RECOLETOS LAW CENTER

University of San Jose-Recoletos

Magallanes St., Cebu City

PROVISIONAL REMEDIES
Judge Eleuterio L. Bathan

Objectives:
-must pass the bar - - - in answering problems in the bar, always take into
consideration:

- jurisdiction.

- pleadings (how and through what, by means of what?)

- remedies available (include pre-judgment, post judgment,

provisional) and appeals.

- periods (when to avail) and procedures.

-must develop skills on how to solve and answer bar problems – issue
spotting.

There are three (3) major role players in a particular case: namely, the
plaintiff in a civil case, People in a criminal case; the defendant in a civil case,
accused in a criminal case; and the trial court, or the next level court or courts.

How to intelligently spot the issue asks of by the examiner?

In a very simple incident: against a final order in an ejectment case, defendant

in the MTC filed a motion for reconsideration addressing the notice of hearing
of the MR to the clerk of court of the MTC, and the trial court entertained the
MR.

If the question is: is the defendant correct in filing the MR? the answer in not,
because the defendant failed to observe the rules on prohibited pleadings, but
if the question is: is the trial court correct in entertaining the MR, the answer
would be. NO, because, under the Rules on Summary Procedure, MR is
prohibited pleading. The fact that the MR is addressed to the clerk of court
is of no moment, because treating the MR as a mere scrap of paper does not
matter as even if the motion is addressed to the opposing party, still the trial
court should not entertain the MR, it being a prohibited pleading.

The technique is: apply the duty-principle on the part of the plaintiff, by
answering at the back of mind: Did the plaintiff properly apply and observe
the correct rules and/or procedure? Did the defendant properly apply and
observe the correct rules and/or procedure? Did the trial court/ or the next
level court/s properly apply and observe the correct rules and/or procedure in
treating the case or incident? It’s very easy to answer questions the bar,
particularly remedial law. As they called, the easiest subject among the easy
one. So, there you are.

The next objective:

-must be “practice-ready”

-must have good Christian values

PREPARATORY TO COMPLAINT:
What are the basic things to consider in preparing a complaint: (1)
cause of action [distinction between lack of cause of action vs. failure to
state a cause of action]; (2) parties to the case [indispensable, necessary,
nominal, as the case may be]; (3) nature of the action [action capable of
pecuniary estimation, real action or action incapable of pecuniary estimation];
(4) jurisdiction; (5) applicable rules of procedure; (6) venue of the
action; (7) condition precedent, if any; ancillary (or provisional) remedy, if
any. Be careful about these matters, because disregarding those at the early
stage of preparing a complaint might result in the dismissal of the case motu
proprio, or by motion allowed by Rule 16 of the Rules of Court.

What are the types of ancillary remedies?: The following are: (1)
Preliminary Attachment under Rule 57; (2) Preliminary Injunction under Rule
58; (3) Receivership under Rule 59; (4) Replevin under Rule 60; and (5)
Support Pendente Lite under Rule 61

Why should ancillary remedies be considered at the early stage of

preparing a complaint?: It is because provisional remedy/ies is/are
available at the vary start of the action (at the commencement of the action
(it is the knowing factor as to when to avail the remedy applicable):

For example, in sum of money or collection cases, defendant is disposing

of his properties to defraud his creditor, the plaintiff. Here, plaintiff, at the
very start of the action should consider ancillary remedy of PA, why?, because
granting for argument’s sake, plaintiff prevailed in the suit, he can no longer
enjoy the fruits of the end-result of his litigation, because there is no more
property that a sheriff can execute to satisfy the judgment—thus, by plaintiff’s
inaction, he is defeating the very purpose of his action.

NOTE: The phrase, “at the commencement of the action”' obviously refers to
the date of the filing of the complaint — which is the date that marks “the
commencement of the action” (Davao Light and Power, Co., Inc. vs. CA,
G.R. No. 93262, November 29, 1991 [204 SCRA 343]).

1. Preliminary Attachment under Rule 57 can be availed of at the very

start of the action (at the commencement of the action) or at any time
before entry of judgment (R57 S1).

2. Preliminary Injunction under Rule 58 is available at any stage of an

action or proceeding prior to the final judgment or final order (R58 S1). This
means that this provisional remedy can be availed of at the very start of the
action (at the commencement of the action).

3. Receivership under Rule 59 is available during the pendency of the

action, and even after judgment during the pendency of the appeal. This
means that this provisional remedy can be availed of at the very start of the
action (at the commencement of the action), because once the case is
filed, it commences the life cycle of the case.

4. Replevin under Rule 60 is available at the commencement of the action

or at any time before answer (R60 S1).

5. Support Pendente Lite under Rule 61 is available at the commencement

of the proper action or proceeding, or at any time prior to the judgment or
final order (R61 S1).

Again, the phrase, “at the commencement of the action”, according to Davao
Light and Power, Co., Inc. vs. CA, obviously refers to the date of the filing
of the complaint — which, as previously mentioned, is the date that marks
“the commencement of the action” (G.R. No. 93262, November 29, 1991
[204 SCRA 343]).
Can the plaintiff go directly or immediately file his complaint even
without passing through the barangay conciliation proceedings or
earnest effort between family members?

Yes, because barangay conciliation is not necessary in actions coupled with

provisional remedies such as preliminary injunction, attachment, delivery of
personal property and support pendente lite.

CASE: Blardony, Jr. vs. Judge Coscolluela, Jr., G.R. No. 70261,
February 28, 1990

Facts:

Plaintiff filed an action with ancillary remedy of support pendente lite without
passing through barangay conciliation proceedings. Petition for certiorari
against the trial judge was filed because he denied defendant’s motion to
dismiss based on that ground.

Ruling:

 Certiorari was dismissed.

 No GAD.
 The complaint may be filed directly in a competent court without passing
the Lupon Tagapayapa conciliation proceedings, It is because Section
412 (b)(3) of RA 7160 allows the parties to go directly to court if
action is coupled with provisional remedies, such as preliminary
injunction, attachment, delivery of personal property and
support pendent lite.
 True that referral of a case to the Lupon Tagapayapa is a condition
precedent for filing a complaint in court, however, it is not a
jurisdictional requirement, “its non-compliance cannot affect the
jurisdiction which the court has already acquired over the subject
matter, or over the person of the defendant (Fernandez vs. Militante,
151 SCRA 287; Royales vs. IAC, 127 SCRA 470).

NOTE: The importance of knowing this, is to refer first the matter to

the lupon or to dispense with the referral of the matter to the lupon
tagapamayapa.

PRELIMINARY ATTACHMENT
PA in Criminal Cases:

PROBLEM: Pedro issued favor of Mario a dated BPI check as payment of the
his pre-existing obligation. It bounced when presented for payment for reason
of account closed. Pedro is charged of BP 22 case and estafa for issuing a
bounced check. Can Mario ask for ancillary remedy of WPI? No, in BP 22, but
yes, in Estafa.

PA Available Also in Criminal Cases

Is PA Available Also in Criminal Cases?: Yes.

Note also that ancillary remedy of PA is also available in criminal cases, thus:

The provisional remedies in civil actions, insofar as they are applicable, may
be availed of in connection with the civil action deemed instituted with the
criminal action (Section 1, Rule 127, Revised Criminal Procedure,
Provisional Remedies in Criminal Cases).

When the civil action is properly instituted in the criminal action as provided
in Rule 111, the offended party may have the property of the accused attached
as security for the satisfaction of any judgment that may be recovered from
the accused in the following cases:

(a) When the accused is about to abscond from the Philippines;

(b) When the criminal action is based on a claim for money or property
embezzled or fraudulently misapplied or converted to the use of the accused
who is a public officer, officer of a corporation, attorney, 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;

(c) When the accused has concealed, removed, or disposed of his property,
or is about to do so; and

d) When the accused resides outside the Philippines (Section 2, Rule 127,
Revised Criminal Procedure, Provisional Remedies in Criminal Cases).

The procedure laid down in Rule 58 of the 1997 Revised Rules of Civil
Procedure should be observed if a party wants to avail provisional remedy of
PA in a criminal case. As to the time when it is available, it is available at any
time from the commencement of the criminal action, even during the
pendency of the case, but before judgment, but if civil nature of the case is
not included in the criminal case, meaning, there is a separate civil case filed,
or the institution of the civil case is reserved, as the case may be, PA is not
available, because PA has something to do with civil character of the criminal
case.

PA in Civil Cases:

DUTY OF THE COURT:

What is the duty of the trial court if the filed complaint is with
application for issuance of a writ of PA?

Upon filing of the complaint and after determining whether the court has
jurisdiction over the action, the court shall hear the application for issuance of
preliminary attachment. The hearing may either be: (1) ex parte, or; (2)
adversarial. It is adversarial if the application is done by the plaintiff or any
proper party through a motion with notice and hearing addressed to the
defendant.

A question was raised arguing that the trial court had not yet acquired
jurisdiction over the person of the defendant when the trial court
issued ex parte a writ of PA and served on the defendant
simultaneously with the summons, thus, according to the defendant,
his right to the constitutionally guaranteed due process was violated.

No violation of due process. Davao Light and Power, Co., Inc. vs. CA, 204
SCRA 343, laid down the rules on the issuance of writs of attachment ex-
parte:

According to Davao Light and Power case, a preliminary attachment as the

provisional remedy in virtue of which a plaintiff or other proper party may, at
the commencement of the action or at any time thereafter, have the property
of the adverse party taken into the custody of the court as security for the
satisfaction of any judgment that may be recovered. It is a remedy which is
purely statutory in respect of which the law requires a strict construction of
the provisions granting it. Withal no principle, statutory or jurisprudential,
prohibits its issuance by any court before acquisition of jurisdiction over the
person of the defendant.

Rule 57 in fact speaks of the grant of the remedy “at the commencement of
the action or at any time thereafter.” The phrase, “at the commencement of
the action,” obviously refers to the date of the filing of the complaint — which,
as above pointed out, is the date that marks “the commencement of the
action;” and the reference plainly is to a time before summons is served on
the defendant, or even before summons issues. ....
What the rule is saying quite clearly is that after an action is properly
commenced — by the filing of the complaint and the payment of all requisite
docket and other fees — the plaintiff may apply for and obtain a writ of
preliminary attachment upon fulfilment of the pertinent requisites laid down
by law, and that he may do so at any time, either before or after service of
summons on the defendant. And this indeed, has been the immemorial
practice sanctioned by the courts:.. for the plaintiff or other proper party to
incorporate the application for attachment in the complaint and for the trial
court to issue the writ ex-parte at the commencement of the action if it finds
the application otherwise sufficient in form and substance.

The only pre-requisite is that the Court be satisfied, upon consideration of

'the affidavit of the applicant or of some other person who personally knows
the facts, that a sufficient cause of action exists, that the case is one of those
mentioned in Section 1 of Rule 57, that there is no other sufficient security for
the claim sought to be enforced by the action, and that the amount due to the
applicant, or the value of the property the possession of which he is entitled
to recover, is as much as the sum for which the order (of attachment) is
granted above all legal counterclaims. If the court be so satisfied, the order of
attachment shall be granted, and the writ shall issue upon the applicant's
posting of a bond executed to the adverse party in an amount to be fixed by
the judge, not exceeding the plaintiff's claim, conditioned that the latter will
pay all the costs which may be adjudged to the adverse party and all damages
which he may sustain by reason of the attachment, if the court shall finally
adjudge that the applicant was not entitled thereto (Phil-Air Conditioning
Center vs. RCJ Lines, G.R. No. 193821, November 23, 2015).

(Note however, that there are judges that do not conduct ex-parte hearing.
They just judiciously rely on the propriety of the complaint, application and
the attachments, and resolved the application).

Consider the function of JA.

NATURE:

What is the nature of PA?:

PA is an ancillary remedy. It is adjunct to the main action. This is not an action

itself, but provisional one. This cannot exist without a main action. This cannot
be independent without a main action, thus dependent of the main case.
Meaning, there must be a main case filed in court. (if for example, defendant
is disposing of all his properties with a clear intention of defrauding the
plaintiff, plaintiff has no right to attach defendant’s property by reason of
unjust disposing of all his property just to defraud plaintiff, because, PA cannot
stand alone without a main action, may sum of money or collection suit, as
the case may be.

A writ of preliminary attachment is a provisional remedy issued upon the order

of the court where an action is pending. Through the writ, the property or
properties of the defendant may be levied upon and held thereafter by the
sheriff as security for the satisfaction of whatever judgment might be secured
by the attaching creditor against the defendant. The provisional remedy of
attachment is available in order that the defendant may not dispose of the
property attached, and thus prevent the satisfaction of any judgment that may
be secured by the plaintiff from the former (Republic vs. Mega Pacific
eSolutions, Inc., G.R. No. 184666, June 27, 2016).

PURPOSES:

Why to avail remedy of PA? what are the purposes of attachment?

(1) is in order that the defendant may not dispose of the property
attached; and

(2) for purposes of Section 1(f), Rule 57: “In an action against a party who
does not reside and is not found in the Philippines, or on whom summons may
be served by publication.”, for the trial court to acquire jurisdiction
against a party who resides out of the Philippines, or to whom
summons may be served by publication.

In PCIB vs. Alejandro, G.R. No. 175587, September 21, 2007 citing
Herrera, Remedial Law, Vol. III, pp. 2 and 8; Regalado, Remedial Law
Compendium, Vol. I, Ninth Revised Edition, p. 678, the High Court gave
emphasis as to the purposes of preliminary attachment:
(1) to seize the property of the debtor in advance of final judgment and to
hold it for purposes of satisfying said judgment, as in the grounds stated in
paragraphs (a) to (e) of Section 1, Rule 57 of the Rules of Court; or

(2) to acquire jurisdiction over the action by actual or constructive seizure of

the property in those instances where personal or substituted service of
summons on the defendant cannot be effected, as in paragraph (f) of the same
provision.

As to second purpose of preliminary attachment, that is, to acquire jurisdiction

against a party who resides out of the Philippines, or to whom summons may
be served by publication. Let us consider this first before going to the first
one.

Section 15 of Rule 14, 1997 Revised Rules of Civil Procedure provides

that “When the defendant does not reside and is not found in the Philippines,
and the action affects the personal status of the plaintiff or relates to, or the
subject of which is, property within the Philippines, in which the defendant has
or claims a lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the defendant from any
interest therein, or the property of the defendant has been attached within
the Philippines, service may, by leave of court, be effected out of the
Philippines by personal service as under section 6; or by publication in a
newspaper of general circulation in such places and for such time as the court
may order, in which case a copy of the summons and order of the court shall
be sent by registered mail to the last known address of the defendant, or in
any other manner the court may deem sufficient. Any order granting such
leave shall specify a reasonable time, which shall not be less than sixty (60)
days after notice, within which the defendant must answer.

Also, Section 16 of Rule 14, 1997 Revised Rules of Civil Procedure

provides that “When an action is commenced against a defendant who
ordinarily resides within the Philippines, but who is temporarily out of it,
service may, by leave of court, be also effected out of the Philippines, as under
the preceding section.”
So, as a rule, summons in an action in personam may be served only via
personal and substituted service. If a defendant does not reside and is not
found in the Philippines, and the action is in personam, the remedy is to
convert that action into quasi in rem or in rem, that is, by resorting to the
remedy allowed by Section 1(f), Rule 57 of the 1997 Revised Rules of Civil
Procedure for purposes of acquiring jurisdiction over the person of that
defendant.
According to PCIB vs. Alejandro, G.R. No. 175587, September 21, 2007
citing Sahagun vs. CA, G.R. No. 78328, June 3, 1991, in order for the
court to acquire jurisdiction in actions in personam, it becomes a matter of
course for the court to convert the action into a proceeding in rem or
quasi in rem by attaching the defendant’s property. The service of
summons in this case (which may be by publication coupled with the sending
by registered mail of the copy of the summons and the court order to the last
known address of the defendant), is no longer necessary for the purpose of
acquiring jurisdiction, but for compliance with the requirements of due
process (Sahagun vs. CA, G.R. No. 78328, June 3, 1991 cited in PCIB vs.
Alejandro, G.R. No. 175587, September 21, 2007).
Take note that of Pascual vs. Pascual ruling (G.R. No. 171916,
December 4, 2009) that if the action is in personam and the defendant is
in the Philippines, the service of summons may be done by personal or
substituted service, no more no less.
But, what if the defendant is a resident of the Philippines who is temporarily
out of the Philippines, attachment of his/her property in an action in
personam, is not always necessary in order for the court to acquire jurisdiction
to hear the case, because the service of summons may be made through
substituted service of summons following the ruling in Palma vs. Judge
Galvez (G.R. No. 165273, March 10, 2010), or effected through
extraterritorial service under Section 15, Rule 14 of the 1997 Revised Rules,
but it is But it is always worthy to remember Montefalcon vs. Vasquez (G.R.
No. 165016, June 17, 2008), that interpreted the word “may” used in
Section 16, Rule 14, 1997 Revised Rules of Civil Procedure as “not
mandatory.”

The extrajudicial service of summons applies only where the action is in rem,
that is, an action against the thing itself instead of against the person, or in
an action quasi in rem, where an individual is named as defendant and the
purpose of proceeding is to subject his interest therein to the obligation or
loan burdening the property. The rationale for this is that jurisdiction over the
person of the defendant is not a prerequisite to confer jurisdiction on the court
provided that the court acquires jurisdiction over the res (Asiavest Limited
vs. CA, 357 Phil. 536, 554 and Valmonte vs. CA, 322 Phil. 96 cited in
Velayo-Fong vs. Velayo, G.R. No. 155488 December 6, 2006).

In Palma vs. Galvez, defendant is doctor of medicine, a resident of the

Philippines, but because she attended a seminar abroad, the summons was
served to her husband. The service of summons was challenged via motion to
dismiss arguing that the trial court failed to acquire jurisdiction over her
person as the summons was not served upon her, but to her husband. The
RTC granted the motion to dismiss ruling that while the summons was served
at defendant’s house and received by defendant’s husband, such service did
not qualify as a valid service of summons on her as she was out of the country
at the time the summons was served, thus, she was not personally served a
summons; and even granting that she knew that a complaint was filed against
her, nevertheless, the court did not acquire jurisdiction over her person as she
was not validly served with summons; that substituted service could not be
resorted to since it was established that the defendant was out of the country,
thus, summons should be served via publication pursuant to Section 16, Rule
14. Plaintiff directed the legal question to the SC.
SC: Service of summons may be made only by publication as ruled by the RTC
is wrong.

Used of words “may” and “also” in Section 16 of Rule 14 is not mandatory.

Other methods of service of summons allowed under the Rules may also be
availed of by the serving officer on a defendant-resident who is temporarily
out of the Philippines. Thus, if a resident defendant is temporarily out of the
country, any of the following modes of service may be resorted to: (1)
substituted service set forth in section 7, Rule 14; (2) personal service outside
the country, with leave of court; (3) service by publication, also with leave of
court; or (4) in any other manner the court may deem sufficient.

The SC, citing Montalban vs. Maximo, 22 SCRA 1070, substituted service
of summons under the present Section 7, Rule 14 of the Rules of Court in a
suit in personam against residents of the Philippines temporarily absent
therefrom is the normal method of service of summons that will confer
jurisdiction on the court over such defendant. SC explained that x x x a man
temporarily absent from this country leaves a definite place of residence, a
dwelling where he lives, a local base, so to speak, to which any inquiry about
him may be directed and where he is bound to return. Where one temporarily
absents himself, he leaves his affairs in the hands of one who may be
reasonably expected to act in his place and stead; to do all that is necessary
to protect his interests; and to communicate with him from time to time any
incident of importance that may affect him or his business or his affairs. It is
usual for such a man to leave at his home or with his business associates
information as to where he may be contacted in the event a question that
affects him crops up. If he does not do what is expected of him, and a case
comes up in court against him, he cannot just raise his voice and say that he
is not subject to the processes of our courts. He cannot stop a suit from being
filed against him upon a claim that he cannot be summoned at his dwelling
house or residence or his office or regular place of business.

SC said: Not that he cannot be reached within a reasonable time to enable

him to contest a suit against him. There are now advanced facilities of
communication. Long distance telephone calls and cablegrams make it easy
for one he left behind to communicate with him. (nowadays, FB, viber,
Instagram, messenger, twitter).

Considering that private respondent was temporarily out of the country, the
summons and complaint

Section 7 also designates the persons with whom copies of the process may
be left. The rule presupposes that such a relation of confidence exists between
the person with whom the copy is left and the defendant and, therefore,
assumes that such person will deliver the process to defendant or in some way
give him notice thereof.

In this case, the Sheriff's Return stated that private respondent was out of the
country; thus, the service of summons was made at her residence with her
husband, Alfredo P. Agudo, acknowledging receipt thereof. Alfredo was
presumably of suitable age and discretion, who was residing in that place and,
therefore, was competent to receive the summons on private respondent's
behalf.

Take note of the importance of the role of attachment under Section 1(f) Rule
57, that is, to acquire jurisdiction, otherwise, complaint is dismissible for
failure to acquire jurisdiction over the defendant.

One thing more, in attachment for jurisdictional purposes and distinction

between issuance of WPA and its implementation.

Mangila vs. CA, G.R. No. 125027, August 12, 2002, made the distinction
between issuance and implementation of the writ of attachment for purposes
of determining when jurisdiction over the person of the defendant should be
acquired to validly implement the writ.

When the sheriff or other proper officer commences implementation of the

writ of attachment, it is essential that he serve on the defendant not only a
copy of the applicant’s affidavit and attachment bond, and of the order of
attachment, as explicitly required by Section 5 of Rule 57, but also the
summons addressed to said defendant as well as a copy of the complaint.

The grant of the provisional remedy of attachment involves three stages: first,
the court issues the order granting the application; second, the writ of
attachment issues pursuant to the order granting the writ; and third, the writ
is implemented. For the initial two stages, it is not necessary that jurisdiction
over the person of the defendant be first obtained. However, once the
implementation of the writ commences, the court must have acquired
jurisdiction over the defendant for without such jurisdiction, the court has no
power and authority to act in any manner against the defendant. Any order
issuing from the Court will not bind the defendant.

The trial court cannot enforce such a coercive process on defendant without
first obtaining jurisdiction over her person. The preliminary writ of attachment
must be served after or simultaneous with the service of summons on the
defendant whether by personal service, substituted service or by publication
as warranted by the circumstances of the case. The subsequent service of
summons does not confer a retroactive acquisition of jurisdiction over her
person because the law does not allow for retroactivity of a belated service.

In personam converted into action quasi in rem

Non-resident defendant refuses to submit to trial court’s jurisdiction

in an in personam action, court’s jurisdiction is limited to property
attached, trial court could not render a personal judgment against the
private respondents, as it did in this case, and enforce it against them.

If a non-resident defendant refuses to submit to trial court’s jurisdiction in an

in personam action, court’s jurisdiction is limited to property attached, trial
court could not render a personal judgment against the private respondents,
as it did in this case, and enforce it against them.

If the defendant appears, the cause becomes mainly a suit in personam, with
the added incident, that the property attached remains liable, under the
control of the court, to answer to any demand which may be established
against the defendant by the final judgment of the court. But, if there is no
appearance of the defendant, and no service of process on him, the case
becomes, in its essential nature, a proceeding in rem, the only effect of which
is to subject the property attached to the payment of the defendant which the
court may find to be due to the plaintiff.

So, if a non-resident defendant in an in personam action refuses to appear

and/or refuses to submit his person to the jurisdiction of the trial court, the
jurisdiction of the trial court is limited to the property within the country which
the court may have ordered attached, and because of the attachment, the
property itself is the sole thing which is impleaded and is the responsible
object which is the subject of the judicial power. Thus, the relief must be
confined to the res, and the court cannot lawfully render a personal judgment
against a non-resident defendant (Villareal vs. CA and Sevilla, G.R. No.
107314, September 17, 1998 citing Banco Español-Filipino vs. Palanca,
37 Phil. 921). In short, the trial court could only render judgment against
the attached property and enforce the judgment against the property, but
cannot render judgment against the non-resident defendant who refused to
submit himself to the jurisdiction of the court (Villareal vs. CA and Sevilla,
G.R. No. 107314, September 17, 1998 citing Banco Español-Filipino vs.
Palanca).

If property was attached and later on the non-resident defendant appears and
so submits himself to the jurisdiction of the trial court, the case becomes
mainly an in personam action, with the added incident that the property
attached remains liable, under the control of the court, to answer to any
demand which may be established against the defendant by the final judgment
of the court (Villareal vs. . CA and Sevilla).

The main action in an attachment or garnishment suit is in rem until

jurisdiction of the defendant is secured. Thereafter, it is in personam and also
in rem, unless jurisdiction of the res is lost as by dissolution of the attachment.
If jurisdiction of the defendant is acquired but jurisdiction of the res is lost, it
is then purely in personam. . . . a proceeding against property without
jurisdiction of the person of the defendant is in substance a proceeding in rem;
and where there is jurisdiction of the defendant, but the proceeding against
the property continues, that proceeding is none the less necessarily in rem,
although in form there is but a single proceeding (Mabanang vs. Gallemore,
81 Phil. 254 citing 4 Am. Jur., 556-557, cited in Villareal vs. CA and
Sevilla, G.R. No. 107314, September 17, 1998).

As the remedy is administered in some states, the theory of an attachment,

whether it is by process against or to subject the property or effects of a
resident or non-resident of the state, is that it partakes essentially of the
nature and character of a proceeding in personam and not a proceeding in
rem. And if the defendant appears, the action proceeds in accordance with the
practice governing proceedings in personam. But where the defendant fails to
appear in the action, the proceeding is to be considered as one in the nature
of a proceeding in rem. And where the court acts directly on the property, the
title thereof being charged by the court without the intervention of the party,
the proceeding unquestionably is one in rem in the fullest meaning of the term
(Mabanang vs. Gallemore, 81 Phil. 254 citing Villareal vs. CA and
Sevilla, G.R. No. 107314, September 17, 1998).

In attachment proceedings against a non-resident defendant where personal

service on him is lacking, it is elementary that the court must obtain
jurisdiction of the property of the defendant. If no steps have been taken to
acquire jurisdiction of the defendant’s person, and he has not appeared and
answered or otherwise submitted himself to the jurisdiction of the court, the
court is without jurisdiction to render judgment until there has been a lawful
seizure of property owned by him within the jurisdiction of the court
(Mabanang vs. Gallemore, 81 Phil. 254).

AVAILABILITY OF THE REMEDY: at the commencement of the action or

at any time before entry of judgment.
AVAILABLE TO WHOM: a plaintiff or any proper party

AVAILABLE AGAINST WHOM: property of the adverse party.

PURPOSE: to attach adverse party’s property (personal or real) as security.

REASON FOR THE PURPOSE/S:

1. is in order that the defendant may not dispose of the property

attached for the satisfaction of any judgment that may be recovered.

2. for the trial court to acquire jurisdiction over the defendant

(Section 1(f), Rule 57: “In an action against a party who does not
reside and is not found in the Philippines, or on whom summons may
be served by publication). This was already tackled a while ago.

GROUNDS:

(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;

(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, 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;

(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;

(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;

To constitute a ground for attachment under Section 1 (d), Rule

57 of the 1997 Revised Rules of Civil Procedure, fraud should be
committed upon contracting the obligation sued upon (Liberty
 Insurance Corporation vs. CA, G.R. No. 104405, May 13,
1993).
A debt is fraudulently contracted if at the time of contracting it the
debtor has a preconceived plan or intention not to pay. Under this
ground, plaintiff must show that the debtor in contracting the
debt or incurring the obligation has the intention to defraud the
creditor, and the fraud must relate to the execution of the
agreement and must have been the reason which induced the
other party into giving consent which he would not have otherwise
given (Liberty Insurance Corporation vs. CA, G.R. No.
104405, May 13, 1993).

(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;

Posting of Attachment Bond is Mandatory:

The Rules also requires the applicant to post a bond as it is required by Section
4, Rule 57 of the 1997 Revised Rules of Civil Procedure which provides that
"the party applying for the order (issuance of WPA) must thereafter give a
bond executed to the adverse party in the amount fixed by the court in its
order granting the issuance of the writ, conditioned that the latter will pay
all the costs that may be adjudged to the adverse party and all
damages that he may sustain by reason of the attachment, if the court
shall finally adjudge that the applicant was not entitled thereto." This
is so, because the enforcement of the writ notwithstanding, the party whose
property is attached is afforded relief to have the attachment lifted (Phil-Air
Conditioning Center vs. RCJ Lines, G.R. No. 193821, November 23,
2015).

Phil-Air Conditioning Center vs. RCJ Lines

G.R. No. 193821, November 23, 2015

For unpaid obligations, Phil-Air filed its collection suit with application for WPA
against RCJ. The RTC granted the WPA application after Phil-Air posted an
attachment bond. Two buses of RCJ were attached. The attachment, however,
was later lifted when the RTC granted RCJ Lines' urgent motion to discharge
the writ of attachment. RCJ Lines posted a counter-bond in the same amount
as the attachment bond. In disposing of the case, the trial court dismissed the
complaint, but directed the Phil-Air to pay P__ RJC as refund of the premium
for defendant's counter-bond for the release of the two buses which were
attached per WA, and also directed to pay RJC P___ for the lost profits for the
attachment of their two buses as there was no fraud in the transaction of the
parties and plaintiff had no sufficient cause of action for the issuance of the
WA. RTC ruling was sustained by the CA.

SC: CA and RTC erred when it held Phil-Air directly liable for the counter-bond
premium and RCJ Lines' alleged unrealized profits. Granting that RCJ Lines
suffered losses, the judgment award should have been first executed on the
attachment bond. Only if the attachment bond is insufficient to cover the
judgment award can Phil-Air be held liable.

The filing of a counter-bond to discharge the attachment applies when there

has already been a seizure of property by the sheriff and all that is entailed is
the presentation of a motion to the proper court, seeking approval of a cash
or surety bond in an amount equivalent to the value of the property seized
and the lifting of the attachment on the basis thereof. The counter-bond
stands in place of the property so released.

This is the very reason why a party applying for the WPA must give a bond
executed to the adverse party in the amount fixed by the court in its order
granting the issuance of the writ, conditioned that the latter will pay all
the costs that may be adjudged to the adverse party and all damages
that he may sustain by reason of the attachment, if the court shall
finally adjudge that the applicant was not entitled thereto."

Modes of Discharging an Attachment:

(1) by depositing cash or posting a counter-bond under Section 12;

(2) by proving that the attachment bond was improperly or irregularly

issued or enforced, or that the bond is insufficient under Section 13;

(3) by showing that the attachment is excessive under Section 13; and

(4) by claiming that the property is exempt from execution under Section
2 (Phil-Air Conditioning Center vs. RJC Lines, G.R. No. 193821,
November 23, 2015).

The grant of the writ is conditioned not only on the finding of the court that
there exists a valid ground for its issuance. The Rules also requires the
applicant to post a bond as it is required by Section 4, Rule 57 of the 1997
Revised Rules of Civil Procedure which provides that "the party applying for
the order (issuance of WPI) must thereafter give a bond executed to the
adverse party in the amount fixed by the court in its order granting the
issuance of the writ, conditioned that the latter will pay all the costs that
may be adjudged to the adverse party and all damages that he may
sustain by reason of the attachment, if the court shall finally adjudge
that the applicant was not entitled thereto."

This is so, because the enforcement of the writ notwithstanding, the party
whose property is attached is afforded relief to have the attachment lifted
(Phil-Air Conditioning Center vs. RJC Lines, G.R. No. 193821,
November 23, 2015).

?? How to Discharge Attachment by posting a Counter-bond:

Requirements:

The court will order the discharge of the attachment after:

(1) the movant makes a cash deposit or posts a counter-bond and

(2) the court hears the motion to discharge the attachment with due notice to
the adverse party.

The amount of the cash deposit or counter-bond must be equal to that fixed
by the court in the order of attachment, exclusive of costs. The cash deposit
or counter-bond shall secure the payment of any judgment that the attaching
party may recover in the action.

The filing of a counter-bond to discharge the attachment applies when there

has already been a seizure of property by the sheriff and all that is entailed is
the presentation of a motion to the proper court, seeking approval of a cash
or surety bond in an amount equivalent to the value of the property seized
and the lifting of the attachment on the basis thereof. The counter-bond
stands in place of the property so released.

To be clear, the discharge of the attachment by depositing cash or posting a

counter-bond under Section 12 should not be confused with the discharge
sanctioned under Section 13.
Section 13 speaks of discharge on the ground that the writ was improperly or
irregularly issued or enforced, or that the attachment bond is insufficient, or
that the attachment is excessive.

To reiterate, the discharge under Section 12 takes effect upon posting of a

counter-bond or depositing cash, and after hearing to determine the
sufficiency of the cash deposit or counter-bond. On the other hand, the
discharge under Section 13 takes effect only upon showing that the plaintiffs
attachment bond was improperly or irregularly issued, or that the bond is
insufficient. The discharge of the attachment under Section 13 must be made
only after hearing.

These differences notwithstanding, the discharge of the preliminary

attachment either through Section 12 or Section 13 has no effect on and does
not discharge the attachment bond. The dissolution of the preliminary
attachment does not result in the dissolution of the attachment bond.
Justice Narvasa, writing his separate opinion in one case, explained:

The dissolution of the preliminary attachment upon security given

[Section 12], or a showing of its irregular or improper issuance [Section 13],
does not of course operate to discharge the sureties on plaintiffs own
attachment bond. The reason is simple. That bond is executed to the
adverse party,. . . conditioned that the ... (applicant) will pay all the costs
which may be adjudged to the adverse party and all damages which he may
sustain by reason of the attachment, if the court shall finally adjudge that the
applicant was not entitled thereto." Hence, until that determination is made,
as to the applicant's entitlement to the attachment, his bond must stand
and cannot be withdrawn.

Case:

Security Bank vs. Great Wall, G.R. No. 219345, January 30, 2017

Against Great Wall, Security Bank after sought to collect sum of money for the
former’s unpaid obligations under a credit facility covered by several trust
receipts and surety agreements, as well as interests, attorney's fees and costs,
with application for issuance of WPI.

After due hearing, the RTC granted the application for WPI, and Security Bank
posted the necessary bond.
Great Wall moved to lift WPI arguing that: (1) Security Bank's allegations in
its application did not show a prima facie basis therefor; (2) the application
and the accompanying affidavits failed to allege at least one circumstance
which would show fraudulent intent on their part; and (3) the general
imputation of fraud was contradicted by their efforts to secure an approval for
a loan restructure, Great Wall moved to lift the WPI.

RTC denied the motion explaining that the Credit Agreement and the
Continuing Suretyship Agreement contained provisions on representations
and warranties; that the said representations and warranties were the very
reasons why Security Bank decided to extend the loan; that respondents
executed various trust receipt agreements but did not pay or return the goods
covered by the trust receipts in violation thereof; that they failed to explain
why the goods subject of the trust receipts were not returned and the proceeds
of sale thereof remitted; and that it was clear that respondents committed
fraud in the performance of the obligation. MR was denied. Petition for
certiorari (R65) followed.

CA granted the petition and ruled that RTC committed GAD. CA explained that
the allegations of Security Bank were insufficient to warrant the provisional
remedy of preliminary attachment as fraudulent intent could not be inferred
from a debtor's inability to pay or comply with its obligations; that the non-
return of the proceeds of the sale and/or the goods subject of the trust receipts
did not, by itself, constitute fraud and that, at most, these were only
averments for the award of damages once substantiated by competent
evidence. CA also stressed that defendants' act of offering a repayment
proposal negated the allegation of fraud; that fraud must be present at the
time of contracting the obligation, not thereafter, and that the rules on the
issuance of a writ of attachment must be construed strictly against the
applicant.

Was CA correct in nullifying the RTC Order granting the issuance of WPI?

No.

SC said: Security Bank’s reliance that 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 (Section 1 (d), Rule
57) is correct.

For a WPI to issue under that rule, the applicant must sufficiently show the
factual circumstances of the alleged fraud. It is settled that fraudulent intent
cannot be inferred from the debtor's mere non-payment of the debt or failure
to comply with his obligation. While fraud cannot be presumed, it need not be
proved by direct evidence and can well be inferred from attendant
circumstances. Fraud by its nature is not a thing susceptible of ocular
observation or readily demonstrable physically; it must of necessity be proved
in many cases by inferences from circumstances shown to have been involved
in the transaction in question.

The fact that respondents represented to Security Bank that they would pay
the loans upon their maturity date; the fact that respondents signed the Credit
Agreement which contained the Warranty of Solvency and several Trust
Receipt Agreements in favor of Security Bank; the fact that said trust receipts
were attached to the complaint which stated that respondents were obligated
to turn over to Security Bank the proceeds of the sale of the good or to return
the goods; the fact that several demand letters were sent by Security Bank to
respondents, which were unheeded, were likewise attached to the complaint
and were esblished during the hearing on the application for WPI were
sufficient to justify the issuance of WPI.

There were violations of the trust receipts agreements. While the SC agreed
that mere violations of the warranties and representations contained in the
credit agreement and the continuing suretyship agreement do not constitute
fraud under Section 1(d) of Rule 57 of the Rules of Court, the same cannot be
said with respect to the violation of the trust receipts agreements.

A trust receipt transaction is one where the entrustee has the obligation to
deliver to the entruster the price of the sale, or if the merchandise is not sold,
to return the merchandise to the entruster. There are, therefore, two
obligations in a trust receipt transaction: the first refers to money received
under the obligation involving the duty to turn it over (entregarla) to the owner
of the merchandise sold, while the second refers to the merchandise received
under the obligation to "return" it (devolvera) to the owner. The obligations
under the trust receipts are governed by a special law, Presidential Decree
(P.D.) No. 115, and non-compliance have particular legal consequences.

Failure of the entrustee to turn over the proceeds of the sale of the goods,
covered by the trust receipt to the entruster or to return said goods if they
were not disposed of in accordance with the terms of the trust receipt shall be
punishable as estafa under Article 315 (1) of the Revised Penal Code, without
need of proving intent to defraud. The offense punished under P.D. No. 115 is
in the nature of malum prohibitum. Mere failure to deliver the proceeds of the
sale or the goods, if not sold, constitutes a criminal offense that causes
prejudice not only to another, but more to the public interest.

The present case, however, only deals with the civil fraud in the non-
compliance with the trust receipts to warrant the issuance of a writ of
preliminary attached. A fortiori, in a civil case involving a trust receipt, the
entrustee's failure to comply with its obligations under the trust receipt
constitute as civil fraud provided that it is alleged, and substantiated with
specificity, in the complaint, its attachments and supporting evidence.

Security Bank's complaint stated that Great Wall, through its Vice President
Fredino Cheng Atienza, executed various trust receipt agreements in relation
to its loan transactions. The trust receipts stated that in consideration of the
delivery to the entrustee (Great Wall) of the possession of the goods, it
obligates itself to hold in trust for the bank the goods, to sell the goods for the
benefit of the bank, to turn over the proceeds of the sale to the bank, and to
return the goods to the bank in the event of non-sale. By signing the trust
receipt agreements, respondents fully acknowledged the consequences under
the law once they failed to abide by their obligations therein. The said trust
receipt agreements were attached to the complaint.

Upon the maturity date, however, respondents failed to deliver the proceeds
of the sale to Security Bank or to return the goods in case of non-sale. Security
Bank sent a final demand letter to respondents, which was also attached to
the complaint, but it was unheeded. Curiously, in their letter, dated January
23, 2013, respondents did not explain their reason for non-compliance with
their obligations under the trust receipts; rather, they simply stated that Great
Wall was having a sudden drop of its income. Such unsubstantiated excuse
cannot vindicate respondents from their failure to fulfill their duties under the
trust receipts.

Now, lets go to another provisional remedy, this time PI

PRELIMINARY INJUNCTION
Basics:

Duty of lawyer

If the filing of the complaint includes a verified application for issuance of

temporary restraining order because of matter of extreme urgency and the
plaintiff/applicant would suffer grave injustice and irreparable injury, the
lawyer should file his complaint with ex-parte motion asking for its issuance
of an “Ex-parte TRO” and with motion for urgent raffle.
Duty of the Executive Judge and Presiding Judge

TAKE NOTE: One of the prohibited judicial acts on the part of the trial judge
upon receipt of the complaint: is granting or denying a TRO application without
conducting a summary hearing, because summary hearing is required,
exception: unless the application is made ex-parte (Executive Judge),
or if the trial court has no jurisdiction over the subject matter (main
case).

In Searth Commodities Corp. vs. CA, G.R. No. 64220, March 31, 1992,
the High Court said that trial court should avoid issuing a writ of preliminary
injunction without trial which in effect would dispose of the main case without
trial.

The executive judge of a multiple-sala court or the presiding judge of a single

sala court may issue ex parte a temporary restraining order effective only for
only seventy-two (72) hours from issuance, and shall cause the issuance of
notice and service of summons and the complaint to the adverse party to be
enjoined for raffle purposes. The raffle can only be conducted only after notice.
The raffle can be conducted with or without their presence so long as the
adverse party or the person to be enjoined is properly notified.
The branch of the court to which the case was raffled shall immediately cause
the preparation of summons and notice for purposes of summary hearing of
the application for temporary restraining order, and have the notice/s and
summons be immediately served to the defendant and to the adverse party
to be enjoined. The judge shall conduct the required summary hearing. This
is for the purpose of determining whether there is necessity to extend the
“seventy-two (72) hours Ex-Parte/Executive TRO”.
The same is true if filed with the single sale court. After the issuance of “ex
parte TRO”, the court shall immediately cause the preparation of summons
and notice for purposes of summary hearing of the application for temporary
restraining order, and have the notice/s and summons be immediately served
to the defendant and to the adverse party to be enjoined because the judge
within the seventy-two (72) hours “ex parte TRO” shall conduct a summary
hearing to determine whether the temporary restraining order shall be
extended until the application for preliminary injunction can be heard.

An “Ex-parte TRO” can be issued by the Executive Judge without conducting

a hearing. This is sometimes called the “Executive TRO” which has a life span
of seventy (72) hours computed from the time of its issuance, not from receipt
of the Order or Notice. This kind TRO can only be extended for not more than
twenty (20) days including the original seventy (72) hours after conducting
the required summary hearing. This time, if extended, the nature of the TRO
is regular (no longer ex-parte), and will become effective only upon service to
the concerned parties, and not upon issuance (See Rule 58, 1997 Revised
Rules of Civil Procedure).

(lifespan, tc 20, appellate 60, sc, until further order)

Courts’ power to issue preliminary injunction, reason:

The controlling reason for the existence of the judicial power to issue the writ
of injunction is that the court may thereby prevent a threatened or continuous
irremediable injury to some of the parties before their claims can be
thoroughly investigated and advisedly adjudicated (Del Rosario vs. CA, G.R.
No. 115106, March 15, 1996 cited in Pahila-Garrido vs. Tortogo, G.R.
No. 156358, August 17, 2011). It is to be resorted only when there is a
pressing necessity to avoid injurious consequences which cannot be remedied
under any standard of compensation (Development Bank of the
Philippines vs. CA, G.R. No. 137557, October 30, 2000).

To be entitled to the writ of preliminary injunction, the applicant needs only

to show that it has the ostensible right to the final relief prayed for in
its complaint (Saulog vs. CA, G.R. No. 119769, September 18, 1996,
262 SCRA 51, cited in Carpio-Morales vs. CA, G.R. Nos. 217126-27,
November 10, 2015, 774 SCRA 431).

In Olalia vs. Hizon, 196 SCRA 665 cited in the case of Honorable
Secretary Boncodin (DBM) vs. National Power Corporation Employees
Consolidated Union, G.R. No. 162716, September 27, 2006, the High
Court said that “It has been consistently held that there is no power the
exercise of which is more delicate, which requires greater caution, deliberation
and sound discretion, or more dangerous in a doubtful case, than the issuance
of an injunction. It is the strong arm of equity that should never be extended
unless to cases of great injury, where courts of law cannot afford an adequate
or commensurate remedy in damages”; that “Every court should remember
that an injunction is a limitation upon the freedom of action of the defendant
and should not be granted lightly or precipitately. It should be granted only
when the court is fully satisfied that the law permits it and the emergency
demands it.”

Effect of dismissal of the principal action:

Dismissal of the principal action will result in the denial of the prayer
for the issuance of the writ:
Once a main case is dismissed, a writ of preliminary injunction will
automatically be lifted. The same must be lifted as it is mere provisional
remedy adjunct to the main case (Philippine Airlines, Inc. vs. NLRC, 287
SCRA 672 cited in Philippine National Bank vs. Ritrato Group, Inc., G.R.
No. 142616, July 31, 2001).

A writ of preliminary injunction is an ancillary or preventive remedy that may

only be resorted to by a litigant to protect or preserve his rights or interests
and for no other purpose during the pendency of the principal action
(Philippine National Bank vs Ritrato Group, Inc., G.R. No. 142616, July
31, 2001). The ancillary and provisional remedy of preliminary injunction
cannot exists except only as an incident of an independent action or
proceeding (Urbanes, Jr. vs. CA, 407 Phil. 856 cited in BF HOMES, INC.
vs. Manila Electric Company, G.R. No. 171624, December 6, 2010),
therefore, the dismissal of the principal action results in the denial of the
prayer for the issuance of the writ (Philippine National Bank vs. Ritrato
Group, Inc., G.R. No. 142616, July 31, 2001).

Take Note: An act of granting an application for the issuance of TRO/ WPI is
not tantamount to prejudging the main case (See Borlongan vs. Banco de
Oro, G.R. Nos. 217617 & 218540, April 5, 2017).

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Prohibition from issuing TRO and/or preliminary injunction

In criminal cases:

Courts, as a general rule, shall not issue writs of prohibition or injunction,

preliminary or final, to enjoin or restrain criminal prosecution.

However, but subject to exceptions. These are the recognized exceptions:

1. when the injunction is necessary to afford adequate protection to the

constitutional rights of the accused;

2. when it is necessary for the orderly administration of justice or to avoid

oppression or multiplicity of actions;

3. when there is a prejudicial question which is sub judice;

4. when the acts of the officer are without or in excess of authority;

5. where the prosecution is under an invalid law, ordinance or regulation;

 6. when double jeopardy is clearly apparent;

7. when the Court has no jurisdiction over the case or offense;

8. where it is a case of persecution rather than prosecution;

9. when the charges are manifestly false and motivated by the lust for
vengeance; and

10.when there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied (Borlongan vs.

Issuance of Temporary Restraining Order, Preliminary Injunction and

Preliminary Mandatory Injunction prohibited:

1. Courts, except the Supreme Court, against the government, or any of

its subdivision, officials or any person or entity, whether public or private,
acting under the government’s direction, to restrain, prohibit or compel the
bidding or awarding of contract/project of the national government as defined
under Section 2 of R.A. 8975 (Philippine Ports Authority vs. Cipres
Stevedoring & Arrastre, Inc., G.R. No. 145742, July 14, 2005 citing
Section 3, RA. 8975).
2. Any court in a case involving an infrastructure project, or natural resource
development project of the government “or any public utility operated by the
government, including among others, public utilities for the transport of the
goods or commodities, stevedoring and arrastre contracts” which would
“prohibit any person or persons, entity or government official” from
proceeding with the operation of a public utility (Philippine Ports Authority
vs. CA, G.R. Nos. 115786-87, February 5, 1996 citing Section 1, P.D.
No. 1818; also cited in Philippine Ports Authority vs. Cipres
Stevedoring & Arrastre, Inc., G.R. No. 145742, July 14, 2005).
3. Labor dispute cases, except as, otherwise, provided in Articles 218 and 264
of the Code (Article 254, Labor Code of the Philippines). The prohibition
for issuance of injunctive relief is only in those cases involving or growing out
of a labor dispute (Ravago vs. Esso Eastern Marine, Ltd., G.R. No. 158324,
March 14, 2005).

3. Criminal prosecutions (generally) may not be restrained or stayed by

injunction (Roberts vs. CA, G.R. No. 113930, March 5, 1996 citing
Dimayuga vs. Fernandez, 43 Phil. 304, and Fortun vs. Labang, 104
SCRA 607 cited in Brocka vs. Enrile, 134 SCRA 438)
Administrative Circular No. 07-99 dated June 25, 1999 citing Garcia vs.
Burgos (291 SCRA 546, 571-572 [1998]) is clear on the matter. It
provided that Sec. 1 of PD 1818 distinctly provides that:

No court in the Philippines shall have jurisdiction to issue any restraining

order, preliminary injunction, or preliminary mandatory injunction in any case,
dispute, or controversy involving an infrastructure project of the government,
to prohibit any person or persons, entity or government official from
proceeding with, or continuing the execution or implementation of any such
project or pursuing any lawful activity necessary for such execution,
implementation or operation. Said the SC: At the risk of being repetitious,
we stress that the foregoing statutory provision expressly deprives courts of
jurisdiction to issue injunctive writs against the implementation or execution
of an infrastructure project.

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RULE ON TRO or Preliminary Injunction on the extrajudicial

foreclosure of real estate mortgages

A.M. No. 99-10-05-0, the Procedure in Extrajudicial or Judicial Foreclosure

of Real Estate Mortgages dated February 20, 2007 (became effective on March
10, 2007) mandates that:

No temporary restraining order or writ of preliminary injunction against the

extrajudicial foreclosure of real estate mortgage shall be issued on the
allegation that the loan secured by the mortgage has been paid or is not
delinquent unless the application is verified and supported by evidence of
payment. (Meaning, application is available, provided that it complies
with the requirements)

No temporary restraining order or writ of preliminary injunction against the

extrajudicial foreclosure of real estate mortgage shall be issued on the
allegation that the interest on the loan is unconscionable, unless the debtor
pays the mortgagee at least twelve percent per annum interest on the
principal obligation as stated in the application for foreclosure sale, which shall
be updated monthly while the case is pending.

Where a writ of preliminary injunction has been issued against a foreclosure

of mortgage, the disposition of the case shall be speedily resolved. To this
end, the court concerned shall submit to the Supreme Court, through the
Office of the Court Administrator, quarterly reports on the progress of the
cases involving ten million pesos and above.
All requirements and restrictions prescribed for the issuance of a temporary
restraining order/writ of preliminary injunction, such as the posting of a bond,
which shall be equal to the amount of the outstanding debt, and the time
limitation for its effectivity, shall apply as well to a status quo order.

The remedy of injunction can no longer be availed of where the act to

be prevented had long been consummated (Africa vs. Sandiganbayan,
287 SCRA 408 cited in Zabat vs. CA, G.R. No. 122089, August 23, 2000).

In Caneland Sugar Corporation vs. Judge Alon, G.R. No. 142896,

September 12, 2007, the High Court denied the petition for certiorari against
the respondent judge for the sole reason that the act sought to be enjoined
by petitioner in the case below had already been fait accompli.

x---------------------------------------------x

Case:

Mayor Mylyn P. Cayabyab vs. Dimson, G.R. No. 223862, July 10, 2017.

Petitioner issued a Cease and Desist Order (CDO) to immediately shut down
the operation of Dimson’s poultry farm on the ground that the latter failed to
secure the necessary Barangay Business Permit and Mayor’s Permit. The TRO
application was denied by the RTC reasoning that Dimson failed to establish a
clear and unmistakable right to the said issuance and to show that he will
suffer irreparable injury. Dimson went to the CA and it ruled that the RTC
gravely abused its discretion in denying the application for issuance of a TRO.
Cayabyab’s MR was denied. The case eventually reached the High Court
assailing whether or not the TRO application denial is proper.

Ruling: The High Court granted the petition. The High Court said:

A writ of preliminary injunction and a TRO are injunctive reliefs and

preservative remedies for the protection of substantive rights and interests.”
To be entitled to the injunctive writ, the applicant must show that: (a) there
exists a clear and unmistakable right to be protected; (b) this right is directly
threatened by an act sought to be enjoined; (c) the invasion of the right is
material and substantial; and (d) there is an urgent and paramount necessity
for the writ to prevent serious and irreparable damage. The grant or denial of
an injunctive relief in a pending case rests on the sound discretion of the court
since the assessment and evaluation of evidence towards that end involve
findings of fact left for the conclusive determination of the said court. “Hence,
the exercise of judicial discretion by a court in injunctive matters must not be
interfered with, except when there is grave abuse of discretion.” The burden
is, thus, on the applicant to show that there is meritorious ground for the
issuance of a TRO in his favor, since an application for injunctive relief is
construed strictly against him.

Here, Dimson failed to sufficiently show the presence of the requisites to

warrant the issuance of a TRO against the CDO and the Closure Order of Mayor
Cayabyab.

Preliminarily, it must be clarified that contrary to the CA's ruling, the grant or
denial of Dimson's application for TRO was not essentially rooted on a
determination of whether the subject poultry farm is a nuisance per se or a
nuisance per accidens, but rather on whether or not there was an ostensible
showing of a sufficient justification for the issuance of the CDO and the Closure
Order. Corollary is the issue of whether or not there were prima facie valid
reasons for the withholding of the barangay clearance, which is a prerequisite
to the renewal of Dimson's business permit to operate.

A business permit must be secured from the municipal business permits and
licensing office in order for the business to legally operate in the locality. While
poultry farming is admittedly a legitimate business, it cannot operate without
a business permit, which expires on the 31 st of December of every year and
must be renewed before the end of January of the following year.

In the present case, there is no showing that Dimson filed any application for
renewal of his business permit to operate the subject poultry farm in 2014,
apparently due to his failure to secure the necessary barangay clearance which
was not issued based on complaints of foul odor being emitted by the said
farm. Records show that complaints from neighboring barangays were
received by the office of Mayor Cayabyab bewailing the foul odor coming from
the said farm, which was confirmed upon ocular inspection conducted by the
Health and Sanitation Office of the Municipality of Lubao, Pampanga. Settled
is the rule that acts of public officers are presumed to be regular and valid,
unless sufficiently shown to be otherwise. In this case, Dimson was unable to
refute the finding that foul odor is being emitted by his farm, having failed to
present the inspection report of the sanitary officer who purportedly did not
note any such foul smell in the farm. Not having passed the necessary
sanitation standard, there was, therefore, a prima facie valid reason for the
withholding of the required barangay clearance, which is a prerequisite to the
renewal of Dimson's business permit to operate.
Having failed to apply for and secure the necessary business permit to operate
in 2014 on account of his inability to obtain the required barangay clearance
due to non-compliance with a requirement standard, Dimson may not legally
operate in the Municipality of Lubao, Pampanga, thereby, warranting the
issuance by Mayor Cayabyab of the CDO and the Closure Order. Accordingly,
no error, much less grave abuse of discretion can be ascribed on the RTC in
denying Dimson's application for the issuance of a TRO against the said orders.
In the absence of a business permit, Dimson has no clear legal right to resume
his operations pending final determination by the RTC of the merits of the
main case for certiorari, mandamus, and prohibition. A clear legal right means
one clearly founded in or granted by law or is enforceable as a matter of law,
which is not extant in the present case. It is settled that the possibility of
irreparable damage without proof of an actual existing right is not a ground
for the issuance of an injunctive relief.

In fine, it was grave error for the CA to order the issuance of a TRO against
the implementation of the CDO and the Closure Order of Mayor Cayabyab. A
court may issue injunctive relief against acts of public officers only when the
applicant has made out a case of invalidity or irregularity strong enough to
overcome the presumption of validity or regularity, and has established a clear
legal right to the remedy sought, which was not shown here.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

TRO is not converted into preliminary injunction if the order granting

the relief is silent as to period:

If the court merely ordered the respondent, its agents, representatives or any
person acting in his behalf to stop, desist and refrain from implementing an
act complained of without stating the period for the restraint does not convert
the TRO to a preliminary injunction (Bacolod City Water District vs. Judge
Labayen, G.R. No. 157494, December 10, 2004).

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

Respondent’s remedial option vs. petition for writ of preliminary

injunction

The following are respondent’s options:

(a) file a motion to deny/dismiss the motion on the ground that the petitioner
failed to discharge his burden to prove the factual and legal basis for his plea
for a writ of preliminary injunction and, if the trial court denies his motion, for
them to adduce evidence in opposition to the petitioner’s plea;
(b) forgo their motion and adduce testimonial and/or documentary evidence
in opposition to the petitioner’s plea for a writ of preliminary injunction; or,
(c) waive their right to adduce evidence and submit the incident for
consideration on the basis of the pleadings of the parties and the evidence of
the petitioner (Tayag vs. Lacson, G.R. No. 134971, March 25, 2004).

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

Concepts, elements; application justification and sole purpose:

If the writ constitutes a temporary measure availed of during the pendency of

the action it is provisional because it is a mere incident in and is dependent
upon the result of the main action (Buyco vs. Baraquia, G.R. No. 177486,
December 21, 2009 cited in Arevalo vs. Planters Development Bank
and Register of Deeds, G.R. No. 193415, April 18, 2012).

The very foundation of the jurisdiction to issue a writ of injunction rests in the
existence of a cause of action and in the probability of irreparable injury,
inadequacy of pecuniary compensation and the prevention of multiplicity of
suits (Federated Realty Corporation vs. CA, G.R. No. 127967,
December 14, 2005 cited in PNB vs. RJ Ventures Realty & Development
Corporation, et al., G.R. No. 164548, September 27, 2006).

A writ of preliminary injunction and a temporary restraining order (TRO) are

injunctive reliefs and preservative remedies for the protection of substantive
rights and interests (Brizuela vs. Dingle, G.R. No. 175371, 30 April 2008
cited in Australian Professional Realty, Inc., et al. vs. Municipality of
Padre Garcia Batangas Province, G.R. No. 183367, March 14, 2012).

A writ of preliminary injunction is a provisional remedy. It is auxiliary to, an

adjunct of, and subject to the outcome of the main case (Bustamante vs.
CA, G.R. No. 126371, April 17, 2002 cited in Arevalo vs. Planters
Development Bank and Register of Deeds, G.R. No. 193415, April 18,
2012).
A writ of preliminary injunction is an ancillary or preventive remedy that may
only be resorted to by a litigant to protect or preserve his rights or interests
and for no other purpose during the pendency of the principal action
(Philippine National Bank vs. Ritratto Group, Inc., 414 Phil. 494 cited
in Department of Foreign Affairs and Bangko Sentral ng Pilipinas vs.
Judge Falcon, G.R. No. 176657, September 1, 2010). Its sole object,
being a provisional one is to preserve the status quo until the merits can be
heard (Manila Banking Corporation vs. CA, G.R. No. L-45961, July 3,
1990 citing Redulfa vs. Alfonso, 76 Phil. 225; also cited in RJ Ventures
Realty & Development Corporation, et al., G.R. No. 164548, September
27, 2006).

An element of urgent necessity for the issuance of an injunctive relief in order

to prevent serious damage is essential (Australian Professional Realty,
Inc., et al. vs. Municipality of Padre Garcia Batangas Province, G.R.
No. 183367, March 14, 2012).

If the element of urgent necessity is wanting or is not present, there is no

need rule in favor or its issuance to prevent serious damage.

A plea for an injunctive writ lies upon the existence of a claimed emergency
or extraordinary situation which should be avoided for otherwise, the outcome
of a litigation would be useless as far as the party applying for the writ is
concerned (RJ Ventures Realty & Development Corporation, et al., G.R.
No. 164548, September 27, 2006 citing Philippine Ports Authority vs.
Cipres Stevedoring & Arrastre, Inc., G.R. No. 145742, July 14, 2005).

The sole object of a preliminary injunction, may it be prohibitory or

mandatory, is to preserve the status quo until the merits of the case can be
heard and the final judgment rendered. The status quo is the last actual
peaceable uncontested status which preceded the controversy (Philippine
Ports Authority vs. Cipres Stevedoring & Arrastre, Inc, G.R. No.
145742, July 14, 2005 citing Capitol Medical Center, Inc. vs. CA, G.R.
No. 82499, October 13, 1989).

Great and irreparable injury, a requirement, but always remember

that the very foundation of the jurisdiction to issue a writ of injunction rests
in the existence of a cause of action and in the probability of irreparable injury,
inadequacy of pecuniary compensation and the prevention of multiplicity of
suits.

An applicant to be entitled to the injunctive writ, he must show that:

(1) there exists a clear and unmistakable right to be protected;

(2) this right is directly threatened by an act sought to be enjoined;

(3) the invasion of the right is material and substantial; and

(4) there is an urgent and paramount necessity for the writ to prevent serious
and irreparable damage (Medina vs. City Sheriff of Manila, 342 Phil. 90
cited in Australian Professional Realty, Inc., et al. vs. Municipality of
Padre Garcia, Batangas Province, G.R. No. 183367, March 14, 2012,
668 SCRA 253).

An injury is considered irreparable if it is of such constant and frequent

recurrence that no fair and reasonable redress can be had therefor in a court
of law, or where there is no standard by which their amount can be measured
with reasonable accuracy, that is, it is not susceptible of mathematical
computation. It is considered irreparable injury when it cannot be adequately
compensated in damages due to the nature of the injury itself or the nature
of the right or property injured or when there exists no certain pecuniary
standard for the measurement of damages (Philippine Airlines, Inc. vs.
National Labor Relations Commission, 351 Phil. 172, 186 cited in
Department of Foreign Affairs and Bangko Sentral ng Pilipinas vs.
Judge Falcon, G.R. No. 176657, September 1, 2010).

Injunction is a preservative remedy for the protection of one’s substantive

right or interest. It is not a cause of action in itself but merely a provisional
remedy, an adjunct to a main suit. It is resorted to only when there is a
pressing necessity to avoid injurious consequences which cannot be remedied
under any standard compensation. The application of the injunctive writ rests
upon the existence of an emergency or of a special reason before the main
case can be regularly heard. The essential conditions for granting such
temporary injunctive reliefs are that the complaint alleges facts which appear
to be sufficient to constitute a proper basis for injunction and that on the entire
showing from the contending parties, the injunction is reasonably necessary
to protect the legal rights of the plaintiff pending the litigation. Two requisites
are necessary if a preliminary injunction is to issue, namely, the existence of
a right to be protected and the facts against which the injunction is to be
directed are violative of said right. In particular, for a writ of preliminary
injunction to issue, the existence of the right and the violation must appear in
the allegation of the complaint and a preliminary injunction is proper only
when the plaintiff appears to be entitled to the relief demanded in his
complaint (Lopez vs. CA, 379 Phil. 743 cited in Department of Foreign
Affairs and Bangko Sentral ng Pilipinas vs. Judge Falcon, G.R. No.
176657, September 1, 2010).
Before a writ of preliminary injunction may be issued, there must be a clear
showing by the complaint that there exists a right to be protected and that
the acts against which the writ is to be directed are violative of the said right.
It must be shown that the invasion of the right sought to be protected is
material and substantial, that the right of complainant is clear and
unmistakable and that there is an urgent and paramount necessity for the writ
to prevent serious damage. Moreover, an injunctive remedy may only be
resorted to when there is a pressing necessity to avoid injurious consequences
which cannot be remedied under any standard compensation Transfield
Philippines, Inc. vs. Luzon Hydro Corporation, G.R. No. 146717,
November 22, 2004 cited in Department of Foreign Affairs and Bangko
Sentral ng Pilipinas vs. Judge Falcon, G.R. No. 176657, September 1,
2010).

A temporary restraining order can only be issued if the matter is of such

extreme urgency that grave injustice and irreparable injury would arise unless
it is issued immediately (Australian Professional Realty, Inc., et al. vs.
Municipality of Padre Garcia, Batangas Province, G.R. No. 183367,
March 14, 2012, 668 SCRA 253). It may be issued only if it appears from
the facts shown by affidavits or by the verified application that great or
irreparable injury would be inflicted on the applicant before the writ of
preliminary injunction could be heard. (Australian Professional Realty,
Inc., et al. vs. Municipality of Padre Garcia, Batangas Province, G.R.
No. 183367, March 14, 2012, 668 SCRA 253).

RECEIVERSHIP
Provisions:

Section 1. Appointment of receiver. — Upon a verified application, one or more

receivers of the property subject of the action or proceeding may be appointed by
the court where the action is pending or by the Court of Appeals or by the Supreme
Court, or a member thereof, in the following cases:

(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;
 (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;

(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.

During the pendency of an appeal, the appellate court may allow an application for
the appointment of a receiver to be filed in and decided by the court of origin and the
receiver appointed to be subject to the control of said court.

NOTE: receivership in an ordinary civil case not involving corporation receivership.

Section 2. Bond on appointment of receiver. — Before issuing the order appointing

a receiver the court shall require the applicant to file a bond executed to the party
against whom the application is presented, in an amount to be fixed by the court, to
the effect that the applicant will pay such party all damages he may sustain by reason
of the appointment of such receiver in case the applicant shall have procured such
appointment without sufficient cause; and the court may, in its discretion, at any
time after the appointment, require an additional bond as further security for such
damages.

Section 3. Denial of application or discharge of receiver. — The application may be

denied, or the receiver discharged, when the adverse party files a bond executed to
the applicant, in an amount to be fixed by the court, to the effect that such party will
pay the applicant all damages he may suffer by reason of the acts, omissions, or
other matters specified in the application as ground for such appointment. The
receiver may also be discharged if it is shown that his appointment was obtained
without sufficient cause.

Section 4. Oath and bond of receiver. — Before entering upon his duties, the receiver
shall be sworn to perform them faithfully, and shall file a bond, executed to such
person and in such sum as the court may direct, to the effect that he will faithfully
discharge his duties in the action or proceeding and obey the orders of the court.

Section 5. Service of copies of bonds; effect of disapproval of same. — The person

filing a bond in accordance with the provisions of this Rule shall forthwith serve a
copy thereof on each interested party, who may except to its sufficiency or of the
surety or sureties thereon. If either the applicant's or the receiver's bond is found to
be insufficient in amount, or if the surety or sureties thereon fail to justify, and a
bond sufficient in amount with sufficient sureties approved after justification is not
filed forthwith, the application shall be denied or the receiver discharged, as the case
may be. If the bond of the adverse party is found to be insufficient in amount or the
surety or sureties thereon fail to justify, and a bond sufficient in amount with
sufficient sureties approved after justification is not filed forthwith, the receiver shall
be appointed or re-appointed, as the case may be.

Section 6. General powers of receiver. — Subject to the control of the court in which
the action or proceeding is pending a receiver shall have the power to bring and
defend, in such capacity, actions in his own name; to take and keep possession of
the property in controversy; to receive rents; to collect debts due to himself as
receiver or to the fund, property, estate, person, or corporation of which he is the
receiver; to compound for and compromise the same; to make transfers; to pay
outstanding debts; to divide the money and other property that shall remain among
the persons legally entitled to receive the same; and generally to do such acts
respecting the property as the court may authorize. However, funds in the hands of
a receiver may be invested only by order of the court upon the written consent of all
the parties to the action.

No action may be filed by or against a receiver without leave of the court which
appointed him.

Section 7. Liability for refusal or neglect to deliver property to receiver. — A person

who refuses or neglects, upon reasonable demand, to deliver to the receiver all the
property, money, books, deeds, notes, bills, documents and papers within his power
or control, subject of or involved in the action or proceeding, or in case of
disagreement, as determined and ordered by the court, may be punished for
contempt and shall be liable to the receiver for the money or the value of the property
and other things so refused or neglected to be surrendered, together with all damages
that may have been sustained by the party or parties entitled thereto as a
consequence of such refusal or neglect.

Section 8. Termination of receivership; compensation of receiver. — Whenever the

court, motu proprio or on motion of either party, shall determine that the necessity
for a receiver no longer exists, it shall, after due notice to all interested parties and
hearing, settle the accounts of the receiver, direct the delivery of the funds and other
property in his possession to the person adjudged to be entitled to receive them and
order the discharge of the receiver from further duty as such. The court shall allow
the receiver such reasonable compensation as the circumstances of the case warrant,
to be taxed as costs against the defeated party, or apportioned, as justice requires.

Section 9. Judgment to include recovery against sureties. — The amount, if any, to

be awarded to any party upon any bond filed in accordance with the provisions of
this Rule, shall be claimed, ascertained, and granted under the same procedure
prescribed in section 20 of Rule 57.
Basics on Receivership:

Posting of bond is mandatory requirement prior (or before) issuing the order
appointing a receiver, but posting a receiver’s bond is discretionary on the
part of the court.

Sec. 2 of Rule 59 is very clear in that before issuing the order appointing a
receiver the court shall require the applicant to file a bond executed to the
party against whom the application is presented. The use of the word "shall"
denotes its mandatory nature; thus, the consent of the other party is of no
moment. Hence, the filing of an applicant’s bond is required at all times. On
the other hand, the requirement of a receiver’s bond rests upon the discretion
of the court. Sec. 2 of Rule 59 clearly states that the court may, in its
discretion, at any time after the appointment, require an additional bond as
further security for such damages.

Receiver’s bond is an additional bond mentioned under Section 2 of Rule 59.

Receivership bond Receivership is a harsh remedy to be granted with utmost

circumspection and only in extreme situations (Tantano vs. Espina-
Caboverde, G.R. No. 203585, July 29, 2013).

The power to appoint a receiver is a delicate one and should be exercised with
extreme caution and only under circumstances requiring summary relief or
where the court is satisfied that there is imminent danger of loss, lest the
injury thereby caused be far greater than the injury sought to be averted. The
court should consider the consequences to all of the parties and the power
should not be exercised when it is likely to produce irreparable injustice or
injury to private rights or the facts demonstrate that the appointment will
injure the interests of others whose rights are entitled to as much
consideration from the court as those of the complainant (Velasco & Co. vs.
Gochico & Co, 28 Phil. 39).

Duty of the Court/s before Appointing a Receiver:

Before appointing a receiver, courts should consider:

(1) whether or not the injury resulting from such appointment would probably
be greater than the injury ensuing if the status quo is left undisturbed; and
(2) whether or not the appointment will imperil the interest of others whose
rights deserve as much a consideration from the court as those of the person
requesting for receivership (Ralla vs. Alcasid, 6 SCRA 311 [1962]).
Where the effect of the appointment of a receiver is to take real estate out of
the possession of the defendant before the final adjudication of the rights of
the parties, the appointment should be made only in extreme cases
(Mendoza vs. Arellano, 36 Phil. 59).

Case:

Tantano vs. Espina-Caboverde, G.R. No. 203585, July 29, 2013

In Tantano, the mother during the pendency of a real action case, and while
still in possession of the property involved, applied for receivership on the
ground that she could immediately collect her share in the property’s income.
The trial court granted the application even without bond prior to the issuance
of an order appointing a receiver.

Placing a property under receivership for the applicant to ensure that she
would receive her share in the income (from the property subject of the
litigation) in order to pay for her vitamins, her regular check-ups and daily
sustenance was not justified. Receivership application has no leg to stand on.
This does not fall under the category of Section 1(d) of Rule 59: “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.”

Indeed, Sec. 1(d) above is couched in general terms and broad in scope,
encompassing instances not covered by the other grounds enumerated under
the said section. In granting applications for receivership on the basis of
Section 1(d), courts must remain mindful of the basic principle that
receivership may be granted only when the circumstances so demand, either
because the property sought to be placed in the hands of a receiver is in
danger of being lost or because they run the risk of being impaired, and that
being a drastic and harsh remedy, receivership must be granted only when
there is a clear showing of necessity for it in order to save the plaintiff from
grave and immediate loss or damage.

The mother’s alleged need for income to defray her medical expenses and
support is not a valid justification for the appointment of a receiver. The
approval of an application for receivership merely on this ground is not only
unwarranted but also an arbitrary exercise of discretion because financial need
and like reasons are not found in Sec. 1 of Rule 59 which prescribes specific
grounds or reasons for granting receivership. The RTC’s insistence that the
approval of the receivership is justified under Sec. 1(d) of Rule 59, which
seems to be a catch-all provision, is far from convincing. To be clear, even in
cases falling under such provision, it is essential that there is a clear showing
that there is imminent danger that the properties sought to be placed under
receivership will be lost, wasted or injured.

Second, there is no clear showing that the disputed properties are in danger
of being lost or materially impaired and that placing them under receivership
is most convenient and feasible means to preserve, administer or dispose of
them.

Parties to the case were in possession of the property, therefore, there was
no clear showing of necessity in order to save the plaintiff from grave and
irremediable loss or damage.

REPLEVIN
Case:

Enriquez filed a replevin case against Asuten for the recovery of the
Toyota Hi-Ace van valued at P300,000.00, because Austin refused to return
to Enriquez the subject van claiming that it was given by Enriquez’ son as a
consequence of a gambling deal. Enriquez applied for a bond in the amount of
P600,000.00 with Mercantile Insurance in Asuten's favor. The bond was
approved by the RTC and ordered the sheriff to recover the van from Asuten
and to deliver it to Enriquez. While the van was in Enriquez’ custody, the RTC
dismissed the case without prejudice for failure to prosecute. Thus, it ordered
the sheriff to restore the van to Asuten. However, Enriquez failed to produce
the van, because it was surrendered by him to BPI. By virtue of the trial court’s
order directing her to pay Asuten the amount of the bond (P600,000),
Mercantile paid Asuten. Mercantile asked Enriquez to remit the aforesaid
amount of replevin bond, but Enriquez refused. This prompted Mercantile to
file collection suit against Enriquez.

Basics of Replevin:

Replevin is an action for the recovery of personal property.

It is both a principal remedy and a provisional relief.

It may refer either to the action itself, that is, to regain the possession of
personal chattels being wrongfully detained from the plaintiff by another; the
action is primarily possessory in nature and generally determines nothing
more than the right of possession, or to the provisional remedy that
would allow the plaintiff to retain the thing during the pendency of
the action and hold it pendente lite. (jeepney driver, obtained a loan from
ABC lending corporation P200k, executed a PN and a chattel mortgage over
the vehicle. Cannot pay, can ABC lending avail replevin? 2018 Bar passer
bought from Toyota cebu city brand new Toyota rush on installment basis.
The balance was financed by BPI. Chattel mortgage was executed over the
MV. Defaulted in paying. Can BPI avail replevin? Can BPI or ABC as the case
may be apply small claim procedure?

When utilized as a principal remedy, the objective is to recover possession of

personal property that may have been wrongfully detained by another.

When sought as a provisional relief, it allows a plaintiff to retain the contested

property during the pendency of the action.

Replevin is so usually described as a mixed action, being partly in rem and

partly in personam-in rem. It is partly personam-in rem insofar as the
recovery of specific property is concerned, and in personam as regards to
damages involved.

As an "action in rem," the gist of the replevin action is the right of the plaintiff
to obtain possession of specific personal property by reason of his being the
owner or of his having a special interest therein. Consequently, the person in
possession of the property sought to be replevied is ordinarily the proper and
only necessary party defendant, and the plaintiff is not required to so join as
defendants other persons claiming a right on the property but not in
possession thereof. Rule 60 of the Rules of Court allows an application for the
immediate possession of the property but the plaintiff must show that he has
a good legal basis, that is, a clear title thereto, for seeking such interim
possession (Tillson vs. CA, 327 Phil. 716).

As a provisional remedy, a party may apply for an order for the delivery of the
property before the commencement of the action or at any time BEFORE an
answer is filed. Rule 60 of the Rules of Court outlines the procedure for the
application of a writ of replevin. It also requires that the party seeking the
issuance of the writ must first file the required affidavit and a bond in an
amount that is double the value of the property (Enriquez vs. Mercantile
Insurance, G.R. No. 210950, August 15, 2018).

Procedural Requirements of Replevin:

The applicant must show by his own affidavit or that of some other person
who personally knows the facts:
(a) That the applicant is the owner of the property claimed, particularly
describing it, or is entitled to the possession thereof;
 (b) That the property is wrongfully detained by the adverse party,
alleging the cause of detention thereof according to the best of his
knowledge, information, and belief;
(c) That the property has not been distrained or taken for a tax
assessment or a fine pursuant to law, or seized under a writ of
execution or preliminary attachment, or otherwise placed under
custodia legis, or if so seized, that it is exempt from such seizure or
custody; and
(d) The actual market value of the property.

The applicant must also give a bond, executed to the adverse party in double
the value of the property as stated in the affidavit aforementioned, for the
return of the property to the adverse party if such return be adjudged, and
for the payment to the adverse party of such sum as he may recover from the
applicant in the action (R60 S2).

Once the affidavit is filed and the bond is approved by the court, the court
issues an order and a writ of seizure requiring the sheriff to take the property
into his or her custody (R60 S3). If there is no further objection to the bond
filed within five (5) days from the taking of the property, the sheriff shall
deliver it to the applicant (R60 S6). The contested property remains in the
applicant's custody until the court determines, after a trial on the Issues,
which among the parties has the right of possession (R60 S9).

Effect of writ of seizure if the principal action for replevin is ordered

dismissed without prejudice:

If the replevin main action is dismissed for failure to prosecute, and the
dismissal is without prejudice, any writ of seizure, being merely ancillary to
the main action, becomes functus officio. The parties returned to the status
quo as if no case for replevin had been filed. Thus, upon the dismissal of the
case, there being no trial on the merits conducted, it is imperative for the
applicant (plaintiff) to return the personal property to the defendant.

The necessary consequence of the dismissal of the replevin case for failure to
prosecute without prejudice is to return the seized personal property to the
defendant, because the writ of seizure, which is merely ancillary in nature,
became functus officio and should have been lifted.

There was no adjudication on the merits, which means that there was no
determination of the issues who has better right to possess the personal
property subject of the case. The applicant (plaintiff) cannot therefore retain
possession of the subject car considering that it was not adjudged as the
prevailing party entitled to the remedy of replevin (Advent Capital and
Finance Corp. vs. Young, 670 Phil. 538, [2011]).

The dismissal of the replevin case for failure to prosecute results in the
restoration of the parties' status prior to litigation, as if no complaint was filed
at all. To let the writ of seizure stand after the dismissal of the complaint would
be adjudging Advent as the prevailing party, when precisely no decision on
the merits had been rendered. Accordingly, the parties must be reverted to
their status quo ante. Since Young possessed the subject car before the filing
of the replevin case, the same must be returned to him, as if no complaint
was filed at all (Olympia International vs. CA, 259 Phil. 841 [1989]).

Rationale to the requirement that replevin bond for a writ of seizure

be double the value of the property, or the two-fold purpose of
replevin bond:

The bond functions not only to indemnify the defendant in case the property
is lost, but also to answer for any damages that may be awarded by the
court if the judgment is rendered in defendant's favor (Citibank, N.A. vs. CA,
364 Phil. 328 [1999]).

Replevin bond is intended to indemnify the defendant against any loss that he
may suffer by reason of its being compelled to surrender the possession of
the disputed property pending trial of the action. The same may also be
answerable for damages if any when judgment is rendered in favor of the
defendant or the party against whom a writ of replevin was issued and such
judgment includes the return of the property to him. Thus, the requirement
that the bond be double the actual value of the properties litigated upon. Such
is the case because the bond will answer for the actual loss to the plaintiff,
which corresponds to the value of the properties sought to be recovered and
for damages, if any (Alim vs. CA, 277 Phil. 156, 1991 cited in Citibank
case).

Requirement in forfeiting the replevin bond:

First, a judgment on the merits in the defendant's favor, and

Second, an application by the defendant for damages.

Neither circumstance appears in this case. When Enriquez failed to produce
and return the van, equity demanded that Asuten be awarded only an amount
equal to the value of the van. The RTC would have erred in ordering the
forfeiture of the entire bond in Asuten's favor, considering that there was no
trial on the merits or an application by Asuten for damages. This judgment
could have been reversed had Enriquez appealed the RTCs Order in dismissing
the replevin case. Unfortunately, she did not. Mercantile was, thus,
constrained to follow the RTCs directive to pay Asuten the full amount of the
bond.

When the replevin case was dismissed due to her failure to prosecute, the RTC
forfeited the replevin bond which she had filed because she refused to return
the property. She is now made liable for the replevin bond because she failed
to appeal its forfeiture.

On the damages against the Replevin Bond:

Section 10, Rule 60 of the Rules of Court governs claims for damages on
account of improper or irregular seizure in replevin cases. It provides that in
replevin cases, as in receivership and injunction cases, the damages to be
awarded upon the bond "shall be claimed, ascertained, and granted" in
accordance with Section 20 of Rule 57.

Sec. 20. Claim for damages on account of improper, irregular or excessive

attachment. - An application for damages on account of improper, irregular or
excessive attachment must be filed before the trial or before appeal is
perfected or before the judgment becomes executory, with due notice to the
attaching obligee or his surety or sureties, setting forth the facts showing his
right to damages and the amount thereof. Such damages may be awarded
only after proper hearing and shall be included in the judgment on the main
case.

If the judgment of the appellate court be favorable to the party against whom
the attachment was issued, he must claim damages sustained during the
pendency of the appeal by filing an application in the appellate court with
notice to the party in whose favor the attachment was issued or his surety or
sureties, before the judgment of the appellate court becomes executory. The
appellate court may allow the application to be heard and decided by the trial
court.

Nothing herein contained shall prevent the party against whom the
attachment was issued from recovering in the same action the damages
awarded to him from any property of the attaching obligee not exempt from
execution should the bond or deposit given by the latter be insufficient or fail
to fully satisfy the award.

The above provision essentially allows the application to be filed at any time
before the judgment becomes executory. It should be filed in the same case
that is the main action, and with the court having jurisdiction over the case at
the time of the application (Advent Capital and Finance Corporation vs.
Young, G.R. No. 183018, August 3, 2011, citing Carlos vs, Sandoval,
508 Phil. 260; Paramount Insurance Corp. vs. CA 369 Phil. 641).

When to avail Damages against the Replevin Bond:

The application shall be filed at any time before the judgment becomes
executory. It should be filed in the same case that is the main action, and with
the court having jurisdiction over the case at the time of the application
(Advent Capital and Finance Corporation vs. Young, supra).

In the Advent Capital case, there was no application for damages against
Stronghold resulting from the issuance of the writ of seizure before the finality
of the dismissal of the complaint for failure to prosecute. What was filed by
Young was an omnibus motion claiming damages against Stronghold after the
dismissal order issued by the trial court had attained finality. While Young filed
a motion for partial reconsideration, it only concerned the dismissal of his
counterclaim, without any claim for damages against the replevin bond. It was
only when he filed an omnibus motion seeking damages against the replevin
bond, after the dismissal order had already become final for Advent’s non-
appeal of such order. Young was barred from claiming damages against the
replevin bond.

Case:

Dagudag vs. Judge MGW Paderangga, A.M. No. RTJ-06-2017, June

19, 2008

A container vans containing illegal forest products was shipped from CDO to
Cebu. To avoid inspection by the DENR, the shipments were falsely declared
as cassava meal and corn grains. Upon arrival, the DENR and the PCGuard
inspected the container vans at a port in Mandaue City, Cebu. The vessel failed
to produce pertinent transport documents covering the forest products.
Nobody claimed the forest products within a reasonable period of time, the
DENR considered them as abandoned. DENR took custody of the confiscated
the forest products.

Thereafter, a plaintiff filed a complaint prayed that a writ of replevin be issued

ordering the DENR, CENRO, et al., to deliver the forest products to plaintiff
and that judgment be rendered ordering the defendants to pay him moral
damages, attorney's fees, and litigation expenses. The judge issued a writ of
replevin ordering the Sheriff to take possession of the forest products. A
motion to quash the writ was filed on the ground of failure of the plaintiff to
exhaust administrative remedies. It was denied for lack of merit.

On replevin issue:

Judge Paderanga should have dismissed the replevin suit outright for three
reasons.

Section 8 of Presidential Decree No. 705, as amended, states that (1) all
actions and decisions of the Bureau of Forest Development Director are
subject to review by the DENR Secretary; (2) the decisions of the DENR
Secretary are appealable to the President; and (3) courts cannot review the
decisions of the DENR Secretary except through a special civil action for
certiorari or prohibition.

First, under the doctrine of exhaustion of administrative remedies, courts

cannot take cognizance of cases pending before administrative agencies.
Plaintiff should not have gone straight to court and filed a complaint for
replevin and damages, because observance of the doctrine of exhaustion
of administrative remedies is basic. Courts, for reasons of law, comity
and convenience, should not entertain suits unless the available
administrative remedies have first been resorted to and the proper
authorities have been given an appropriate opportunity to act and
correct their alleged errors, if any, committed in the administrative
forum (Factoran, Jr. vs. CA, 378 Phil. 282 [1999]). Plaintiff must have
exhausted all administrative remedies before he can resort to the courts (Dy
vs. CA, 363 Phil. 676 [1999]), because before a party is allowed to seek
the intervention of the court, it is a pre-condition that he should have
availed of all the means of administrative processes afforded him.
Hence, if a remedy within the administrative machinery can still be
resorted to by giving the administrative officer concerned every opportunity
to decide on a matter that comes within his jurisdiction then such remedy
should be exhausted first before court's judicial power can be sought.
The premature invocation of court's intervention is fatal to one's
cause of action. Accordingly, absent any finding of waiver or estoppel the
case is susceptible of dismissal for lack of cause of action (Paat vs. CA, 266
SCRA 167 [1997]).

Dismissal of the replevin suit for lack of cause of action in view of the
private respondents' failure to exhaust administrative remedies
should have been the proper course of action by the lower court
instead of assuming jurisdiction over the case and consequently
issuing the WOR. Exhaustion of the remedies in the administrative
forum, being a condition precedent prior to one's recourse to the courts and
more importantly, being an element of private respondents' right of action, is
too significant to be waylaid by the lower court (Dy v. CA, 363 Phil.
676 [1999]).

The suit for replevin is never intended as a procedural tool to question

the orders of confiscation and forfeiture issued by the DENR in
pursuance to the authority given under P.D. 705, as amended. Section 8 of
the said law is explicit that actions taken by the Director of the Bureau
of Forest Development concerning the enforcement of the provisions of the
said law are subject to review by the Secretary of DENR and that courts
may not review the decisions of the Secretary except through a
special civil action for certiorari or prohibition.

Second, under the doctrine of primary jurisdiction, courts cannot take

cognizance of cases pending before administrative agencies of special
competence. The DENR is the agency responsible for the enforcement of
forestry laws. The complaint for replevin itself stated that members of DENR's
Task Force Sagip Kalikasan took over the forest products and brought them
to the DENR Community Environment and Natural Resources Office. This
should have alerted Judge Paderanga that the DENR had custody of the forest
products, that administrative proceedings may have been commenced, and
that the replevin suit had to be dismissed outright.

Respondent judge's act of taking cognizance of the replevin suit clearly

demonstrates ignorance of the law. Judges are expected to keep abreast
of all laws and prevailing jurisprudence. Judges are duty bound to have more
than just a cursory acquaintance with laws and jurisprudence. Failure to
follow basic legal commands constitutes gross ignorance of the law
from which no one may be excused, not even a judge. (Legal Ethics)

SUPPORT PENDENTE LITE

This provisional remedy is available to both civil and criminal cases.

At the commencement of the proper action or proceeding, or at any time prior

to the judgment or final order, a verified application for support pendente lite
may be filed by any party stating the grounds for the claim and the financial
conditions of both parties, and accompanied by affidavits, depositions or other
authentic documents in support thereof (See R61 S1).

The Rule on SPL applies to both civil (cases of legal separation and petitions
for declaration of nullity or annulment of marriage) and support pendente lite
in criminal cases. The substantive aspect of SPL in cases of legal separation
and petitions for declaration of nullity or annulment of marriage is governed
by the provisions of the Family Code, and guided by the following provisions
of the Rule on Provisional Orders (A.M. No. 02-11-12-SC), thus:

Sec. 2. Spousal Support. – In determining support for the spouses, the court
may be guided by the following rules:

(a) In the absence of adequate provisions in a written agreement

between the spouses, the spouses may be supported from the
properties of the absolute community or the conjugal partnership.

(b) The court may award support to either spouse in such amount and
for such period of time as the court may deem just and reasonable based
on their standard of living during the marriage.

(c) The court may likewise consider the following factors: (1) whether
the spouse seeking support is the custodian of a child whose
circumstances make it appropriate for that spouse not to seek outside
employment; (2) the time necessary to acquire sufficient education and
training to enable the spouse seeking support to find appropriate
employment, and that spouse’s future earning capacity; (3) the duration
of the marriage; (4) the comparative financial resources of the spouses,
including their comparative earning abilities in the labor market; (5) the
needs and obligations of each spouse; (6) the contribution of each
spouse to the marriage, including services rendered in home-making,
child care, education, and career building of the other spouse; (7) the
age and health of the spouses; (8) the physical and emotional conditions
of the spouses; (9) the ability of the supporting spouse to give support,
taking into account that spouse’s earning capacity, earned and unearned
income, assets, and standard of living; and (10) any other factor the
court may deem just and equitable.
 (d) The Family Court may direct the deduction of the provisional support
from the salary of the spouse.

Sec. 3. Child Support. – The common children of the spouses shall be

supported from the properties of the absolute community or the conjugal
partnership.

Subject to the sound discretion of the court, either parent or both may be
ordered to give an amount necessary for the support, maintenance, and
education of the child. It shall be in proportion to the resources or means of
the giver and to the necessities of the recipient.

In determining the amount of provisional support, the court may likewise

consider the following factors: (1) the financial resources of the custodial and
non-custodial parent and those of the child; (2) the physical and emotional
health of the child and his or her special needs and aptitudes; (3) the standard
of living the child has been accustomed to; (4) the non-monetary contributions
that the parents will make toward the care and well-being of the child.

The Family Court may direct the deduction of the provisional support from the
salary of the parent (See Lim-Lua vs. Lua, G.R. Nos. 175279-80, June 5,
2013).

As to procedure, according to Mangonon vs. CA, G.R. No. 125041, June

30, 2006, Rule 61 of the Rules of Court applies. That case briefly discussed
the essence of support pendente lite citing Sections 1 and 4 of Rule 61:

SECTION 1. Application. - At the commencement of the proper action or

proceeding, or at any time prior to the judgment or final order, a verified
application for support pendente lite may be filed by any party stating the
grounds for the claim and the financial conditions of both parties, and
accompanied by affidavits, depositions or other authentic documents in
support thereof.

SEC. 4. Order. - The court shall determine provisionally the pertinent facts,
and shall render such orders as justice and equity may require, having due
regard to the probable outcome of the case and such other circumstances as
may aid in the proper resolution of the question involved. If the application is
granted, the court shall fix the amount of money to be provisionally paid or
such other forms of support as should be provided, taking into account the
necessities of the applicant and the resources or means of the adverse party,
and the terms of payment or mode for providing the support. If the application
is denied, the principal case shall be tried and decided as early as possible.
Under this provision, a court may temporarily grant support pendente lite prior
to the rendition of judgment or final order. Because of its provisional nature,
a court does not need to delve fully into the merits of the case before it can
settle an application for this relief. All that a court is tasked to do is determine
the kind and amount of evidence which may suffice to enable it to justly
resolve the application. It is enough that the facts be established by affidavits
or other documentary evidence appearing in the record (citing Ramos vs.
CA, 150-A Phil 996).

As regards SPL of criminal nature, to avail this ancillary remedial relief, a baby
or a child must have been produced when the crime was complained of.
The rule says: In criminal actions where the civil liability includes support for
the offspring as a consequence of the crime and the civil aspect thereof has
not been waived, reserved and instituted prior to its filing, the accused may
be ordered to provide support pendente lite to the child born to the offended
party allegedly because of the crime. The application therefor may be filed
successively by the offended party, her parents, grandparents or guardian and
the State in the corresponding criminal case during its pendency, in
accordance with the procedure established under the 1997 Revised Rules of
Civil Procedure (R61 S6).

As to Procedure:

Section 2. Comment. — A copy of the application and all supporting

documents shall be served upon the adverse party, who shall have five (5)
days to comment thereon unless a different period is fixed by the court upon
his motion. The comment shall be verified and shall be accompanied by
affidavits, depositions or other authentic documents in support thereof. (2a,
3a)

Section 3. Hearing. — After the comment is filed, or after the expiration of

the period for its filing, the application shall be set for hearing not more than
three (3) days thereafter. The facts in issue shall be proved in the same
manner as is provided for evidence on motions. (4a)

Section 4. Order. — The court shall determine provisionally the pertinent

facts, and shall render such orders as justice and equity may require, having
the regard to the probable outcome of the case and such other circumstances
as may aid in the proper resolution of the question involved. If the application
is granted, the court shall fix the amount of money to be provisionally paid or
such other forms of support as should be provided, taking into account the
necessities of the applicant and the resources or means of the adverse party,
and the terms of payment or mode for providing the support. If the application
is denied, the principal case shall be tried and decided as early as possible.
Section 5. Enforcement of order. — If the adverse party fails to comply with
an order granting support pendente lite, the court shall, motu proprio or upon
motion; issue an order of execution against him, without prejudice to his
liability for contempt.

When the person ordered to give support pendente lite refuses or fails to do
so, any third person who furnished that support to the applicant may, after
due notice and hearing in the same case obtain a writ of execution to enforce
his right of reimbursement against the person ordered to provide such
support.

Section 7. Restitution. — When the judgment or final order of the court finds
that the person who has been providing support pendente lite is not liable
therefor, it shall order the recipient thereof to return to the former the
amounts already paid with legal interest from the dates of actual payment,
without prejudice to the right of the recipient to obtain reimbursement in a
separate action from the person legally obliged to give the support. Should
the recipient fail to reimburse said amounts, the person who provided the
same may likewise seek reimbursement thereof in a separate action from the
person legally obliged to give such support.

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