PROVISIONAL

REMEDIES


Justice Zenaida T. Galapate- Laguilles
Associate Justice, Court of Appeals
Professorial Lecturer 11, Department of Remedial Law
Philippine Judicial Academy


APRRAD-

1) ATTACHMENT (Preliminary)
- One issued at the commencement of the action or at any time before
judgment as SECURITY for the satisfaction of any judgment.

- Grounds under Rule 57 are specific and exclusive; non- reliance
thereon may expose the Judge to charge of abuse of discretion under
Rule 65 and may result to the lifting or discharge of the attachment:

1) Recovery of a specified amount of money or damages,
other than moral or exemplary on a cause of action arising
from law, contact, quasi-contract, delict or quasi-delict.

(Hence cannot be issued for moral and exemplary damages and
other unspecified or unliquidated claims (Insular Savings Bank
vs. Court of Appeals, 460 SCRA 122)

2) Action for money or property embezzled ( fraudulent
misapplication or conversion)

2) Recovery of property unjustly or fraudulently taken,
detained or converted (defendant here has concealed,
removed or disposed of the property for the purpose of
preventing its being found or taken by the applicant or
authorized person).

3) Fraud in contracting or performing an obligation the
fraudulent act itself is the incipient cause of defraudation,
i.e., issuing a bum check in exchange for a merchandise.
This will include both dolo causante and dolo incidente.
Fraud is never presumed; it must be averred in the
Affidavit of merit with particularity. (Watercraft Venture
vs. Alfred Raymond Wolfe, G.R.No. 181721, September 9,
2015).

 4) Removal or disposal of property with intent to defraud (
the plaintiff or the creditor)



Affidavit of Merit and its Contents
- need not be executed by the applicant. It may be executed by other
persons who know the facts

- resolved against the applicant in case of doubt; onus of proving the
existence of the ground lies with the applicant
- while ordinarily applied for at the inception of the case, this is actually
available at any time before judgment
- may be issued ex- parte ( Section 2, Rule 57) or with notice and hearing
at the court’s discretion; ex-parte in cases of extreme urgency and so as
to preempt any possible disposition of the property by the adverse
party to the detriment of the attaching creditor ( Mindanao Savings and
Loan Association, Inc. vs. CA ( 172 SCRA 480)

Remedies against Attachment:


1) Posting of Counterbond;
2) Lifting or Discharge due to an improvident issuance ; in both
instances, a hearing is required.

Contemporaneous Service of the following:

1) Copy of the Complaint;
2) Summons;
3) Order granting the Writ;
4) Writ itself

Strict Compliance for:

1) Conduct of Summary Hearing;
2) Motion to Discharge not allowed to dwell on the merits or
matters of defense; attention solely focused on the propriety of
the Order granting the Writ.

Requisite Bond:

1) Note that there is nothing in the Rules which require a specific
amount. Practice has always been that the same should at least
be equivalent to the sum total of the obligation.
 2) Could be Cash, Surety, Corporate or Property, propriety of which
shall always be addressed to the sound discretion of the Court.


TERCERIA in Attachment

- Requirement of Affidavit of Title
- Hearing
- Indemnity Bond


Duration of the Attachment:
-Addressed to the sound discretion of the court but this could
sometimes extend up to judgment, in which case, the preliminary
nature of the attachment could become final.



PRELIMINARY INJUNCTION

-Preceded most often by a TRO ( note that a WPI is not
necessarily preceded by a TRO which is intended merely to preserve
the Status Quo)
- Will issue only if the following are present: right in esse;
threatened act which must be enjoined and irreparable injury.
-“ irreparable injury” means such injury which is not capable of
pecuniary or monetary calculation or where amount is not identified or
quantified.


- Hearing is always required per Section 5 of Rule 58 unlike in
Attachment which could be issued or ex-parte or after due notice.
However, if on the face of the pleadings, the applicant for WPI is not
entitled thereto, courts may outrightly deny the motion without
conducting a hearing for the purpose. Courts are disinclined to impose
a mandatory hearing requirement on applications for injunction that
are prima facie palpably without merit or impossible to grant. To
impose the mandatory hearing requirement will be an undue
imposition on the overly burdened trial courts. Otherwise, our trial
courts will be forced to hear out the sort of litigation- happy attention-
deprived miscreants who abuse the judicial processes by filing
complaints against real or imaginary persons based on trivial or
inexistent slights.( NewSound Broadcasting Network Inc. and
Consolidated Broadcasting System, inc. v. Hon. Cesar Dy et. al. G.R. Nos.
170270, April 2, 2009.)

 -Note that under the current Supreme Court Circular, the duration of the WPI
shall not exceed 6 months from its issuance. In which case, the trial court is
thus expected to dispose or decide the main case within the same period,
otherwise, this may subject the Judge to administrative sanctions.


- Preliminary Mandatory Injunction in cases cognizable by the MTC ( to
restore the status quo in ejectment cases and to preserve that status
quo which has been restored)
- Preliminary Injunction in a Petition for Relief from Judgment under
Rule 38.

-Note on 72-hour TRO
- This is to be issued by the Executive Judge alone in multiple sala-
station courts. The regular Judge is not mandated to extend the said 72- hours
TRO which in the first place must have been justified by an extreme urgency
as determined by the Judge.

-Prohibitions of TRO or WPI in government projects ( under RA 8975, an Act to
Ensure the expeditious implementation and completion of government
projects) under the following cases:

1) Acquisition, clearance and development of the right-of-way and
or site/ location of any national government project;
2) Bidding or awarding of contracts of the national government;
3) Commencement, execution of any such contract or project;
4) Termination or rescission of such contract/ project/ undertaking
or authorization of any other lawful activity necessary for such
contract or project.



RECEIVERSHIP

- Primarily intended to prevent dissipation or wastage of assets; object
is the property subject of the proceedings
- Receiver must be someone who is totally disinterested or detached to
the case
- Receiver must up a Bond in light of the numerous tasks that he is
expected t o discharge
- Cannot be granted in a mere suit for collection of a sum of money, there
must be an allegation of dissipation or wastage of assets
- Bonds Required ( Before and After)

- Powers of a Receiver; Suit against a Receiver.

 REPLEVIN

- Both a form of principal remedy and a provisional relief which will
allow the owner of the property to hold the same pendente lite;
- The applicant need not be the owner; it is enough that he is entitled to
its possession ( Yang vs. Valdez, 177 SCRA 141)
- Can be availed of at any time at the commencement of the action or at
any time before answer

- Requirements: Affidavit and Bond

- TERCERIA in Replevin


ALIMONY ( Support Pendente Lite)

- Note the variable nature of an Order granting Support Pendente Lite to
the changing capacity of the giver and the equally changing needs of the
recipient
- Note Support Pendente Lite in a criminal case which resulted to the
birth of an offspring. It is important that what is pending is a criminal
case and the civil aspect thereof is likewise instituted therein.
- Note very well that here, the movant for Support pendent lite is
available notwithstanding the fact that there is no conviction yet. Also,
the remedies of restitution and reimbursement under Rule 39 become
available once its is determined that there is no right to support ( i.e.,
accused is acquitted).


DEPOSIT or Escrow( by virtue of jurisprudence, Reyes vs. Lim).


Other Provisional Remedies:
1) Under the Rule on the Writ of Amparo ( TPO, WPO, IO, PO);
2) Special Provisional Remedies under RA 8369 or Family Court Cases
3) Seizure and Sequestration Orders under the Human Security Act
preventing terrorism;
4) Protection Order and Barangay Protection Order in VAWC cases ( RA
9262);
5) Freezing of Monetary Instrument or Property, or Authority to Inquire into
Bank Deposits under AMLA Cases;
6) Stay Order in Corporate Rehabilitation
7) TEPO in Environmental Cases.


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