What are provisional remedies?: Rovisional Emedies

MELO NOTES ON PROVISIONAL REMEDIES

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PROVISIONAL REMEDIES What are provisional remedies? “Provisional” means temporary, preliminary or tentative. They are temporary, auxiliary and ancillary remedies available to a litigant for the protection and preservation of his rights while the main actions are pending (Riano, p.532; Tan v. Andre, 450 SCRA 145). What is the purpose of provisional remedies? (a) To preserve or protect a party’s rights or interests while the main action is pending; (b) To secure the judgment; (c) To preserve the status quo; (d) To preserve the subject matter of the action. What court grants provisional remedies? The court with jurisdiction over the main action may grant the provisional remedy. What are the kinds of provisional remedies? Under the 1997 Rules of Court, and jurisprudence, the following are the kinds of provisional remedies: (a) (b) (c) (d) (e) (f)

Preliminary attachment (Rule 57); Preliminary injunction (Rule 58); Receivership (Rule 59); Replevin (Rule 60); Support pendente lite  (Rule  (Rule 61); Remedies other than those specified in Rules 57-61, as the list is not exclusive, such as special proceeding of custody of minors to grant parent visitation rights and/or temporary custody of the child (Sec. 6, Rule 99, RoC; Tan v. Andre) (g) Deposit, granted by court in the exercise of it’s equity jurisdiction in a contract to sell a piece of land where the buyer asked the amount already paid to be deposited with the court (Reyes v. Lim, 408 SCRA 560); (h) Interim reliefs during a petition for a writ of amparo: Temporary Protection Order, Witness Protection Order, Inspection Order, Production Order (Sec 14 & 15, Rules on the Writ of Amparo; Riano, 534-536) [See Riano];

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factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;

RULE 57: PRELIMINARY ATTACHMENT What is preliminary attachment? It is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case (Davao Light and Power, Inc. v. CA, 204 SCRA 343). Attachment places the property under the custody of the court (custodia (custodia legis ). ). It is in a quasi in rem   proceeding or action in rem . The legal effect is the same. Jurisdiction is acquired over the res  and   and not the defendant. •

(c) 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;

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(d) In an action 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; [Most abused ground]

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(e) 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 ; or

Is issuance of the writ mandatory? No. Grant of the writ is discretionary on the part of the court who also considers the principal case when determining the propriety of the writ (Riano, 556-557).

(f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be may be served by publication.

What is the legal basis to grant a writ of preliminary attachment? Rule 57 of the Rules of Court and Art. 1177 of the Civil Code. It is a purely statutory remedy which cannot exist without a statute granting it.

What are the requisites for the issuance of the writ (Riano 555)? (a) The case is one where preliminary attachment is proper; (b) The applicant must file a motion, with notice and hearing or ex parte; (c) The applicant shows by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced, or the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims; (d) The applicant posts a bond executed to the adverse party [attachment bond] to answer for all damages incurred by the party against whom the attachment was issued and sustained by him by reason of the attachment.

What are the grounds for issuance of the writ? Section 1. Grounds upon which attachment may issue . — At the commencement of the action or at any time before entry of  judgment, a plaintiff or any proper party may have the p roperty of the adverse party attached as security for the satisfaction of any  judgment that may b e recovered in the following case s: (a) In an action 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;

Who may apply for a writ of attachment? The plaintiff, defendant or any other proper party (See Sec 1 Rule 57).

(b) In an action 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,

When do you apply for the writ? At the commencement of the action or at any time before entry of #

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 judgment.

other actions might be premature. Does not become a party to the case by this. This is a matter between you and the sheriff.

May the writ be issued ex parte? Yes. The writ may be granted upon motion and notice and hearing by the court or ex parte by the court.

What are the kinds of attachment? KIND PARTIES

What are the stages in the grant of the preliminary attachment? First Court issues order granting application Second Writ is issued pursuant to order granting it Third Writ is implemented after court acquires jurisdiction over the defendant

COURT

TAKES

WHEN ISSUED

POSSESSION

Preliminary attachment Garnishment

How do you prevent issuance of the writ? (a) deposit an amount equal in value to the bond fixed by the court in the order of attachment or an amount equal to the value of the property to be attached, exclusive of costs; (b) by giving a counterbond executed to the applicant, in an amount equal to a bond he posted or to the value of the property, exclusive of costs (Sec 2 & 5, R57). How can you have the writ discharged?  Writ enforced File motion to discharge attachment. Notice and Hearing. Post cash deposit or counterbond. Motion to set aside or discharge the attachment and during hearing of motion allege (a) the attachment was improperly or irregularly issued (Sec. 13, R 57) (b) bond of attaching creditor is insufficient (c) attachment is excessive and must be discharged as to the excess (Sec 13, R57) (d) property is exempt from execution, and thus from preliminary attachment (Sec. 2, R57) Motion for intervention.

Levy on execution

Against those whom the writ is directed. The plaintiff, defendant, and third person called garnishee who holds the defendant’s property or owes the defendant money.

Plaintiff and  judgment oblig or.

YES.

Start of action or before entry of  judgment NO. Garnishee Start of action or maintains before entry of possession but  judgment he is directed by the court to maintain the status quo. Jurisdiction over him is done by service of writ of garnishment YES. This is a After judgment preliminary step towards an execution sale of the property.

In what cases may preliminary attachment issue? Those cases enumerated in Section1, Rule 57, Rules of Court. May damages be awarded for wrongful attachment? Yes. May property in custodia legis be attached? Yes. After proper notice to the proper notice to the court or quasi judicial a gency and th e custodian of the property is given (Ria no 560, quoti ng Sec. 7 last par. Rule 57). The attachment operates as a lien on the property.

File an affidavit of third party claim with the sheriff the property is yours and not the property of the defendant. (Sec. 14, R57) Melo Note: This should be your first remedy as $

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May property previously attached be again attached? Yes. There will only arise a priority of liens on the property, with the first attachment garnering priority over subsequent attachments.

MORAL EXEMPLARY

What are the remedies of third persons as to the property attached (Ching v. CA, Riano 561-563)? (a) terceria, make an affidavit of his right to possession or title and serve it on the sheriff and attaching party; (b) motion for intervention with court that issued writ of attachment; (c) file separate action to nullify the levy with prayer for damages from the unlawful levy and seizure. (d) Affidavit filed with the sheriff (Sec. 14, R57). May property subject of writ, while the main action is pending, be sold? General Rule: NO. Exception: When it shall be made to appear to the court in which the o action is pending, upon notice and hearing to both parties, that the attached property is perishable or that the interests of all the parties to the action will be subserved by the sale of the attached property (Sec. 11, R57; China Banking Corporation v. Asian Corporation and Development Corporation). • •

BOND secure attachment, in favor of plaintiff

COUNTERBOND securing judgment, in favor of defendant

WHAT KIND OF DAMAGES MAY BE AWARDED ? KIND WHEN YES / NO ACTUAL YES. A LWAYS. o PETITIONER ! o

COSTS OF SUIT

DEFENDANT ! loss of profits ! premiums paids/security paid to surety company ! fact property is encumbered ! anything that might have been suffered by defendant %

YES. YES.

(1) bad faith; or (2) malicious intent

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Who may issue the preliminary injunction? Any court, in CA & SC, different procedure since a lone justice may issue a preliminary injunction.

RULE 58 : PRELIMINARY INJUNCTION What is preliminary injunction? It is an ancillary or preventive remedy where a court requires a person, party, court or tribunal either to refrain from or to perform particular acts during the pendency of an action. It is a temporary remedy subject to the final disposition of the principal action (Dungog v. CA, 408 SCRA 267). Issued to the court to prevent threatened or continuous irreparable injury to parties before their claims can be thoroughly studied and adjudicated. Sole objective is to preserve the status quo until the merits of the case can be heard fully (MIAA v. Rivera Village Lessee Homeowners Association Inc., 471 SCRA 358). It is a preservative remedy for the protection of substantive rights or interests  (Republic v. Evangelista, 466 SCRA 544). •

At what stage of the proceedings may the writ be granted? At any stage or time prior to the judgment or final order (Sec. 1, Rule 58, RoC). Injunction (main action) Independent action. Seeks an action embodying a final injunction.

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Ex: Injunction under Art. 26 of Civil Code, against prying into privacy of another’s residence, or meddling with or disturbing another’s private or family relations. Is issued as a judgment, making the Writ secured before finality of injunction permanent.  judgment. Sec. 1 Rule 58 Sec. 9 Rule 58 File with RTC, since an action for File with court where the main action injunction is one incapable of is pending, including MTC or MeTC; If pecuniary estimation filed with SC or CA the writ may be issued by the SC or any member thereof, or CA or any member thereof (Sec. 2, Rule 58).

When may a writ of preliminary injunction be granted? Section 3 of Rule 58, RoC, provides that the writ may be granted in the following instances: (a)

That the applicant is entitled to the relief demanded, and 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;

(b)

That the commission, continuance or nonperformance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

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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 respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

Preliminary injunction Incident to a principal action. Seeks to preserve the status quo until the merits can be heard. Purpose is to enjoin the defendant from the commission or continuance of a specific act or to compel a particular act in violation of the rights of the applicant. Ex: Injunction against the sale of a piece of land under litigation.

What is the purpose of preliminary injunction? It is to preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the main action (Cortez-Eztrada v. Heirs of Domingo/Antonia Samut, 451 SCRA 275). What is the status quo? It is the last, actual, peaceable and uncontested situation which &

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precedes the controversy – the situation preceding the filing of the case. The injunction should not establish new relations between the parties but only maintain or re-establish the pre-existing relationship (Riano 568).

b) Acting in excess of  jurisdiction c) Gravely abused its discretion amounting to lack of jurisdiction Injunction does not involve May be on the ground the court  jurisdiction o f court acted without or in excess of  jurisdiction Injunction may be main action, or Always a main action provisional remedy (as in this case)

What is a status quo order (Regalado 734)? In the nature of cease and desist order, does not direct the doing or undoing of acts; Does not require the posting of a bond; Issued motu propio by the court when the projected proceedings in the case made the conservation of the status quo desirable or essential, but the affected parties neither sought relief nor did the allegations in his pleading sufficiently make out a case for a TRO; •

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What are the kinds of injunction? Prohibitory Injunction Purpose is to prevent a person from the performance of a particular act. Act has not yet been performed.

Status quo is observed.

Mandatory injunction Provisional remedy Directed to party litigant

Mandatory Injunction Purpose is to require a person to perform a particular act.

Issued to require a party to perform an act to restore the last peaceable uncontested status preceding the controversy

Act has already been performed and has violated the rights of another. The status quo is restored.

Is a restraining order different from an injunction? YES. It is only temporary or provisional. Also referred to as temporary restraining order. A restraining order  is intended only as a restraint upon the defendant until the propriety of granting an injunction, temporary or perpetual, can be determined, and it does no more than restrain the proceedings until such determination (Regalado 733, citing Black’s th Law Dictionary, 4  Ed.) The court in Anglo-Fil Trading Corp. v. Lazaro   (G.R. No. 54958, 2 September 1983) adopted this definition. It is intended to restrain upon the defendant until the propriety of granting an injunction pendent lite   can be determined, and it goes no further than to preserve the status quo until such determination. The grant, denial, or lifting of the restraining order does not preempt the court’s power to decide the issue in the main action – the injunction suit. According to the case of Simpas v Adil   (1975), if the restraining order is effective for more than one month it is no longer temporary, it

What effect does a mandatory injunction have? It does not, in a sense, preserve the status quo since it commands the performance of specific acts (Riano 568). It is more cautiously regarded than prohibitory injunction. It is only issued in a clear case, free from doubt or dispute, cases of extreme urgency where the right of the applicant is clear (Riano 568; China Banking Corp. v. Co, G.R. No. 174569, 17 September 2008). Prohibitory injunction Provisional remedy Directed to party litigant Issued to require party to refrain from a particular act

Mandamus Special civil action Directed to tribunal, corporation, board, officer or person performing a ministerial duty Seeks a judgment commanding a tribunal, corporation, board, officer or person performing a ministerial duty required to be performed by law

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Prohibition Special civil action Directed to tribunal, corporation, board or officer Seeks a judgment commanding a tribunal, corporation, board or officer to desist from further proceeding in the action because [GADLEJ] a) It has no jurisdiction

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becomes semi-permanent akin to a preliminary injunction, thus abusing it’s original purpose.

Nisce v. Equitable PCI-Bank). Why is there a requirement of notice and hearing? A preliminary injunction cannot be issued without a prior notice and hearing, as required by Sec. 5, Rule 58 of the RoC. It cannot be issued ex parte.

What are the requisites for the issuance of the writ of preliminary injunction or TRO? 1) Verified application (Sec. 4, Rule 38), absence of such makes the application insufficient in form and substance (Rivera v. Mirasol); 2) Applicant has a right to relief, right in esse   or right to be protected and the act the injunction is directed at is violative of such right; 3) There is a need to restrain the commission or continuance of the acts complained of and if not enjoined would work injustice to applicant; 4) Applicant posts a bond in an amount fixed by the court, unless exempted by the court, to be liable for damages which the party enjoined by the preliminary injunction may suffer if the court decides the applicant was not entitled to the writ; 5) Notice and summons served to the defendant, if application of writ is included with complaint, as well as applicant’s affidavit and bond. Notice to refers also that notice must be given and the complaint and application shall be raffled off only in the presence of the defendant; 6) Hearing on the application; 7) Applicant provides proof of legal right and injury sustained.

When may the issuance of the writ be refused, or the writ dissolved (Sec. 6 & 7, R58, RoC)? (a) The complaint is insufficient; (b) The defendant is permitted to post a counter-bond, it appearing that he would sustain great damage while the plaintiff can be amply compensated; (c) On other grounds, as where the bond posted by the applicant turned out to be insufficient or defective. Does the dissolution issue as a matter of course after filing the counter-  bond? NO. The court still has to determine and assess the probable relative damages and weight whether the defendant would sustain great damage while the plaintiff can be amply compensated (Director of the Bureau of Telecommunication v. Aligaen, L-31135, 29 May 1970). Must the motion for dissolution be verified? YES. A motion for the dissolution of the writ of preliminary injunction must be verified (Canlas v. Aquino, L-168115, 24 July 1961).

When is injury “irreparable”? If it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law (Ollendorf v. Abrahamson, 38 Phil. 585). There is no standard by which their amount can be measured with reasonable accuracy, it is not susceptible of mathematical computation (SSC v. Bayona, et al., L-13555, 30 May 1962).

QUERY

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In a case, judge is in charge of case for illegal possession of explosives. He fails to inhibit himself. A petition for prohibition is applied and granted by the CA. A bond is posted concurrent therewith. Issue:  Will the bond answer for damages in case the case is later dismissed or the petitioner loses the case? Held:  See Lim v. Callejo (1981): NO. Bond will not answer for damages. Judge Callejo was made respondent in   the special civil action for prohibition in his official capacity as judge   of the Municipal Court of Balabac and not as private person. Consequently, any damage or expense incurred by him in connection with the case would be official in nature and for which no fund of private origin has to answer . Thus, such portion of the appealed order which held the cash bond posted by Lim answerable for whatever damages Judge Callejo may claim should be set aside. The posting of said

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What is the quantum of evidence required? Prima facie right is needed at the hearing to show that the applicant has an ostensible right to the final relief prayed for in his complaint (Republic v. Evangelista). Evidence need only be a sampling of the evidence of justification for a preliminary injunction pending the decision on the merits (Sps. •

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bond should not have been ordered in the first place, as no private person would be prejudiced by the preliminary injunction. C LASS LECTURE 

PROCESS PROCESS: CA

What must be proven? Requisites o

(1) actual existing legal right [not inchoate or contingent; not moral/natural/etc] "

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(2) invasion "

[can prove the invasion is actual, imminent]

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(3) damage irreparable [cannot be repaired, compensated by payment of " damages; Strike a balance between alleging substantial damage and alleging irreparable damage; you’re basing part of it on some conjecture, on something nebulous] "

Will look at complaint and see if 3-day TRO is deserved

May be issued by single justice or by a division Even a single justice may issue TRO, if prove cannot get it from division in a timely manner, but the justice must submit TRO to division ASAP to be reviewed Has revised internal rules on issuance of TROs 60 days PROCESS: SC TRO indefinite or until further orders o Any justice may issue, but as a matter of courtesy to o peers he has to consult with division members at the earliest opportunity o Same rules/requisites

Species of injury that ought not be submitted to on one hand or inflicted on the other… is of such constant & frequent recurrence that no fair or reasonable redress can be had…

When is damage irreparable? Is there irreparable damage in cases of unfair competition or infringement of trademarks or copyrights? YES. According to IP Code. •

TRO v. INJUNCTION " Requisites are the same " Period

Irreparable damage Must be difficult or incapable of pecuniary estimation Usual mistake of litigants, eager to show the damage they give an amount, only showing that damage is not irreparable (as in the SSC case) Ollendorf case : By irreparable injury is not meant such injury as is beyond the possibility of repair or compensation in damages, or great injury or great damage, but that kind of injury, whether great or small, that ought not to be inflicted, of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in a court of law (Gilchrist vs. Cuddy (29 Phil. rep., 542, 552 citing Wahle vs. Reinbach (76 Ill., 322)). “The admitted fact that plaintiff has failed to establish o proof of pecuniary damage by reason of the breach of the contract by defendant by the acts committed prior to the issuance of the preliminary injunction is, of course, a •

As a rule, can TRO be issued ex parte? GEN: NO EXC: one exception, 3-day TRO issued by executive judge, during exceptional circumstances

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PROCESS: RTC Complaint (specific allegation; attach proof) => executive judge => w/in 24 hours notify parties for conference and raffle =>raffle to branch or Pres. J => summary hearing, w/in 3 days decide =20d TRO => sked hearing on writ of PI (present witnesses; writ effective for as long as action is pending) Why executive judge acts on TRO? Complaint has not been raffled yet " " Will not even conduct summary hearing )

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Is the posting of a bond a substantial requirement for TRO? Melo Note: Mere procedural requirement. No law which requires party to give a bond. Everything in the bond is provided in the rules. In other jurisdictions, like in Singapore, bond is not required. Malice or lack of good faith is not an element of recovery on the bond (Limitless case).

bar or nay money judgment for damages for the breach of the contract, but will not justify us in permitting defendant to continue to break his contract over plaintiff's objection. The injury is a continuous one. The fact that the court may not be able to give damages for that part of the breach of the contract which had already taken place when its aid was invoked is no reason why it should countenance a continuance of such disregard of plaintiff's rights.” “With respect to the contention that an injunction may o only be granted to prevent irreparable injury, the answer is that any continuing breach of a valid negative covenant is irreparable by the ordinary process of courts of law. As stated by High, (vol. 2, p. 906) injunctive relief is granted in cases like this "upon the ground that the parties cannot be placed in status quo, and that damages at law can afford no adequate compensation, the injury being a continuous one irreparable by the ordinary process of courts of law” 2 kinds of irreparable damage

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Can the court moto propio deny the application for TRO/Injunction even without calling a hearing (Bataclan case)? GEN: Must call hearing, when there is prima facie case on pleading EXC: When the insufficiency for the calling of the hearing is apparent from the pleading itself •

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When can cases not be issued? Infrastructure projects (limited, since only SC may issue injunction) Cannot issue to restrain implementation of CARP Cannot enjoin Meralco from disconnecting, unless you put up a bond, RA 7832 Collection of taxes (NIRC, Sec. 219) [why? Lifeblood doctrine] Melo Note: Way around is assail some other collateral matter to prevent government from collecting or assessing tax; you can assail the basis of the tax Constitutional offenses, cannot restrain the constitution, exc. Is Brocka case •

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What if Ms Garcia is a klepto, she steals my ballpen every meeting, is that irreparable damage? YES. Though there can be compensation in the form of damages, it is not only that. It is that species of damage where the “injury being a continuous one irreparable by the ordinary process of courts of law”. Otherwise you would have to file a case for each time she steals a ballpen.

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Preliminary mandatory injunction Required to do something Courts are stricter with this Changes the present situation between the parties Improper to be issued prior to final hearing – before the end of the case [talks on mandatory injunction in decision] EXCEPT in cases of extreme urgency where the relative inconvenience…. Relative inconvenience, theory of relative hardships

When does injunction end? Upon dismissal or earlier (because of change in circumstances) If case is won by plaintiff it can be a permanent injunction

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Is a status quo order in the nature of a TRO? Melo Note: I don’t know. For me if there’s an agreement there is basis to force parties to enforce it, but it does not constitute a process of the court. •

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Capitol Medical Center Inc case Teacher strike, during the strike they were joined by the students School operations completely stopped and school forced to close down

What if RTC grants TRO effective for 25 days? Is TRO invalid? Not invalid as a whole, only invalid as to the excess (NEA case).

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The next sem, students asked school to reopen, filed case to compel the school to reopen, claim they have a contract, asked for a preliminary injunction, RTC granted SC said, status quo was there was no school, only reason there was no school was because of your own fault. You cannot now ask the court to undo what you yourself have done. Clean hands doctrine.

When usually granted? To restore electrical service Art 539 Civil Code: right of possessor to be respected in his possession • •

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(b) When 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 mortgage debt , or that the parties have so stipulated in the contract of mortgage ;

RULE 59 RECEIVERSHIP NOTES: What is receivership? • •

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May be principal or ancillary action Courts and quasi-judicial agencies may appoint receivers for cases pending before them It is aimed at the preservation of, and at making more secure, existing rights. Rule 59 presupposes there is an action and that the property subject of the action requires its preservation (Riano 590). Receivership under Rule 59 !  receivership authorized under banking laws and other rules or laws (Riano 590). Melo Note: Receivership is a harsh remedy that will be issued o sparingly, has to be justified. o Property under receivership is in custodia legis, meaning nothing cannot be done to the property without court approval.

(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 , or otherwise to carry the judgment into effect ; (d) Whenever in other cases  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 . Who is a receiver (Cia. General de Tabacos v. Guanzon)? A receiver is a person appointed by the court in behalf of the parties to an action for the purpose of preserving the property involved in the suit and to protect the rights of all the parties under the direction of the court.

What is the purpose of receivership (Sec. 1, R59)? •

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To protect and preserve the rights of the parties during the pendency of the main action; During the pendency of an appeal; As an aid in the execution of a judgment when the writ of execution has been returned unsatisfied.

What is the procedure for appointing a receiver (Riano 592)? 1) Verified application filed by the party applying for appointment of a receiver; 2) Applicant must have an interest in the property or funds subject of the action; 3) 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 set for hearing; 5) Before appointment is issued, applicant posts a bond in favor of adverse party, and receiver takes his oath and files his bond; 6) Before entering into his duties, the receiver must be sworn to perform his duties faithfully;

What are the grounds for receivership? Rule 59, Section 1 provides that a receiver may be appointed in the following instances: (a) When it appears from the verified application, and such other proof as the court may require, that 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;

Who may not be appointed as receiver? !

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Party to an action

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UNLESS other party consents thereto o Clerk of court, as he is already burdened with his official duties #

May a receiver be appointed while an appeal is pending?

Defect in procedure will not affect court’s  jurisdiction , but will result in application ’s dismissal; NOW may also be commenced by verified motion  when receivership is sought as an ancillary action.

YES (last paragraph, Sec.1, R59). Despite an appeal, the court a quo retains power to issue orders necessary for the protection and preservation of the rights of the parties. Receivership does not involve any matter litigated by the appeal (Sec. 9, R41; Regalado 746) and the trial court has the better facilities and opportunity to determine the property under receivership (Velasco & Co. c. Go Chuico, et al. 28 Phil. 39).

Who has jurisdiction over application for receivership?

In what instances is it improper to appoint a receiver?

When the property is taken by the receiver is it considered to be in custodia egis?

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B.P. Blg. 129 vests jurisdiction with all inferior courts if the main action is within their jurisdiction, and in the Court of Appeals or Supreme Court, or a member thereof, if such proceeding is pending there (first paragraph, Sec. 1, R59).

Action to obtain a money judgment on unpaid credits and not to enforce a lien upon specific property or funds in the possession of the defendant; Actions involving possession or title to real property UNLESS there is a clear necessity to protect the o applicant from grave or irreparable damage; When the rights of the parties, one of whom is in possession of the property, depend on the determination of their respective claims t the title of such property UNLESS property is in danger of being materially o injured or lost, as by: " Prospective foreclosure of a mortgage thereon Portions thereof are being occupied by third " persons claiming adverse title thereto Property in custodia legis  UNLESS property in the custody of E/A is in danger o of imminent loss or injury, receiver may then be appointed by probate court (Dolor v. Sindian, L27631, 30 April 1971).

YES. Receiver is officer of the court. When may you avail of receivership? Before, or even after final judgment (Regalado 747). What must a party who wishes to assail the order appointing a receiver do? #

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DURING pendency of action, the order is interlocutory in nature and the party may file for certiorari on the ground of grave abuse of discretion; BUT such may not be compelled by mandamus o Post a BOND, executed to the applicant, in such amount fixed by the court, that such bond will answer for all damages applicant may suffer by reason of the acts, omissions, or other matters specified in the application as a ground for appointment (Sec. 3, R59); [Receiver is discharged or the application is denied] Show that receiver obtained appointment without sufficient cause, such will cause his discharge as receiver;

Is a bond required (Sec. 2, R59)?

Formerly may only be commenced by verified petition " Petition allege all the necessary facts  justifying appointment of the receiver, with supporting affidavits;

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Filed by the applicant, executed to the party against whom the application is presented " In an amount fixed by the court " To pay party all damages he may sustain In case applicant secured appointment without " sufficient cause EVEN AFTER APPOINTMENT Court requires, in its discretion " " At any time after appointment " Require additional bond As further security for such damages " No distinction is made whether the application was made ex parte or upon notice and hearing, unlike the old rule (Regalado 748).

KINDS OF BOND IN RECEIVERSHIP Applicant’s Bond Counterbond All damages defendant All damages Applicant may sustain may sustain by failure to grant receivership

e) In the case of b, c & d, should the applicant, adverse party or receiver file a bond and it is found to be insufficient and they fail to remedy this by posting another bond of sufficient amount or surety/ies; What are the general powers of the receiver (Sec. 6, R59)? !

Receiver’s bond Guarantee that he will faithfully discharge his duties in the action and obey the orders of the court

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What is the receiver required to do before entering into his duties (Sec. 4,R 59)? ! !

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Sworn to perform duties faithfully; File a bond, executed to such person, and in such sum as the court may direct, that he will faithfully discharge his duties in the action and obey the orders of the court;

When may receivership be denied or lifted due to the bond (Sec. 5, R59; Regalado 749)?

Bring or defend, in such capacity, actions in his own name; Subject to the control of the court where the action is o pending. o No action may be filed by or against a receiver without leave of court who appointed him. This is to enhance supervisory power and control of the court over the receiver, as well as forestall any undue interference of improvident suits (Regalado 750). Another instance when a person who is not a party in o interest is authorized to sue as representative under Sec. 3, R3. Take and keep possession of property in controversy; Receive rents; Collect debts due to himself as receiver, or to the fund, property, estate, person, or corporation of which he is the receiver; Compound for or compromise debts; To make transfers; Pay outstanding debts; To divide the money and other property that shall remain among the persons legally entitled to receive the same; Generally, such other acts respecting the property as the court may authorize. HOWEVER contracts executed by receiver without court o approval are his personal undertakings and obligations (Pacific Mining Corp. v. Consolacion Insurance & Surety Co., Inc., et al., L-30204, 29 October 1976).

What penalties may be imposed on persons who refuse or neglect to deliver property to the receiver (Sec. 7, R59)?

a) If the appointment sought or granted is without sufficient cause, No necessity therefore; " " Not proper case for receivership; b) If the adverse party files a sufficient bond to answer for damages, c) Where the bond posted by the applicant for the grant of receivership is insufficient, d) If the bond of the receiver is insufficient,

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Contempt + liability for the recovery of the property refused or neglected to be surrendered or the value thereof; Damages suffered by the party/ies as consequence of refusal or neglect;

MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A

What procedure is followed for terminating a receiver? 1) Court, motu propio or on motion of either party, determines necessity for receiver no longer exists; 2) Provide notice to all interested parties; 3) Conduct hearing, 4) Settle the accounts of the receiver; 5) Direct delivery of the funds and other property in receiver’s possession to the person adjudged entitled to receive them; 6) Court orders the discharge of receiver from further duty; 7) Allow receiver reasonable compensations as circumstances warrant, which will be taxed as costs against defeated party, or apportioned; What is the procedure for recovery upon the bond? Same procedure as in Sec. 20 of Rule 57. Is the bond liable if the damage sustained was due to receiver’s malfeasance, and not his appointment? NO. Recovery is against receivers’ bond through a separate action (De la Rosa & Co. v. De Borja, 53 Phil. 990). IF the damage had been due to the appointment of the receiver, the parties could have motioned for the recovery on the bond filed by the party who applied for receivership. May a judgment granting receivership be stayed after rendition of  judgment and before appe al is taken or durin g pendenc y of an appeal? NO, such judgments are immediately executory, unless otherwise ordered by the court (Sec. 4, Rule 39).

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MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A

RULE 60 REPLEVIN

capable of manual delivery

What is replevin?

Remedy is available even if property is not being concealed, removed, or disposed of

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It is an action, a remedy, whose principle purpose is to recover possession of personal property.

When may you apply for replevin? Replevin Attachment, Injunction and Support Pendete Lite  Before the answer At any time before final  judgment

Cannot be availed of if property is in custodia legis , such as when it is: Under attachment o Seized under a search o warrant

Receivership

At any stage of the action and even after final judgment

property whether real, personal or incorporeal Presupposes that personal property unjustly detained is being concealed, removed, or disposed of in order to prevent it being found or taken by applicant Can be resorted to even if property is in custodia legis  (last paragraph, Sec. 7, Rule 57)

Who may avail of the writ? How do you distinguish an action for replevin and one for attachment of personal property? Replevin

Ancillary action, the principal action is to recover possession of personal property and other reliefs, such as damages are merely incidental thereto Defendant is in actual or constructive possession of the personal property

Extends only to personal property

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Attachment of personal property Sec. 1(c) Rule 57: a writ of preliminary attachment is available in an action to recover possession of personal property unjustly detained, which would make it similar to a replevin proceeding. Available even if the recovery of personal property is only an incidental relief sought in the action Defendant may have possession, or personal property may be in the possession or custody of a third person Extends to all kinds of

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Plaintiff in a case to recover personal property; Defendant in his counterclaim (Pongos v. Hidalgo Enterprises, Inc., 84 Phil. 499); Any other party asserting affirmative allegations praying for the recovery of personal property unjustly detained (Regalado 754).

What must the applicant for replevin show in his affidavit (Sec. 2, R60)? 1.

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That applicant is the owner of the property claimed or is entitled to possession thereof; Applicant MUST particularly describe the personal o property . That the personal property was wrongfully detained by the adverse party; o Applicant MUST allege the cause of detention  to the best of his knowledge, information and belief. That the property has not been: a. Distrained; b. Taken for tax assessment or a fine pursuant to law; c. Seized under a writ of execution or preliminary attachment; d. Otherwise placed in custodia legis ; e. OR is so seized, as above, it is exempt or should be released from such seizure or custody. The actual market value of the property;

MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A

Must the applicant also execute a bond (Sec. 2, R60)?

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YES. The applicant must also execute a bond that is: Executed to the adverse party o In an amount double the value of the personal property as o stated in the affidavit Bond stands for the return of the property to adverse party if o such is adjudged Answers for payment to the adverse party of such sum o adjudged against applicant in the action How does the value of the bond in replevin differ from other provisional remedies?  Replevin Attachment Injunction Must be Is in such amount Amount of the DOUBLE the as the court may bond is fixed by value of the fix, not exceeding the court property sought the applicant’s to be recovered claim or equal to the value of the property sought to be attached 

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bond issued for Receivership Is in an amount fixed by the court in its discretion

Take the property into his possession if in the possession of the adverse party or his agent. o IF property is concealed in a building or enclosure, the sheriff must Publicly demand its delivery; " " If not delivered, must cause the building or enclosure to be broken open and take the property into his possession. Retain custody of the property. The sheriff must Keep the property in a secure place o Shall be responsible for its delivery to the party o entitled thereto " UPON receiving his fees and necessary expenses for taking and keeping the same

May the adverse party demand the immediate return of the property? NO, he may not if he immediately objects to the sufficiency of the bond or the sureties thereto (Sec. 5, Rule 60). How may the adverse party have the property returned to him? If he does not immediately object or demand the return of the personal property, he may at any time before delivery of the property to the applicant  file with the court where the action is pending file a redelivery bond

What must the court do after the affidavit and bond, once approved, filed in court is found to be sufficient (Sec. 3, R60)? The court must issue an order and the corresponding writ of replevin.

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The writ must describe the personal property alleged to be wrongfully detained The order must require the sheriff to take the property into his personal custody

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What is the duty of the sheriff upon receipt of the order of the court? 1.

Sheriff a. b. c. d.

Executed to the applicant In double the value of the property as stated in applicant’s affidavit For the delivery of the applicant’s property, if such be adjudged To answer for payment of such sum to applicant as may be adjudged against adverse party

When must the adverse party oppose?

must serve to the adverse party a copy of: The court order; Application for replevin; Affidavit; Bond.

He must oppose within 5 days from the time the sheriff takes the property into custody (Sec. 6, R60).

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MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A

How may the adverse party oppose? He manifests opposition by filing the redelivery bond. The redelivery bond MUST be: (a) posted within 5 days after sheriff takes possession of the property; AND (b) served on applicant within the same period of time. Both requirements are MANDATORY, and must be complied with within the 5-day period (Case, et al. v. Jugo, et al., 77 Phil. 517). May the redelivery bond be defeated? YES. The bond may be defeated if it is objected to and the court finds the same is insufficient and the defendant does not file an approved bond. When is the adverse party entitled to the return of the property? a) He seasonably posts a redelivery bond; b) Plaintiff’s bond is found to be insufficient or defective and is not replaced with a proper bond; c) The property is not delivered to the plaintiff for any reason. What happens if the adverse party does not oppose within the time given in Sec. 6? The property shall be delivered to the applicant.

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MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A

RULE 61 SUPPORT PENDENTE LITE

" Taking into account the necessities of the applicant ; The terms of payment or mode for providing the support. If court dismisses application: Principal case shall be tried and decided as early as possible. o o

What is support pendente lite?

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It is provisional in nature and actual amount and terms of its payment shall be determined in the final judgment.

How may the court enforce the judgment?

Who are entitled to support? ! ! !

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Ascendants Descendants Persons you are liable to under the RPC

Issue an order of execution in case defendant fails to comply, without prejudice for liability for contempt of court. Should third person pay for defendant, such person may o proceed against defendant.

Must the petition be verified? What do you mean that support is never final? YES (Sec. 1, Rule 61). It is subject to the conditions occurring in the main case. Conditions might change; such as the person asking for support is no longer entitled to support or may require different support (more, in kind, etc).

When do you file the application for support pendent lite (Sec. 1, Rul2 61)? !

When is the remedy available?

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In an action for support (Coquia, et al. v. Baltazar, 83 Phil. 265); Or when the one of the reliefs sought is support for the applicant (Regalado, 764).

What must the petition state? ! !

When may the petition not be granted?

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When the right to support: !

Commencement of the proper action or proceeding; At any time prior to the judgment or final order.

Is put in issue by the pleadings, or the facts from which the right of support arises is in controvery, or has not been established (Francisco v. Zandueta, 61 Phil. 752); If the court does not dismiss the case, the decision o may be challenged by certiorari.

Grounds for the claim; Financial conditions of both parties; Accompanied by affidavits, depositions, or other authentic documents in support thereof.

To whom must the application be served? o o

The court; The defendant.

What must the defendant do?

What must the court order do? • •

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Provisionally determine: Pertinent facts; o o Such orders as are just and equitable; If court grants application: Fix the amount to be provisionally paid; o Or such other forms of support as should be provided; o

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File a COMMENT with the court, upon receipt of the application and supporting documents, within: 5 days o or such other time the court may fix upon defendant’s motion o Comment shall be ! verified,

MELO NOTES ON PROVISIONAL REMEDIES

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LCP 2014A

accompanied by affidavits, depositions or other authentic documents in support thereof.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.

When will the court set the application for hearing (Sec. 3)? After the comment is filed or after expiration of the time for its filing, the court shall set it for hearing not more than 3 days thereafter.

Who are entitled for support? Who are subject to give support?

How shall the facts in issue be proved?

Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article:

It shall be proved in the same manner as provided for evidence in motions.

(1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) Legitimate brothers and sisters, whether of full or half-blood (291a)

To whom is the remedy available (Sec. 1, as amended)? a) Plaintiff; b) Any party in the action who may have grounds to apply for the same. What is the remedy if the order was issued was grave abuse of discretion? The remedy is to file a petition for certiorari with preliminary injunction.

Art. 345. Civil liability of persons guilty of crimes against chastity. — Person guilty of rape, seduction or abduction, shall also be sentenced:

Who may grant the petition? •

1. To indemnify the offended woman.

Court of Appeals

2. To acknowledge the offspring, unless the law should prevent him from so doing.

In what cases is the court not allowed to issue the writ? •

3. In every case to support the offspring.

In an action for support when not prayed for in the suit in the trial court, and during the pendency of appeal in the appellate court; Petitioner may however file for the writ in the appellate court (Vasco v. CA, et al., L-46763);

*** Support is never final. The basis of support is the need of the person to be supported and the capacity of the support. Under what causes can support be questioned? 

CLASS NOTES (FROM NAYIE):

(1) Need (2) Capability for support

What comprises support? Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

Kinds of Support (1) Support pendente lite "*

MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A

(2) Support as main action

MELO COMMENTS FOR SELECTED CASES : Saavedra:   Though support pendente lite is never final, it is still an ancillary case. So if you dismiss the main case, the support pendente lite will be dismissed. MangomaI:  There are 2 grounds of support for the child and the wife. If you fail to impugn immediately, there is a conclusive presumption that it is yours. Torres v. Teodoro:   Every failure to give support is one offense, and a ground for direct or indirect contempt. Baito:   Action for support is not capable of pecuniary estimation, and you don’t know when support will end. Manuel Reyes v. Luciano:   Affidavits are sufficient to prove support. There must also be a prayer for support pendente lite. Gan v. Reyes:   Order for support is immediately executory because the interests of the child are paramount. Lam v. Chua:   A prior agreement does not bind the court because such agreement is not res judicata. Judgment for support is subject to modification, depending on the needs of the child and the capabilities of parents to give support. An agreement will only serve as a minimum standard.

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