315). There must be notice and hearing (unlike attachment which may be issued ex parte). 3. ‘The applicant must establish that he has a right to relief, a right in esse or a right to be protected (Philippine National Bank vs. Timbol, 451 SCRA 163) and the act against which the injunction is directed is violative of such right (Rualo vs. Pitargue, 449 SCRA 121), 4 ‘The applicant must establish that there is a need to restrain the commission oF continuance of the acts complied of and if not enjoined would work injustice to the applicant (Kho vs. Court of Appeals, G.R. No. 115758, March 3, 2002) ‘The applicant must post a bond must be posted, unless exempted by the court, NOTES: REMEDIAL LAW rr) 5. RECOLETOS LAW CENTER A writ of preliminary injunction cannot be issued without a prior notice and hearing (Sec. 5, Rule 58, Rules of Court). It is a TRO (not a writ of preliminary injunction) which may be issued ex parte. Ifit shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court in which the application for preliminary injunction was made may issue a TRO ex parte for a period not exceeding twenty (20) days from service to the party sought to be enjoined. If the matter is of extreme urgency, the executive judge or the presiding judge of a single-sala court may issue a TRO effective for only seventy-two (72) hours from ISSUANCE, Within this period the executive judge shall conduct a summary hearing to determine whether or not the TRO cant be extended to twenty (20) days, The seventy-two (72) hours shall be included in the maximum twenty (20) day period set by the Rules (Sec. 5, Rule 58, Rules of Court). A TRO may be issued by the Court of Appeals or any member thereof. If so issued, it shall be effective for sixty (60) days from notice to the party sought to be enjoined, A TRO may also be issued by the Supreme Court or a member thereof. If so issued, it shall be effective until FURTHER notice (Sec. 5, Rule 58, Rules of Court), Injunction can be an action in itself and in this sense is a main action, The jonal remedy is preliminary injunction. pros Preliminary mandatory injunction is available in a suit for forcible entry to restore the plaintiff in his possession (See Art. 539 of the Civil Code; also Sec. 15, Rule 70, Rides of Court). Iti also available in unlawful detainer actions pursuant to Sec. 15, Rule 70 of the Rules of Court. A finding that the applicant for preliminary injunction may suffer damage not capable of pecuniary estimation is not sufficient to support an injunction (Manila International Airport Authority vs. Court of Appeals, G.R. No. 118249, February 2, 2002). How to dissolve a writ of preliminary injunction 1. A writ of preliminary injunction or temporary restraining order may be dissolved. The party enjoined must file a motion to dissolve the injunction or.TRO with notice and hearing of the motion upon showing by affidavits that the person enjoined would suffer irreparable damage while the applicant can be fully compensated for such damages as he may suffer. The movant must file a BOND. ‘Some instances when a writ of injunction is available 1 When a petition for certiorari under Rule 65 is filed, the petition does not interrupt the course of the principal case. To interrupt the same, one must obtain a writ of preliminary injunction or a temporary restraining order (Sec. 7, Rule 65, Rules of REMEDIAL LAW Court), When a petition for relief is filed pursuant to Rule 38, it is understood that the judgment is already final and executory and may be executed on motion. To prevent its execution during the pendency of the petition, one must obtain a writ of preliminary injunction or a temporary restraining order (Sec. 5, Rule 38, Rules of Court). Examples of instances when injunction will not be available 1 6 Injunction will not lie to restrain a criminal prosecution (Andres us, Cuevas, 460 SCRA 38) except when double jeopardy may arise, to avoid oppression or multiplicity of actions, to protect constitutional rights, or where the charges are manifestly false and clearly motivated by vengeance and there is clearly no case against the accused. ~ 4 court cannot issue an injunction in cases growing out of labor cases (BP 227). PD 1818 prohibits the issuance of injunctions against the institution and implementation of government infrastructure projects. Injunction will not lie against the Presidential Agrarian Reform Council implementing the land reform program. A court cannot enjoin the acts of another court of equal or higher rank (Ching ws. Court of Appeals, 398 SCRA 88). ‘The RTC cannot issue injunctions against quasi-judicial bodies of equal rank such as the $85 (Philippine Pacific Fishing vs. Luna, 112 SCRA 604), the Intellectual Property Office, the Comelec or Workmen's Compensation Commission (Nocnoe ws, Vera, 88 SCRA 529). ‘The Court had itself instructed all judges and justices of the lower courts, through Administrative Circular No. 11-2000, to comply with and respect the prohibition against the issuance of TROs or writs of preliminary prohibitory or mandatory injunction involving contracts and projects of the Government (Nerwin Industries Corp. vs, PNOC-Energy Development Corp., G.R. No. 167067, April 11, 2012). Receivership (Rule 59) Nature of a receivership 1. ‘The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action. Receivership is also aimed at preservation of, and at making more secure, existing rights. It cannot be used as an instrument for the destruction of those rights. The receivership provided in Rule 59 refers to the property which is the subject of the action and does not refer to the receivership authorized under the banking laws and other rules or laws. This presupposes that there is an action and that the property REMEDIAL LAW subject of the action requires its preservation, se 3) RECOLETOS LAW CENTER ae Procedure for appointment of a receiver 1. A verified application must be filed by the party applying for the appointment of a receiver; 2 ‘The applicant must have an interest in the property or funds subject of the action; ‘The applicant must show that the property or funds is in danger of being lost, wasted or dissipated; 4. ‘The application must be with notice and must be get for hearing: Before issuing the appointment of a receiver, the court shall require the applicant to post a bond in favor of the adverse party, When the receiver is appointed, the receiver shall take his oath but before doing so, he shall file a bond. There are two bonds: the applicant's bond and the receiver's bond, 6. Before entering upon his duties, the receiver must be sworn to perform his duties faithfully. Denial of application or discharge of a receiver 1 A receivership may be denied or lifted: (8) Ifthe appointment sought or granted is without sufficient cause; (©) the adverse party files a sufficient bond to answer for damages; (©) Where the bond posted by the applicant for the grant of the receivership is insufficient; or (©) Withe bond of the receiver is insufficient. General powers of receiver 1 Subject to the control of the court in which the action is pending or proceeding is pending, a receiver shall have the power: (a) Tobring and defend, in such capacity, actions in his own name; (b) To take and keep possession of the property in controversy; © — Toreceive rents; (d)__ Tocollect debts due to himself as receiver or to the fund, property, estate, person, ‘of corporation of which he is the receiver; (©) To compound for and compromise the same; REMEDIAL LAW ar) RECOLETOS LAW CENTER ()— Tomske transfers; (@) To pay outstanding debts; (b) Yo divide the money and other property that shall remain among the persons legally entitled to receive the same; and (Generally to do such acts representing the property as the court may authorize. 2 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. Two kinds of bonds in Receivership 1 Bond filed by the applicant in an amount 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 (See.2, Rule 59, Rules of Court); and Bond filed by the receiver himself in such sum as the court may direct, to the effect that he will faithfully discharge his duties in the action or proceeding and obet the orders of the court (See4, Rule 59, Rules of Court) ‘Termination of receivership 1 Whenever the court, motu proprio or on the motion of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interrested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of the receiver from further duty as such, 2 The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. Replevin (Rule 60) 1 Replevin is a broad term which may also be a main action where the ultimate geal is to recover personal property wrongfully detained by a person. Used in this sense, it isa suit in itself. The action is primarily possessory in nature and generally determines nothing more than the right of possession. But replevin may also be a provisional remedy to have possession of the personal property while the main issue of possession is pending. Also, the mortgagee is entitled to file a replevin suit preparatory to the foreclosure of the chattel mortgage, when the debtor defaults and the creditor decides to foreclose the mortgage but the debtor refuses to yield possession of the property, the creditor may institute an action to secure possession of the property in an action for replevin. REMEDIAL LAW a. & 2 The application for replevin must be by affidavit on his ownership of the property and the actual value thereof. There must be a bond posted by the applicant. ‘The bond is DOUBLE the value of the property. 3 Upon the approval of the bond, the court shall issue an order and the corresponcinig writ of replevin. The sheriff shall then take the property and keep it ina secure place and wait for five (5) days for the adverse party to get the property back by objecting to the sufficiency of the bond and posting a redelivery bond double the value of the property. If such party makes no move to have the property back, the sheriff shall deliver the property to the applicant. 4 If the property taken is claimed by any person other than the party against whom the writ of replevin had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin as provided in Section 2 hereof (Sec. 7, Rules 60, Rules of Court). Support pendente lite (Rule 61) 1 Support pendente lite is an amount of support provisionally fixed by the court in favor of the person or persons entitled thereto during the pendency of an action for SUPPORT. Here, the main action is support and support pendente lite is the provisional remedy. In one case, temporary support was granted in an action for habeas corpus filed by the mother in behalf of a minor child against the father, where the father has recognized the child as his and has not been given support by the father pending, the fixing of the amount of support in another action for support (David vs. CA, 250 SCRA 3. Support pendente lite may be granted in rape cases for the offspring of the accused as a consequence of the rape (Sec. 6, Rule 61, Rules of Court). 4 The application for support pendente lite must be verified with notice and hearing. ‘There can also be a main action for support. Since a protracted trial may ensue, the plaintitf may ask for support during the pendency of the action. It is the latter which is a provisional remedy, An order granting support pendente lite must be immediately complied with, If not complied with as ordered, the court shall motu proprio or upon motion issue an REMEDIAL LAW 7. , order of ex tution against the person so ordered to give support without prejudice to his being held liable for contempt. -o0o- WHY WORRY... IF WE CAN PRAY!!! REMEDIALLAW a)