Riano Provisional Remedies

July 18, 2017 | Author: Diane Steffi Titong Guillamon | Category: Mortgage Law, Equity (Law), Lawsuit, Injunction, Judiciaries
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Riano Provisional Remedies Plaintiff does not have to agonizingly wait for the court to finally adjudge possession to his favor. Plaintiff may avail of a remedy under the Rules to obtain the possession of the property while the main action is being litigated. The Court may order defendant to surrender the possession of the property to the plaintiff even before the main case has been resolved. The order partakes only of an interim remedy, a mere provisional or temporary possession. Q: Plaintiff files an action to foreclose a real estate mortgage against defendant. The building subject of the mortgage is depreciating in value because of the gross neglect of the mortgagor and even if the judgment rendered later turns out to be favorable to the mortgagee, the value of the property would be insufficient to discharge the mortgage debt. May the mortgagee avail of a provisional remedy while the action is pending to prevent the further depreciation of the property? A: Yes. Under the existing proceedings by applying for the appointment of a receiver who will be tasked with the administration and preservation of the property. Q: An illegitimate minor child, with assistance of his mother, files an action for support against his natural father. The mother is very sick, jobless and poor, and for the little boy, survival is a challenge on a daily basis. Does the child have to wait for the final adjudication of the issue of his entitlement to support before he receives the relief prayed for? A: No. The applicable rules provide for an interim relief because while the principal action for support is pending, he may apply for support pendente lite or support pending the resolution of the case

Nature of provisional remedies  Temporary  Preliminary  Tentative  Not causes of action, but merely adjuncts to a main suit  They constitute temporary measures during the pendency of the action  They are ancillary because they are mere incidents in and dependent upon the result of the main action. Purpose of provisional remedies Preserve or protect their rights or interests while the main action is pending 2. Secure the judgment 3. Preserve status quo 4. Preserve the subject matter of the action 1.

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Court with jurisdiction over provisional remedies is the court which has jurisdiction over the main action. Inferior courts may grant provisional remedies in actions within its jurisdiction. MTC may grant preliminary injunction in FEUD to prevent defendant from further acts of dispossession or writ of preliminary mandatory injunction to restore plaintiff in possession upon proper application filed within 5 days from filing of complaint.



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Only RTC may issue provisional remedies when the action is for specific performance. Only Family Courts may provide the provisional remedy of support pendente lite where the main action is one for support. In an accion publiciana action where the assessed value of the real property is P10,000, only the MTC may grant provisional remedies.

Kinds of provisional remedies Preliminary attachment (R57) Preliminary injunction (R58) Receivership (R59) Replevin (R60) Support pendente lite (R61)  Enumeration is not exclusive. There are other interim reliefs in other rules and laws  Deposit as provisional remedy in the exercise of equity of jurisdiction may be ordered by the court to prevent unjust enrichment and ensure restitution. Equity aims to do complete justice in cases where a court of law is unable to adapt its judgment to the special circumstances of a case because of the inflexibility of its statutory or legal jurisdiction. Provisional remedies may also be availed of in criminal actions (R127) In connection with the civil action deemed instituted with the criminal action, the provisional remedies in civil actions may be availed of insofar as they are applicable (Sec 1 Rule 127)

Sec 2 Rule 127 Offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the latter in the following cases: 1. 2.

accused is about to abscond criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment or by any other person in a fiduciary capacity or for a willful violation of a duty 3. accused has concealed, removed or disposed of his property or is about to do so 4. accused resides outside the Philippines Preliminary Attachment Rule 57 A provisional remedy, in virtue of which, a plaintiff, or other party may, at the commencement of the action or at any time thereafter, have the property of the adverse party taken into the custody of the court as security for the satisfaction of any judgment that may be recovered. No principle prohibits its issuance by any court before acquisition of jurisdiction over the person of the defendant.  Purely statutory remedy



 Attachment is preliminary when it is resorted to before the finality of the judgment to secure the adverse party’s property and to prevent its dissipation.

 There is no separate action called preliminary attachment. 

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