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PROVISIONAL REMEDIES
Provisional Remedies are temporary, auxiliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. They are not main actions. They presuppose the existence of a principal action. Court which grants provisional remedies The court grants or issues a provisional remedy is the court which has jurisdiction over the main action. When the main action is for support the provisional remedy of support pendente lite may not be granted by a MTC because the main action which is incapable of pecuniary estimation is within the jurisdiction of the RTC or the Family Court. Kinds of provisional remedies 1. 2. 3. 4. 5. Preliminary attachment Preliminary injunction Receivership Replevin Support pendent elite
The attachment is preliminary only when resorted to before the finality of the judgment to secure the property of the adverse party and to prevent its dissipation. Once the judgment has become final and executory, the attachment becomes a final one and is issued in order to satisfy the judgment. Purpose of preliminary attachment 1. seize the property of the debtor before final judgment and put the same in cusodia legis even while the action is pending for the satisfaction of a later judgment; or to enable the court to acquire jurisdiction over the res or the property subject of the action in cases where service in person or any other service to acquire jurisdiction over the defendant cannot be effected.
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Garnishment a kind of attachment in which the plaintiff seeks to subject either the property of the defendant in the hands of a third person called the garnishee, tho his claim or the money which said person owes the defendant. Garnishment does not involve the actual seizure of the property which remains in the hands of the garnishee. Garnishment simply impounds the property in the garnishees possession and maintains the status quo until the main action is finally decided. Jurisdiction over the garnishee is acquired by the mere service upon him of the copy of the writ of garnishment with a notice that his debt to the defendant or other personal property of the defendant under his control or possession is attached pursuant to the writ. Levy on execution is the writ issued by the court after judgment by which the property of the judgment obligor is taken into the custody of the court before the sale of the property on execution for the satisfaction of a final judgment. 1
The enumeration is not exclusive. Ex. Temporary custody of the child, deposit.
I. Preliminary attachment
Preliminary attachment - 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. There is no separate action called preliminary attachment. Attachment places the property under custodia legis. A defendant who asserts a counterclaim, a cross-claim or a third-party claim may also avail of the remedy.
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Grant of preliminary attachment, discretionary How to prevent the attachment If the attachment has not yet been effected, the party whose property is sought to be attached, may prevent the attachment by doing either two things: 1. by depositing with the court from which the writ was issued an amount equal to the value of 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, or 2. by giving a counter-bond How to have the attachment discharger If the attachment has already been enforced, the party whose property has been attached may file a motion to discharge the attachment, with notice and hearing, and after making a cash deposit or files a counter-bond. Attachment may be discharged without the need of a filing of a counterbond. This is possible when the party whose property has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion, he proves that: 1. the attachment was improperly or irregularly issued or enforced, or 2. that the bond of the attaching creditor is insufficient, or 2
Ex parte issuance of writ It may be issued upon notice and hearing. It may be issued ex parte and even before summons is served upon the defendant. However, it may not be enforced and may not be validly implemented unless preceded by a service of summons upon the defendant, or simultaneously accompanied by service of summons, a copy f the complaint, the application for attachment, the order of attachment and the attachment bond. Implementation of the writ without the required jurisdiction over his person is null and void. The writ is improperly implemented if is was served prior to the service of summons.
Damages for wrongful attachment Damages may be awarded on account of improper irregular or excessive attachment. Even the party who loses in the main case but is able to establish a right to damages by reason of improper, irregular or excessive attachment may be entitled to damages. An improper, irregular or excessive attachment is not validated by the fact that the attaching party prevailed in the main action. Attachment or property under custodia legis Property in custodial egis may be subject to a writ of preliminary attachment. The attachment on a property already in custodial egis merely operates as a lien and does not mean that the attaching court will wrest custody of the property from another court. There is no rule which prohibits the attachment of a property previously attached. What will arise will be a priority in the liens which means that the first attachment will have priority over subsequent attachments. Proceedings where property attached is claimed by a third person He may avail of the remedy called terceria by making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The third party claimant is not precluded by the rules from vindicating his claim to the property in the same or in a separate action.
Quantum of evidence required The evidence to be submitted by the plaintiff need not be conclusive and complete. The plaintiffs are only required to show that they have an ostensible right to the final relief prayed for in their complaint. Mere prima facie evidence is needed. Notice and hearing A writ of preliminary injunction cannot be issued without prior notice and hearing. Subject to the rules governing matters of extreme urgency, it cannot be issued ex parte. Temporary Restraining Order It if shall appear from facts shown by affidavits or by verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court in which the application for preliminary injunction was made ma issue a TRO ex parte for a period not exceeding 20 days from service to the party sought to be enjoined. Within said 20 days, the court shall determine whether or not the preliminary injunction shall be granted and then shall issued the corresponding order. The applicant shall file a bond, unless exempted by the court. If the matter is of extreme urgency, the executive judge of a multisala court or the presiding judge of a single-sala court may issue a TRO effective for only 72 hours from issuance, not service. When the court is a multi-sala court, the TRO is not to be issued by any 4
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Examples in which injunction/preliminary injunction will not be issued 1. 2. cases growing out of a labor dispute. It is the NLRC that issues an injunction. RA no. 8735 and PD 1818 regarding execution or implementation of government infrastructure projects, essential government projects, including arrastre and stevedoring operations against the Presidential Agrarian Reform Council or any of its agencies in any case connected with the application, implementation or enforcement of the CARP. a court may not interfere by injunction with the orders of another court of co-equal rank or decrees of a court with concurrent or coordinate jurisdiction. RTC may not issue injunction against quasi-judicial bodies of equal rank such as the Social Security Commission, and SEC. RTC may not issue injunction against IPO, COMELEC, Workmens Compensation Commission. no court shall have authority to grant an injunction to restrain the collection of any national internal revenue tax, fee or charge imposed by the code. injunction will not lie to restrain a criminal prosecution except: a. to afford protection to the constitutional rights of the accused; 5
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How to dissolve a writ of preliminary injunction or a restraining order The party may file a motion to dissolve the injunction or TRO with notice and hearing of the motion upon showing of affidavits that the person enjoined would suffer irreparable damage while the applicant can be fully compensated for such damages he may suffer. The movant must also file a bond conditioned upon the payment of all damages which the applicant may suffer by the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order is too great, it may be modified.
III. RECEIVERSHIP
Nature The purpose of receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied. The receivership in Rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under the banking laws and other rules or laws.
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Powers of receiver See sec 6 Rule 59. Investment of funds by receiver A receiver may not invest funds without an order from the court and without the written consent of the parties to the action. 6
Replevin cannot be available when the property is in custodia legis or has been seized pursuant to law. How adverse party can seek the return of the property If within 5 days from the taking of the property by the sheriff, the adverse party decides to have the property back, he may require the return thereof by: a. filing with the court where the action is pending a redelivery bond, executed to the applicant, in double value of the property conditioned upon the payment of such sum as may be recovered against the adverse party, and b. by serving a copy of such bond on the applicant. V. Support Pendente Lite Support pendent elite is an amount of support provisionally fixed by the court in favor of the person or persons entitled thereto during the pendency of an action for support. It may be granted in either two instances: 1. action for support; or 2. in a criminal action where civil liability includes support for the offspring provided the civil aspect has not been waived, reserved or instituted prior to its filing. It may be filed at the commencement of the action or at any time prior to the judgment or final order. The application requires a hearing. The adverse party must comply with the order to give support pendente lite, if he does not, an order of execution 7
IV. REPLEVIN
Replevin may be a main action or a provisional remedy. As a principal action, its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. The main action for replevin is primarily possessory in nature and generally determines nothing more than the right of possession. Seeking to have possession of the property prior to the determination of the action is the provisional remedy of replevin and not the main action for replevin. Procedure for the application for replevin 1. a party praying for the provisional remedy of replevin must file an application for a writ of replevin. His application for the writ must be filed at the commencement of the action or at any time before the defendant answers. the application must contain an affidavit where the applicant particularly describes the property that he is the owner of the property or that he is entitled to the possession. the affidavit must state that the property is wrongfully detained by the adverse party, alleging therein the cause of the detention. the affidavit must state that the property has not been distrained or
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I. INTERPLEADER
An interpleader is a SCA filed by a person against whom two conflicting claims are made upon the same subject matter and over which he claims no interest, to compel the claimants to interplead and to litigate their conflicting claims against themselves. 1. Requisites: there must be 2 or more claimants with adverse or conflicting interests to a property in the custody or possession of the plaintiff; the plaintiff in an action for interpleader has no claim upon the subject matter of the adverse claims or if he has an interest at all, such interest is not disputed by the claimants; the subject matter of the adverse claims must be one and the same.
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The enumeration of the subject matter is exclusive. An action not based on any of the enumerated subject matters cannot be the proper subject of declaratory relief. Even if the subject is one enumerated under the Rules, where the contract or statute is clear in its terms and there is no doubt as to its meaning and validity, a petition for declaratory relief is improper. There would be no need for construction or a declaration of rights thereunder. Whether or not the student is to be conferred with Latin honors is not a proper subject of the petition. Court with jurisdiction RTC. It is incapable of pecuniary estimation. It would be an error to file the petition with the SC which has no original jurisdiction to entertain a petition for declaratory relief. Purpose of petition To secure an authorative statement of the rights and obligations of the parties under a contract or a statute for their guidance in the enforcement or compliance with the same. To seek for a judicial interpretation of an instrument of\r for a judicial declaration of a persons rights under a statute and not to ask for affirmative reliefs like injunction, damages or any other relief beyond the purpose of the petition as declared under the rules. It is not brought to settle issues arising from a breach because after the breach of the contract or statute, the petition can no longer be brought.
Reformation of an instrument An action for reformation is not an action brought to reform a contract but to reform the instrument evidencing the contract. The action for reformation presupposes that there is nothing wrong in the contract. The contract is to be reformed because despite the meeting of minds, the instrument which is supposed to embody the agreement of the parties does not reflect their true agreement by reason of mistake, fraud, inequitable conduct or accident. Where the consent of a party has been vitiated, the remedy is not to bring an action for reformation of the instrument but to file an action for annulment of the contract. Reformation of the instrument cannot be brought to reform any of the following: 1. unconditional simple donations inter vivos; 2. wills; or 3. when the agreement is void. Consolidation of ownership Under the law, a contract of sale may be extinguished either by legal redemption or conventional redemption. Where redemption is not made within the period agreed upon, in case the subject matter of the sale is real property, art 1607 of the CC provides that consolidation of ownership in the vendee shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard. The action to consolidate ownership is not for the purpose of consolidating the
III. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND THE COMISSION ON AUDIT
Remedy A party aggrieved by the judgment, final order or resolution of the COMELEC or Commission on Audit may file a petition for certiorari under Rule 65 with the SC. The petition cannot question the findings of fact of the commission involved where such finding are supported by substantial evidence. Such findings when so supported are final and non-reviewable. The petitioner must anchor the petition on jurisdictional grounds since the mode of review is under Rule 65. The period for filing of the petition for certiorari assailing the judgment of the COMELEC and COA is shorter. Under 64,
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Requisites for a petition for certiorari 1. that the petition is directed against a tribunal, board or officer exercising judicial or quasi0judicial functions; that such tribunal, board or officer has 11
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Judicial and quasi-judicial functions A petition for certiorari is directed against a tribunal, borad or officer exercising judicial or quasi-judicial functions. If the board, tribunal or officer dose not exercise either a judicial or quasi-judicial functions. Certiorari will not lie against its acts. A petition for certiorari is availanle against administrative agencies. Jurisdictional Issue A petition for certiorari must be based on jurisdictional grounds because as long as the respondent acted with jurisdiction, any erroe committed by him or it in the exedrcvise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected by appeal. In a petition for certiorari, the SC does not sit as an arbiter of facts. It is not its function to re-examine every appreciation of facts made by the trial and appellate courts unless the evidence on record does not support their findings or the judgment is based on a misappreciation of facts. A petition for certiorari does not include an inquiry as to the correctness of the evaluation of the evidence. Factual issues are not proper subjects of a petition for certiorari.
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10. Where the issue raised is one purely of law or when public interest is involved. The exceptions to the rule in a certiorari proceeding, dispensing with a motion for reconsideration prior to the filing of a MR, do not apply to election cases, where a MR is mandatory to elevate the case to the COMELEC en banc. How to avail of the remedy
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Prohibition vs. Injunction An injunction is directed against a party in an action. Prohibition is directed to the court or tribunal directing it to refrain from performance of acts which it has no jurisdiction to perform. Prohibition distinguished from certiorari 1. A writ of certiorari seeks to annul a judicial or a quasi-judicial act. A writ of prohibition is directly not only to a judicial or a quasi-judicial act but even to a ministerial act. a writ of certiorari is directed to the action of the court which is sought to be annulled. A writ of prohibition is directed to the court itself to restrain it from further proceeding with the case. the purpose of certiorari is to annul or modify the judgment, order,
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Ministerial act or duty For mandamus to lie, the act must not only be ministerial but must also be a duty enjoined by law, a duty which the tribunal or person unlawfully neglects to perform. 15
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Mandamus vs. Quo Warranto Recall that mandamus also is available when one is unlawfully excluded from the use or enjoyment of an office. This is similar to a quo warranto proceeding in this respect although in mandamus, the suit is brought against the person who is responsible for excluding the petitioner from office. The respondent does not have to usurp, intrude into or hold the office. Quo warranto is brought against the holder of the office, who is the person claiming the office as against the petitioner, not necessarily the one who excludes the petitioner.
V. QUO WARRANTO
Nature and purpose Quo warranto literally means by what authority and the object is to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the office. It is commenced by a verified petition against the following: 1. a person who usurps a public office, position or franchise; 2. a public officer who performs an act constituting forfeiture of a public office; or 3. an association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority to do so. The petitioner
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Quo warranto proceedings and election protests The cause of action in the first is based on the eligibility or lack of it of the candidate or his being loyal or disloyal to the Republic. The cause of action in an election protest is the irregularity in the conduct of the elections. Quo warranto against corporations The petition may be brought only against a de facto corporation, not a de jure corporation.
If the petition is brought against a municipal official, the petition for quo warranto
VI Expropriation (67)
Exercise by LGUs 1. Requisites: an ordinance is enacted authorizing the chief executive to exercise the power of eminent domain or pursue expropriation proceedings over a particular property; the power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless;
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Stages 1. 2. determination of the authority of the plaintiff to expropriate its necessity and the public purpose; determination of just compensation through the court-appointed commissioners.
Entry upon the property Under sec. 2 of rule 67, in order to be entitled to the possession of the property subject of the complaint for expropriation, the plaintiff upon the filing of the complaint or at any time thereafter, must deposit with the proper government authority an amount equivalent to the assessed value of the property for purposes of taxation. The deposit shall be n money, unless the court authorizes a deposit in the form of a certificate of deposit of a government bank of the Republic payable on demand to the authorized depository. Appeal from the order of expropriation The final order sustaining the right to expropriate the property may be appealed from by any party aggrieved by such order. The appeal shall not however, prevent the court from determining the just compensation to be paid. This should be taken to mean that despite the appeal from the order of expropriation, the court may proceed to the second stage of the expropriating process, the determination of just compensation. Appeal from the judgment as to compensation The judgment rendered by the court as to the just compensation may be appealed from but the appeal shall not have the effect of delaying the right of the plaintiff to enter upon the property and to
Extra-judicial foreclosure is the mode to be used if there is a special power inserted or attached to the real estate 18
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Prescription does not run in favor of a co-owner or co-heir. The action for partition cannot be barred by prescription as long as the coownership exists. The proceedings had before the commissioners shall not bind the parties or pass title to property until the court shall have accepted the report of the commissioners and rendered judgment thereon.
Accion interdictal The actions of FE and UD belong to the class of actions known by the generic name accion interdictal (ejectment) where the issue is the right of physical or material possession of the subject real property independent of any claim of ownership by the parties involved. Forcible entry, one is deprived of physical possession of real property by means of force, intimidation, strategy, threats, or stealth. Unlawful detainer, one illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied. The jurisdiction of these 2 actions, which are summary in nature, lies in the proper MTC. Both actions must be brought within one year form the date of actual entry on the land, in case of forcible entry, and from the
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Demand to vacate is, however, required when the lease is on a month-tomonth basis to terminate the lease upon the expiration of the month in order to prevent the application of the rule of tacita reconduccion or implied new lease. Tacita reconduccion If at the end of the lease, the lessee continues to enjoy the property leased for 15 days with the consent of the lessor, and no notice to the contrary has been given, it is understood that there is an implied new lease, not for the period in the original contract, but for the time established in articles 1682 and 1687 of the Civil Code. Defense of tenancy A tenancy case falls within the jurisdiction of the Department of Agrarian Reforms Adjudicatory Board (DARAB). Where tenancy is raised as a defense, the court must conduct a preliminary hearing on the matter to determine the allegations of tenancy. If during the hearing, it is shown that tenancy is the real issue, that is when the court shall dismiss the case for lack of 21
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In letter b., the judgment would not bar an action between the same parties respecting title to the land or building. The resolution of the MTC on the ownership of the property is merely provisional or interlocutory. Any question involving the issue of ownership should be raised and resolved in a separate action brought specifically to settle the question with finality. How to obtain possession of the premises during the pendency of the action When the action is filed, the plaintiff in an ejectment case is not tin possession of the property. To obtain possession, the Rules permit the plaintiff to present a motion, within 5 days from the filing of the complaint, for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. This motion shall be resolved within 30 days from its filing. Judgment not binding on ownership If an issue of ownership is raised in an action for FEUD and the court makes a determination of ownership, such
X. CONTEMPT
Contempt of court is the disobedience to the court by acting in opposition to its authority, justice and dignity. Functions 1. 2. vindication of public interest by punishing of contemptuous conduct; and coercion to compel the contemnor to do what the law requires him to uphold the power of the Court, and also the rights of the parties to a suit awarded by the court.
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Direct contempt 1. 2. 3. 4. 5. 6. 7. Acts constituting direct contempt; misbehavior in the presence of or so near the court as to obstruct or interrupt the proceedings before it; disrespect toward the court; offensive personalities towards others; refusal to be sworn as a witness or to answer as a witness; refusal to subscribe an affidavit or deposition when lawfully required to do so; acts of party or counsel which constitute willful and deliberate forum shopping unfounded accusations or allegations or words tending to embarrass the court or to bring it into disrepute.
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No formal proceeding required No formal proceeding is required to cite a person in direct contempt. The court ma summarily adjudge one in direct contempt. Penalty
A mere motion under the present rules is not a mode of initiating indirect contempt.
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SUMMARY PROCEDURE
Civil cases subject to summary procedure 1. 2. FEUD cases; all other claims where the total claim does not exceed P100,000 outside MM, or does not exceed P200,000 in MM, exclusive or interests and costs.
Court where the charge for indirect contempt is filed Depends upon the level of the court against which the contempt was committed. 1. act committed against the RTC or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filer with such court. act committed against a lower court, the charge may be filed with the RTC. It may also be filed in the lower court against which the contempt was allegedly committed. The decision of the lower court is appealable to the RTC. where the act was committed against persons or entities exercising quasijudicial junctions, the charge shall be filed with the RTC of the place wherein the contempt was committed.
Probate proceedings are not covered by the rule on summary procedure even if the gross value of the estate does not exceed P100,000 or P200,000. Basic principles Not all pleadings ni an ordinary civil action are allowed in a summary procedure. 1. 2. 3. 4. The only pleadings allowed are: complaint compulsory counterclaim cross-claims pleaded in the answer answers to the pleading.
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The court in a summary procedure may dismiss the case outright on any of the grounds for the dismissal of a civil action. Should the defendant fail to answer the complaint within a period of 10 days from service of summons, the court may, motu proprio, or on motion of the plaintiff, render judgment (not an order declaring the defendant in default) as may be warranted by the facts alleged and limited to what is prayed for.
Remedy of a person adjudged in indirect contempt The person adjudged in indirect contempt may appeal from the judgment or final order of the court in the same manner as in criminal cases. The appeal will not
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