Provisional Remedies TABLE.pdf

Rule 57 Preliminary Attachment Purpose

 To have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in cases falling under Rule 57 Section 1.

When applied/granted

How applied for?

Who may grant

Rule 59 Receivership

Preliminary prohibitory  To place the property or fund injunction is a provisional subject of an action or remedy requiring a party or a proceeding under the control court, agency or a person to of a third party for its refrain from a particular act or preservation and acts. administration litis pendentia Preliminary mandatory injunction is a PR requiring the performance of a particular act or acts (R58, S1) 1. Plaintiff or Applicant Applicant who may be: 2. any proper party (Sec. 1) 1. a person who has interest in a property that is in danger of being lost, removed or materially damaged; 2. mortgagee in a foreclosure 3. judgment creditor 4. litigant 1. At the commencement of At any stage of an action or At any time prior to the to the satisfaction of satisfaction of judgment the action; or proceeding prior  judgment or  judgment or final order. 2. at any time before entry of Commencement until prior to  judgment (Sec.  judgment (Sec. 1) From commencement until the satisfaction of judgment prior to the judgment or final From Commencement to order before entry of judgment

Who may file?

Affidavit Verification

Rule 58 Preliminary Injunction

vs.

Rule 60 Replevin

Rule 61 Support Pendente Lite

Recovery of Possession personal property

of  To compel adverse party to provide support while action is pending in court

Applicant praying for the recovery of possession of personal property

At the commencement of action or at any time before answer Commencement answer

until

At the commencement of the PROPER ACTION or proceeding or at any time prior to the judgment or final order

before Commencement until prior to the judgment or final order

1. Affidavit; and 1. Verified Application; and 1. Verified Application; and 1. Affidavit; and 1. Verified Application may be 2. Bond (Sec. 3) 2. Bond 2. Bond 2. Bond filed by any party. Affidavit  –  is  is an ex parte statement in writing made under oath before a notary public or other officer authorized to administer oaths , a bout facts which the affiant either knows of his personal knowledge knowledge or is aware of to the best of his knowledge. Verification  –  is   is necessary only when the law or rule specifically requires it. Verification contains a statement that an affiant has read the pleading, that he has caused the preparation of said pleading and that the allegations therein are true and correct based on authentic records and of his personal knowledge. An order of attachment may A preliminary injunction may Upon a verified application, Only in the court where the be issued either ex parte  or  or be granted by the court where one or more receivers of the action is pending. Note that it upon motion with notice and the action or proceeding is property subject of the action should be filed before answer! hearing by: pending including: or proceeding may be appointed by: 1. the court in which the 1. RTC action is pending, or 2. CA or any member thereof 1. the court where the action

Provisional Remedies Comparison Table by Yna Bote (2014)

Rule 57 Preliminary Attachment 2. by the Court of Appeals; or 3. the Supreme Court even if action is pending in the lower court  (Sec. 2)

Requisites for granting application (1) Affidavit/Verified Application

Rule 58 Preliminary Injunction 3. SC or any member thereof (R58, S2) 4. Sandiganbayan 5. CTA

1. affidavit of the applicant, or of some other person who personally knows the facts

1.Verified application showing facts entitling the applicant to the relief demanded and

2. sufficient cause of action exists

2. the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or perpetually;

3. the case is one of those mentioned in Rule 57, sec. 1 In an action: (a) for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) for money or property embezzled or fraudulently misapplied or converted to his own use  by a public officer, or an officer of a corporation, or an attorney,

Provisional Remedies Comparison Table by Yna Bote (2014)

(c) commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (d) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done some act or acts probably in violation of the rights of the applicant

Rule 59 Receivership

Rule 60 Replevin

Rule 61 Support Pendente Lite

1. Affidavit of the applicant or some other person who personally knows the facts that:

By filing a Verified application for support:

is pending; 2. CA or any member thereof 3. SC or any member thereof even if the action is pending in the lower court. The appellate court may allow the application for receivership be decided by the court of origin and the receiver appointed shall be subject to the control of the said court of origin. 1. Verified application showing that: (a) the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; (b) it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the

(a) The applicant is the owner or entitled to the possession of the property, particularly describing it; (b) the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief ; (c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis , or if so seized, that it is exempt from

(1) stating the grounds for the claim and (2) financial conditions of both parties, and (3) accompanied by affidavits, depositions or other authentic documents in support thereof

Rule 57 Preliminary Attachment

Rule 58 Preliminary Injunction

factor, broker, agent, or clerk, respecting the subject of the in the course of his action or proceeding, and employment as such, or by tending to render the any other person in a fiduciary  judgment ineffectual. (3a) capacity, or for a willful violation of duty; (c) 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; (d) against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. (1a) (Rule 57 Sec. 1) 4. there is no other sufficient security for the claim sought to be enforced by the action

Provisional Remedies Comparison Table by Yna Bote (2014)

Rule 59 Receivership

Rule 60 Replevin

mortgage debt, or

such seizure or custody; and

that the parties have so stipulated in the contract of mortgage;

(d) The actual market value of the property.

(c) After judgment, to preserve  the property during the pendency of an appeal, or to dispose  of it according to the judgment, or to aid execution  when the execution has been returned unsatisfied or the judgment obligor refuses  to apply his property in satisfaction of the  judgment; (d) it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.

Rule 61 Support Pendente Lite

Rule 57 Preliminary Attachment

Rule 58 Preliminary Injunction

Rule 59 Receivership

Rule 60 Replevin

Rule 61 Support Pendente Lite

5. the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. (Sec. 3) (2) Requirement

Bond

Additional Bond to Requirement where property is claimed by third person.

A bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ, conditioned that the latter will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the provisional remedy, if the court shall finally adjudge that the applicant was not entitled thereto. (R57S4) Unless exempted by the court (R58S4b) The court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages (R59S2)

Requisites where property is claimed by third person 1. If the property attached is claimed by any person other than the party against whom attachment had been issued or his agent; and 2. such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title; and 3. serves such affidavit upon the sheriff while the latter has possession of the attached property, and a copy thereof upon the attaching party

Provisional Remedies Comparison Table by Yna Bote (2014)

bond executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action. Requisites where property is claimed by third person

1. 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 2. such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and 3. serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the

No bond requirement

Rule 57 Preliminary Attachment

Rule 58 Preliminary Injunction

Effect:  The sheriff shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of the sheriff, shall file a bond approved by the court to indemnify the thirdparty claimant in a sum not less than the value of the property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The sheriff shall not be liable for damages for the taking or keeping of such property to any such thirdparty claimant, if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. a. When the writ attachment is issued

Provisional Remedies Comparison Table by Yna Bote (2014)

of in

Rule 59 Receivership

Rule 60 Replevin applicant Effect: 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 thirdparty claimant in a sum not less than the value of the property under replevin as provided in section 2 hereof . In case of disagreement as to such value, the court shall determine the same. No claim for damages for the taking or keeping, of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such thirdparty claimant if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in

Rule 61 Support Pendente Lite

Rule 57 Preliminary Attachment favor of the Republic of the Philippines, or any officer duly representing it,  the filing of such bond shall not be required; and b. in case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. (14a)

Discharge of Provisional Remedy

Other grounds for discharge of provisional remedy

Rule 58 Preliminary Injunction

Rule 59 Receivership

Rule 60 Replevin

Rule 61 Support Pendente Lite

the same or a separate action. a.  When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and

b. in case the sheriff is sued for damages as a result of the replevin, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. (7a) By counter-bond: Party against whom the provisional remedy is availed of, may move f or the discharge of the provisional remedy Not Applicable granted by filing a counter-bond in an amount equal to that fixed by the court or equal to the value of the property if with respect to a particular property to secure the payment of any judgment that t he adverse party may recover in the action(R57S12) Cash deposit may be made in Additional Requirement: Additional Requirements: lieu of the counter-bond It appears after hearing that Amount of counter-bond although the applicant is should also be double the entitled to the injunction or value of the property just like restraining order, the issuance the Replevin Bond or continuance thereof, would: 1. cause irreparable damage to the party or person enjoined 2. while the applicant can be fully compensated for such damages as he may suffer. 1. If attachment is excessive, 1.Insufficiency of application If it is shown that the discharge only limited to the (ground for denial) appointment of the receiver excess 2. Extent of PI or TRO is too was obtained without 2. Improper or irregular great, it may be modified sufficient cause. issuance or enforcement or 3. Improper or irregular insufficiency of the bond issuance or enforcement or

Provisional Remedies Comparison Table by Yna Bote (2014)

Rule 57 Preliminary Attachment

Claim for damages

Rule 58 Preliminary Injunction

Rule 59 Receivership

Rule 60 Replevin

insufficiency of the bond (ground for discharge) Application for damages on account of improper, irregular or excessive attachment 1. must be filed before the trial or before appeal is perfected or before the judgment becomes executory, 2. with due notice to the attaching party and his surety or sureties 3. setting forth the f acts showing his right to damages and the amount thereof. 4. Such damages may be awarded only after proper hearing and 5. shall be included in the judgment on the main case. Or

If the judgment of the appellate court be favorable to the party against whom the attachment was issued he must claim damages sustained during the pendency of the appeal by 1. filing an application in the appellate court, 2. with notice to the party in whose favor the Provisional Remedy was issued or his surety or sureties, 3. before the judgment of the appellate court becomes executory. 4. The appellate court may allow the application to be heard and decided by the trial court.

If the bond or deposit given by the party in whose favor the provisional remedy is granted be insufficient or fail to fully satisfy the award 1. The party against whom the attachment was issued may recover in the same action the damages awarded to him from any property of the attaching party not exempt from execution (R57, S20)

Provisional Remedies Comparison Table by Yna Bote (2014)

Rule 61 Support Pendente Lite

Restitution .  —   When the  judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefor: (1) It shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of actual payment,  without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give the support. (2) Should the recipient fail to reimburse said amounts, the person who provided the same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give such support.