PROVISIONAL REMEDIES Preliminary Attachment Purpose
When applied/granted
To have property of adverse party attached as security for the satisfaction of judgment that may be recovered in cases falling under Sec 1, Rule 57. At the commencement of the action or at any time prior to the entry of judgment
How applied for File affidavits and applicant’s bond
Who may grant Requisites for granting application
Court where action is pending, the CA or the SC even if action is pending in the lower court. • • • •
Sufficient cause of action Case is covered by section 1 Rule 57 No other sufficient security for the claim exists Amount due to applicant or value of property he is entitled to recover is equal to the sum for which the order of attachment is granted
Preliminary Injunction/Preliminary Mandatory Injunction To require a party or a court, agency or a person to refrain from doing a particular act or acts or to require the performance of a particular act or acts. At any stage prior to the judgment or final order File verified application and applicant’s bond; if application is included in the initiatory pleading, the adverse party should be served with summons together with a copy of the initiatory pleading and the applicant’s bond Only the Court where the action is pending; Lower Court, Ca or SC provided action is pending in the same court which issues the injunction. • Applicant is entitled to the relief demanded • Act/s complained of would work injustice to the applicant if not enjoined • Acts sought to be enjoined probably violates applicants rights respecting the subject of the action or proceeding
Receivership To place the property subject of an action or proceeding under the control of a third party for its preservation and administration litis pendentia At any time prior to satisfaction of judgment
File verified application and applicant’s bond; application may also be included in initiatory pleading in actions for foreclosure of mortgage Court where action is pending, the CA or the SC even if action is pending in the lower court. Appellate court may allow application for receivership be decided by the court of origin. • Applicant has interest in the property or fund subject matter of the action or proceeding • Property or fund is in danger of being lost removed or materially injured • Appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation
Replevin
To recover possession of personal property At the commencement of the action but before answer is filed
Support Pendente Lite To compel adverse party to provide support while action is pending in court At the commencement of the action or at any time prior to the judgment or final order File verified application; bond not required
File affidavits and applicant’s bond
Only in the court where action is pending •
• •
Applicant is the owner of the property claimed or is entitled to the possession of the same Property is wrongfully detained by the adverse party Property is not distrained or taken for a tax assessment or a fine pursuant to law
Court of origin and appellate court. (See Ramos v. CA) • Affidavits, depositions or other documents should show, at least provisionally, that the applicant is entitled to receive support
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Preliminary Attachment Where property is claimed by third person
Bond requirement
Preliminary Injunction/Preliminary Mandatory Injunction
Receivership
Replevin
When third-party claimant makes an affidavit of his title to the property or his right to the possession thereof, and serves such affidavit to the sheriff and a copy thereof to the attaching party, the sheriff shall not be bound to keep the property under replevin unless the applicant files a bond approved by the court to indemnify the third-party claimant in a sum not less than double the value of the property levied upon. Claim for damages for the taking or keeping the property must be filed within 120 days from filing of the bond. Bond executed to the adverse party in double the value of Bond executed to the adverse party in the amount fixed by the court to cover the costs which may be adjudged to the property for the return of the adverse party and all damages which he may sustain by reason of the granting of provisional remedy prayed for, the property to the adverse if the court shall finally adjudge that the applicant was not entitled thereto party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant of the action By counter-bond: Party against whom the provisional remedy is availed of, may move for the discharge of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the court or equal to the value of the property if with respect to a particular property to secure the payment of any judgment that the adverse party may recover in the action
Support Pendente Lite
When third-party claimant makes an affidavit of his title to the property or his right to the possession thereof, and serves such affidavit to the sheriff and a copy thereof to the attaching party, the sheriff shall not be bound to keep the property unless the attaching party files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. Claim for damages for the taking or keeping the property must be filed within 120 days from filing of the bond.
No bond required
Not applicable. Discharge of remedy
Cash deposit may be made in lieu of the counter-bond
Filing of counter-bond made only upon showing that the issuance or continuance thereof would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer ; counterbond alone will not suffice to discharge the injunction.
Amount of counter-bond should also be double the value of the property
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Preliminary Attachment Other grounds: improper or irregular issuance or enforcement or insufficiency of the bond Damages in case applicant for any of the provisional remedies not entitled thereto or for any irregularity in the procurement of provisional remedy
• • •
Preliminary Injunction/Preliminary Mandatory Injunction Insufficiency of the application
Receivership
Replevin
Support Pendente Lite
Appointment was obtained without sufficient cause
Owner of property attached must file before trial or before perfection of appeal application for damages Party who availed of provisional remedy and his surety or sureties must be notified , showing right to damages and amount thereof Damages awarded only after proper hearing; included in judgment of the main case
When judgment or final order finds the person who has been providing support pendente lite not liable therefor: •
If judgment of appellate court is favorable to the party against whom provisional remedy was effected: • •
Application must be filed with the appellate court before the judgment of the appellate court becomes executory Appellate court may allow application to be heard and decided by the trial court •
If bond or deposit given by the party availing of the provisional remedy be insufficient or fail to satisfy the award: •
Adverse party may recover damages in the same action
•
Interpleader
Declaratory Relief
Certiorari (COMELEC and COA)
Certiorari Prohibition Mandamus
Quo Warranto
Expropriation
Foreclosure of Real Estate Mortgage
Partition
Court shall order the recipient to return the amounts already received with interest from the dates of actual payment Recipient may obtain reimbursement from the person legally obliged to give support (separate action must be filed for the purpose) If recipient fails to reimburse the amount, person who provided the same may seek reimbursement from the person legally obliged to give the support (separate action must be filed for the purpose)
Forcible Entry
Detainer
Contempt
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Purpose
Requisites
Compel conflicting claimants to litigate their claims among themselves
Declaration of rights and duties (reformation of instrument, quieting of title, consolidation of ownership)
Conflicting claims exist upon the same subject matter
Person has interest under a deed, will, contract or other written instrument
Such claims are made upon a person who claims no interest in the subject matter
Person’s rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation No breach or violation of the rights has yet occurred
Correcting errors of jurisdiction
Judgment or final order has been rendered by the COMELEC or the COA Aggrieved party wants the judgment or final order reviewed by a higher court
Certiorari: Any tribunal, board or officer exercising judicial or quasi judicial functions has rendered judgment Such tribunal, etc. has acted without or in excess of its jurisdiction Prohibition: Proceedings in a tribunal, corporation, board, officer or person exercising judicial, quasi judicial or ministerial functions are conducted without or in excess of its jurisdiction Mandamus: When any tribunal, corporation, board, officer or person unlawfully neglects performance of an act which the law specifically enjoins Common requisite: There is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law
Taking of private property for public use
Satisfy creditor based upon security
A person usurps, intrudes into, or unlawfully holds or exercises office, position, or franchise
Property owned by a private party
A person owes another a loan
Taking by government for public use
Loan is secured by mortgage of real property
A public officer does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office;
Just compensation
Remove a usurper
An association acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act
Debtor defaulted in payment Final demand has been made
Division of real property among the parties claiming rights thereto Real property is owned by several persons Person claiming right to the property does not want coownership to continue
Recover possession in fact
A person enjoys lawful possession of the property Another person acquires possession of the same property by force, intimidation, threat, strategy or stealth
A person lawfully takes possession of the land at the beginning Such lawful possession has ended A demand to vacate has been made
Protect judicial system from unwarranted intrusion Direct contempt: A person behaved improperly in the presence or so near a court Such misbehavior obstructed or interrupted court proceedings Indirect contempt: Misbehavior in performance of official functions Disobedience to lawful court orders Abuse or unlawful interference with court processes Improper conduct which tends to impede administratio n of justice Pretending to be a lawyer or officer Failure to obey subpoena
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Procedure
1. Complaint is filed 2. Summons served upon parties 3. Parties files motion to dismiss or answers the complaint 4. Pre-trial 5. Court determines parties’ respective rights and adjudicate their several claims Note: Docket fees paid by complainant constitute a lien upon subject matter of the action
1. Action is brought before appropriate RTC 2. All persons affected made parties 3. Notice to Sol Gen if validity of a statue, executive order or regulation of any other governmental regulation is involved 4. Notice to prosecutor or attorney of LGU if involving validity of a local ordinance 5. Court acts on application 6. If during pendency of action there occurs breach or violation, action is converted into an ordinary action
1. 18 copies of verified petition shall be filed within 30 days from notice of the judgment or final order 2. If motion for new trial or recon-sideration is allowed, period to file petition is interrupted. If motion is denied, petition shall be filed within remaining period, in no case less than 5 days. 3. Pay docket and other lawful fees and deposit of P500 for costs 4. SC either orders respon-dents to file their comment if it finds petition sufficient in form and substance or dismisses the petition if it was filed manifestly for delay or the questions raised are too unsubstantial 5. Respondents file comment 6. SC either sets case for oral argument or requires submission of memoranda or decides the case based on submit-ted documents
1. Petition must be filed within 60 days from notice of judgment 2. Court orders respondents to file comment within 10 days from receipt of order 3. Court may order filing of reply or other responsive pleadings 4. Court may hear the case or require parties to submit memoranda 5. Court either grants petition or dismisses the same if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised are too insubstantial to require consideration 6. Certified copy of judgment is served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person and disobedience thereto shall be punished as contempt.
1. Verified petition in the name of the RP is filed (Person claiming to be entitled to a public office or position usurped by another may bring action in his own name)
1. Verified complaint filed, stating right and purpose of expropriation
2. Person at whose instance the petition is brought pays costs and expenses
3. Plaintiff may enter property after filing complaint and depositing with a government depositary amount equivalent to assessed value of property
3. Respondent is notified 4. Court may reduce periods for filing pleadings to secure most expeditious determination of matters involved in the action 5. Judgment is rendered. Court may render judgment for costs against petitioner, relator or person/s claiming to be a corporation 6. Person adjudged entitled to public office may demand of the respondent to deliver all books and papers to him
2. Persons owning or claiming to own any interest pertaining to the property must be joined as defendants
4. Defendants allowed to file objections 5. Court rules on the issue of expropriation, granting or denying the same
1. Complaint filed 2. Court ascertaines amount due to plaintiff and renders judgment ordering defendant to pay within a within a period not less than 90 days but not more than 120 days 3. If defendant fails to pay, foreclosure sale ensues 4. Costs deducted from proceeds of sale, mortgagee paid amount due; if there is excess in the proceeds, same is turned over to mortgagor
6. If expropriation is 5. If proceeds of sale granted, court appoints not is not sufficient to more than 3 commissioners cover entire indebtedness, 7. Objections to deficiency judgment appointment of is rendered: commissioners may be execution filed within ten days from immediately issues if service whole debt is due, otherwise, mortagor 8. Commissioners take oath entitled to execution before assuming function upon original terms of the contract 9. Commissioners ascertain and report the just 6. Certified copy of compensation for the final order property confirming the sale is registered in the 10. Clerk of court serves registry of deeds copies of commissioners’ report to all interested parties 11. Interested parties allowed to file objections within ten days 12. Court renders judgment on the issue of just compensation 13. Judgment is recorded in registry of property
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Jurisdiction
RTC
RTC
SC
SC, CA, RTC, Sandiganbayan
SC, CA, RTC
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