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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
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.
By Nikko G. Lagmay
San Sebastian Law
2.
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San Sebastian Law
4.
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San Sebastian Law
4.
3.
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San Sebastian Law
2.
3.
Examples in which
injunction/preliminary injunction will
not be issued
1.
2.
3.
4.
5.
6.
7.
By Nikko G. Lagmay
San Sebastian Law
8.
c.
d.
e.
3.
III. RECEIVERSHIP
4.
Nature
5.
By Nikko G. Lagmay
San Sebastian Law
6.
7.
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.
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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.
2.
3.
4.
By Nikko G. Lagmay
San Sebastian Law
5.
6.
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.
2.
3.
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.
By Nikko G. Lagmay
San Sebastian Law
By Nikko G. Lagmay
San Sebastian Law
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
ownership of the property in the person of
By Nikko G. Lagmay
San Sebastian Law
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IV CERTIORARI, PROHIBITION
AND MANDAMUS (65)
A. CERTIORARI
Certiorari is an extraordinary
remedy available only when there
is no appeal, nor any plain, speedy or
adequate remedy in the ordinary course of
law.
Purpose and function of certiorari
A petition for certiorari under Rule
65 is intended to rectify errors of
jurisdiction but not errors of judgment.
Only jurisdictional questions may
be raised including matters of grave abuse
of discretion which are equivalent to lack of
jurisdiction.
It is designed to correct errors of
jurisdiction.
The function of a writ of certiorari
is to keep inferior courts within the bounds
of their jurisdictions or to prevent them
from committing such a grave abuse of
discretion amounting to excess of
jurisdiction.
2.
3.
4.
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San Sebastian Law
1.
2.
4.
5.
6.
Jurisdictional Issue
By Nikko G. Lagmay
San Sebastian Law
Excess of jurisdiction
There is excess of jurisdiction
where the respondent, having clothed with
the power to determine the case, oversteps
his authority as determined by law.
Necessity for a motion for
reconsideration
The filing of a motion for
reconsideration is a condition sine qua non
to the filing of a petition for certiorari
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1.
2.
3.
4.
5.
6.
7.
8.
9.
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San Sebastian Law
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Order to comment
If the petition is sufficient in form
and substance to justify such process, the
court shall issue an order requiring the
respondents to comment on the petition
within 10 days from receipt of a copy
thereof.
In petitions for certiorari before the
SC and the CA, the respondent may also be
required to file a comment to the petition
and not a motion to dismiss.
Thereafter, the court may require the
filing of a reply and such other responsive or
other pleadings as it may deem necessary
and proper.
Proceedings after comment; Relief
After the comment or other pleadings
are filed, the court may hear the case or
require the parties to submit memoranda.
If after such hearing or submission of
memoranda, the court finds the allegations
of the petition are true, it shall render
judgment for the relief prayed for or to which
the petitioner is entitled.
The relief means that the judgment,
order or resolution subject of the petition is
annulled or modified.
If the court finds the petition to be
patently without merit, prosecuted
manifestly for delay, or that the questions
raised therein are too unsubstantial to
By Nikko G. Lagmay
San Sebastian Law
B. PROHIBITION
Prohibition is an extraordinary writ
commanding a tribunal, corporation, board
or person, whether exercising function that
are judicial, quasi-judicial or ministerial to
desist from further proceedings when said
proceedings are without or in excess of its
jurisdiction, or with grave abuse of its
discretion, there being no appeal or any
other plain, speedy and adequate remedy
in the ordinary course of law.
The purpose of prohibition is to
secure an order to command the
respondent tribunal, board or corporation
or officer to desist from further
proceedings in the action.
Stated in another way, the purpose
of prohibition is to prevent an
encroachment, excess usurpation or
assumption of jurisdiction on the part of
the tribunal, corporation, board or officer.
It bears in stressing that an action
for prohibition or certiorari, for that matter,
does not divest the inferior or trial court of
its jurisdiction validly acquired over the
case pending before it; it is merely an
invocation for the exercise of its
supervisory power over the lower court to
insure that the lower court acts within its
jurisdiction.
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B. MANDAMUS
Requisites
a.
b.
c.
d.
2.
3.
2.
3.
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San Sebastian Law
4.
5.
d.
V. QUO WARRANTO
c.
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San Sebastian Law
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1.
2.
3.
4.
http://www.yo
utube.com/watc
h?v=IbOSxHLY7c must be brought in
VI Expropriation (67)
Exercise by LGUs
1.
2.
3.
Quo warranto in an elective office
against quo warranto in appointive
office distinguished
By Nikko G. Lagmay
San Sebastian Law
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;
thee is payment of just
compensation, as required under
the Constitution and other
pertinent laws;
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Stages
1.
2.
By Nikko G. Lagmay
San Sebastian Law
Just compensation
Sec. 4 of Rule 67 provides that the
just compensation shall be determined as
of the date of the taking of the property or
the filing of the complaint, whichever came
first.
Nonpayment of just compensation;
effect
Non payment of just compensation
does not entitle the private landowner to
recover possession of the expropriated
lots.
However in cases where the
government failed to pay just
compensation within 5 years from the
finality of judgment in the expropriation
proceedings, the owners concerned shall
have the right to recover possession of
their property.
Title to the property expropriated
passes from the owner to the expropriator
only upon full payment of just
compensation.
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Procedure
1.
2.
Equity of redemption
It is the right to extinguish the
mortgage and retain ownership of the
property by paying the debt.
The equity of redemption may be
exercised even after the foreclosure sale
provided it is made before the sale is
confirmed by order of the court.
The equity of redemption of the
mortgagor may be exercised prior to the
confirmation of the sale. After its
confirmation no further redemption may be
made.
Right of redemption
It is a right granted to a mortgagor
to repurchase the property even after the
confirmation of the sale and even after the
registration of the certificate of sale.
There is no right of redemption in a
judicial foreclosure of mortgage under Rule
68. This exists only in extrajudicial
foreclosures where there is always a right of
redemption within one year from the date of
sale, but interpreted by the Court to mean
one year from the registration of the sale.
Deficiency judgment
If there be a balance due to the
plaintiff after applying the proceeds of the
sale, the court, upon motion shall render
judgment against the defendant for any such
balance.
No independent action need be filed
to recover the deficiency from the mortgagor.
The deficiency judgment shall be rendered
upon motion of the mortgagee.
By Nikko G. Lagmay
San Sebastian Law
3.
4.
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accion interdictal;
accion publiciana;
accion revindicatoria
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
date of last demand, in case of unlawful
detainer.
The issue in said cases is the right to
physical possession.
By Nikko G. Lagmay
San Sebastian Law
It may be oral.
By Nikko G. Lagmay
San Sebastian Law
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b.
By Nikko G. Lagmay
San Sebastian Law
X. CONTEMPT
Contempt of court is the
disobedience to the court by acting in
opposition to its authority, justice and
dignity.
Functions
1.
2.
Kinds of contempt
According to nature:
Criminal contempt is conduct
directed against the authority and dignity
of the court or a judge acting judicially; it
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2.
Direct contempt
1.
2.
3.
4.
5.
6.
7.
c.
disobedience or resistance to a
lawful writ, process, order or
judgment of a court;
any abuse of or any unlawful
interference with the process or
proceedings of a court not
constituting direct contempt;
any improper conduct tending
directly, or indirectly, to impede,
obstruct or degrade the
administration of justice.
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San Sebastian Law
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2.
3.
By Nikko G. Lagmay
San Sebastian Law
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.
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By Nikko G. Lagmay
San Sebastian Law
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