Provisional Remedies Rem Law Review (Gesmundo) 2nd Sem 2010-2011

PROVREM

What is a provisional remedy (PR)?

- Temporary, ancillary, and auxiliary, during the pendency of the resolution of main action

- These are collateral proceedings

For CrimPro:

People v. CA 92 scra 607 (1979): an order granting new trial in criminal cases is appealable. Unlike in ordinary action, its denial is not appealable

Daan v. SB: at what stage may a plea bargaining be entered into? Even after the prosecution has rested, a plea bargaining may still be availed

So what is the nature of PR?

- Ancillary: mere incidental or dependent on the result of the main action

- Provisional: it is temporary

- Auxiliary?

What are the kinds of PR under the rules of court?

a. Preliminary attachment

b. Preliminary injunction

c. Support

d. Replevin

e. Receivership

Take note that provisional remedies are not limited to those listed here. A hold departure order is a provisional order. Temporary protective remedies are likewise provisional remedies. Even in writ of amparo, there are provisional remedies there.

What are the basic rules in PR?

a. You seek this in the court that has J over the principal action – you cannot institute this separately

b. This is discretionary and not a matter of right

c. Rules should be strictly construed against the applicant except for support

d. Even if the courts can issue ex parte, the court in its discretion may still require notice and hearing

e. Even if the rules do not require in putting up a bond, the court may still require the putting up of a bond

f. Affidavit should accompany the application to support the former

Remedial Law Review [2011]Justice GesmundoBy: Julia Britanico, Kevin Relopez, Lala Rosales, and Caroline Tan

Which PR can be issued ex parte?

a. Preliminary attachment

b. TRO issued by appellate courts

c. Replevin

When is notice and hearing required before issuing PR?

a. Receivership

b. Support pendent lite

c. Injunction

When is bond required?

- All except support pendente lite

When is counter bond allowed?

- See table provided by Justice Gesmundo

What are the two stages in PR?

a. Motion for application

b. Issuance of the writ

With respect to Counter Bond in attachment, what is the bond required?

- PI and TRO: discretion of the court

- Receivership: discretion of the court

- Attachment: value of the property?

Can you appeal these writs?

- Not appealable. But you can challenge this by way of certiorari (R65)

Rule 57 - ATTACHMENT

Purposes of attachment?

- Attachment:

a. security for the satisfaction of any judgment;

b. to grant jurisdiction to the court specifically with regard to extraterritorial service (defendant does not reside and is not found in the Philippines and the action relates to


the property in the Philippines) – convert the proceedings into quasi-in-rem. You attach the property to get J over the res

How do you distinguish attachment from replevin?

- Replevin: only personal property; attachment: real and personal

- Replevin: the owner of the thing is the applicant; attachment: the owner of the property is the adverse party

- Replevin:

When is attachment allowed? What is the basic requirement?

- When there is a threat that the property may be concealed or removed. In replevin, this is not required.

When is attachment not available?

a. When there is an existing lien already in the property

b. Affidavit of merit is insufficient to warrant the issuance

c. Credit is not due and demandable

d. To answer for moral or exemplary damage the purpose of R57 is to answer for principal claim

Stages to issue Rule 57:

a. Order granting the preliminary attachment

b. Issuance of the writ by the COC

c. Execution

At what stage must the court has Jurisdiction (J) over the property?

- Execution. First two stages, no need to have J. Remember contemporaneous or prior jurisdiction court must first acquire the J over the defendant to execute the writ.

- However this J may be dispensed with:

a. In R14, s17 where the defendant is a resident of the Phil but is temporarily outside the Philippines.

b. When the summons cannot be served personally or substituted service (it is not required that the defendant is unknown)

c. R14, s15: defendant non-resident and is not found in the Philippines – includes actions in rem and quasi-in rem

What properties are not subject to attachment?


a. Those exempt from execution

b. What about funds of public corporation? Like pag-ibig funds. it depends. If the said public corporation is a propriety capacity, then it can be attached.

What are its other requisites?

- There must be an intent to defraud on the person of the defendant

Take note that R57 is merely a statutory right. Do not forget PR in criminal cases, preliminary attachment subject to the grounds provided therein

Grounds for the discharge for the writ of attachment:

a. Bond posted insufficient

b. Improperly or irregularly issued

c. Counterbond filed against whom the writ of attachment is issued

d. Attachment is excessive

e. Judgment rendered against the attaching party

Rule 58 – PRELIMINARY INJUNCTION

What is it?

Duration of TRO for RTC?

- 20D. If CA it is 60D. If it is SC, until lifted

Two types:

a. Prohibitory – maintains status quo

b. Mandatory – restores status quo

Status quo: LAPUS: last actual peaceable uncontested status

What is this irreparable injury?

- Example: remember it should not be quantifiable in monetary terms

Requisites for Preliminary Mandatory Injunction:

a. Material and substantial invasion of the right

b. It is a right in esse (not contingent)

c. Urgency for the filing of such remedy to prevent serious and irreparable damage to the party

d. No other speedy adequate remedy in order to prevent

Instances where Preliminary Prohibitory Injunction lies:


a. R38, s5: PI pending proceedings: to preserve the rights of the parties upon filing of a bond

b. R65: petition for certiorari, with a prayer for PI or TRO

c. Forcible entry and unlawful detainer

d. Restrain to prevent a nuisance per accidens needs court’s order and determination

e. R47

When will Preliminary Prohibitory not lie?

a. Under RA 8975: implantation of national government infrastructure project

b. Foreclosure of mortgage by the government due to tax

c. Issuance of a license to explore natural resources

d. Labor disputes

e. Asset Privatization Trust

f. Prohibition to RTC in issuing this in co-equal courts

g. Collection of taxes

h. In prosecution of criminal cases

What is preliminary mandatory injunction? What are its requisites?

a. There is an act already performed

b. Said act violated the right of the party seeking for the injunction

c. ?

When is it not allowed?

a. To force a spouse to cohabit with another spouse

b. To cancel an attachment

c. To transfer title to a person not the owner (not sure)

d. When the effect is to create a relationship that does not even exist

When is it allowed?

When is a final injunction granted?

- When there is showing that the action should be permanently enjoined or be continued

Rule 59 - RECEIVERSHIP


What is receivership?

In what cases may a receiver be appointed?

- See codal

Requisites:

a. The party should have an interest in the property

b. Property is subject to a proceeding or action

c. In danger of being lost or materially injured

d. There is a bond

What kind of bond?

We have two kinds:

a. Application bond – filed by the application

b. Receivership bond – purpose: for the faithful discharge of its duties under receivership

General power:

- see codal

What is this transfer?

- During an insolvency proceeding a receivership is also appointed to settle

- These are conveyances as approved by the court. You have to transfer assets in payment of debts

Two specific situations where a receiver may be appointed:

a. Insolvency of a corporation

b. Article 101 of family code:

Guardianship of an incompetent husband

Husband who refuses to sale assets – you do not ask for guardianship, you ask for approval of the court

c. R39, section 41: appointment of receiver

Rule 60 - REPLEVIN

What is a replevin?


- It is a remedy to recover possession of personal property

When may you apply for this?

- At the commencement of action BEFORE ANSWER!!

- The rest of PR, it may be issued any time before final judgment

- Receivership may be issued even after judgment

- Take note of these cut-off time!

Is it necessary that you be the owner?

- No. The basic requirement is that you show that you have the right to possess (physical possession) the personal property

What about these properties seized pursuant to the power of commissioner of customs, can this be subject of replevin?

- No. Because the property is already in custodia legis so it cannot be subject to replevin

Rule 61 - SUPPORT PENDENTE LITE

What instances may this be granted?

a. In criminal case, support to offspring (Section 345 of RPC is its substantive law)

The family court has J in this action

Take a look at R39s4, execution notwithstanding pending appeal


Provisional Remedies Rem Law Review (Gesmundo) 2nd Sem 2010-2011

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