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PROVISIONAL REMEDIES TRANSCRIPT

From the lectures of Atty. Geraldine Tiu


Ateneo de Davao College of Law | Tres Manresa 2015
June 23, 2015 (CJB)
This is part of Remedial Law. You are supposed to be trained
again in essay exam since MCQ is out. You need to answer
concisely. You also need to improve your handwriting. It
irritates the examiner to check a paper that is so indecipherable.
As to grading system, every meeting will be devoted to
recitations. You should read the cases in the original. If youre
not around when called for recitation, you will automatically get
a grade of 50. The recitation will comprise of your grade for
the first grading. The other half will be the exam. The first
grading will cover provisional remedies from Rule 57 to 61. The
second grading will cover Rule 62 to 71 and group report
instead of recitation. The grade for the group report will
comprise of:

court from two to five years. If you have a case in court and
you want to have a contract declared null and void, in the
meantime what happens to the parties? That is where you ask
for provisional remedies. If there are properties that you need
to preserve, then you ask for provisional remedies. If there are
properties that you need to recover immediately pending
litigation, then that is the time that you ask for provisional
remedies. If you have an action for support, and the father
denies the paternity. In the meantime the child has nothing to
eat. That is you ask for support pendente lite. It means that
when you avail of provisional remedies, you get certain reliefs
from the court even when the case is still pending or even when
the rights of the parties are still being determined by the court
in the main action on the merits you already availed of certain
reliefs for as long as you reach the minimum criteria.

1/3 how you deliver and the contents

Who can grant the provisional remedies? Obviously it is the


court where the main action is pending.

1/3 the questions that you ask to the other groups


report and

What are these kinds of provisional remedies? Under the rules


of court we have five. These are:

The other 1/3 will be based on your answers to the


questions given by the other groups.
Overall, you will have two exams and each exam will comprise
of your grade for the grading period. If you will not be called
for the recitation, your first grading grade will only comprise of
the exam.

Preliminary attachment under RULE 57

Preliminary injunction under RULE 58

Receivership under RULE 59

Replevin under RULE 60

Support Pendente Lite under RULE 61

Is that all? There are other provisional remedies provided in the


special rules promulgated by the SC and also under special
laws. In fact, in a jurisprudence the SC also declared that the
party can avail of the:

PROVISIONAL REMEDIES
Introduction to the Subject
Provisional remedies immediately follow your Civil Procedure.
Civil procedure covers ordinary actions.

It is called provisional remedies because it is merely temporary.


When you say provisional it is only ancillary or preliminary. It is
not the main action. What do you mean by a main action? In
your civil procedure, several procedural rules there that will
guide you on how to file a main action. When you talk about a
collection case, then you follow the procedure in the ordinary
civil action. If provisional remedies are not the main action,
where do the come in? Well, they come in together with the
main action. If you have collection, then you can add a
provisional remedy. So it is ancillary and it is not an
independent action by itself. It is auxiliary. It cannot stand
alone. It cannot exist independently so it has to be applied for
together with the main action or principal action.

This case involves an action to annul a contract of sale


of land. The buyer moved for the deposit in court for
the amount given as consideration to prevent
dissipation of the amounts sold to him while the case is
pending. When you have a contract annulled,
obviously when you get a favorable judgment, the
parities are restituted to their previous positions. If
somebody paid, then what he paid should be returned
to him. The land given in the sale will also be returned
to seller. Now if the consideration is not deposited in
court while the case is pending, chances are when the
case is finished and you get a favorable judgment
annulling the contract, ubos na ang consideration.
Nilustay na o ginastos na. So in order to preserve the
subject matter of the action which is the price or the
consideration of the contract, you can avail the
provisional remedy of deposit.

So what is the purpose of provisional remedies? Basically to


protect the rights of the litigant pending litigation. Why is there
a need for these provisional remedies? There are four purposes
that are recognized:
1.

to preserve the litigants rights or interests while the


main action is pending

2.

to secure the judgment

3.

to preserve the status quo

4.

to preserve the subject matter of the action

So basically, if you file a case in court, you have a main case.


Let us say an action for declaration of nullity of a contract. How
long will the case last? They say that Filipinos are a litigious
race or people. So konteng ano lang, they go to court, kaso
kaagad. The result of that is we have so many cases pending in
court. The court dockets are so clogged. So when you have a
case, you dont have a hearing every week, not even every
month. You are lucky is there is a hearing every quarter or
every three months. Thats how clogged the court dockets are.
If your case gets heard every quarter, you have an average of
four hearings in a year. Do you think matatapos kaagad ang
kaso mo in a year? No. So what is the average time for you to
finish a case in court right now? A simple case that you file in
Page 1 of 63

Remedy of deposit in order to preserve the subject


matter of the action. That is in the case of Reyes v.
Wing/Ting?

Although that is not provided by the rules of court, the


remedy of deposit was considered a provisional
remedy by the court in an action for annulment of
contract. What is the justification? The SC said in the
exercise of equity jurisdiction, the court allowed the
remedy to prevent unjust enrichment of the seller at
the expense of the buyer and to protect the sellers
capacity for restitution as a precondition of the
annulment of the contract.

The SC also allowed the provisional remedy of


provisional custody, in the case of Tan v. Arbe.

Other provisional remedies as provided under special


rules promulgated by the SC are found under rule on
custody of minors governed by AM No. 03-04 04-SC.
So you have there under :
Section 13-Temporary Custody
Section 15- Temporary Visitation Rights

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
Section 16- Hold Departure Order

Who can avail


Defendants.

Section 17- Protection Order


All of these are considered provisional remedies or
what they also call as interim rules. Now, a provisional
custody was declared by the SC as a provisional
remedy in a case for habeas corpus. In this case, the
judge ordered the turn over of the provisional custody
of a four year old child to the mother on the first day
of hearing. That was justified under our law where a
child under seven years old must be in the custody of
the mother. On the basis of that, SC upheld the turn
over of the provisional custody of the child to the
mother even while case for habeas corpus is pending.

In the case of Republic v. Saludares, there was a


provisional remedy of sequestration in a case for
recovery of real property. The writ of sequestration as
held in the case above, was likened by the SC to a
preliminary attachment or receivership. That was
considered as a provisional remedy.

Preliminary

Attachment?

Plaintiff

or

Only with respect to counterclaim?


So only the plaintiff and defendant can avail of PA?
What is the subject of attachment? Properties
What is the purpose of attachment?
Rule 57
Section 1. Grounds upon which attachment may issue. At the
commencement of the action or at any time before entry of
judgment, a plaintiff or any proper party may have the property
of the adverse party attached as security for the
satisfaction of any judgment that may be recovered in
the following cases: x x x
In what actions can attachment be applied for? Any action Real
and Personal that will meet the requirements of Sec 1.
In what actions can attachment be applied for?

Now, another special rule of provisional orders you


have AM No. 2-11-12- SC. This is on the special rule
for the declaration of nullity of marriage, annulment of
marriage, legal separation.

Under Section 1(a) what kind of action is that? Collection of sum


of money only? Thats all?

Section 2- Provides for Spousal Support

Under Section 1(c) what kind of action is that?

Section 3- Provides for Child Support

Under Section 1(d) what kind of action is that?

Section 4- Provides for Child Custody

Under Section 1(e) what kind of action is that?

Section 5- Visitation Rights

Under Section 1(f) what kind of action is that?

Section 6- Hold Departure Order

Can a preliminary attachment be applied for in an action for


injunction? Why not?

Section 7- Order of Protection


Section 8- Administration of Property
So all of these are special rules, which provide for
provisional remedies.

of

In fact right now, we have the rule on environment, on


environmental cases. You also have the Writ of
Kalikasan, that is covered. I think that will be taken up
during your special proceedings. So thats the
introduction. Let us now proceed to Rule 57.

PRELIMINARY ATTACHMENT
RULE 57
What is a Writ of Preliminary Attachment? A preliminary
attachment may be defined, paraphrasing the Rules of Court, as
the provisional remedy in virtue of which a plaintiff or other
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. (Davao Light vs. CA, 1991)
What is the purpose of attachment? To secure the satisfaction
of the judgment.
What are the classes of attachment?
Preliminary Attachment
Final Attachment
Garnishment
Only three classes?
Where can you avail of Preliminary Attachment?

Under Section 1(b) what kind of action is that?

What happened in the case of CALO vs. ROLDAN? Main case


is an action for injunction. They applied for the provisional
remedy of preliminary attachment over a property that is in
their possession.
Who asked for PA?
What is the main action? Action for Injunction.
Take note that the cases assigned to you are under certain rules
and sections. You are supposed to find the connection why it is
being assigned in that section. What is the point? If you see a
discussion in a case that is not a topic under the section it is
assigned, do not dwell so much on that. You can read it to get
the entire picture but do not dwell so much on that.
The main question here is can you ask for a preliminary
attachment if the main case if for injunction? NO.
Preliminary attachment basically applies when the property you
are seeking to attach belongs to the defendant or the adverse
party. It does not refer to a property claimed to be owned by
you, unless it is an action for recovery of possession of property
as alleged in the subparagraphs in section 1. But if there is no
issue on possession but attachment will not lie.
The other basic concept here is that the provisional remedy that
you are to ask from the court should jive with the main action.
If your main action is for injunction, to prevent the defendant
from doing something. Is it consistent with the provisional
remedy of attachment which is to cease a property not even
belonging to the defendant but already belonging to plaintiff?
This case tells you that if an action by its nature does not
require such protection or preservation, said remedies couldnt
be applied for.

When you attach a property, you are seizing a property belong


to the defendant or in the possession of defendant so that it
can be used to satisfy the judgment that you may obtain later.
It is to preserve the property for the satisfaction of the
judgment. But the main action here is for injunction, to prevent
the defendants from doing something. To enjoin them from
doing something. Is that consistent with the concept of
Page 2 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
attachment? NO. The lesson here is the kind of provisional
remedy that you will apply for should be consistent with the
nature of the main action filed.
According to the SC to each kind of action/s a proper provisional
remedy is provided for by law. That is why under Section 1 Rule
57, you have there 6 grounds in which you can apply for the
provisional remedy of Preliminary attachment. Now what are
these actions? What are these specific actions? Section 1
doesnt say. It only describes the actions. Meaning it can be as
many action as you can think of so long as it falls within the
description of that particular section. In fact, section 1 (e) and
(f) does not speak of any action. It describes the defendant.
Who is the defendant in the case, so regardless of the nature of
the action for as long as it meets the description of the
defendant in the case, then you case ask for the provisional
remedy of preliminary attachment. So that is the significance of
the case of Calo v. Roldan. The provisional remedy should jive
with the main action filed in court.
Under Section 1a what kind of action is contemplated?
(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 which intent to defraud his creditors;

is that, unless the statute expressly so provides, the remedy by


attachment is not available in respect to a demand which is not
due and payable, and if an attachment is issued upon such a
demand without statutory authority it is void."
Why is it not yet due and demandable in this case? It is not yet
due and demandable because in the promissory note his
promise is to pay P4,000 within six months after peace has
been declared. No competent official has formally declared the
advent of peace. Therefore, the 6-month period has not begun.
What is the nature of the action that was filed here? Collection
case based on loan.
So as to the nature of the action, that is proper. However, the
problem here is the obligation for the sum of money was not
yet due and demandable. Therefore, in order for you to be able
to avail of attachment under section 1a, you must be able to
show that the obligation under which you seek to recover the
sum of money is due and demandable. If it is not yet due and
demandable then you will not be granted a writ of attachment.
Now what other requirement with respect to amount of money
to be recovered was imposed in the case of MIALHE vs. DE
LENCQUESAING? It is imperative that the amount sought be
liquidated.
What was the nature of the action here? Recovery of money.

What is the basis of the action that is contemplated in this


provision? A cause of action arising from law, contract, quasicontract, delict or quasi-delict.

What was the basis of the action? Damages.

So the object of the action here is to recover money. A sum of


money or damages in the form of money. So it can be a
collection case. What else? Damages arising from quasi-delict
for instance. It can also be an action for specific performance
for payment under a contract. It doesnt have to be a collection
case. In a collection case, it presupposes a loan, but what if the
contract is something else? Like a contract of sale and the other
doesnt want to pay. Are you saying it is a collection case? It is
not a collection case, it is a specific performance case because it
is based on a contract and the other party does not want to
perform his obligation. It can also be breach of contract. The
end result there is you want to recover money.

Why was it not liquidated? What was alleged in the complaint?


In the verified complaint, the amount sought to be recovered
was a 1/6 undivided interest over a real estate property.

So what kind of damages? If you are asking to recover a sum of


money based on damages? What kind of damages can you
recover?

Was the issuance of WPI proper? Not proper since the amount
sought was not liquidated.

So there was no mention of any particular amount, only the


fraction of interest over certain real estate property and
because of that it cannot fall under section 1a.
In section 1b, what kind of action is contemplated here?
(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 other person in a fiduciary capacity, or for a willful
violation of duty;

Now is that all? Are those the only element you need to comply
in order to apply for PA under section 1a? Against a party who
is about to depart from the Philippines with intent to defraud his
creditors.

Section 1b speaks of recovery of sum of money or property.


Section 1a is only for sum of money or damages in the form of
sum of money. So that is the difference between the two.

Are you saying that all conditions from a-f must be complied
with? NO.

Aside from the object of money or property under section 1b,


how does it differ with section 1a? In section 1 b, there is fraud
or abuse of confidence.

In the case of KO GLASS vs. VALENZUELA are all elements


present? NO.
Why not? What is missing here? Pinzon however, did not allege
that the defendant Kenneth O. Glass "is a foreigner who may, at
any time, depart from the Philippines with intent to defraud his
creditors including the plaintiff." He merely stated that the
defendant Kenneth O. Glass is a foreigner.
There being no showing, much less an allegation, that the
defendants are about to depart from the Philippines with intent
to defraud their creditor, or that they are non-resident aliens,
the attachment of their properties is not justified.
Was the attachment here issued? Yes, but the SC held in this
case that the judge gravely abuse its discretion in issuing the
WPA.
What is the requirement on the amount of money to be
recovered? It must be specified.

What kind of property? Real and personal properties.

Who committed the fraud? The person who is in custody of the


property to whom trust and confidence given or the one
entrusted with the property.
In TAN vs. ZANDUETA was there fraud here? YES.
Was the attachment validly issued? YES.
One-half thereof did not belong to him to said respondent. He
was merely a depository or agent of the latter as to said half,
and that the petitioner acted in the manner stated
notwithstanding the fact that he was required to turn over to
the respondent the part of the prize won corresponding to the
latter.
In OLSEN & CO. vs. OLSEN was there a ground here for
attachment? Does it fall under section 1b? YES.
What was the main action here? Recovery of sum of money or
collection for sum of money.

In the case of GENERAL vs. DE VENECIA what was the


If the action is for sum of money, shouldnt it fall under section
requirement imposed by the SC? The SC said, "the general rule
Page 3 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
1a? NO, recovery of sum of money is also applicable to section
1b when there is fraud or misappropriation.
Why does the recovery of money here fall under section 1b? It
falls under section 1b because Olsen here is the president,
treasurer and general manager of the corporation. Through his
position, he has misapplied or used the corporations money
without authority to do so.
Having, as he had, absolute and almost exclusive control over
the function of the corporation and its funds by virtue of his
triple capacity as president, treasurer and general manager, the
defendant-appellant should have been more scrupulous in the
application of the funds of said corporation to his own use. As a
trustee of said corporation, it was his duty to see by all legal
means possible that the interests of the stockholders were
protected, and should not abuse the extraordinary opportunity,
which his triple position offered him to dispose of the funds of
the corporation.
Where did he use the money? What did he use the money for?
He purchased a house and lot, shares of stock under his name.
What action is contemplated und section 1c?
(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;
How does section 1c differ from section 1b?
It is clear in the language itself, section 1c is merely to recover
possession; section 1b is to recover money or property. You
recover ownership of the property; like in the case of Olsen
its the money that was misapplied so they want to recover it.
So you are not just recovering possession but ownership of the
property that was fraudulently converted. Under section 1c you
are to recover possession of property unjustly or fraudulently
taken.
In both instances there is fraud. The fraud in section 1b is in
the conversion or embezzlement or the taking away of
ownership of the property but in Section 1c its in the
deprivation of possession of property. That is where fraud
comes in. That is where fraud is employed. So you better take
note of the difference of section 1b and 1c.
Section 1c you only seek to recover possession. Under section
1b, you are recovering ownership.
What kind of property is being contemplated under section 1c?
Personal property.
Can you not apply this to a real property? Can you take away a
real property?

and the plaintiff seeks to attach it to secure the satisfaction of


any judgment that he may recover from the defendant.
Although it was not said in the case, dapat the remedy should
have been replevin.
But the court liberally construed the provisions of the law in this
case. It said that the writ of attachment applied for by Pablo
Tiongson against the property of Jose C. Bernabe may be
construed as a claim for the delivery of the sacks of palay
deposited by the former with the latter.
Was there an attempt to conceal the palay deposited by
Tiongson?
Was there a ground for the issuance of attachment under
section 1c?
There was a proportionate division of the cavans of palay found
in the warehouse. Take note here that there was an argument
that by seeking an attachment against Bernabe, there is an
implied admission that Bernabe owns the palay inside the
warehouse. How was that addressed? How was that argument
addressed?
So this is where the difference of section 1b and 1c comes in.
Under section 1c, ownership is immaterial. You are only seeking
to recover possession. So when you invoke the ground under
section 1c, you are not questioning the ownership over the
property. You are only seeking to recover possession, so
ownership is immaterial under section 1c. If you apply for
attachment under section 1c against a defendant there is no
implied admission that the defendant owns the property
because generally an attachment can be made against the
property of the adverse party.
In this case under section 1c, you are merely seeking to recover
possession of a property that was unjustly taken away,
concealed, removed, etc. by fraud. There is no issue on
ownership. You can own the property that you seek to attach
under section 1c and that is precisely what Tiongson was asking
when he sought to recover the palay and asked for attachment.
Even if that is owned by him, he is merely seeking possession of
the property that was deposited in the warehouse of Bernabe.
Why is there a ground for attachment in this case? Simple, he
deposited 1,026 cavans and 9 kilos of palay, Santos claims to
have deposited 778 cavans and 38 kilos, how many cavans of
palay were there in the warehouse at the time of the
application? It was less than the total of 1,026 and 778.
Obviously, there was taking away, disposal, concealment of
certain portions of the cavans of palay. That in itself is a ground
because as a depository, Bernabe has the obligation to preserve
the exact numbers of cavans of palay deposited in his
warehouse. That he could not produce the exact numbers of
cavans of palay deposited only shows that there was a
conversion of the property deposited.

In the case of SANTOS vs. BERNABE, what kind of property


was subject of the action here? Palay.

June 30, 2015 (SRA)

What was the complaint in this case all about? The MAIN
ACTION in the case?

(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;

How much cavans of palay did Tiongson seek to recover? 1,026


cavans and 9 kilos of palay.
Why did he seek to recover this 1,026 cavans and 9 kilos of
palay? Bernabe owns a warehouse. In his warehouse, Santos
deposited 778 cavans and 38 kilos of palay and Tiongson
deposited 1,026 cavans and 9 kilos of palay. Tiongson filed a
case against Bernabe to recover from him his palay, and asked
for a writ of attachment. Now, 924 cavans were seized. Comes
now is Santos who claims that he must be allowed to intervene
in the attachment. Santos is saying now that Tiongson cannot
claim the 924 cavans because in asking so, Tiongson is in effect
saying that the cavans of rice belong to Bernabe and not to him
In this case, was the attachment properly issued? YES.
In attachment, the personal property belongs to the defendant

What kind of action or grounds contemplated here?


When the defendant is guilty of committing fraud in contracting
the debt or incurring the obligation, or in the performance
thereof.
What is meant by fraud in contracting the debt? It means
that the defendant in order to induce the other party in order to
enter into that obligation, he used fraud.
In the case of PHIL BANK OF COMMUNICATION vs. CA, is
there a valid ground? What was the ground cited here?
PBCom here alleges that Villanueva violated the Trust Receipts
Law.

Page 4 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
What was the ACTION filed here?
It was specific performance. (It is actually collection of sum of
money)
What was the ground?
That there were letters of credit trust receipts executed by
PBCom. (That violation of the Trust Receipts Law constitutes
estafa, providing ground under paragraphs (b) and (d) of Sec. 1
Rule 57)
What are the grounds cited in the motion for attachment?
In the motion for attachment, PBCom alleges that there was
fraud in contracting the debt because there were collaterals that
were
What was the basis of the attachment?
PBCom alleges that there were violations in the Trust Receipts
Law that constitutes estafa and this was this ground for the
issuance of the preliminary attachment.
Was that a sufficient ground?
The Supreme Court held that this was not a sufficient ground.
There being commission of estafa does not automatically mean
that a writ preliminary attachment must be issued. It must be
shown under Section 1(d) that the debtor contracted the debt
induced by the introduction of fraud. A debt is fraudulently
contracted if at the time of contracting it, the debtor has a
preconceived plan or intention not to pay.
So in this case, what was wrong with the application?
In this case, the application for the writ was wrong because
there were no evidence to establish that the debt has no
intention to pay the obligation. In fact, it was shown that the
defendant already paid a portion of the obligation.
In granting the writ of attachment, we consider the application,
especially if it is ex parte. You will not yet consider the defense
of the defendant. You only have to look as to the sufficiency of
the allegations in the application. So what was wrong with the
application?
The application
averments.

for attachment

merely contains general

What is required? The law requires that in alleging fraud, one


must specify facts which will establish fraud.
What happened here was there was merely a reproduction of
the provision without supplying specific details on how the fraud
was committed. In your Civil Procedure, how do you allege
fraud? You have to specifically state in details. You have to
state the particulars on how the fraud was committed. So mere
general averments will not suffice in an ordinary action, how
much more in an application for preliminary attachment.
So with more reason that when you apply for a writ of
preliminary attachment, you must specifically allege what
constitutes fraud, how it was committed, and you must be able
to show that fraud as contemplated under Rule 57.
So when can you say that there was fraud in contracting debt?
Is it merely because you have induced the other party to enter
into transaction through fraud? Or is it something to do with the
intent of the party?
There must be intention on the part of the party.
MeaningThere must be intention on the part of the party
incurring the obligation not to pay
So when you say fraud in contracting the debt, you entered into
a contract with the intent of not complying your end in the
contract. So you simply wanted to get something from the other
party without you doing your part. That is what is meant by
fraud in contracting the debt.

So how about if the fraud or the falsities are in the collateral of


the obligation? Will that be a sufficient ground?
No. In the case of State Investment House vs. CA, the SC
held that the mere decline of the value of the collaterals does
not constitute fraud in contracting the debt.
What was the MAIN ACTION here? A collection suit
When did the collaterals come in? The collaterals were provided
by the surety, Pedro Valdez. The collaterals were comprised of
shares of stock.
Were there fraud or falsities in the collaterals?
The SC ruled with respect to the shares of stock pledged as
security, the decline in their value does not mean that there
was fraudulent intent on the part of the private respondents.
How about the falsities in the deed of sale?
SC held that State Investment could not claim that they have
been deceived of deluded by them because it knew that the
issuer of the checks Pedro Valdez was not a buyer of the
merchandise and personalities made in the ordinary course of
business by P.O. Valdez, Inc. which he was president.
How about the checks which were issued?
As the checks were sold to the petitioner after the loan had
been granted to private respondents, their issuance did not
fraudulently induce the petitioner to grant the loan applied for.
They were mere evidence of the private respondents standing
loan to the petitioner or mere collaterals for the loan granted by
the petitioner to the private respondents.
How about the parcels of land?
With respect to the parcels of land which were mortgaged to
the petitioner, the latter should also have declined to accept
them as collateral if it believed they were worth less than their
supposed value.
In the case of Wee vs. Tankiansee, what was the allegation
here as to ground for the writ of preliminary injunction?
Tee alleges that Tankiansee here as an officer and director of
Wincorp allegedy connived with other defendants to defraud
petitioner.
Is that a sufficient ground?
The SC held that it is not a sufficient ground. The affidavit
narrated only the alleged fraudulent transaction between
Wincorp and Virata and/or Power Merge. As to the participation
of the respondent in the said transaction, the affidavit merely
states that respondent, an officer and director of Wincorp,
connived with the other defendants in the civil case to defraud
petitioner of his money placements.
No, other factual averment or circumstance details how
respondent committed a fraud or how he connived with the
other defendants to commit a fraud in the transaction sued
upon. In other words, petitioner has not shown any specific act
or deed to support the allegation that respondent is guilty of
fraud.
So again, we go back to the general rule that to allege fraud, it
must be with specific details. Now, what do you understand in
fraud in the performance thereof.
It refers to the fraud after the contract or agreement have been
entered.
Before there is no fraud in the performance of the obligation.
But right now, it is a ground. So better read the case of Metro
Inc. vs. Laras Gifts. Lets go to Section 1(e).
(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; or

Page 5 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
It also mentions fraud. What kind of fraud is contemplated
here?
The fraud here is the removal or the disposal of the property
with intent to defraud the creditors.
Does it cover physical removal of properties?
Yes maam. However, the mere physical removal of the
property is not enough for the issuance of attachment. It must
have been made with the intent to defraud creditors.
Is insolvency here a sufficient ground?
Insolvency is not a ground for issuance of writ of preliminary
attachment when defendant has not been shown to have
committed any act intended to defraud his creditors.
Will this ground cover removal for repair?
It is not cover removal for repair as held in the case of Aboitiz
vs. Cotabato Bus Company. Here, several buses, upon
permission of the sheriff, were repaired, but they were
substituted with five buses which were also in the same
condition as the five repaired ones before the repair.
This cannot be the removal intended as ground for the issuance
of a writ of attachment under section 1 (e), Rule 57, of the
Rules of Court. The repair of the five buses was evidently
motivated by a desire to serve the interest of the riding public,
clearly not to defraud its creditors, as there is no showing that
they were not put on the run after their repairs, as was the
obvious purpose of their substitution to be placed in running
condition.
So what kind of removal is contemplated under Section 1(e)?
Here, a mere design to dispose the property and intent to carry
it out is sufficient.
In the case of Peoples Bank & Trust Co. vs. Syvels, intent
to defraud may be and usually is inferred from the facts and
circumstances of the case; it can rarely be proved by direct
evidence. It may be gleaned also from the statements and
conduct of the debtor, and in this connection, the principle may
be applied that every person is presumed to intend the natural
consequences of his acts.

The main case is an action for foreclosure of chattel mortgage.


What was the ground for attachment?
That Syvels Inc. had disposed of all the articles covered by the
chattel mortgage but had not remitted the proceeds to appellee
bank. That Syvels stores were no longer operated and that they
were disposing of their properties to defraud the bank.
Was there sufficient allegation?
Yes, there were sufficient allegations.
Intent to defraud may be and usually is inferred from the facts
and circumstances of the case; it can rarely be proved by direct
evidence. It may be gleaned also from the statements and
conduct of the debtor, and in this connection, the principle may
be applied that every person is presumed to intend the natural
consequences of his acts.
The act of debtor in taking his stock of goods from the rear of
his store at night, is sufficient to support an attachment upon
the ground of the fraudulent concealment of property for the
purpose of delaying and defrauding creditors. The facts are
sufficient in themselves to convince an ordinary man that the
defendants were obviously trying to spirit away a portion of the
stocks of Syvel's Incorporated in order to render ineffectual at
least partially any judgment that may be rendered in favor of
the plaintiff.
So here, the actuations of the appellants are given
consideration in the determination of fraud that the removal of
property was made during nighttime that the stocks were taken
from the rear of the store.
Now, under Section 1(f), what kind of ground is contemplated
here?
57 (f). 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.
Section 1(f) is more on description of the defendant rather than
the kind of main action. It must be a nonresident defendant not
found in the Philippines regardless of the kind of action.

It is placing the property of the debtor out of reach of the


creditor.

When you say that the party does not reside or cannot be found
in the Philippines?

How do you do that?

It refers to persons on whom summons may be served by


publication.

By the statements and conduct of the creditor as alleged by the


affidavit of the applicant.
In the case of Aboitiz, how did the SC defined the removal or
disposal of property under Section 1(e)?
The disposition or removal of the property must be one that is
difficult of detection or discovery.
So the mere physical removal of the property is not sufficient if
it lacks the element of intent of fraud. So in the case of Aboitiz,
the removal is really for the purpose of repair. There was no
sufficient allegation that there is intent to defraud the creditors.
The removal of the property must be for the purpose to conceal
the property.
How about the execution of mortgage?
In Adlawan vs. Torres, the execution of a mortgage in favor
of another creditor is not conceived as one of the means of
fraudulently disposing of ones property. By mortgaging a piece
of property, a debtor merely subjects it to a lien but ownership
thereof is not parted with. Furthermore, the inability to pay
one's creditors is not necessarily synonymous with fraudulent
intent not to honor an obligation.
Q. So the removal here must be to transfer it to the name of
another person. Now, in the case of Peoples Bank & Trust
Co. vs. Syvels, what was the main action?

What do you mean by persons on whom summons may be


served by publication?
These are persons, while summons may be served by
publication, are not in the Philippines for which summons by
publication cannot be effected when the action is in personam.
Hence, there is need to convert the action to in rem or quasi in
rem in order for the court to acquire jurisdiction.
So what is difference between a party who does not reside and
not found in the Philippines and that on whom summons may
be served by publication?

*Atty. Tiu starts to rant about this being a review of the BASICS
in Civil Procedure.*
Do they refer to the same person?
RULE 14
Section 14. Service upon defendant whose identity or
whereabouts are unknown. In any action where the
defendant is designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry, service may, by leave of court,
be effected upon him by publication in a newspaper of general
circulation and in such places and for such time as the court
may order.

Page 6 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
Section 15. Extraterritorial service. 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.
Section 16. Residents temporarily out of the Philippines.
When any 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.
They do not refer to the same person.
A person who does not reside and is not found in the Philippines
refers obviously to one who is a Non-Resident. He lives
somewhere else.
If you say a person on whom summons is served by publication,
it is not only against a person who is Non-Resident. Under Rule
14, pwede yung defendant whose identity or whereabouts are
unknown. It need not be a non-resident defendant. In fact,
summons may also be served to a person who is a resident but
who is temporarily out of the Philippines.
A person who is not found in the Philippines does not have
address in the Philippines.
Is the allegation that the defendant is a non-resident sufficient
for attachment?
Can a foreign corporation be considered a non-resident
defendant for the purpose of the issuance of the writ of
attachment?
Our laws and jurisprudence indicate a purpose to assimilate
foreign corporations, duly licensed to do business here, to the
status of domestic corporations. We think it would be entirely
out of line with this policy should we make a discrimination
against a foreign corporation, like the petitioner, and subject its
property to the harsh writ of seizure by attachment when it has
complied not only with every requirement of law made
especially of foreign corporations, but in addition with every
requirement of law made of domestic corporations.
Corporations, as a rule, are less mobile than individuals. This is
especially true of foreign corporations that are carrying on
business by proper authority in these Islands. They possess, as
a rule, great capital which is seeking lucrative and more or less
permanent investment in young and developing countries like
our Philippines.
In State Investment vs. Citibank, a foreign corporation
licitly doing business in the Philippines, which is a defendant in
a civil suit, may not be considered a non-resident within the
scope of the legal provision authorizing attachment against a
defendant not residing in the Philippine Islands." In other
words, a preliminary attachment may not be applied for and
granted solely on the asserted fact that the defendant is a
foreign corporation authorized to do business in the Philippines
and is consequently and necessarily, "a party who resides out
of the Philippines."
Parenthetically, if it may not be considered as a party not
residing in the Philippines, or as a party who resides out of the

country, then, logically, it must be considered a party who does


reside in the Philippines, who is a resident of the country.
Obviously, the assimilation of foreign corporations authorized to
do business in the Philippines "to the status of domestic
corporations," subsumes their being found and operating as
corporations, hence, residing, in the country.
Foreign corporations are juridical persons. Only natural persons
are referred into as non-resident defendants. Hence, it will not
apply to corporations. That simple.
Even if doing business in the Philippines, the rule as to nonresident defendant does not apply. More so, if it is doing
business in the Philippines.
As to Domestic Corporation, can it be considered a non-resident
defendant?
No. They are considered resident defendants because they are
registered in the SEC, and so they can easily be located.
When you are a non-resident defendant, obviously you are not
found in the Philippines. How do you serve summons?
Through publication
Only through publication?
It may also be through Extraterritorial service.
Where do you publish?
In the residence of the defendant.
Take note that in extraterritorial service, it is not only limited to
personal service and publication, but also in any other manner
the court may deem sufficient. Can an action proceed against
him considering that he is not found in the Philippines?
Yes. The remedy in order for the court to acquire jurisdiction to
try the case is to convert the action into a proceeding in rem or
quasi in rem by attaching the property of the defendant. Thus,
in order to acquire jurisdiction in actions in personam where
defendant resides out of and is not found in the Philippines, 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
defendants property.
What is an action in personam? What is an action in rem?
Suppose the action in rem, are you saying that there need to be
an attachment in order for the court to acquire jurisdiction?
No. Being in rem, the court has already acquired the res. When
the case was filed, the court already acquired jurisdiction.
If this is an action in personam, which does not involve rights or
ownership over a property, status of the person, then it is
imperative that you acquire jurisdiction over the person of the
defendant. Then the question is, what happens if that is a nonresident defendant, outside the territorial jurisdiction of the
courts? That is when Section 1(f) applies.
So what kind of action is contemplated in Section 1(f)?
It is an action in personam. So you do not answer any action
because if it is in rem, then theres no need to apply Section
1(f) as the court has already acquired jurisdiction.
*Basicccckkkk.cough cough cough HAHA blah bla hblah*
In Mabanag vs. Gallemore, what was the MAIN ACTION? It
is a recovery for sum of money.
Who is the defendant? Gallemore
Where is he residing? In Los Angeles, California. It was alleged
that he has no property in the Philippines except an alleged
debt owing him by a resident of Misamis Occidental.
Was there sufficient basis to attach the credit of the defendant?
Yes

Page 7 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
So in this case, when the court attached the debt owed to the
defendant, is that equivalent to the acquisition of jurisdiction
over the person of the defendant?
Yes. The Court has acquired jurisdiction of the case by virtue of
the attachment of the defendants credit. Those authorities and
decisions, so plain and comprehensive as to make any
discussion unnecessary, are in agreement that though no
jurisdiction is obtained over the debtors person, the case may
proceed to judgment if there is property in the custody of the
court that can be applied to its satisfaction.
Why is it that there is no acquisition of jurisdiction over the
person of the defendant even though there is attachment of the
property?
*MONSTER MODE*
In case of non-resident defendant, the service if summons is
ONLY to comply with the requirement of DUE PROCESS but it
does not confer jurisdiction over the person of the non-resident
defendant.
In the case of PCIB vs. Alejandro: Alejandro is what kind of
defendant?
He is a resident defendant who is temporarily out of the
Philippines.

deposit or gives a bond as hereinafter provided in an amount


equal to that fixed in the order, which may be the amount
sufficient to satisfy the applicant's demand or the value of
the property to be attached as stated by the applicant,
exclusive of costs. Several writs may be issued at the same
time to the sheriffs of the courts of different judicial regions.
How the writ of attachment issued?
(1) Ex parte; and
(2) Upon motion with notice and hearing.
Who may issue the writ?
The Court in which the case is pending.
What kind of courts are talking out here?
It could be the MTC, RTC, Family Court or the CA or the SC. The
CA and SC can issue writ attachment anywhere in the
Philippines.
What may be attached?
So much of the property in the Philippines of the party against
whom it is issued and the same is not exempt from execution,
as may be sufficient to satisfy the applicants demand.
So you have to attach all properties?

So what was alleged in the application for attachment?

Only those sufficient to satisfy the applicants demand.

PCI Bank alleged that respondent is not a resident of the


Philippines.

Can courts in Manila issue writ to courts in Davao?

What is the MAIN ACTION here? Collection for sum of money.


Was the attachment granted? Yes

A. The last sentence of Section 2 provides that several writes


may be issued at the same time to the sheriffs of the courts of
different judicial regions.

What was the ground for which it was issued? It was on the
representation that respondent is not a resident of the
Philippines

The writ of attachment may be issued anywhere in the


Philippines. It can be effective even to places outside the
territorial jurisdiction of the court. The court may issue the writ
of attachment and course through the sheriff of another court.

What other grounds? Section 1 c and f

Can it be defeated upon issuance?

Was the issuance of the attachment valid? No maam, since he


has a residence in Quezon City and an office in Makati City, the
trial court, if only for the purpose of acquiring jurisdiction, could
have served summons by substituted service on the said
addresses, instead of attaching the property of the defendant.

When the defeated party makes a deposit or gives a bond in an


amount equal to that fixed in the order, which may be amount
sufficient to satisfy the applicants demand or value of the
property to be attached as stated by the applicant, exclusive of
costs.

OK, the SC held that a person temporarily out of the Philippines


which can be served summons by publication must first be
served summons by substituted service before the publication
shall be had. There is hierarchy of the service of summons.
First, personal service, then substituted service, before
publication. Since respondents have a residence, then
substituted service should have been had before publication.

When may the court issue several writs? Writs may be issued at
the commencement of the action

You dont serve summons by publication simply because the


defendant is out of the Philippines.
Now, Section 1(f) you have to remember that the attachment is
simply to convert the action to action quasi in rem or conversely
stated, it is only for a person, or a case to proceed against a
defendant who is not found in the Philippines. Only then you
can serve summons by publication. Take note that the
publication here should be done in the Philippines. Thats there
can never be acquisition of jurisdiction over the person of a
non-resident defendant.
Despite the service of summons by publication, what only
served is the right to due process.
Section 2. Issuance and contents of order. An order of
attachment may be issued either ex parte or upon motion
with notice and hearing by the court in which the action is
pending, or by the Court of Appeals or the Supreme Court,
and must require the sheriff of the court to attach so much
of the property in the Philippines of the party against whom
it is issued, not exempt from execution, as may be sufficient
to satisfy the applicant's demand, unless such party makes

In the case of Sievert vs. CA, what was the ruling of the SC?
The judge may not issue the WPI before the summons was
served.
There is no question that a writ of preliminary attachment may
be applied for a plaintiff "at the commencement of the action or
at any time thereafter" in the cases enumerated in Section 1 of
Rule 57 of the Revised Rules of Court.
The critical time which must be identified is, rather, when the
trial court acquires authority under law to act coercively against
the defendant or his property in a proceeding in attachment.
We believe and so hold that critical time is the time of the
vesting of jurisdiction in the court over the person of the
defendant in the main case.
So what is the basic ruling in the 1998 case of Sievert?
The critical time which must be identified is when the trial court
acquires authority under law to act coercively against the
defendant or his property in a proceeding in attachment. There
is requirement that service of summons before the issuance of
the writ of attachment.
Under this ruling, there must first be service of summons. Now
in the 1991 case of Davao Light vs. CA, is there the same
ruling?

Page 8 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
No. In Davao Light, the SC held that provisional remedies of
preliminary attachment, preliminary injunction, receivership, or
replevin may be validly and properly applied for and granted
even before the defendants is summoned or is heard from.

At what stage must there be service of summons?


Third stage. Upon the implementation of the writ of attachment.

However, it was likewise ruled that the writ cannot bind and
affect the defendant until jurisdiction over his person is
eventually obtained. Therefore, it is required that when the
proper officer commences implementation of the writ of
attachment, service of summons should be simultaneously
made.
Take note that in the case of Sievert, the application for
injunction was made separately from the complaint. Ordinarily,
when you apply for a writ of preliminary attachment, you
already incorporate it with the complaint.
What happened in Sievert is, there was a complaint, and there
was a separate application for the issuance of the writ of
preliminary attachment.
In the case of Davao Light, there was a complaint for
collection of sum of money with an ex parte application for a
writ of attachment. Meaning to say, the writ of attachment was
already incorporated in the complaint.
So in the case of Aboitiz (Davao Light?), what was the
justification given by the Court in saying that the court may now
act on the application for attachment despite the non-service of
summons on the defendant?
Rule 57 speaks of grant of 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 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.
The reason is that by mere filing of the complaint, the court
already acquire jurisdiction over the case. It has now the power
to act on any application, including the application for writ of
attachment, ex parte application. Kaya nga ex parte eh, kay
wala pa sa eksena yung defendant.

Third, the writ is implemented.

Once the implementation commences, it is required


that 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.
How about in the first two stages?
For the initial two stages, it is not necessary that
jurisdiction over the person of the defendant should
first be obtained.
What was the main action? Recovery for a sum of money plus
damages.
How was the writ issued? Was it with a hearing? It was granted
ex-parte.
On August 24, 1990, the lower court issued an order
granting ex-parte the petitioner's prayer for the
issuance of a writ of preliminary attachment.
When was the writ implemented?
The writ was implemented simultaneously with the service of
summons.
On September 20, 1990, a copy of the writ of
preliminary attachment, the order dated August 24,
1990, the summons and the complaint were all
simultaneously served upon the private respondents at
their residence.
Is it required that there should be hearing before a writ of
attachment can be issued?
No. The only requisites for the issuance of the writ are the
affidavit and bond of the applicant.
Under section 3, Rule 57 of the Rules of Court, the
only requisites for the issuance of the writ are the
affidavit and bond of the applicant. No notice to the
adverse party or hearing of the application is required
inasmuch as the time which the hearing will take could
be enough to enable the defendant to abscond or
dispose of his property before a writ of attachment
issues. In such a case, a hearing would render
nugatory the purpose of this provisional remedy.

Now, the question is, can you enforce the writ of attachment
prior the service of summons upon the defendant?
When you speak of issuance of writ of attachment, the court
may do that ex parte or prior the service of summons. But if
you talk about enforcement, then that is the time that you are
required to serve the summons. The sheriff cannot just take the
property without notice. Simply put, there must be observance
of due process. And you can only do that by service of
summons.

In what instances when despite compliance with the affidavit


and bond requirement, a hearing is still required?

July 7, 2015 (HL)

Salas vs Adil. Was there hearing conducted here?

Sievert vs CA & Davao Light. RE: The issuance of a writ of


attachment.

No hearing was conducted. The writ of attachment was issued


ex-parte.

There has to be service of summons first before a writ can be


issued. However, in Davao Light- even prior to the acquisition of
jurisdiction over the person of the defendant, the court can
already act on the application for a writ of attachment because
the court already acquired jurisdiction over the case and the
rules also say that the writ may issue at the commencement of
the action which happens upon the filing of the case.

What was the main action?

Cuartero vs CA: What are the stages in the issuance of a writ


of attachment?

Was the ex-parte issuance of the writ proper? No.

Annulment of a deed of sale and recovery of damages.


How was the writ of attachment applied for? Was it granted?
Respondents filed a Motion for Attachment. It was granted by
the Court.

The grant of the provisional remedy of attachment practically


involves three stages:

First, the court


application;

issues

the

order

granting

the

Second, the writ of attachment issues pursuant to the


order granting the writ; and
Page 9 of 63

Considering the gravity of the allegation that herein


petitioners have removed or disposed of their
properties or are about to do so with intent to defraud
their creditors, and further considering that the
affidavit in support of the pre attachment merely states
such ground in general terms, without specific
allegations of instances to show the reason why
plaintiffs believe that defendants are disposing of their
properties in fraud of creditors, it was incumbent upon

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
the respondent Judge to give notice to petitioners and
to allow them to present evidence to support their
allegation.
If the affidavit does not particularly allege the ground for
attachment, specifically if it is based on FRAUD, then there has
to be a hearing conducted in order to ascertain the basis of the
application. General averments specifically on the ground of
fraud will not suffice.
La Granja vs Samson: What was the case all about? And
what was the basis for the application of the writ?
Recovery of sum of money. GROUND: Sec. 1(e). That the said
defendants have disposed or are disposing of their properties in
favor of the Asiatic Petroleum Co., with intent to defraud their
creditors.
Was the writ issued?
Petitioner was required to present evidence before the Judge
would grant its petition.
The respondent judge, wishing to ascertain or
convince himself of the truth of the alleged disposal,
required the petitioner herein to present evidence to
substantiate its allegation, before granting its petition.
And?
Petitioner refused to comply with the court's
requirement, alleging as its ground that it was not
obliged to do so. The respondent judge dismissed said
petition for an order of attachment.
Was the denial of the application proper? Yes.
Although the law requires nothing more than the
affidavit as a means of establishing the existence of
such facts, nevertheless, such affidavit must be
sufficient to convince the court of their existence, the
court being justified in rejecting the affidavit if it does
not serve this purpose and in denying the petition for
an order of attachment. The affidavit filed by the
petitioner, La Granja, Inc., must not have satisfied the
respondent judge inasmuch as he desired to ascertain
or convince himself of the truth of the facts alleged
therein by requiring evidence to substantiate them.
The sufficiency or insufficiency of an affidavit depends
upon the amount of credit given it by the judge, and
its acceptance or rejection, upon his sound discretion.
Hence, the respondent judge, in requiring the
presentation of evidence to establish the truth of the
allegation of the affidavit that the defendants had
disposed or were disposing of their property to defraud
their creditors, has done nothing more than exercise
his sound discretion in determining the sufficiency of
the affidavit.
In view of the foregoing considerations, we are of the
opinion and so hold that the mere filing of an affidavit
executed in due form is not sufficient to compel a
judge to issue an order of attachment, but it is
necessary that by such affidavit it be made to appear
to the court that there exists sufficient cause for the
issuance thereof, the determination of such sufficiency
being discretionary on the part of the court.
It is not enough that you comply with the requirement of an
affidavit. The affidavit itself must be sufficient. If it is not
sufficient, it is now the discretion of the Judge to call for a
hearing. If you do not comply with the presentation of evidence,
then the judge can deny your application.

hereof, 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 is granted above all legal counterclaims. The affidavit,
and the bond required by the next succeeding section, must be
duly filed with the court before the order issues.
What should the affidavit contain?
An order of attachment shall be granted only when it appears
by the affidavit of the applicant, or of some other person who
personally knows the facts:
(1) That a sufficient cause of action exists;
(2) That the case is one of those mentioned in section
1 hereof;
(3) that there is no other sufficient security for the
claim sought to be enforced by the action;
(4) 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 is granted above all legal counterclaims.
Aside from the affidavit, what else is required in the issuance of
the writ? Bond to be posted by the applicant.
When do you file the affidavit and the bond?
The affidavit and the bond required must be duly filed with the
court before the order issues.
What is the effect if the affidavit does not contain all the
matters that are required to be stated therein?
It has been held that the failure to allege in the affidavit the
requisites prescribed for the issuance of a writ of preliminary
attachment, renders the writ of preliminary attachment issued
against the property of the defendant fatally defective, and the
judge issuing it is deemed to have acted in excess of his
jurisdiction. (K.O. Glass vs Valenzuela)
CASE: K.O Glass vs Valenzuela: Was the affidavit here
sufficient? Why? No.
While Pinzon may have stated in his affidavit that a
sufficient cause of action exists against the defendant
Kenneth O. Glass, he did not state therein that "the
case is one of those mentioned in Section 1 hereof;
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 is as much as the sum for
which the order granted above all legal counterclaims."
How many requisites are not found in the affidavit?
3 requisites are lacking. (See previous answer)
In this case, there was only a mention of a cause of action. All
the rest of the requisites are not present. All the requisites must
be stated in the affidavit. Failure to state one, renders the
affidavit fatally defective.
Guzman vs Catolico: Was the affidavit here sufficient? No.
There is no allegation, either in the complaint or in
affidavit solemnizing it, to the effect that there is no
other sufficient security for the claim which the plaintiff
seeks to enforce by his action, and that the amount
due him from the defendant, above all legal set-offs
and counterclaims, is as much as the sum for which
the writ of preliminary attachment has been granted.

Jardine Manila vs CA: Was the affidavit sufficient? No.


Section 3. Affidavit and bond required. An order of
attachment shall be granted only when it appears by the
The issuance of the attachment is irregular or illegal in
affidavit of the applicant, or of some other person who
the absence of the following allegations in the
personally knows the facts, that a sufficient cause of action
application for attachment: (1) that "there is no
exists, that the case is one of those mentioned in section 1
Page 10 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
sufficient security for the claim sought to be enforced
by the action; and (2) that the amount due to the
applicant or the value of the property on the basis of
which he is entitled to recover, is as much as the sum
for which the order is granted above all legal
counterclaims."

basis for the issuance of the writ, if it is defective then it also


follows that the issuance is defective.

Did the affidavit comply with the requirements of the law? Does
it really show that there is no other sufficient security for the
claim?

There was no sufficient cause of action to warrant the


preliminary attachment since Carlos had merely alleged general
averments in order to support his prayer for attachment.

No. In fact the affidavit states that the defendant corporation


has real and personal properties located in Metro Manila, Rizal
and Nueva Ecija.

What is the main action? The application for attachment was


based on what ground?

Ting Villarin: If the ground is fraud, what should the affidavit


state?
The affidavit must state what constituted the fraud and how it
was perpetrated.
The complaint did not provide for a sufficient basis for
the issuance of a writ of preliminary attachment. It is
not enough for the complaint to ritualistic ally cite, as
here, that the defendants are "guilty of fraud in
contracting an obligation." An order of attachment
cannot be issued on a general averment, such as one
ceremoniously quoting from a pertinent rule. The need
for a recitation of factual circumstances that support
the application becomes more compelling here
considering that the ground relied upon is "fraud in
contracting an obligation." The complaint utterly failed
to even give a hint about what constituted the fraud
and how it was perpetrated. Fraud cannot be
presumed.

Previous TSNs Remedy: File a new application for a writ of


attachment.
Carlos vs Sandoval: Was there a valid affidavit?

Rescission of contracts between Carlos and Sandoval. The


applicant wanted to recover the properties subject of the said
contract/agreement, hence the application for the writ of
attachment.

CASE: Salgado vs CA: Supposing the affidavit is proven to be


false, what is the effect?

The writ of attachment will be discharged.


Section 13, Rule 57 of the Rules of Court authorizes
the discharge of an attachment where the same had
been improperly or irregularly issued. In National
Coconut Corporation v. Hon. Potenciano Pecson, this
Court ruled that when the facts or some of them,
stated in the plaintiffs affidavit, are shown by the
defendant to be untrue, the writ of attachment may be
considered as improperly or irregularly issued.
What was the basis for the application of the attachment?
Respondent Bank made fraudulent misrepresentation
in securing the writ by deleting the words "R E M" or
"Real Estate Mortgage" from the xerox copy of the
promissory note attached to the complaint, thereby
"making it appear that the note was unsecured when
in truth and in fact it was fully secured by a series of
valid and existing real estate mortgages duly registered
and annotated in the titles of the affected real
properties in favor of the plaintiff Bank."

In this case, was there a sufficient allegation of fraud? No. The


affidavit merely states that: 16. Defendants are guilty of fraud
in contracting their obligations more specifically illustrated by
their violation of the trust receipt agreement which is a ground
defined under Sec. 1, Rule 57 of the Rules of Court for the
issuance of a writ of preliminary attachment.
When you talk of fraud, you have to make specific factual
allegations as to how fraud was committed. Mere conclusions
will not suffice.
Cu Unjieng vs Goddard: When you have a defective affidavit,
can that be cured by amendment? No.
Where the affidavit for attachment is fatally defective,
the attachment must be held to have been improperly
or irregularly issued and must be discharged, and such
fatal defect cannot be cured by amendment.
What was the defect in the affidavit?
The affidavit was defective in that it fails to state that
there is no other sufficient security for the claim
sought to be enforced by the action and that the
amount due the plaintiff involves as much as the sum
for which the order of attachment was granted.
In this case, was the writ issued on the basis of the defective
affidavit? Yes.
There was already a grant of the writ of attachment. Then there
was a motion to discharge the writ and a belated attempt to
amend the affidavit. The SC ruled that there was already a
grant of the writ on the basis of the defective affidavit and the
only recourse is to quash the writ and not to amend it.
If the amendment was made prior to the issuance of the writ or
the hearing, then it may still be amended but not after the grant
of the attachment.
Why? Reason is that the affidavit is the foundation of the writ
and if it is fatally defective, then there is no other option but to
discharge the attachment. A defective affidavit cannot be a

So, there was a misrepresentation in the affidavit. Again, the


affidavit is the foundation of the writ. If it is proven to be false,
then there is no sufficient basis for the issuance of the
attachment.
PCIB vs Alejandro: Was there a valid affidavit?
No. The writ was issued mainly on the representation of
petitioner that the respondent is a non-resident when in fact the
respondent has a residence in Quezon City and he has an office
in Makati.
There was a concealment of the fact that the defendant is a
resident and is a partner of a law firm based in Makati. So,
there was a false allegation in the affidavit.
Aside from the affidavit, what else is required before a writ may
issue? To whom will the bond be issued? In what amount? And
what are the conditions of the bond? See SECTION 4.
Section 4. Condition of applicant's bond. The party applying
for the order 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 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.
What is the effect if there is failure to post a bond?
The writ will not be issued.
Arellano vs Flojo: Was there a bond posted here?

Page 11 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
No. Instead of a bond, what was executed here was a mere
promissory note.
Who executed the promissory note? Who are these people?
It was executed by Victor Suguitan, Andres Langaman, and
Mariano Retreta. They were the bondsmen.

It is filed/posted to discharge the attachment.


Republic vs Flores: Are all applicants for attachment required
to post a bond?
Yes, except the State as represented by the Government.
The State as represented by the government is
exempt from the filing of an attachment bond on the
theory that it is always solvent.

In what form was the undertaking made?


It was a promissory note in the form of an affidavit.
Was that sufficient? Why not?
No. The law says that what should be posted is a bond and a
not a mere undertaking.
What do you understand of a bond? What are the kinds of
bond?
Cash, property and a surety bond but not a promissory note or
an undertaking.
When does the attachment bond become liable?
If the court shall finally adjudge that the applicant was not
entitled to the attachment.
Calderon vs IAC: Supposing that the attachment was
dissolved by a counterbond, does that absolve the liability under
the attachment bond?
No. The attachment bond only becomes liable upon
the finding of the court that the attachment was
wrongful. Hence, the mere filing of a countebond will
not dissolve the liability under the attachment bond.
While Section 12, Rule 57 of the Rules of Court
provides that upon the filing of a counterbond, the
attachment is discharged or dissolved, nowhere is it
provided that the attachment bond is rendered void
and ineffective upon the filing of counterbond.
The liability of the attachment bond is defined under
Section 4, Rule 57 of the Rules of Court. It is clear
from the said provision that the responsibility of the
surety arises "if the court shall finally adjudge that the
plaintiff was not entitled thereto." In Rocco vs. Meads,
we held that the liability attaches if the plaintiff is not
entitled to the attachment because the requirements
entitling him to the writ are wanting, or if the plaintiff
has no right to the attachment because the facts
stated in his affidavit, or some of them, are untrue. It
is, therefore, evident that upon the dismissal of an
attachment wrongfully issued, the surety is liable for
damages as a direct result of said attachment.
Attachment is considered to be a harsh remedy because it
exposes the defendant or the attachment debtor to
embarrassment and humiliation that his properties are levied by
the sheriff. That is why there has to be a bond. So that, in case
of a wrongful attachment, there will be a bond that will answer
for the damages sustained by the attachment creditor.
But in the case of Calderon, there was a counterbond filed.
Therefore, there was really no actual levy of the properties.
There was no exposure to embarrassment and humiliation.
Wouldnt that be a sufficient basis for the attachment bond to
be absolved or not to be held liable?
No. Whether the attachment was discharged by either
of the two (2) ways indicated in the law, i.e., by filing a
counterbond or by showing that the order of
attachment was improperly or irregularly issued, the
liability of the surety on the attachment bond subsists
because the final reckoning is when "the Court shall
finally adjudge that the attaching creditor was not
entitled" to the issuance of the attachment writ in the
first place.

Section 5. Manner of attaching property. The sheriff


enforcing the writ shall without delay and with all reasonable
diligence attach, to await judgment and execution in the action,
only so much of the property in the Philippines of the party
against whom the writ is issued, not exempt from execution, as
may be sufficient to satisfy the applicant's demand, unless the
former makes a deposit with the court from which the writ is
issued, or gives a counter-bond executed to the applicant, in an
amount equal to the bond fixed by the court in the order of
attachment or to the value of the property to be attached,
exclusive of costs. No levy on attachment pursuant to the writ
issued under section 2 hereof shall be enforced unless it is
preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the
application for attachment the applicant's affidavit and bond,
and the order and writ of attachment, on the defendant within
the Philippines.
The requirement of prior or contemporaneous service of
summons shall not apply where the summons could not be
served personally or by substituted service despite diligent
efforts, or the defendant is a resident of the Philippines
temporarily absent therefrom, or the defendant is a nonresident of the Philippines, or the action is one in rem or quasi
in rem.
What may be attached?
Real and personal properties, shares of stocks, debts and
credits and an interest over an estate. (Those provided for
under Sec. 7)
Can the sheriff attach a family home?
No. A family home is one of the properties exempt from
execution. The law provides that if it is exempt from execution
it is also exempt from attachment.
How do you serve the attachment writ? Do you attach
everything?
The sheriff enforcing the writ shall without delay and with all
reasonable diligence attach, to await judgment and execution in
the action, only so much of the property in the Philippines of
the party against whom the writ is issued, not exempt from
execution, as may be sufficient to satisfy the applicant's
demand.
When you serve the attachment, what else must you have in
your possession?
No levy on attachment pursuant to the writ issued under section
2 hereof shall be enforced unless it is preceded, or
contemporaneously accompanied, by service of summons,
together with a copy of the complaint, the application for
attachment, the applicant's affidavit and bond, and the
order and writ of attachment, on the defendant within the
Philippines.
Is prior or contemporaneous service of summons absolutely
required? Are there exceptions?
The requirement of prior or contemporaneous service of
summons shall not apply where:

What is the purpose of the counterbond?


Page 12 of 63

1)
2)

The summons could not be served personally or


by substituted service despite diligent efforts;
The defendant is a resident of the Philippines
temporarily absent therefrom;

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
3)
4)

The defendant is a non-resident of the Philippines;


The action is one in rem or quasi in rem.

service of summons and the writ, there might not be


any property of the defendant left to attach.

What can the defendant do when he receives the writ in order


to prevent the actual levy of his properties?

Second, the court eventually acquired jurisdiction over


the petitioners six days later. To nullify the notices of
garnishment issued prior thereto would again open the
possibility that petitioners would transfer the garnished
monies while Sun Life applied for new notices of
garnishment.

Make a deposit with the court from which the writ is issued, or
gives a counter-bond executed to the applicant, in an amount
equal to the bond fixed by the court in the order of attachment
or to the value of the property to be attached, exclusive of
costs.

Third, the ease by which a writ of attachment can be


obtained is counter-balanced by the ease by which the
same can be discharged: the defendant can either
make a cash deposit or post a counter-bond equivalent
to the value of the property attached. The petitioners
herein tried to have the writ of attachment discharged
by posting a counter-bond, the same was denied by
respondent Judge on the ground that the amount of
the counter-bond was less than that of Sun Life's
bond.

Whats the difference between the deposit and/ counterbond


required in Sections 2 and 5?
In Sec. 2, there is no yet actual implementation of the writ. But
the defendant instead of waiting for the sheriff to make an
actual levy, makes a voluntary deposit of the property or posts
a counterbond. Under Sec. 5, the writ is now in the possession
of the sheriff, in the process of implementing the writ. Upon
implementation, the defendant will deposit his property to the
Court or will post a counterbond.
Under Sec. 2, its about the issuance of the writ, pro hindi pa
implementation stage. But under Sec. 5, the writ is now being
implemented by the sheriff. So the service of the writ must be
accompanied by the summons, copy of the complaint etc. so
that the defendant will know the amount of the counterbond
required to be posted because it is the same amount as the
attachment bond.
Question: Supposing there is a difficulty in serving the
summons, can the sheriff first serve the writ to be followed by
the service of summons?

So, there was an initial ruling by the 2nd Division of the SC


upholding the execution of the writ saying that there was
substantial compliance because the summons was eventually
served to the defendants.
Now, in the En Banc case, what was the ruling of the SC?
The SC reversed the Division ruling. SC held that there must be
a prior or simultaneous service of summons before the writ can
be enforced.
The attachment of properties before the service of
summons on the defendant is invalid, even though the
court later acquires jurisdiction over the defendant. At
the very least, then, the writ of attachment must be
served simultaneously with the service of summons
before the writ may be enforced. As the properties of
the petitioners were attached by the sheriff before he
had served the summons on them, the levies made
must be considered void.

Yes. (See exceptions to the requirement of prior and


contemporaneous service of summons earlier posted)
Onate vs Abrogar: Is a writ served 6 days earlier than the
service of summons be considered a valid execution of the writ?
No.
The attachment of properties before the service of
summons on the defendant is invalid, even though the
court later acquires jurisdiction over the defendant. At
the very least, then, the writ of attachment must be
served simultaneously with the service of summons
before the writ may be enforced. As the properties of
the petitioners were attached by the sheriff before he
had served the summons on them, the levies made
must be considered void.

Nor can the attachment of petitioners' properties


before the service of summons on them was made be
justified as the ground that unless the writ was then
enforced, petitioners would be alerted and might
dispose of their properties before summons could be
served on them.
The Rules of Court do not require that issuance of the
writ be kept a secret until it can be enforced.
Otherwise in no case may the service of summons on
the defendant precede the levy on attachment. To the
contrary, Rule 57, 13 allows the defendant to move
to discharge the attachment even before any
attachment is actually levied upon, thus negating any
inference that before its enforcement, the issuance of
the writ must be kept secret.

What happened in this case? When was the service of summons


made?
The writ was implemented on Jan. 3, 1992. But the summons
was only served to the defendants on Jan. 9, 6 days after the
implementation of the writ.
Was the implementation of the writ valid?
In the 1st case (Division Case) SC upheld the validity of the
writ.
Thus, an exception to the established rule on the
enforcement of the writ of attachment can be made
where a previous attempt to serve the summons and
the writ of attachment failed due to factors beyond the
control of either the plaintiff or the process server,
provided that such service is effected within a
reasonable period thereafter

Why is it that the SC did not adopt the substantial compliance


doctrine that was the justification of the 2rd Division in the 1st
case?

Several reasons can be given for the exception. First,


there is a possibility that a defendant, having been
alerted of plaintiffs action by the attempted service of
summons and the writ of attachment, would put his
properties beyond the reach of the plaintiff while the
latter is trying to serve the summons and the writ
anew. By the time the plaintiff may have caused the

Page 13 of 63

To authorize the attachment of property even before


jurisdiction over the person of the defendant is
acquired through the service of summons or his
voluntary appearance could lead to abuse. It is entirely
possible that the defendant may not know of the filing
of a case against him and consequently may not be
able to take steps to protect his interests.
Nor may sheriff's failure to abide by the law be
excused on the pretext that after all the court later
acquired jurisdiction over petitioners. More important
than the need for insuring success in the enforcement
of the writ is the need for affirming a principle by
insisting on that "most fundamental of all requisites
the jurisdiction of the court issuing attachment over
the person of the defendant." It may be that the same

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
result would follow from requiring that a new writ be
served all over again. The symbolic significance of such
an act, however, is that it would affirm our
commitment to the rule of law.
So, in other words the enforcement of the writ should not be
made surreptitiously. It doesnt have to be without the
knowledge of the defendant because precisely the defendant
has remedies under the rules in order to prevent the actual levy
of the properties.
HB Zachary vs CA: When the writ was served without the
prior or contemporaneous service of summons, what will now
be the remedy? Do you apply for another writ?
No, because the defect was only on the enforcement
of the writ and not its issuance. The writ of preliminary
attachment may be validly served anew.
A distinction should be made between the issuance
and the enforcement of the writ. The trial court has
unlimited power to issue the writ upon the
commencement of the action even before it acquires
jurisdiction over the person of the defendant, but
enforcement thereof can only be validly done after it
shall have acquired such jurisdiction.
If there was an invalid enforcement of the writ:
. . . the writ of preliminary attachment may be validly
served anew.
In this case, was there a valid service of the writ?
No. Because the writ of attachment was served on a
person not authorized by law to receive summons for
and in behalf of the defendant corporation. Summons
was served thru Ruby Apostol but not to its designated
resident agent Atty. Lucas Nunag whom any summons
and legal processes against it may be served pursuant
to Sec. 128 of the Corporation Code.
The validity then of the order granting the application
for a writ of preliminary attachment on 21 March 1990
and of the issuance of the writ of preliminary
attachment on 26 March 1990 is beyond dispute.
However, the enforcement of the preliminary
attachment on 27 March 1990, although simultaneous
with the service of the summons and a copy of the
complaint, did not bind Zachry because the service of
the summons was not validly made. When a foreign
corporation has designated a person to receive service
of summons pursuant to the Corporation Code, that
designation is exclusive and service of summons on
any other person is inefficacious. The valid service of
summons and a copy of the amended complaint was
only made upon it on 24 April 1990, and it was only
then that the trial court acquired jurisdiction over
Zachry's person. Accordingly, the levy on attachment
made by the sheriff on 27 April 1990 was invalid.
So, was there a valid enforcement of the writ?
No. The enforcement of the preliminary attachment was not
valid because the service of summons was not validly made.
So, it is not enough that the implementation is made prior or
contemporaneously with the service of summons. In the case of
HB Zachary, it also requires that the service of summons must
be valid. It must be made to the person authorized by law to
receive summons, otherwise, the implementation of the writ will
be considered void precisely because there was no valid service
of summons.
But what is the remedy if there was a defect or there was an
invalid service of summons? Do you need to apply for a new
writ? In this case, the SC said that the writ can be reimplemented. It can be served anew.

So you ask for an alias writ of attachment. It is just basically the


same writ of attachment that was previously issued, only that it
is issued for the second time after a valid service of summons is
made on the defendant.
July 14, 2015 (CJB)
Section 6. Sheriff's return. After enforcing the writ, the
sheriff must likewise without delay make a return thereon to
the court from which the writ issued, with a full statement of
his proceedings under the writ and a complete inventory of
the property attached, together with any counter-bond given
by the party against whom attachment is issued, and serve
copies thereof on the applicant.
After the sheriff has enforced the writ, what must the sheriff
do? After enforcing the writ, the sheriff must likewise without
delay make a return thereon to the court from which the writ
issued.
What shall the return contain?
1.
2.
3.

A full statement of his proceedings under the writ


A complete inventory of the property attached,
Any counter-bond given by the party against whom
attachment is issued
Who else should be given a copy of the return?
A copy of the return must be given to the court.
So only the court?
No, also the occupant of the property.
When shall the return be made?
The return must be made immediately after the enforcement of
the writ.
So there is no time limit? So when say immediately, how many
days is the maximum day that you should make the return?
The rule does not provide for any period but it says it must be
immediately.
In the case of Bilag-Rivera vs. Lora, July 6, 1995, how
many days was it? *case was not assigned*
Manual for Clerks of Court
Chapter VIII (e) (4). All sheriffs and deputy sheriffs shall
submit a report to the judge concerned on the action taken
on all writs and processes assigned to them within (10)
days from receipt of said process or writ. Said report
shall form part of the records.
In attaching real property, how may it be made?
In attaching real property, it depends if it is a registered land or
an unregistered land. In case of a registered land.
Section 7. Attachment of real and personal property; recording
thereof. Real and personal property shall be attached by the
sheriff executing the writ in the following manner:
(a) Real property, or growing crops thereon, or any interest
therein, standing upon the record of the registry of deed of the
province in the name of the party against whom attachment is
issued, or not appearing at all upon such records, or belonging
to the party against whom attachment is issued and held by any
other person, or standing on the records of the registry of
deeds in the name of any other person, by filing with the
registry of deeds a copy of the order, together with a
description of the property attached, and a notice that it is
attached, or that such real property and any interest therein
held by or standing in the name of such other person are
attached, and by leaving a copy of such order, description, and
notice with the occupant of the property, if any, or with such
other person or his agent if found within the province. Where

Page 14 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
the property has been brought under the operation of either the
Land Registration Act or the Property Registration Decree, the
notice shall contain a reference to the number of the certificate
of title, the volume and page in the registration book where the
certificate is registered, and the registered owner or owners
thereof.
The registrar of deed must index attachments filed under this
section in the names of the applicant, the adverse party, or the
person by whom the property is held or in whose name it
stands in the records. If the attachment is not claimed on the
entire area of the land covered by the certificate of title, a
description sufficiently accurate for the identification of the land
or interest to be affected shall be included in the registration of
such attachment;
With regard to the unregistered land, it is sufficient that a notice
is served with an applicant mam.

Since the notice of levy made by the sheriff as regards


parcel number 1 which is a registered land contains no
reference to the number of its certificate of title and the volume
and page in the registry book where the title is registered, it
follows that said notice is legally ineffective and as such did not
have the effect of binding the property for purposes of
execution. Consequently, the sale carried out by virtue of said
levy is also invalid and of no legal effect.
Supposing the notice of levy merely contains a reference
number of the certificate of title but does not mention the
volume and the page, what is the effect? Is it valid? According
to the Supreme Court it is valid as there was substantial
compliance with the rules.
Why is there substantial compliance?

So if you are a sheriff and you will attach a real property where
will you go?If it is unregistered?

The reference number of the certificate of title together with the


notice and the description of the property is already sufficient to
inform the debtor and as well as the third person that the
property is under the custody of the court

If it is a registered land, the sheriff must first go the register of


deeds.

What if the occupant of the property is not properly served with


the notice of levy? It is invalid.

If it is unregistered, the sheriff must go to the unregistered land


and leave a copy of the order with the description of the notice
to the occupant of the subject property.

Even if there was already registration of the notice of levy in the


Registry of Deeds?

Would that be valid? Under the rules? Will that be a valid levy?

Yes. The notice must not only be served with the register of
deeds but also with the occupant of the subject property.

THAT IS AN INVALID LEVY. Read the rules. Read paragraph A.


WHETHER IT IS REGISTERED OR UNREGISTERED YOU GO TO
THE REGISTRY OF DEEDS. THE ROD HAS A BOOK. SO ALL
UNREGISTERED LANDS, IT IS WHERE YOU FILE THE NOTICE
OF LEVY, AND THAT WOULD BE ENCODED IN THAT BOOK.
JUST BECAUSE IT IS UNREGISTERED, IT DOES NOT MEAN
THAT YOU DO NOT GO TO THE REGISTRY OF DEEDS. IT IS
REQUIRED THAT YOU GO THERE.

In the case of Obana vs.CA was there a valid notice of levy?


Why Not?

If you go to the registry of deeds, it is enough? What is the


nature of the requirement that the notice of levy of a registered
must contain a reference number of he volume and page in the
registration? It is mandatory.

Obana acquired the subject property in March 16, 1972 by


virtue of a deed of absolute sale maam.

Why is it important that it must contain the reference number


certificate of title, the volume and the page in the registration?
What notice is contemplated here?
It will serve as a notice to the 3rd person that the subject
property is in custodia legis.
The purpose is that the debtor or a third person that the subject
property is under the custody of the court.
BUT REMEMBER THAT THE PROPERTY IS ATTACHED. IT WILL
SERVE TO SATISFY ANY JUDGMENT IN FAVOR OF THE
CREDITOR. THAT IS THE PURPOSE OF ATTACHMENT. THAT IS
THE PURPOSE OF THE LEVY.
What happens if a registered property is levied as if it is an
unregistered property? The levy is void.
In the case of Siara Valley vs. Lucasan was there a valid levy
of a registered property? No. The notice contains that it is an
unregistered land where in fact it is already covered by a
certificate of title and such notice does not make a reference to
the number of the certificate of title, the volume and the page
as well as the description of the property.
EXCERT FROM THE MAKI CANIBAN NOTES:

There was no valid notice of levy as the there was no notice of


the occupant. There was no proper notice given to Obana as
the occupant of the property subject of the attachment.
When was the levy made? It was in September 1, 1972.
When did Obana acquire the subject property?

So Obana has been served of the levy in 1972 and the levy was
made by the sheriff?
It was in august 7, 1974 that the writ of execution was issued
and a notice of levy of the execution was served by the sheriff
to him.
So she only knew about it in 1974, is that what you are saying?
Was there a valid notice here? So at the time when she
purchased the subject property could she have been aware of
the pending case despite the fact she was not given a copy of
the notice?
There was an annotation at the back of the title.
THEREFORE SHE COULD HAVE BEEN AWARE. AND YET, THE
RULING OF THE SUPREME COURT THAT THERE WAS NO VALID
LEVY AS THERE WAS NO SERVICE OF THE NOTICE TO THE
OCCUPANT. BUT UNDER THE FACTS OF THIS CASE, IT WAS
IMPOSSIBLE FOR THEM TO BE UNAWARE BECAUSE THE LEVY/
ATTACHEMENT WERE MADE WAY BEFORE SHE PURCHASED
THE SUBJECT PROPERTY.
What is the reason why there is a need to notify the occupant
of the property of the notice of levy despite the notice to the
registry of deeds?

SIARI VALLEY vs. LUCASAN

To inform such occupant that such property is being attached


and under the custody of the court.

An attachment levied on real estate not duly recorded in the


registry of property is not an encumbrance on the attached
property, nor can such attachment, unrecorded in the registry,
serve as a ground for decreeing the annulment of the sale of
the property, at the request of another creditor.

But isnt it that the notice of levy in the registry of deeds will
suffice that the property is attached and under the custody of
the court. Why is there a need to serve a copy of the levy to the
occupant of the subject property? So is there a valid notice of
the attachment in this case?

According to this case there was no valid attachment in this


case.
Page 15 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
SO YOU DISTINGUISH ONE FROM THE OTHER. ONE FOR
ATTACHMENT AN ONE FOR THE EXECUTION
There was an attachment made in 1972 and there was a
execution made in 1974. So how do you serve and how do you
make the levy of the property?
According to the court mam, the procedure in the attachment
and execution are the same.
SO THERE SHOULD BE TWO NOTICES HERE. TWO NOTICES OF
PROCEEDINGS.ONE FOR ATTACHEMENT AND ONE FOR THE
EXECUTION.
Was there a valid attachment in this case? And was there a
valid execution in this case?
IF YOU LOOK AT THE ATTACHEMENT THERE WAS NO VALID
ATTACHEMENT HERE. OBANA IS NOT ENTITLED TO NOTICE IN
THE FIRST PLACE. SHE IS NOT THE OWNER OF THE PROPERTY
TO WHOM THE ATTACHEMENT COULD BE MADE 1972.
SHOULD THERE IS NO ISSUE WHICH STEMS IN THE
PRELIMARY ATTACHMENT.
THE PROBLEM HERE LIES IN THE EXECUTION.
WHEN THERE WAS A LEVY AND DEFAULT JUDGMENT IN
FAVOR OF THE LAWYER HERE. WHAT IS THE NAME OF THE
LAWYER? ATTY. SUNGCANG. THAT THERE WAS NO COPY OF
THE LEVY GIVEN TO THE OCCUPANT AND ON THE BASIS OF
THAT THE SUPEME COURT INVALIDATED THE LEVY.SO THIS
ONLY ILLUSTRATES THAT IF YOU ALREADY HAVE THE
ACTION. YOU STILL HAVE TO COMPLY WITH THE NOTICE OF
THE LEVY OF THE ACTION.
IF YOU HAVE A CASE WHERE ATTACHMENT IS SOUGHT. THEN
THERE COULD 2 LEVY WHICH WILL BE MADE. ONE FOR THE
ATTACHMENT AND ONE FOR THE EXECUTION. THE PROBLEM
HERE IS THE DEFECT IN THE EXECUTION AND THE PROCESS
IS THE SAME WHEN YOU LEVY AN ATTACHMENT. YOU
FOLLOW THE PROCEDURE UNDER RULE 57.
OBANA vs. CA (1989)
Section 7 of Rule 57 requires that in attaching real
property a copy of the order, description, and notice must be
served on the occupant, in this case the occupant at 48
Damortiz Street, Damar Village, Quezon City. The trial court in
the annulment case ruled that the attachment was void from
the beginning. The action in personam which required personal
service was never converted into an action in rem where service
by publication would have been valid.
The Court of Appeals reversed the trial court principally
on the ground that Leonora Obaa was neither a defendant nor
a party-in-interest in the collection case. It ignored the fact that
property already sold to her was attached and then bedded out
to Atty. Suntay without any notice to her. And because the
notice of lispendens in the collection case was secured ex-parte
without the defendant Dizon and petitioner Obaa who were
never brought to court, having any inkling about it, the notice
was not annotated on the owner's duplicate copy of Transfer
Certificate of Title No. 173792
Which should prevail, an annotated notice of attachment or a
subsequent notice of lispendens? Why?
It is the annotated writ of attachement.
It is because it will render the rules on levy illusory if the
subsequent notice of lispendens prevails over the annotated
attachment.

Held: The duly registered attachment. The preference


given to a duly registered levy on attachment or execution over
a prior unregistered sale is well-settled in our jurisdiction. An
attachment that is duly annotated on a certificate of title is
superior to the right of a prior but unregistered buyer.
The subsequent sale of the property to the attaching
creditor must, of necessity, retroact to the date of the levy.
Otherwise, the preference created by the levy would be
meaningless and illusory.
The doctrine is well-settled that a levy on execution
duly registered takes preference over a prior unregistered sale;
and that even if the prior sale is subsequently registered before
the sale in execution but after the levy was duly made, the
validity of the execution sale should be maintained, because it
retroacts to the date of the levy; otherwise, the preference
created by the levy would be meaningless and illusory.
The act of registration shall be the operative act
to convey or affect the land insofar as third persons are
concerned, and in all cases under this Decree, the
registration shall be made in the office of the Register of
Deeds for the province or the city where the land lies.
What is the purpose of notice of lispendens?
To give notice to third peronstat the subject property is under
litigation.
So if a notice of lispendens has been registered over a property
that is already subject of an attachment but later on sold under
execution after the notice of lisendens was annotated. So which
is given preference the lispendens which was executed earlier
than execution or the attachment? It is still the attachment levy.
Would the buyer in the execution sale still be considered a
buyer in bad faith even there was already a prior annotation of
lispendens involving a property in another place?
EVEN IF THE NOTICE OF LEVY WAS ANNOTATED EALIER THAN
THE EXECUTION SALE, THE BUYER IN THE EXECUTION SALE
WOULD STILL BE CONSIDERED A BUYER IN GOOD FAITH AS
THE SALE WILL RETROACT AT THE DATE OF THE
ATTACHMENT LEVY.
Will a buyer of a registered sale defeat a subsequent writ of
attachment of the property sold?
No maam. It is the fact of the registration which will give the
buyer the right over the subject property. In that case, since
there was no registration yet she does not have the ownership
over te subject property.
What happens in the case of Valdevieso vs. Damalerio?
VALDEVIESO vs. DAMALERIO (2005)
The preference created by the levy on attachment is
not diminished even by the subsequent registration of the prior
sale. This is so because an attachment is a proceeding in rem.
It is against the particular property, enforceable against the
whole world. The attaching creditor acquires a specific lien on
the attached property which nothing can subsequently destroy
except the very dissolution of the attachment or levy itself. Such
a proceeding, in effect, means that the property attached is an
indebted thing and a virtual condemnation of it to pay the
owner's debt. The lien continues until the debt is paid, or sale is
had under execution issued on the judgment, or until the
judgment is satisfied, or the attachment discharged or vacated
in some manner provided by law.
Is the rule absolute that the first to register the property should
have preference over the property? No.

The case also leads o the case of: (Excerpt from Maki Notes)
DU vs. STRONGHOLD (2004)

Which is given more preference -- a duly registered attachment


or a subsequent notice of lispendens?

Is it absolute that when the property is subject of an


attachment and the levy was registered but the property is
already been sold but the sale was not registered. It is always
the case that the registered levy is superior than the prior
unregistered sale?

Page 16 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
The answers given were wrong. The question leads to the case
of Rural Bank Santa Barbara.
The exception is when the party has the knowledge of the prior
unregistered sale.
SO IF THERE IS KNOWLEDGE BY THE BUYER OF THE
ATTACHMENT CREDITOR OF THE UNREGISTERED SALE AND
THAT WOULD BE TANTAMOUNT TO REGISTRATION
THEREFORE THE PRIOR UNREGISTERED SALE WILL PREVAIL
OVER THE LEVY ON ATTACHMENT. SO REMEMBER THERE IS
AN EXCEPTION TO THE RULE. JUST READ THE CASE OF RURAL
BANK OF STA. BARBARA.
How is levy made on a personal property that is capable of
manual delivery?
(b) Personal property capable of manual delivery, by taking and
safely keeping it in his custody, after issuing the corresponding
receipt therefor;
Can there be a levy on the personal property through a mere
verbal declaration?
No, In the case of WALKER V. MCMICKING the SC said, a
mere verbal declaration of seizure or service of writ is
insufficient. There must be actual assumption of control. This is
not saying that a defendant may not be custodian; but the
possession and responsibility must be the sheriff's and not the
defendant's. If as stated in defendant's brief, such an
arrangement is an everyday occurrence in attachment levies,
here the vice of it can too soon be declared.
So if it is a personal property capable of manual delivery what
should the sheriff do in order to make it a valid levy? There
must be actual assumption of control. This is not saying that a
defendant may not be custodian; but the possession and
responsibility must be the sheriff's and not the defendant's.
After the sheriff takes possession of the personal property can
he turn over the property to either party? Why not? Can he
seize the properly and leave it with the defendant?
The sheriff must take possession and control over the property
until the final resolution of the case.
In Walter vs. Mackmicking, what did the sheriff do here?
How did he do he levy?
(Copied from the LA Transcription) Mcmicking offers in evidence
a writ of attachment issued by one of the judges of the court on
December 16, 1908, on the ack of which it appears an
indorsement to the effect that the Sheriff of Manila delivered a
copy of the writ and affidavit upon which the same was found,
TO ARENAS AND CO. and that said sheriff attached certain
articles therein mentioned, some of which appear to be similar
to those in controversy, though the identity does not seem to
be established. The indorsement further recites that the goods
are found deposited in th possession of the same defendants
according to the stipulation signed by both parties which is
attached to the writ. The attached stipulation recites that all the
goods attached shall remain in the possession of the same
defendants, relieving the sheriff of all the responsibility as
regards the care and custody thereof.
Is that a valid levy? What should the sheriff have done in this
case?
So there was no actual possession here. There was merely a
verbal declaration of attachment.
What is the reason why the sheriff must actually seize the
property? Why not just leave it with the defendant just like
what happened in the case of Walter vs. Mcmicking?
It is because the debtor may appropriate the subject property of
the attachment.
In the case of NBI vs. Tuliao?

How did the sheriff levy on the property here? The sheriff left
the jeepney in the possession and control of the creditor in
complete disregard of the Rules and the order of the court.
Ignacio issued an undertaking hat he will produce the jeepney
whenever required by the court.
So? What is the result?
The Court said that Clearly, respondents act of leaving the
passenger jeep in the possession and control of the creditor did
not satisfy the foregoing requirements of the rules ;neither did
it conform to the plainly worded RTC order. The note in the
receipt that imposed on Ignacio the obligation to produce the
same whenever required by the court was no compliance either,
because it did not establish that the property was in respondent
sheriffs substantial presence and possession. Respondent fell
short of his obligation to take and safely keep the attached
property in his capacity.
NBI VS.TULIAO (1997)
Leaving the attached property in the possession of the
attaching creditor makes a farce of the attachment. This is not
compliance with the issuing courts order. When a writ is placed
in the hands of a sheriff, it is his duty, in the absence of any
instructions to the contrary, to proceed with reasonable celerity
and promptness to execute it according to its mandate. He is
supposed to execute the order of the court strictly to the letter.
If he fails to comply, he is liable to the person in whose favor
the process or writ runs.
By acceding to the request of Ignacio, respondent
sheriff actually extended an undue favor which prejudiced
the complainant as well as the orderly administration of justice.
He exceeded his powers which were limited to the faithful
execution of the courts orders and service of its processes. His
prerogatives did not give him any discretion to determine who
among the parties was entitled to possession of the attached
property.
Okey, what happened to the jeep here? Ignacio was able to use
the passenger jeep without no limitation.
So can the sheriffs allow a party to have possession over it,
subject to production whenever required by the court? No.
In a case of a passenger jeep such as in this case, the jeep
should be in whose possession? The jeep should be in the
possession of the court. But since the RTC has no storage
facility it could have deposited in a bonded warehouse. It must
be an independent bonded warehouse.
So who will pay the bonded warehouse? The attaching creditor?
So in that case would it be in a way putting the possession of
the property in the hands of the creditor?
So let me go back to my question, why should the sheriff have
physical possession of a personal property capable of manual
delivery?
In the case of Villanueva vs. Judge Raphlee, where was the
attached property placed? What kind of property was levied
here? What kind of machinery? Printing machine was levied and
delivered to the plaintiffs warehouse.
SO THE SHERIFF HERE DID NOT TAKE POSSESSION OF THE
PROPERTY THAT HE LEVIED ON AND DELIVERED IT TO THE
PLAINTIFF.
In Sebastian vs. Valino, what property was seized here?
Where did the property go after they were seized? Sheriff and
companions forcibly opened the lockers and desk drawers and
took their personal belongings and several machinery and
equipment. Sheriff turned over the properties to the counsel of
PDCP and allowed these items to be stored in PCDPs
warehouse on the reason that it has no facility to store all the
seized items.

So the question in all these cases is that why must the sheriff
take possession and control of the seized items? Why is he
Page 17 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
prohibited in leaving the property seized to either party? Why is
the rule like that? Why does it require the sheriff have the
possession of the property?
BECAUSE WHEN YOU LEVY A PROPERTY THE PURPOSE OF THE
LEVY IS TO PUT THE PROPERTY IN CUSTUDIA LEGIS. WITHIN
THE CUSTODY OF THE COURT. HOW CAN IT BE IN THE
POSESSION OF THE COURT WHEN WE LEAVE IT TO THE
POSSESION OF EITHER PARTY? THE SHERIFF REPRESENTS
THE COURT. POSSESSION OF THE SHERIFF IS POSSESSION OF
THE COURT. THAT IS THE REASON WHY HE CANNOT
RELINQUISH THE PERSONAL PROPERTY WHICH IS CAPABLE
OF MANUAL DELIVERY IN POSSESSION AND CONTROL OF
EITHER PARTY. IN DOING SO, THE PROPERTY CANNOT BE
PROPERLY LEVIED UPON. THERE COULD BE NO VALID LEVY
AND THE PROPERTY CAN BE UNDER THE CUSTODY OF THE
COURT. THAT IS THE SIMPLE REASON BEHIND THE LAW.
REMEMBER THAT.
(YAWYAW NI MAM) NOT BECAUSE IT IS MINSTERIAL ON THE
PART OF THE SHERIFF. OF COUSE IT IS MINISTERIAL ON THE
PART OF THE SHERIFF. THE SHERIFF CANNOT DECIDE OR
MAKE ANY DECISION. THAT IS ALREADY GIVEN. BUT WHY IS
THE LAW LIKE THAT? PRECISELY, TO MAINTAIN THE
CUSTODY OF THE COURT OVER THE SUBJECT PROPERTY.
THAT IS THE ONLY WAY WHERE THE CONTROL AND
POSSESION OF THE PROPERTY BE WITH THE SHERIFF.
SO WHERE WIILL THE SHERIFF BRING THE PROPERTY? LET
US NOW GO TO THE PRACTICAL ASPECT OF THE RULE. IT
DOES NOT MEAN THAT THE SHERIFF MUST PAY THE STORAGE
OF THE PROPERTY IN A BONDED WAREHOUSE. THE COURT
CAN NECESSARILY DIRECT THE ATTACHING CREDITOR TO
POST THE FEE IN KEEPING THE PROPERTY IN A BONDED
WAREHOUSE. THAT CAN BE PART OF THE COST OF
LITIGATION THAT CAN BE CHARGED WITH THE PARTY WHICH
WILL PREVAIL.

should be made, the sheriff cannot levy their properties, like


what happened in this case.
What happens if the sheriff fails to execute the writ?
He shall be held liable. He can be held liable for the damages
that was caused to whom the writ is issued for. That was the
ruling in the case of ELIPE vs. FABRE. In this case, the sheriff
did not comply with his obligation strictly in accordance with the
rules. The amount subject of the execution was 100,00 but
what was only levied was 27,00. He was not diligent enough.
In this case, the sheriff failed to seize properties that were
valuable in order to satisfy the judgment. He only levied on the
properties that were not valuable so there could be collusion
here. Nonetheless, there was no satisfaction of the judgment
and because of that the sheriff was held administratively liable.
It could constitute neglect.
It was said a while a go that levy on personal property that is
capable of manual delivery was made in such a way that the
sheriff should have actual possession. Is that absolute? No,
especially where the property cannot actually be seized, like in a
case of a vessel. It was held in the case of ROQUE vs. CA.
In a case of vessel, where will the sheriff put the vessel? How
can he make a levy on a vessel? In this case, the SC held that
the registration of the notice of levy is sufficient because it will
constitute constructive possession.
So in making a levy on a personal property that is capable of
manual delivery, it could either be actual or constructive.
Constructive levy can only be made if there is a difficulty in
actually seizing the property. The constructive levy is made by
the registration of the notice of levy to the Philippine Coast
Guard.
In the case of ROQUE vs. CA, is there a specific period to
enforce the writ?

What happens when the property that was seized by the sheriff
belongs to another party?

Can the sheriff take years if there is no limit? No, it must be


executed within a reasonable time.

The levy is not valid because the sheriff is only obliged to


enforce the writ of attachment to the person. His duty is
ministerial so he can only enforce the writ to whom it was
issued. This was the ruling in the case of VILLAREAL vs.
RARAMA

You have to show reasonable period of time in enforcing the


levy. In this case, what prevented the sheriff from making an
immediate levy on the property?

What happened in this case? This is a collection suit Villareal,


Lacorda and Cangrejo.
A judgment was issued against
Cangrejo only. Pursuant to the judgment, the court issued a
writ of execution. Responded Sheriff attached the properties of
Villareals on the ground that they were defendants in the
collection case. The SC held that the fact that they are
defendants in the complaint does not entitle the sheriff to levy
their properties since the writ of execution was issued against
Cangrejo.
The sheriff, as an officer of the court upon whom the execution
of a final judgment depends, must necessarily be circumspect
and proper in his behavior. Execution is the fruit and end of the
suit and is the life of the law. Thus, when a writ is placed in the
hands of a sheriff it is his duty, in the absence of any
instructions to the contrary, to proceed with reasonable celerity
and promptness to execute it according to its mandate. He is to
execute the directives of the court therein strictly in accordance
with the letter thereof and without any deviation therefrom.
Hence, a sheriff has no authority to levy on execution upon the
property of any person other than that of the judgment debtor.
If he does so, the writ of execution affords him no justification,
for such act is not in obedience to the mandate of the writ. As
long as the sheriff confines his acts to the authority of the
process, he is not liable, but all of his acts which are not
justified by the writ are without authority of law.

When was the constructive levy made? Feb. 7, 1974. The vessel
was set for repair and since Fil-Eastern cannot make payments
so it was sold in a public auction to Roque. Roque now
questions the validity of the writ of attachment, specifically on
the ground that it was executed exceeding 60 days. The SC said
that there is no specific period for the enforcement of the writ.
In the case of Roque, isa mere registration of the notice of levy
with the Philippine Coast Guard enough?
No, it must be followed by the actual seizure of the property.
So the constructive levy should be followed by the actual
seizure of the vessel. That was the ruling in the case of Roque.
If it is purely registration, the levy can be questioned because
there is no subsequent actual seizure of the property.
How do you levy on personal properties that are incapable of
manual delivery?
Let us go first to stocks and shares. How do you make a levy on
shares or stocks of a corporation?
(c) Stocks or shares, or an interest in stocks or shares, of any
corporation or company, by leaving with the president or
managing agent thereof, a copy of the writ, and a notice stating
that the stock or interest of the party against whom the
attachment is issued is attached in pursuance of such writ;
So where do you leave a copy of the notice of levy? With
the president or managing agent thereof.

In making the levy, the sheriff should only follow the writ as
Can the personal secretary of the President receive the
issued by the court. He cannot deviate from the writ. If the writ
notice of levy?
does not mention any other person against whom the levy
Page 18 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
In the case of SUMMIT TRADING vs. AVENDANO and in
CHEMPHIL vs. CA, the SC said that notice of attachment
given to the secretary is in sufficient compliance with the
requirement of Section 7c.
The secretary can receive it?
Yes. In SUMMIT TRADING vs. AVENDANO Saquilayan,
being the secretary of the president (whose contact with the
outside world is normally through his secretary), may be
regarded as an "agent". The logical assumption is that she
delivered it to her boss, the president of Summit Trading. As
already stated, she received a copy of the decision and Summit
Trading became aware of it.
Alright, lets go back to the prior section. So you have here a
writ of attachment involving shares of stocks and it was granted
ex parte. The sheriff now will serve the notice, will make a levy
pursuant to the Writ of attachment. How should the sheriff do
that?
What else will the sheriff serve?
A copy of the writ, and a notice stating that the stock or interest
of the party against whom the attachment is issued is attached
in pursuance of such writ.

debts, or having in his possession or under his control, such


credits or other personal property, or with his agent, a copy of
the writ, and notice that the debts owing by him to the party
against whom attachment is issued, and the credits and other
personal property in his possession, or under his control,
belonging to said party, are attached in pursuance of such writ;
What are these intangible properties under paragraph d?
Debts and credits, including bank deposits, financial interest,
royalties, commissions, and other personal property not capable
of manual delivery
So these are the specie of personal properties that are covered
by paragraph d, these are different from the shares of stock in
paragraph c, by tangible properties under paragraph b and
definitely not real properties covered by paragraph a. This kind
of properties is governed by different kinds of procedure when
the sheriff levies.
When you talk of debt, what kind of debt are we referring to
here? Due and demandable

Is that all?

Does that cover judgment debt? In the case of TAYABAS


LAND vs. SHARRUF was the property that was levied here?
Attachment was made on the judgment debt of Tayabas in
favor of Farre

You should serve both the writ and the notice of levy with the
president or managing agent. Why is it that the secretary of the
president can validly receive the writ and the notice of levy?

Sharruf = creditor, garnisherFarre = debtor of Sharruf,


judgment creditor of TayabasTayabas land = judgment debtor,
garnishee

The secretary of the president (whose contact with the outside


world is normally through his secretary), may be regarded as an
"agent". The logical assumption is that she delivered it to her
boss, the president.

How did the sheriff levy the judgment debt?

Must the notice of levy be registered in the books of the


corporation for the levy to be valid? As held in the case of
CHEMPHIL, On the absence of annotation in the corporations
stock and transfer books for the attachment of shares of
stockBoth the Revised Rules of Court and the Corporation Code
do not require annotation in the corporation's stock and transfer
books for the attachment of shares of stock to be valid and
binding on the corporation and third party.
Why is the notice of levy not required to be registered in the
books of the corporation?
In cases of real properties we register it with the registry of
deeds, in cases of shares of stock, why not register it with the
books of the corporation?
There is no transfer of ownership of the property.
Have you taken up corporation law?
Because only transfers should be recorded in the books the
corporation. When a property or shares of stocks are attached,
it is not yet an absolute transfer of the property. It is only a
levy. It doesnt mean an actual transfer of ownership of the
shares of stocks. It is only when there is an absolute transfer of
the shares of stocks it is required by law to be registered in the
books of the corporation. In the stock and transfer book. You
only record the transfer of shares. When you levy the shares of
stocks, it doesnt follow that it is already a transfer. It is only a
lien on the property. Therefore, it cannot as yet be recorded in
the stock and transfer book of the corporation. The analogy
given here is a mortgage, it was not a transfer but a mere
mortgage lien over the shares of stocks that cannot constitute
as a valid transfer that should be recorded in the stock and
transfer book.
Let us go to intangible properties or properties incapable of
manual delivery. How will the sheriff levy this?
d) Debts and credits, including bank deposits, financial interest,
royalties, commissions, and other personal property not capable
of manual delivery, by leaving with the person owing such

Is that what the sheriff did here? What did the sheriff do?
What happened to the judgment debt that was attached?There
was a public auction.
How much was the judgment debt here?
P 1,300 plus interest so P 1,588
The judgment debt in in favor of Sharuff was P 6,841. The
properties sold in the action was purchased by Farre for only P
200.
How much was the amount that was supposed to be recovered
under the notice of levy? P1,588.
The judgment debt exposed to sale?
How much was the judgment debt that was levied? P 6,841
So the judgment debt of P 6,841 was sold on a public auction
for P 200. Was the procedure correct? NO
What was done here was to expose the judgment debt to an
auction sale as if it was a property capable of manual delivery.
That is not the correct procedure if you deal with intangible
property such as a judgment debt. The correct procedure would
be garnishment.
What is garnishment?
Garnishment is considered as a specie of attachment for
reaching credits belonging to the judgment debtor and owing to
him from a stranger to the litigation. Under the above-cited
rule, the garnishee [the third person] is obliged to deliver the
credits, etc. to the proper officer issuing the writ and "the law
exempts from liability the person having in his possession or
under his control any credits or other personal property
belonging to the defendant, ..., if such property be delivered or
transferred, ..., to the clerk, sheriff, or other officer of the court
in which the action is pending."
What happens when there is garnishment?
The garnishee here becomes a forced intervenor. The court
acquires jurisdiction over the garnishee through the service of
the notice of garnishment. The garnishee is required to remit
the amount directly to the attaching creditor, in case the latter
prevails in the case. In the case of attachment, the garnishee is

Page 19 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
actually made to reserve the property he has in his possession.
To hold it until such time that the court will render judgment of
the case and deliver it to the attaching creditor. The purpose of
the garnishment is to secure the judgment later on. Usually the
one who are garnishees are the banks. They hold bank
deposits. In the case of Tayabas, this is a case of judgment
debt, medyo complicated ang nangyari, especially with the
procedure that was undertaken by the sheriff here treating the
judgment debt as if it was a personal property capable of
manual delivery.
How will the sheriff levy on an interest in the estate of a
deceased?
(e) The interest of the party whom attachment is issued in
property belonging to the estate of the decedent, whether as
heir, legatee, or devisee, by serving the executor or
administrator or other personal representative of the decedent
with a copy of the writ and notice that said interest is attached.
A copy of said writ of attachment and of said notice shall also
be filed in the office of the clerk of the court in which said
estate is being settled and served upon the heir, legatee or
devisee concerned.
If the property sought to be attached is in custodia legis, a copy
of the writ of attachment shall be filed with the proper court or
quasi- judicial agency, and notice of the attachment served
upon the custodian of such property.
So you have to serve copies of the notices of levy to whom?
To the executor or administrator or other personal
representative of the decedent with a copy of the writ and
notice that said interest is attached. A copy of said writ of
attachment and of said notice shall also be filed in the office of
the clerk of the court in which said estate is being settled and
served upon the heir, legatee or devisee concerned.
If the estate involves real property, do you still have to register
it with the registry of deeds?
That is the problem, when an estate involves real property and
if an interest therein, like an interest of an heir is attached
which is allowed under paragraph e, an interest of an heir in an
estate can be attached. Doesnt that fall as a real interest in a
real property?
If the estate consists of real properties must it be registered in
the registry of deeds? Should the notice of levy be registered
under paragraph a?
Even if it is indeterminable, you still have an interest as an heir
over real properties in an estate. If you are an heir, if you have
a father or a mother, who has an estate. A decedent father for
instance, he leaves an estate involving real properties and
somebody sues you for collection and attaches you interest over
the estate. Then the attachment creditor will have to follow
paragraph e. But since the estate involves real properties, will
that also require compliance with paragraph a?

Read Section 7 paragraph A *go back*


Any interest therein. If you are an heir of an estate
involving real properties then you have an interest in the real
properties as an heir.
Question is do you comply with paragraph A also or just
paragraph E?
What if there is no intestate proceeding? Paragraph e
presupposes an intestate proceeding filed in court. That is why
you have to notify the administrator, the executor, the clerk of
court and the heir, supposing there is no intestate proceeding.
There is no clerk of court to notify in the first place. That is
when you apply paragraph A. Because you have an interest
over a real property. So hindi pa nadistribute, you are correct.
Hindi pa siya segregated, correct. But as an heir you have a
share in the estate. You have a share in each of the real
property left by your deceased parent. So if there are 3 of you

plus the surviving parent, four of you will share that.


Are you telling me you cannot attach that?
If you are a defendant in a case and you are being held liable
and you are trying to look for properties that they could attach,
it can be attached as and interest in a real estate. The
procedure that we follow if there is no intestate proceeding is
not paragraph E because it presupposes the presence of an
administrator, executor or clerk of court where the intestate
proceeding is pending. If there is no intestate proceeding you
use paragraph a. Take note of that paragraph E presupposes a
pending settlement case. That is why you only need to serve a
copy with the clerk of court. What is the reason for that in the
case of GOTAUCO vs. REGISTRY OF DEEDS?
Why do you need to notify the clerk of court?
The attachment is to secure the judgment in the main case. If
you are an heir and you are a defendant in a case and an
attachment has been issued against you, then your share in the
estate subject of the settlement case can be attached. That is
why you have paragraph e. You notify the clerk of court,
administrator, executor as well as the heir defendant. There is
a lien created by that attachment. It is a lien on the share that
you will get from the estate. There is a new liability created by
that lien. Yung share mo may be attached to answer for
whatever judgment that the attaching creditor will obtain in the
separate main case. That is the purpose. My question is, why is
it that you only notify the clerk of court or the administrator and
that will be sufficient? What is the purpose of notifying the clerk
of court?
What is the purpose of complying with the different manner of
attaching properties under section 7?
What is the main purpose why the sheriff should comply with all
the procedural requirements under paragraphs A, B, C, D and
E? What is the effect if it is not complied?
The whole purpose of this rule for a valid levy of the different
properties enumerated is simply to place these properties under
the custody of the court. It is not to transfer ownership. It is not
to transfer control of the properties or possession to the
attaching creditor. There is yet no transfer of ownership here. It
is merely to seize or place these properties under custodia legis.
So that the court may have control over these properties
subject the outcome of the main case. That is the whole point
why you need to comply with the procedure and effect of
noncompliance means there was no valid acquisition of the
court of custody over these properties and the levy is void.
In a case of a share subject of settlement under paragraph e,
that is already in custodia legis. When an estate is subject of a
settlement proceeding, the entire property of the estate is
already in the custody of the court. So if you attach the share of
an heir in that estate subject of a settlement proceeding, which
is already in custodia legis, the mere notification in the clerk of
court will suffice. Kasi under custodia legis na yun. That is why
only a notice to the clerk of court is required.
You get the entire picture?
So that is a different manner of attaching properties under
paragraph E of section 7. Ibang specie din yan ng property so
panibagong procedure yan. You must be familiar with each kind
of property and what kind of procedure should be followed for
there to be a valid levy.
If the property or the share of an heir in an estate is not subject
of settlement proceeding, it is not yet under custodia legis
correct? Paragraph A will apply. The only way to put the interest
of an heir over real properties not under settlement proceeding
is when you apply paragraph A.
July 21, 2015 (SRA)
What is the effect of the attachment of debts, credits, and all
similar property?

Page 20 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
of its power of control over such funds.

Sec. 8.Effect of attachment of debts, credits and all other


similar personal property. All persons having in their
possession or under their control any credits or other similar
personal property belonging to the party against whom
attachment is issued, or owing any debts to him, at the time
of service upon them of the copy of the writ of attachment
and notice as provided in the last preceding section, shall be
liable to the applicant for the amount of such credits, debts
or other similar personal property, until the attachment is
discharged, or any judgment recovered by him is satisfied,
unless such property is delivered or transferred, or such
debts are paid, to the clerk, sheriff, or other proper officer of
the court issuing the attachment.

What is the reckoning point? Delivery of the check or


encashment of the check? Delivery of the check.
What is the reason why the garnishee is released from liability
upon the delivery of the check?
The garnishee is no longer liable because the check was placed
in custodia legis when it was delivered to the sheriff. Upon
delivery of the check, the responsibility now passes to the
sheriff who has control and custody of the property.
Is partial execution of the judgment a ground to discharge the
garnishee from liability?
No. As held in the case of Manila Remnant v. CA, partial
execution is not a ground to discharge a writ of attachment.
The Supreme Court held in this case that a garnishment order
shall be lifted if it established that:

What kind of personal properties are involved in section 8?


Personal properly not capable of manual delivery.
What kind of attachment is contemplated under sec. 8?

(1) The party whose accounts have been garnished has


posted a counterbond or has made the requisite cash
deposit;

Section 8 speaks of a garnishment, which is a specie of


attachment for reaching credits belonging to the judgment
debtor and owing to him from a stranger to the litigation.

(2) The order was improperly or irregularly issued as


where there is no ground for garnishment or the
affidavit and/or bond filed therefor are defective or
insufficient;

When will the liability on the garnishment terminate? The


liability is terminated when the attachment is discharged.
In the case of Engineering Construction v. NPC, who is the
garnishee? MERALCO.

(3) The property attached is exempt from execution,


hence exempt from preliminary attachment; or,

Was the liability of MERALCO here discharged? Yes. MERALCO


indorsed two checks to the deputy sheriff after it was judicially
compelled to pay, so the liability has been removed.

(4) The judgment is rendered against the attaching or


garnishing creditor.

Was the notice of garnishment valid in the first place? Yes.


What happens now to the liability under garnishment after
paying the same to the sheriff? The garnishment is released.
MERALCO should be discharged from the liability.
Why? What is the rule here? The law exempts from liability the
person having in his possession or under his control any credits
or other personal property belonging to the defendant if such
property be delivered or transferred to the clerk, sheriff, or
other officer of the court in which the action is pending.
So, mere delivery of the check representing the garnished
amount terminates the liability of the garnishee? Yes.
ENGINEERING vs. NPC (1988)

Why is partial execution not a ground?


From 2014 TSN: The answer is under Section 8, when the
judgment recovered be satisfied. When the judgment is partially
executed, obviously, it is not yet fully satisfied. Hence, it is not a
ground to discharge an attachment.

There was already partial compliance with the judgment. The


court said that petitioner has already expressed its willingness
to reimburse the amounts paid to the respondents. There is no
need for the garnishment order because it is willing to
reimburse the respondents in the writ of execution of a deed of
absolute sale.
Is that enough to terminate the liability of the garnishee?

Is that the same ruling in the case of RCBC v. Castro?


Yes. In this case, the check was delivered to the sheriff, so the
garnishee was released from liability despite the fact that the
sheriff encashed the said check.

By virtue of the order of garnishment, the same was placed


in custodia legis and therefore, from that time on, RCBC was
holding the funds subject to the orders of the court a quo.
That the sheriff, upon delivery of the check to him by RCBC
encashed it and turned over the proceeds thereof to the
plaintiff was no longer the concern of RCBC as the
responsibility over the garnished funds passed to the court.
Thus, no breach of trust or dereliction of duty can be
attributed to RCBC in delivering its depositor's funds
pursuant to a court order which was merely in the exercise

Partial execution of the judgment is not included in the


above enumeration of the legal grounds for the discharge of
a garnishment order. Neither does the petitioner's
willingness to reimburse render the garnishment order
unnecessary.

What was the partial execution here all about?

MERALCO, as garnishee, after having been judicially


compelled to pay the amount of the judgment represented
by funds in its possession belonging to the judgment debtor
or NPC, should be released from all responsibilities over
such amount after delivery thereof to the sheriff. The reason
for the rule is self-evident. To expose garnishees to risks for
obeying court orders and processes would only undermine
the administration of justice.

RCBC vs. CASTRO (1988)

MANILA REMNANT vs. CA (1994)

No, considering that there is only partial execution. Garnishment


can only be satisfied if there is already complete execution and
not only partial execution.
Can a compromise agreement lift a writ of attachment or
garnishment? No.
Is it not that when there is a compromise agreement, the main
case is terminated?
Yes. We are talking here of a compromise agreement that was
executed by the parties in order to terminate the main case. In
fact, it was approved and there was a judgment of compromise.
So, what happens to the main case? The main case will be
terminated.
What happens now to the ancillary remedy of writ of
attachment [considering that the main case has already been
terminated by the compromise agreement]?

Page 21 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
In the event that there is still no performance of the
compromise agreement, the writ of attachment will come into
play.
Is it not that a writ of attachment is merely dependent on the
main case such that if the main case was terminated, there is
no more basis for that ancillary remedy? Yes.
What happens to the writ of attachment?
In the case of Abinujar v. CA, the Supreme Court said that the
non-fulfilment of the terms and conditions of a compromise
agreement approved by the court justifies execution thereof and
the issuance of the writ for said purpose is the court's
ministerial duty enforceable by mandamus.
ABINUJAR vs. CA (1995)
A compromise has upon the parties the effect and authority
of res judicata; but there shall be no execution except in
compliance with a judicial compromise.
The non-fulfillment of the terms and conditions of a
compromise agreement approved by the court justifies
execution thereof and the issuance of the writ for said
purpose is the court's ministerial duty enforceable by
mandamus.

This is an instance where the main case has already been


terminated but the ancillary remedy of the writ of attachment
continues precisely because there are still terms and conditions
in the compromise agreement that are yet to be fulfilled by the
parties and it is the fulfillment of these terms and conditions
that is secured by the writ of attachment. That is how you
reconcile this. It all depends on the agreement of the parties
and the tenor of the order of the court. As a general rule, a
mere compromise agreement will not discharge a writ of
attachment.
Supposing the garnishee is a bank and the writ of attachment
was being served by a different branch of the same bank. Is
there a valid discharge of the writ of attachment if another
branch is the one which satisfied or atleast fulfilled the order of
garnishment? Yes, in the case of PNB v. Olutanga, the
Supreme Court held that where attached properties belonging
to the principal debtor are taken out of the hands of a person
by a legal process, after he had been notified of the order of
attachment, said person cannot be made to answer for the
properties in a proceeding to carry out said attachment.
PNB vs. OLATUNGA (1930)

The purpose of a writ of attachment is to secure the judgment


based on a compromise. You can only enforce the writ of
attachment if there is a violation of the terms and conditions of
the compromise.
From 2014 TSN: The reason for that is because, when the
terms of a compromise agreement had been violated, that is the
time when you are entitled for an execution. What is there to
execute if you have already discharged or terminated the order
of garnishment or the writ of attachment? Precisely, the
purpose of the attachment is to secure the satisfaction of the
judgment. If the judgment is based on a compromise, how do
you execute? You only execute if there is a violation of the
terms. If he violates, then you move to execute. If you have
already discharged the attachment, then what is there to
execute. It is for practical reasons that a mere execution of a
compromise agreement does not discharge a writ of
attachment.
A compromise agreement does not necessarily dissolve a writ of
attachment even though it may result to the termination of the
main case. Basically, you look at the order or the judgment
issued by the court. If it includes there the discharge of the writ
of attachment, then obviously the writ of attachment is
discharged because one way of terminating a writ of
attachment is when the court itself orders its discharge. If the
decision or judgment on compromise specifically states that the
writ of attachment is discharged, then obviously, it dissolves the
writ of attachment. In the absence of that, it follows that there
is no discharge yet of the writ of attachment because aside
from an order discharging the writ, the other way of discharging
the liability of a debtor under the writ of attachment is by
satisfaction of the judgment.
In a compromise agreement, it does not necessarily follow that
when there is a compromise agreement, there is a satisfaction
of the judgment. It could be that the satisfaction of the
judgment will be over a period of time like when the defendant
agrees to pay the plaintiff in installments. So, pending the
fulfillment of the terms and conditions of the compromise
agreement, the attachment will not be discharged unless the
court orders it in the decision itself like when the parties agree
to dissolve the writ. In the absence of an order in the judgment
by compromise, then the writ of attachment subsists precisely
because in a compromise agreement, the terms and conditions
therein were made by the parties. If such terms and conditions
are not yet fulfilled upon its approval, then court will not
discharge the writ of attachment as a general rule unless the
parties will agree.

When a person has funds in his possession belonging to a


debtor, and said funds are attached by a creditor of the
latter, said person is relieved from all responsibility to said
creditor if he is judicially compelled to deliver said funds to
the aforesaid debtor.
What branch was subjected to the garnishment here? BPI
Manila. Who should pay? BPI Zamboanga.
Was the payment made by BPI Manila sufficient compliance of
the obligation of BPI Zamboanga?
Yes. The fact that the funds attached in the possession of
BPIManila belonging to the Olutanga Lumber Company had
been deposited with the sheriff of the City of Manila by order of
said officer does not change the juridical situation of said funds
as attached in the possession of BPI. BPI Manila, having been
judicially compelled to pay the amount of the judgment
represented by said funds to the Olutanga Lumber Company, is
released from all responsibility to PNB in whose favor the writ of
attachment was issued. So, there was already substantial
compliance in this case.
Supposing the situation is different, after a notice of
garnishment was issued to BPI Zamboanga, BPI Manila paid the
obligation, will that discharge BPI Zamboanga or BPI in general
of its liability under the writ of attachment?
No. In that case, there was no valid discharge. The keyword
here is that the bank, whichever branch it is, should have been
judicially compelled to pay. If it volunteered to tender the
amount without any legal compulsion, that is not a sufficient
discharge, and there is every reason to object to the validity of
the payment. The bank here cannot be considered to be
discharged of its liability because there was no legal
compulsion.
The reckoning point here or the main thing to be considered
here is whether there is legal compulsion employed on the bank
such that it has no choice but to pay. If it voluntarily paid and it
was not named in the writ as garnishee, that payment can be
questioned and the bank (BPI Zamboanga) may not be
discharged of its liability as a garnishee. Meaning to say, the
bank (BPI Zamboanga) can be ordered again to pay for its own
negligence or inadvertence because there was no legal
compulsion. There has to be judicial compulsion inorder for the
garnishee to be absolved or discharged from liability.
What does garnishment imply?
It implies that there is a third person who will be liable to the
creditor. The garnishee (the third person) is obliged to deliver
the credits to the proper officer issuing the writ and the law

Page 22 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
exempts from liability the person having in his possession or
under his control any credits or other personal property
belonging to the defendant if such property be delivered or
transferred to the clerk, sheriff, or other officer of the court in
which the action is pending.
What is the standing of the garnishee in the case? Can you
consider a garnishee as part of the case?
Yes. There is some sort of subrogation such that the creditors
liability will be transferred to the third person. In view of this
forced or compulsory subrogation, he is considered to be a
forced intervenor. As a forced intervenor, he has no choice but
to become a party to the case even if his role is simply to satisfy
the judgment in the case.
From 2014 TSN: When you speak of garnishment, necessarily
there is a third person and that third person is given a notice
that whatever property the defendant may have in his
possession, he should not return it to the defendant but he is
liable to the attachment creditor. That is the essence of
garnishment. So, in the case of Perla Compania de Seguro
v. Ramolete, the Supreme Court held that in legal
contemplation, garnishment happens when there is a
substitution of creditors. Instead of the garnishee being liable to
the defendant as the original creditor, he is now liable to the
attaching creditor as the substituted creditor. The first person
that he is primarily liable to is the attaching creditor (the
plaintiff) and not the defendant anymore who is his original
creditor.
Supposing the garnishee after having been validly served a
notice of garnishment fraudulently disposes of the property
garnished resulting to the non-satisfaction of the judgment,
what is now the remedy of the attaching creditor? In the case
of Tec Bi v. Chartered Bank of India, the Supreme Court
held that the remedy of the judgment creditor is to satisfy his
claim against the garnishee in the same case or in a separate
case. It would be at the choice of the attaching creditor whether
to go after the garnishee in the same case or in a separate
case.
TEC BI vs. CHARTERED BANK OF INDIA (1917)
The remedy of a judgment creditor against the garnishee is
to either enforce his claim in the same of separate action.

That only goes to show that the garnishee really becomes a


party to the case because his fraudulent disposal of the
property garnished can be litigated in that same case. He can
be held accountable by the attaching creditor in the same case
or in a separate case, depending on the choice of the attaching
creditor.
Supposing the property attached is subject of a mortgage. What
is now the remedy of the attaching creditor when the
mortgaged property has been extrajudicially foreclosed by the
mortgagee? The attaching creditor may redeem the property
from the purchaser. In Consolidated Bank v. IAC, the Supreme
Court held that the attachment creditor acquires the debtors
right of redemption over the attached properties.

Petitioner has acquired by operation of law the right of

In all such cases in which an extrajudicial sale is made, any


person having a lien on the property subsequent to the
mortgage may redeem the same at any time within the
term of one year from and after the date of sale.
It has been held that "an attaching creditor may succeed to
the incidental rights to which the debtor was entitled by
reason of his ownership of the property, as for example, a
right to redeem from a prior mortgage."
From 2014 TSN: The attachment creditor will be subrogated
to whatever rights the attachment debtor has over the property
foreclosed. Since the attachment debtor has the right to redeem
the property, insofar as the foreclosed property is concerned, it
is only that right that can be passed on to the attachment
creditor.
Can properties already mortgaged be attached? Remember, an
attachment creates a lien over a property. A mortgage is also a
lien on the property. So, can a property already subject of a
mortgage lien be attached?
Yes, in the same case, the Supreme Court held that an
attaching creditor may succeed to the incidental rights to which
the debtor was entitled by reason of his ownership of the
property, as for example, a right to redeem from a prior
mortgage.
Can the appointment of a rehabilitation receiver defeat a writ of
attachment made on the properties? No. This was the ruling of
the Supreme Court in BF Homes v. CA.
BF HOMES vs. CA (1990)
If there is an attachment or sequestration of the goods or
estate of the defendant in an action which is removed to a
bankruptcy court, such an attachment or sequestration will
continue in existence and hold the goods or estate to answer
the final judgment or decree in the same manner as they
would have been held to answer the final judgment or decree
rendered by the Court from which the action was removed,
unless the attachment or sequestration is invalidated under
applicable law.
The lien or security obtained by an attachment even before
judgment, is a fixed and positive security, a specific lien, and,
although whether it will ever be made available to the
creditor depends on contingencies, its existence is in no way
contingent, conditioned or inchoate. It is a vested interest, an
actual and substantial security, affording specific security for
satisfaction of the debt put in suit, which constitutes a cloud
on the legal title, and is as specific as if created by virtue of a
voluntary act of the debtor and stands upon as high equitable
grounds as a mortgage.

When the execution against the judgment debtor was


unsatisfied, the judgment creditor may bring an action at
law against a garnishee upon whom notice was served
under an attachment issued in the action before judgment;
and it is not necessary before bringing such action that the
garnishee should be required to appear and answer, or that
an order should be obtained authorizing the action against
the garnishee; and no equitable circumstance need be
shown to justify the suit, which is upon direct liability of the
garnishee to the plaintiff in that suit provided for in section
544 of the Code of Civil Procedure.

CONSOLIDATED BANK vs. IAC (1987)

redemption over the foreclosed properties pursuant to Sec.


6 of Act No. 3135, to wit:

The law does not provide the length of time an attachment


lien shall continue after the rendition of judgment, and it
must therefore necessarily continue until the debt is paid, or
sale is hadunder execution issued on the judgment or until
judgment is satisfied, or the attachment discharged or
vacated in some manner provided by law.
Coming now to the writ of preliminary attachment, we find
that it must stand despite the suspension of the proceedings
in the Regional Trial Court of Quezon City. The writ was
issued prior to the creation of the management committee
and so should not be regarded as an undue advantage of
Mendoza and Roa over the other creditors of BF.
The appointment of a rehabilitation receiver who took control
and custody of BF has not necessarily secured the claims of
Roa and Mendoza. In the event that the receivership is
terminated with such claims not having been satisfied, the
creditors may also find themselves without security therefor
in the civil action because of the dissolution of the

Page 23 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
attachment. This should not be permitted. Having previously
obtained the issuance of the writ in good faith, they should
not be deprived of its protection if the rehabilitation plan does
not succeed and the civil action is resumed.

How will the intestate court be made aware of the attachment?

Can there be attachment and receivership over the same


property at the same time? Yes, you can have a rehabilitation
receiver taking control over the attached property.

Why is notice necessary?

There must be notice to the court conducting the intestate


proceeding by the executor, administrator, or other personal
representative of the decedent.

From 2014 TSN: Why is it that the appointment of a


rehabilitation receiver will not defeat the prior attachment on
the same properties? The appointment of the rehabilitation
receiver did not necessarily secure the case here. In the event
that the receivership is terminated, if the attachment is
dissolved, the attaching creditor here will find no recourse over
the property.
How about sequestered properties by the PCGG?
sequestering the property, it is placed under custodia legis.

By

What is the nature of the sequestration here?


It is a provisional remedy akin to an attachment or receivership.
It is like putting the properties under receivership or an
attachment.
From 2014 TSN: Aside from sequestration, you also have
provisional take over as ancillary remedy can be resorted to in
prosecuting all ill-gotten wealth of the cronies of Marcos during
his time. Being provisional, sequestration does not result on
declaration of ownership on the property because that is only
an ancillary remedy.
What is the effect if an interest in a property belonging to an
estate is attached? According to section 9, Rule 57, the
attachment of the interest of an heir, legatee, or devisee in the
property belonging to the estate of a decedent shall not impair
the powers of the executor, administrator, or other personal
representative of the decedent over such property for the
purpose of administration.
Section 9.Effect of attachment of interests in property
belonging to the estate of a decedent. The attachment of the
interest of an heir, legatee, or devisee in the property belonging
to the estate of a decedent shall not impair the powers of the
executor, administrator, or other personal representative of the
decedent over such property for the purpose of administration.
Such personal representative, however, shall report the
attachment to the court when any petition for distribution is
filed, and in the order made upon such petition, distribution
may be awarded to such heir, legatee or devisee, but the
property attached shall be ordered delivered to the sheriff
making the levy, subject to the claim of such heir, legatee, or
devisee, or any person claiming under him.
What happens if an interest in a property belonging to an estate
is attached?
Under section 9, when an interest in a property belonging to an
estate is attached by the sheriff, there must first be a petition
for the distribution of such estate, considering that the shares of
the heirs in the estate is merely inchoate. The sheriff cannot as
yet attach the specific property without prior distribution.
When there is already a petition for distribution, what happens?
The court will first determine the actual shares of the debtor
(heir, legatee, or devisee) in the estate. There must be a
judgment as to the actual share of the debtor in the estate
before the sheriff may attach a specific property of the debtor.
How will the sheriff do that in the first place if a petition for
distribution has already been filed?
It will be the executor, administrator, or other personal
representative of the decedent over such property who will
report the attachment to the intestate court whenever a petition
for distribution has already been filed.

Notice is necessary to remind the court that there is a pending


attachment over an interest in the property belonging to the
estate, so that after the distribution has already been granted,
the specific property under attachment will now be delivered to
the sheriff and not to the designated heir.
So, instead of the heir receiving his share in the property
belonging to the estate, it will be turned over to the sheriff
making the levy but only after there has been an order of
distribution issued by the court.
From 2014 TSN: The petition for distribution should be first
done to know which interest should be attached. You have to
understand the scenario here, what is being attached is merely
the interest in the estate of a deceased, not a specific property
precisely because an heir cannot yet get hold of a specific
property of the deceased pending settlement of the estate.
There is that mass of property and the heirs are still waiting for
the settlement. Pending that settlement, the heirs could not say
for sure which property is rightfully theirs. There is what you
call as suspended animation. They cannot pinpoint which
property belongs to him/her. Until there is such project of
partition, they cannot say for sure that they own the property.
Therefore, if one of the heirs is the defendant in a case, the
attaching creditor cannot also pinpoint which property of the
estate should be attached. Only the interest of the defendant
can be attached, and precisely under Section 9, how do you
attach that interest? By serving a copy on the executor,
administrator or representative of the decedent and serving the
copy thereof on the clerk of court where the settlement hearing.
Once there is that attachment over the interest of an heir, then
the powers of the executor, administrator, or other personal
representative of the decedent will not be diminished. It will not
be impaired. They will continue to administer the estate of the
deceased as if nothing happened. But if the settlement
proceedings comes to the stage when there is now distribution
of the assets of the estate, the share allotted to the defendant,
to the attachment debtor, will not go to him. It will go to the
sheriff. That is the time that the sheriff actually gets hold of the
specific property of the estate. Only after there is distribution.
Only after specific properties of the estate are distributed.
Before that, no specific property can be turned over to the
sheriff. So instead of the judgement debtor getting hold of the
property after distribution, it will be directly given to the sheriff.
What is the purpose of examination under section 10? The
purpose depends on who is the person to be examined. If it is a
third party sought to be examined, the purpose of the
examination is to illicit information regarding properties of the
debtor which are in his possession. If it is the debtor himself
sought to be examined, the purpose of the examination is to
illicit information regarding his properties.
Section 10. Examination of party whose property is attached

and persons indebted to him or controlling his property; delivery


of property to sheriff. Any person owing debts to the party

whose property is attached or having in his possession or under


his control any credit or other personal property belonging to
such party, may be required to attend before the court in which
the action is pending, or before a commissioner appointed by
the court, and be examined on oath respecting the same. The
party whose property is attached may also be required to attend
for the purpose of giving information respecting his property,
and may be examined on oath. The court may, after such
examination, order personal property capable of manual
delivery belonging to him, in the possession of the person so
required to attend before the court, to be delivered to the clerk

Page 24 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
of the court or sheriff on such terms as may be just, having
reference to any lien thereon or claim against the same, to
await the judgment in the action.
Under section 10, who are the person who can be examined?
The following persons may be examined:
(a) Debtor himself;
(b) Creditor of the defendant;
(c) Debtors of the defendant; or,
(d) Any person who has under his control other personal
property belonging to the defendant.
Who may examine?
Under section 10, the court in which the action is pending, or a
commissioner appointed by the court may examine the
aforementioned persons.
After the examination, what order may be issued by the court?

Section 11.When attached property may be sold after levy on


attachment and before entry of judgment. Whenever it shall
be made to appear to the court in which the action is pending,
upon hearing with notice to both parties, that the property
attached is perishable, or that the interests of all the parties to
the action will be subserved by the sale thereof, the court may
order such property to be sold at public auction in such manner
as it may direct, and the proceeds of such sale to be deposited
in court to abide the judgment in the action.
From 2014 TSN: So, here, you contemplate of a situation
where the property being attached has a perishable nature such
that if you continue to hold on to it, it will perish, it will lose its
value. Instead of it securing the judgment, it becomes a liability
instead.
So, what example can you think of a property that is perishable
in nature? Goods, vegetables, meat or fruits. The proceeds [of
the sale, instead of the property attached] will now be the one
that will be kept in custodia legis to await judgment.

The court may, after such examination, order personal property


capable of manual delivery belonging to him, in the possession
of the person so required to attend before the court, to be
delivered to the clerk of the court or sheriff on such terms as
may be just, having reference to any lien thereon or claim
against the same, to await the judgment in the action.

What is the procedure to be followed under section 11? The


requirements for the sheriff to be able to dispose of the
properties pending litigation are as follows:

Is the proceeding under section 10 ex parte? Can this be done


ex parte? Yes.

(b) Second, the attaching creditor must be able to prove


to the court in which the action is pending that the
property attached is perishable in nature and that the
parties agreed to sell the attached property for the
protection of their own interest.

(a) First, there must be hearing with notice to both


parties; and,

Is it similar to an examination for the issuance of a search


warrant wherein you are going to determine probable cause?
No. The examination under section 10 is a mode of discovery
applied in cases wherein no property of the debtor can be
found. As a mode of discovery, the court now resorts to an
examination of the debtor or a third person in order to identify
other possible properties of the debtor which may have been
concealed by him or in the possession of other persons.
You think the defendant will voluntary disclose to the court the
existence of his other properties?
Well, under pain of perjury, he is to be examined. If he tells a
lie and later on it will be proven that he made false testimony,
he can be held criminally liable for his false testimony. The
examination here is under oath.
The purpose is to determine there are still other properties of
the defendant to be attached whether in the possession of the
defendant himself or in the possession of a third person, or
some debts owing to the defendant by another person. Section
10 presupposes that the defendant is honest enough to disclose
where his properties are and where he have hidden them.
We have said that attachment is a form of securing the
judgment in a case that is why you attach the property at the
start of the case or pending litigation so that later on when you
have a favorable judgment, that judgment is secured by the
property attached.
Therefore, the attached property should be in custodia legis
until the case is terminated on the merits. The property should
remain in the possession of the sheriff.
Can the sheriff dispose of the property even if the case has not
yet been terminated?
As a general rule, the sheriff can only dispose of the property
after the termination of the case.
However, section 11 provides for two instances when the sheriff
may sell the properties attached pending litigation. These are as
follows:
(a) When the property attached is perishable in nature; or,

How should the sale be made? The attached property must be


sold at a public auction in such a manner as the court may
direct.
After the sale has been made, what will happen to the proceeds
of the sale? The proceeds of said sale would be returned to the
court and would be applied to the debt or liability of the
defendant debtor.
Who will hold the proceeds of the sale pending litigation? It will
be deposited to the court. It is too risky to leave it to the hands
of the sheriff. Actually, you deposit it to the ex-officio sheriff,
meaning the clerk of court of the MTCC or RTC itself, and not to
the branch sheriff. Upon deposit, the ex-officio sheriff will issue
a receipt, which means that it is now in the coffers of the
judiciary, not specifically in the hands of a specific sheriff. That
receipt will prove the amount deposited and that receipt will be
turned over as part of the records of the case.
What are the modes of discharging the writ of attachment? A
writ of attachment may be discharged upon giving a
counterbond (section 12) or upon filing a motion for the
improper issuance of the writ.
Section 12. Discharge of attachment upon giving counterbond. After a writ of attachment has been enforced, the
party whose property has been attached, or the person
appearing on his behalf, may move for the discharge of the
attachment wholly or in part on the security given. The court
shall, after due notice and hearing, order the discharge of the
attachment if the movant makes a cash deposit, or files a
counter-bond executed to the attaching party with the clerk of
the court where the application is made, in an amount equal to
that fixed by the court in the order of attachment, exclusive of
costs. But if the attachment is sought to be discharged with
respect to a particular property, the counter-bond shall be equal
to the value of that property as determined by the court. In
either case, the cash deposit or the counter-bond shall secure
the payment of any judgment that the attaching party may
recover in the action. A notice of the deposit shall forthwith be
served on the attaching party. Upon the discharge of an
attachment in accordance with the provisions of this section,

(b) When the interests of all the parties to the action will
be subserved by the sale thereof.
Page 25 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
the property attached, or the proceeds of any sale thereof, shall
be delivered to the party making the deposit or giving the
counter-bond, or to the person appearing on his behalf, the
deposit or counter-bond aforesaid standing in place of the
property so released. Should such counter-bond for any reason
be found to be or become insufficient, and the party furnishing
the same fail to file an additional counter-bond, the attaching
party may apply for a new order of attachment.
What is the procedure to discharge an attachment by a
counterbond? The procedure for filing a counterbond are as
follows:
(1) File a motion for the discharge of the attachment
wholly or in part of the security given;
(2) Movant makes a cash deposit, or files a counterbond
executed to the attaching party with the clerk of the
court where the application is made;
(3) There will be hearing with notice to all parties; and,
(4) If proper, the court will order the discharge of
attachment.
When do you file a counterbond? You may file a counterbond
under section 12 after the seizure of the attached property.
How many times can you put up a counterbond under Rule 57?
In what instances can you file a counterbond under Rule 57?
Three times. You may file a counterbond under sections 2, 5,
and 12.
What is the difference between sections 2, 5, and 12 regarding
the putting up of a counterbond?
From 2014 TSN: Under sections 2 and 5, counterbond is
posted to prevent the property from being attached while
under section 12, counterbond is given to discharge the writ of
attachment; albeit to release the property already seized by the
sheriff.
Under Rule 57, there are three mentions of a counterbond. You
have sections, 2, 5, and 12.Under section 2 or upon issuance of
an order, the sheriff may be required to attach so much of the
property of the defendant unless such party makes deposit or
gives a counterbond in court.
So, section 2 refers only to the stage where there has been an
issuance of the writ. No enforcement yet. At that point in time,
just by the mere issuance of the writ, the defendant can already
go to court and post a counterbond. That is one instance.
Under section 5, it contemplates a situation where the sheriff is
now in the process of enforcing the writ. So, this is during the
enforcement stage. The defendant has another opportunity to
post a counterbond under section 5 in order to prevent the
sheriff from taking possession or levying the property attached.
Meaning to say, the sheriff will not get hold of the property and
the property will not be placed in custodia legis because there
was a counterbond posted.
Section 12 is the last opportunity to post a counterbond and
that is after the enforcement of the writ. Meaning to say, the
property is already in custodia legis because the sheriff has
already levied or seized the property. Those are the three
instances where you can post a counterbond. Either of these
three instances, the effect is the same- the writ of attachment
on the property is discharged.
So, when you say counterbond, you must remember these
instances: upon the issuance of the order, during enforcement
of the writ, and after the enforcement of the writ. The
procedure under section 12 pertains to that situation where the
property has already been seized upon or levied by the sheriff.
Meaning to say, the property is now in custodia legis.
Going back to the procedure under section 12, is there a need
to file a motion for filing a counterbond? Yes.

Is there a need for a hearing? Yes.


What is the purpose of the hearing?
To determine the sufficiency of the counterbond.
What is the amount of the counterbond under sections 2, 5, and
12?
Under section 2, the amount of the counterbond is equal to that
fixed in the order, which may be the amount sufficient to satisfy
the applicants demand or the value of the property to be
attached as stated by the applicant. So, it is the amount of the
attachment bond which is fixed by the court in the order of
attachment. You just make a similar counterbond similar to that
amount in the attachment bond, then it may cause the
discharge of the attachment.
Under section 5, the amount of the counterbond is equal to that
fixed by the court in the order of attachment or to the value of
the property to be attached, exclusive of costs. So, same
amount with the attachment bond.
Under section 12, as a general rule, the amount should be equal
to that fixed by the court in the order of attachment, exclusive
of costs. The exception is if the attachment is sought to be
discharged with respect to a particular property, the
counterbond shall be equal to the value of that property as
determined by the court.
So, there can be a partial discharge of attachment with respect
to a particular property. If there are several properties attached
and only a specific property is sought to be discharged from
attachment, then there will be a determination of the value of
that property in order to fix the amount of the counterbond.
What happens to the counterbond posted? It becomes as
security for the judgment. The counterbond will take the place
of the properties discharged as security for whatever judgment
that the attaching creditor may obtain after the case has been
tried on the merits.
It the case of Manila Remnant v. CA, what was the amount
of the counterbound? P500,000based on the fair market value
(FMV) of the property.
What was the amount of the attachment bond? P66,571 based
on its contract price.
Is it not that under Rule 57 sections 2, 5, and 12, the amount of
the counterbond is the same with the amount fixed in the writ
of attachment? Why is the amount of the counterbond in the
case of Manila Remnant based on the FMV of the property and
not the same with the amount of the attachment bond?
From 2014 TSN: Why is it that there is a disparity in the
amount? The value of the property was only P66,571 and yet
the amount garnished and the counterbond is P500,000? What
was the main action? Specific Performance- to enforce a
contract to sell.
When was the case filed? 1978.
So it was decided after 24 years. Therefore, there was a
disparity on the fair market value.
Here, the determining point is the value of the property and not
the amount fixed by the court based on the principal thing
because the subject of the case involves properties. After all
those years, definitely, the one who bought the property would
not want a simple reimbursement or the one who seeks to
recover the property would not accept a simple reimbursement
because that would only be limited to the contract price of
P66,571 when the property has already appreciated because of
the passage of time.
That is why, the increase in the value of the property made the
court increase the value of the counterbond and garnishment.
Therefore, in this case, the value of the counterbond and
garnishment was still the value of the property.

Page 26 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
In the case of Insular Savings Bank, what was the value of
the counterbond? P12.6 million
What was the value of the attachment bond? P6 million.
So, if the value of the attachment bond was 6 million, should
not the counterbond be also P6 million? In this case, the parties
entered into a compromise agreement while the arbitration is
pending wherein the parties agreed to pay half of the total
liability in the amount of 25.2 million.
INSULAR SAVINGS vs. CA
The sheriff is required to attach only so much of the property
of the party against whom the order is issued as may be
sufficient to satisfy the applicant's demand, the amount of
which is stated in the order, unless a deposit is made or a
counter-bond is given equal to said amount. However, if the
value of the property to be attached is less than the amount
of the demand, the amount of the applicant's bond may be
equal to the value of said property, and the amount of the
adverse party's deposit or counter-bond may be equal to the
applicant's bond. The writ of preliminary attachment is issued
upon approval of the requisite bond.
From 2014 TSN: In Insular Savings, what was the
determining point is not the value of the property. Rather it is
the liability of the parties or the principal claim of the plaintiff.
Reconciling these two cases (Manila Remnant and Insular
Savings), if the attachment is with respect to a specific property
then the court can fix the counterbond or even the attachment
bond based on the value of the property attached, depending
on the court's determination. But if it is not with respect to a
specific property, then it will based on the principal claim of the
creditor.
When were these cases decided? The Manila Remnant case
was decided in 1978 while the Insular Savings case was decided
in 1991, which was before the effectivity of the 1997 Rules of
Court.
Under the old rule, the determining point of fixing the
counterbond is the value of the property. That was the old rule
prior to the amendment of Rule 57 section 12 in the 1997 Rules
of Civil Procedure. That is the answer. There was a change in
the rule. There was an amendment. That is why you see here in
sections 2, 5 and 12 that in fixing the amount of the
counterbond, it should be equal to the amount of the
attachment bond. The cases cited pertain to those cases filed
before the effectivity of the amended section 12. That is why in
these cases, the basis in the determination of the amount of the
counterbond is not in accordance with sections 2, 5, and 12. It
is because of the amendment. Before, it used to be the value of
the property attached that would determine the value of the
counterbond. Now, you can dispose of the counterbond by
looking at the value of the attachment bond ordered by the
court.
But under section 12, there is discretion on the part of the court
if the discharge is with respect to a specific property, then the
court may decide that the amount of the counterbond be based
on the value of the property instead. But as a general rule, it
should be equal to the amount of the attachment bond as
stated in the attachment order.
So, when the counterbond is posted, what is the effect? It
substitutes the discharged property as security for the judgment
in the main case.
When should the attachment be considered discharged upon
the posting of the counterbond or upon order of the court? Is
the writ automatically discharged by the posting of the
counterbond? No, as held in the case of Security Pacific v.
Infante.
SECURITY PACIFIC vs. INFANTE (2005)

The mere posting of a counterbond does not automatically


discharge the writ of attachment. It is only after hearing
and after the judge has ordered the discharge of the
attachment if a cash deposit is made or a counterbond is
executed to the attaching creditor is filed, that the writ of
attachment is properly discharged under Section 12, Rule
57 of the Rules of Court.
The filing of the counterbond by petitioner Villaluz has
discharged the attachment on the properties and made the
petitioner corporation liable on the counterbond. This can
be gleaned from the 'DEFENDANT'S BOND FOR
THEDISSOLUTION OF ATTACHMENT', which states that
Security Pacific Assurance Corporation, as surety, in
consideration of the dissolution of the said attachment
jointly and severally, binds itself with petitioner Villaluz for
any judgment that may be recovered by private
respondent Anzures against petitioner Villaluz. The
contract of surety is only between petitioner Villaluz and
petitioner corporation. The petitioner corporation cannot
escape liability by stating that a court approval is needed
before it can be made liable. This defense can only be
availed by petitioner corporation against petitioner Villaluz
but not against third persons who are not parties to the
contract of surety. The petitioners hold themselves out as
jointly and severally liable without any conditions in the
counter-attachment bond. The petitioner corporation
cannot impose requisites before it can be made liable
when the law clearly does not require such requisites to be
fulfilled.
Under section 12, at what point can you consider the
attachment as discharged when you post a counterbond?
Section 12 requires an order of the court for you to consider the
writ as discharged by the posing of a counterbond. The reason
is simple. The property is in the hands of the sheriff or under

custodia legis.

Unless there is an order issued by the court that the writ is


discharged by the posting of a counterbond, then the property
continues to be in the possession of the sheriff. It remains to be
under custodia legis. There is no proper discharge to speak of.
Is it the same with the counterbond under sections 2 and 5
when the sheriff has not yet taken possession of the property?
No. In section 5, when the counterbond is posted during the
enforcement of the writ, the sheriff does not have to wait for an
order for the lifting of the attachment for him not to proceed
with the levy on the property. He, in fact, is authorized to
receive a counterbond during the enforcement of the writ. The
counterbond will now take the place of the property he is
supposed to levy on.
Therefore, you do not need an order discharging the writ under
sections 2 and 5. The defendant can just go ahead and post it.
That will now prevent the sheriff from enforcing the writ. It is a
different story under section 12 when the writ has already been
enforced and the property is now under custodia legis. Then,
you have to wait for the order of the court for the sheriff to be
directed to lift the attachment of the property.
July 28, 2014 (HL)
[Sec 12 continuation]
Security Pacific Assurance vs Infante: One mode of
discharging a writ of attachment is through the filing of a
counterbond. What is now the liability of the surety in the
counterbond? What is the nature of the liability? Joint &
Solidary.
Is there is a need for a specific order stating that the liability is
solidary? No.
What is the basis for the solidary liability of the surety? Why is it
that the liability is joint and solidary?

Page 27 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
The counter-bond itself states that the parties jointly
and severally bind themselves to secure the payment of
any judgment that the plaintiff may recover against the
defendant in the action. A surety is considered in law as
being the same party as the debtor in relation to
whatever is adjudged touching the obligation of the
latter, and their liabilities are interwoven as to be
inseparable.

Who can avail of this ground? The party whose property has
been ordered attached.
How do you avail?
1) File a motion with the court in which the action is
pending, before or after levy or even after the release
of the attached property, for an order to set aside or
discharge the attachment.

What happens if a counterbond is posted?

2) If the motion be made on affidavits on the part of


the movant but not otherwise, the attaching party may
oppose the motion by counter-affidavits or other
evidence in addition to that on which the attachment
was made.

The property subject of the attachment is released and the


counterbond replaces the property formerly attached. It
becomes the new security for the payment of any judgment
that the attaching party may obtain after trial on the merits of
the case.
Calderon vs IAC: Is the posting of a counterbond to discharge
the writ of attachment constitutes a waiver on any defect in the
issuance of the writ? No.
The attachment debtor cannot be deemed to have
waived any defect in the issuance of the attachment
writ by simply availing himself of one way of
discharging the attachment writ, instead of the other.
Moreover, the filing of a counterbond is a speedier way
of discharging the attachment writ maliciously sought
out by the attaching creditor instead of the other way,
which, in most instances like in the present case, would
require presentation of evidence in a full-blown trial on
the merits and cannot easily be settled in a pending
incident of the case.
What happens if the counterbond is posted, who should be
notified? The attaching party.

3) After due notice and hearing, the court shall order


the setting aside or the corresponding discharge of the
attachment if the grounds are present.
When can there be an improper or irregular issuance of the
writ? Cite an example.
If the ground cited is inexistent. Falsity in the allegations of the
complaint.
Jopillo vs CA: What was the ground invoked to discharge the
writ?
Petitioner filed a motion to discharge alleging that the
writ was improper/irregular. It was alleged that the
allegations in the affidavit of respondent are not true
and thus there is no cause of action to justify the
issuance of a writ of attachment.
Was the motion to discharge granted? No.
If the movant establishes that the facts stated
in the plaintiffs affidavit or some of them, are
shown to be false or untrue, the writ of
attachment may be considered as improperly or
irregularly issued. The determination of the
existence of said grounds to discharge a writ of
attachment rests in the sound discretion of the
lower court.

What happens after the writ has been discharged with the
posting of the counterbond? The property is released and the
counterbond posted replaces the property previously attached.
What if the counterbond posted is found to be insufficient to
secure the judgment, what happens? The party who filed the
counterbond should furnish an additional counterbond and if he
fails, the attaching party may file for a new order of attachment.

In the present case, although the evidence


submitted by petitioner tended to show
payment of the obligation subject of the
complaint, it appears that the genuineness of
the alleged receipt of the scrap materials which
petitioner claims to have delivered to private
respondent to offset his obligation is in issue.
Besides, the nature of the agreement and the
actual deliveries made of the scrap materials,
among others, are factual issues that must be
resolved at the trial on the merits and not at the
hearing of the motion to discharge the writ of
attachment. If the private respondent did not
present any counter-affidavit or evidence to
counteract what has been adduced by petitioner
at the hearing of the motion, it must be because
private respondent believed that it was not
necessary. As it is, the trial court was apparently
not persuaded by the evidence presented by
petitioner so it ordered that the writ of
attachment be maintained and directed that if
petitioner wants a discharge of the writ, he
must put up a bond in accordance with Section
12, Rule 57 of the Rules.

Other than the filing of a counterbond, what are the other


modes of discharging the property attached?
Sec. 13. Filing of a motion to discharge the
attachment on the ground of irregular or improper
issuance/ enforcement and/or insufficiency of bond.
Section 13. Discharge of attachment on other grounds. The
party whose property has been ordered attached may file a
motion with the court in which the action is pending, before or
after levy or even after the release of the attached property, for
an order to set aside or discharge the attachment on the ground
that the same was improperly or irregularly issued or enforced,
or that the bond is insufficient. If the attachment is excessive,
the discharge shall be limited to the excess. If the motion be
made on affidavits on the part of the movant but not otherwise,
the attaching party may oppose the motion by counter-affidavits
or other evidence in addition to that on which the attachment
was made. After due notice and hearing, the court shall order
the setting aside or the corresponding discharge of the
attachment if it appears that it was improperly or irregularly
issued or enforced, or that the bond is insufficient, or that the
attachment is excessive, and the defect is not cured forthwith.
What are the grounds to discharge under Sec. 13?

What is the ruling that was established with respect to availing


the remedy of Sec. 13?

1) The writ was improperly or irregularly issued


2) It was improperly or irregularly enforced
3) The bond is insufficient
When can you raise these defects? Before or after levy or even
after the release of the attached property.

On how to prove that the attachment was improperly or


irregularly issued; that the same may be established by
affidavits submitted by the party whose property has been
ordered attached.

Page 28 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
A motion to discharge a writ of attachment on the
ground that the same was improperly or irregularly
issued may be established by the affidavits submitted by
the party whose property has been attached or such
other evidence presented at the hearing of the motion.
What is the case all about? Complaint for collection of sum of
money.
What property was attached? A Chevrolet truck owned by the
petitioner was attached.
What was the ground for the dissolution for the attachment?
The writ was improperly or irregularly issued.
Because?
The allegations in the affidavit of respondent are not
true and thus there is no cause of action to justify the
issuance of a writ of attachment.
At the hearing of the motion, petitioner testified that
the agreement was for simple loans which have been
fully paid by way of set off when he delivered scrap
materials to respondent on various occasions. In
support
thereof,
petitioner
presented
receipts
purportedly signed by the respondent accepting
deliveries of scrap materials.
And the trial court denied? Yes.
So what is the main doctrine that was established in this case?
If the movant establishes that the facts stated in the
plaintiffs affidavit or some of them, are shown to be
false or untrue, the writ of attachment may be
considered as improperly or irregularly issued. The
determination of the existence of said grounds to
discharge a writ of attachment rests in the sound
discretion of the lower court.
So if you seek to discharge a writ of attachment, the
determination of that motion is discretionary. And more
importantly if your ground in dissolving the writ is the falsity in
the allegations of the complaint or the main cause of action,
then most likely the court will not grant your motion because
that will force a trial on the merits of the case on a mere
motion.
So if you are alleging lack of cause of action, falsity in the
allegations of the complaint as your basis for discharging the
writ, then do not expect the judge to grant your motion
because again that will force a trial on the merits of the case.
Take note that what happened here was that before an answer
could be filed, nag-motion to discharge na siya. So, dont tell
me mag-reresolve na ang huwes on the merits of the entire
case on that mere motion, wala pa ngang answer eh. So the
trial court here was correct in denying the motion. Even if you
have valid grounds to discharge the writ, it becomes
unprocedural to resolve and rule on the main merits of the case
on a mere motion. Hindi pa nga nakapag-file nang answer. Take
note of that.
Mindanao Savings vs CA: It has been said a while ago, that
the filing of a counterbond does not result in the waiver of any
defect in the issuance of the writ of attachment as held in the
case of Calderon. Now the question is, if the defects in the
issuance of the writ is not deemed waived by the filing of the
counterbond can you still move to discharge the attachment
after a counterbond has been filed? No.
After the defendant has obtained the discharge of the
writ of attachment by filing a counterbond under
Section 12, Rule 57 of the Rules of Court, he may not file
another motion under Section 13, Rule 57 to quash the
writ for impropriety or irregularity in issuing it. The
reason is simple. The writ had already been quashed by
filing a counterbond, hence, another motion to quash it
would be pointless.

In Calderon, it was held that the posting of a counterbond does


not result in the waiver of the defects in the
issuance/enforcement of the writ. How do we reconcile that
with the ruling in Mindanao Savings that says when you post a
counterbond you can no longer have the writ discharged by
questioning its improper or irregular issuance because it has
already been discharged by the counterbond. What is now the
purpose of preserving your causes of action arising from the
defective issuance or enforcement of the writ?
When you post a counterbond, obviously you can no longer
move to discharge under Sec. 13 because the purpose of your
remedy which is to release the property attached has already
been achieved. In other words, you can only avail of either
remedies, under Sec. 12 or 13 to discharge the writ and not of
both. One will suffice to discharge the attachment.
However, if there are defects in the issuance of the writ which
constitutes a ground to discharge the attachment under Sec.
13, these grounds are not deemed waived when you post a
counterbond. Although you cannot invoke this as a ground to
discharge the writ under Sec. 13 because the attachment has
already been discharged, you can still use the very same ground
in order to claim for damages against the attachment bond.
That is precisely what the attachment bond is for. That is why in
Calderon, the ruling there was the mere posting of a
counterbond does not release the surety from liability on the
attachment bond.
So, if you post a counterbond, there are now 2 bonds
subsisting. Attachment bond and the counterbond. Each of
these secures distinct liabilities. The attachment bond will
answer for any damage that the attachment debtor may incur
by reason of a defective or wrongful attachment of his property.
On the other hand, the counterbond will answer for any
judgment that the attachment creditor may obtain at the end of
the case after trial on the merits. Kaya ipre-preserve pa rin ang
grounds mo under Sec. 13 so that during the trial on the merits,
you can still prove these grounds so you can later on claim for
damages against the attachment bond. Take note of that.
Just because you avail of a counterbond which is a speedier
remedy, it doesnt mean that you lose any of the grounds under
section 13, it does not become null and void. You can still use
these grounds to claim for damages against the attachment
creditor. Depending on the existence of the grounds, both
parties have resort on the bonds posted.
When you file a motion to discharge under Sec. 13, what should
the court do upon receipt of the motion?
The court should conduct a hearing.
Can the court dispense with that hearing requirement? No.
Can the court rule on the motion ex parte? No.
What will happen during the hearing?
The hearing will be for the purpose of determining whether or
not there was really a defect in the issuance of the attachment.
Benitez vs IAC: What happened to the motion to discharge
here? What did the court do? Was there hearing on the motion
to discharge in this case?
The motion was set for hearing but the plaintiff failed to appear
hence the case was deemed submitted for resolution.
Who failed to appear? The plaintiff.
So what happened when the plaintiff failed to appear?
The motion was deemed submitted for resolution.
Considering that there was a hearing set for the motion, wasnt
that already compliance with the hearing requirement? Was the
failure of the plaintiff to appear a waiver of his right to be
present during that hearing?

Page 29 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
No. Such opportunity to be heard is not sufficient. There should
be a hearing.

Inasmuch as both the defendants and the


sureties-appellees,
by
executing
the
counterobligation required by law for the
discharge of the attachment, had accepted the
obligation filed by the plaintiff with the justice
of the peace of the capital for the issuance of
the writ of attachment against the defendants,
it is now too late and futile to allege that the
said obligation is invalid for lack of approval by
the judge. They are estopped from doing so by
their own acts, inasmuch as their failure to
question the said obligation at the proper time
constitutes a waiver of their right. One who has
any objection to the sufficiency or validity of an
obligation in attachment proceedings, should
record the same before executing the
counterobligation required for the discharge of
the attachment; otherwise, it will be understood
that he does not question, or that he renounces
his right to question, the sufficiency or validity
of the said obligation.

What is the rule on your civil procedure, when you have a


motion, it was set for hearing and one party failed to appear,
isnt that considered a waiver to be present at the hearing by
the party absent? Is the court compelled to re-set the hearing
on the motion depending on the availability of the absentee
party? Simply put, should the court and the movant be at the
mercy of the schedule of the absentee party?
Isnt it that when you file a motion, you have a notice of
hearing and you serve a copy of that motion thereby notifying
the other party of the schedule of the hearing and despite that
notice the other party does not appear, then what should the
court do?
The court should still conduct a hearing.
And what would that hearing be all about?
heard in that hearing? The plaintiff.

Who should be

And the plaintiff is absent. And the plaintiff is not the movant.
Obviously, if you are the plaintiff and you were able to get an
attachment writ in your favor you dont want to appear in the
hearing on the motion to discharge the writ of attachment. Why
would you cooperate in the process for the discharge of the writ
that was issued in your favor?
Why did you say that it should be the plaintiff that should be
heard in that hearing?
Because the plaintiff has to prove the allegation of fraud; that
the issuance of the writ of attachment was proper.
In this case, there was an allegation of fraud and that was the
basis for the issuance of the writ of attachment. The rule is that
if fraud is alleged the burden of proof is on whom? The
attachment creditor. And that is why the Judge is required to
conduct a hearing because the absentee party is required to
substantiate the allegation of fraud. This is an exception to the
rule that the non-appearance of a party despite notice is a
waiver to the right to be present during that hearing. The
burden is on the plaintiff and if he does not appear, there is a
waiver on his right to maintain the writ. The trial court should
conduct a hearing to determine the basis for the issuance of the
writ of attachment.

Peroxide vs CA:
What kind of hearing is contemplated under the rules? Is it a
full blown trial?
The hearing for a motion under Sec. 13 refers to a fair and
open hearing.
What do you mean by a fair and open hearing?
Reasonable opportunity to know the claims of the opposing
party.
When the attachment is challenged for having
been illegally or improperly issued, there must
be a hearing with the burden of proof to sustain
the writ being on the attaching creditor. That
hearing embraces not only the right to present
evidence but also a reasonable opportunity to
know the claims of the opposing parties and
meet them. The right to submit arguments
implies that opportunity, otherwise the right
would be a barren one. It means a fair and open
hearing. And, as provided by the aforecited
Section 13 of Rule 57, the attaching creditor
should be allowed to oppose the application for
the discharge of the attachment by counteraffidavit or other evidence, in addition to that on
which the attachment was made.

If your ground to discharge the writ goes to the main cause of


action of the complaint, would it still be proper to file a motion
to discharge under sec 13?
No, its not proper. As held in Jopillo case, the merits of the
main action cannot be tried in a mere motion to discharge the
attachment. The proper remedy is to file a counterbond under
sec 12.

So, does it require a trial-type hearing? Where the parties will


present witnesses, subject them to cross examination? What
does the rule say? How do you prove the grounds?

Is there a specific time, when the defects of the issuance of a


writ could be raised?

The motion must be made on affidavits on the part of the


movant and counter affidavits on the part of the opposing party.

Before and after levy and even after the property has been
released from attachment.

What is the rule when you rely on affidavits? Are affidavits


competent evidence to prove the contents thereof?

Uy Kimpang vs Javier: In this case, what defects were


raised?

Affidavits have no probative value unless the affiants are


presented in court and attest to the veracity of their statements
in their affidavits or counter affidavits. So, you have to present
your witnesses or the affiants to the witness stand. And in order
for their affidavits to be admissible in evidence, the other party
should be given an opportunity to cross examine them
otherwise their affidavit becomes a hearsay evidence. So, you
have to conduct a trial type hearing because the court
will not just rely on mere affidavits.

There was no valid attachment because, aside from the fact


that the writ was not signed by any judge, the obligation
executed by the plaintiff was not approved by the court.
Are these defects sufficient to release the attachment?
No, the counterbond has already been filed. When the party has
filed a counterbond he is estopped from questioning the
attachment. Also in this case, when they filed the counterbond
they did not raise the defects in the writ but only asked the
court that they would be discharged as sureties. The alleged
defects were only raised when they appealed to the higher
court.

Filinvest Credit Corp. vs Relova: Why is it that in filing a


motion to discharge the writ of attachment, the burden of proof
is on the attachment creditor? Especially if the ground for the
attachment is fraud?

Page 30 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
Because the plaintiff has the burden of proof to support his
allegation of fraud. The plaintiff has to prove its own affirmative
allegations since fraud is never presumed.
The last sentence of the said provision (Sec. 13,
Rule 57), however, indicates that a hearing
must be conducted by the judge for the purpose
of determining whether or not there reality was
a defect in the issuance of the attachment. The
question is: At this hearing, on whom does the
burden of proof lie? Under the circumstances of
the present case, We sustain the ruling of the
court a quo in its questioned Order dated
February 2, 1979 that it should be the plaintiff
(attaching creditor), who should prove his
allegation of fraud. This pronouncement finds
support in the first sentence of Section 1, Rule
131, which states that: "Each party must prove
his own affirmative allegations." The last part of
the same provision also provides that: "The
burden of proof lies on the party who would be
defeated if no evidence were given on either
side." It must be borne in mind that in this
jurisdiction, fraud is never presumed.
Atty. Tiu: In a motion to discharge the writ based on improper
issuance (writ was issued on the ground of fraud), the
attachment creditor has to prove his allegation of fraud. This
usually applies if the writ was issued ex parte.

within one hundred twenty (120) days from the date of the
filing of the bond.
The sheriff shall not be liable for damages for the taking or
keeping of such property to any such third-party claimant, if
such bond shall be filed. Nothing herein contained shall prevent
such claimant or any third person from vindicating his claim to
the property, or prevent the attaching party from claiming
damages against a third-party claimant who filed a frivolous or
plainly spurious claim, in the same or a separate action.
When the writ of attachment is issued in favor of the Republic
of the Philippines, or any officer duly representing it, the filing
of such bond shall not be required, and in case the sheriff is
sued for damages as a result of the attachment, he shall be
represented by the Solicitor General, and if held liable therefor,
the actual damages adjudged by the court shall be paid by the
National Treasurer out of the funds to be appropriated for the
purpose.
What happens if the property attached belongs to a third party,
what is the remedy of that 3rd party?
Under Sec. 14, the third party can either file a third party claim
(TERCERIA) or an independent action.
What should the third party claimant do in order to prevent the
attachment of his property?

So, aside from the motion to discharge, or the filing of a


counterbond, is there any other way to lift the writ of
attachment?

He should make an affidavit of his title to the property, or right


to the possession thereof, stating the grounds of such right or
title, and serve such affidavit upon the sheriff while the latter
has possession of the attached property, and a copy thereof
upon the attaching party.

Yes. But the remedy is available only to third persons whose


property was wrongfully attached as provided under Sec. 14.

When do you file a third party claim and when do you file a
separate action?

Adlawan vs Torres: What remedy was availed of?

When is the remedy of a third party claim available?

A motion for reconsideration (MR) was filed.

When the sheriff has been served with the copy of the affidavit
of the third party claim, what should the sheriff do?

So what is the effect of the filing of the MR?


It was held that the MR should have been considered by the
court as a motion to discharge the attachment and required the
conduct of a hearing and submission of affidavits.
When petitioners filed a motion for the reconsideration
of the order directing the issuance of the writ of
attachment, respondent Judge should have considered
it as a motion for the discharge of the attachment and
should have conducted a hearing or required submission
of counter-affidavits from the petitioners, if only to
gather facts in support of the allegation of fraud.

The sheriff shall not be bound to keep the property under


attachment, unless the attaching party or his agent, on demand
of the sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not less than the
value of the property levied upon.
Who files the bond? The attaching party or his agent.
When should the bond be filed? Upon the demand of the
sheriff.
When do you claim against the bond?

When you move for a MR of the order granting the issuance of


the writ, that can be considered as a motion to discharge the
attachment. Although denominated as a motion for
reconsideration, it can be treated as a motion to discharge
under Sec. 13.

Within 120 days from the date of the filing of the bond.

Section 14. Proceedings where property claimed by third


person. If the property attached is claimed by any person
other than the party against whom attachment had been issued
or his agent, and such person makes an affidavit of his title
thereto, or right to the possession thereof, stating the grounds
of such right or title, and serves such affidavit upon the sheriff
while the latter has possession of the attached property, and a
copy thereof upon the attaching party, the sheriff shall not be
bound to keep the property under attachment, unless the
attaching party or his agent, on demand of the sheriff, shall file
a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property levied
upon. In case of disagreement as to such value, the same shall
be decided by the court issuing the writ of attachment. No claim
for damages for the taking or keeping of the property may be
enforced against the bond unless the action therefore is filed

How do you claim for damages against the bond within the 120day period? Where do you file your claim?

No claim for damages for the taking or keeping of the


property may be enforced against the bond unless the
action therefore is filed within one hundred twenty
(120) days from the date of the filing of the bond.

It should be filed in the same action where the case is pending


or he can file a separate action.
What is the purpose of the bond?
Atty. Tiu: The bond is to protect the sheriff against claim for
damages for not releasing the property attached.
What is the effect of the filing of the bond?
The property attached will not be discharged.
What happens if the attaching creditor does not post a bond?
What should the sheriff do?
Atty. Tiu: If there is no bond posted, then the sheriff should
release the attached property to the third party claimant.

Page 31 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
What happens after the lapse of 120 days?
He can file a separate action to claim for damages.
Is the bond requirement absolute? Can it be dispensed with?
When the writ of attachment is issued in favor of the Republic,
the posting of a bond is not required.

those properties, and the properties were not placed in custodia


legis. And so a co-equal court can issue another writ involving
the very same properties. There can be no interference in the
jurisdiction of a co-equal court because that co-equal court
never acquired jurisdiction.
Distinguish the remedies of intervention and separate action.

Supposing the third party claim is spurious, what is the remedy


against that spurious third party claimant?

If you are the third party claimant, which do you prefer, an


intervention or a separate action?

File a case for damages in the same case or in a separate


action.

A separate action because a motion for intervention is


subject to the discretion of the court. Theres no
assurance that a motion for intervention would be
granted.

CASE: Uy vs CA
What was the remedy availed of?

Yet, the right to intervene, unlike the right to


bring a new action, is not absolute but left to
the sound discretion of the court to allow. This
qualification makes intervention less preferable
to an independent action from the standpoint of
the claimants, at least. Because availability of
intervention depends upon the court in which
the case is pending, there would be no
assurance for the herein petitioners that they
would be permitted to come into that case.

A third party claim but during the pendency of the


case, the third party claimants filed a separate action
to a different court for damages with application for
preliminary injunction.
They already availed of terciera, how come that the properties
were not released?
Because the attachment creditors filed a bond.
So, they filed a separate action for damages. Isnt that forum
shopping? Wouldnt be that pursuing the same relief in different
courts? (No forum shopping)

What are the grounds for intervention? Which one refers to a


third party claimant?
Section 1, Rule 19. Who may intervene. A person
who has a legal interest in the matter in litigation, or in
the success of either of the parties, or an interest
against both, or is so situated as to be adversely
affected by a distribution or other disposition of
property in the custody of the court or of an
officer thereof may, with leave of court, be allowed to
intervene in the action. The court shall consider
whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties, and whether or not the intervenor's rights may
be fully protected in a separate proceeding.

Can you avail of both terciera and a separate action? (Yes)

CASE: Traders Royal Bank vs IAC


In the case of Traders Royal Bank, what is the nature of the
remedies available to third party claimants? (Cumulative)
Having availed of terciera, can they still avail of an independent
action? (Yes)
Atty. Tiu: The remedies available to third party claimants are
cumulative, not alternative. All of these remedies can be availed
of by the third party claimant. It does not mean that since he
already availed of terciera, he is already precluded from filing a
separate action to vindicate his claim. The remedies are
cumulative and that is precisely why there could be no forum
shopping. Because the rule specifically allows the filing or the
vindication of his rights in the same or in a separate action. And
the case of Traders Royal explicitly declares that the remedies
of the third party claimant are cumulative in nature.
Uy vs CA: There was a separate case for damages that was
filed. What ancillary remedy was also availed of?
Writ of preliminary injunction.
Wasnt that an encroachment on the authority of the court by a
co-equal court?
No because the property does not belong to the defendant. The
rule on interference will not apply. The rule is confined to cases
where the property belongs to the defendant or one in which he
has a proprietary interest.
While it is true that property in custody of the
law may not be interfered with, without the
permission of the proper court, this rule is
confined to cases where the property belongs to
the defendant or one in which the defendant has
proprietary interests.
So what if the property does not belong to the attachment
debtor, still the properties were seized by the sheriff. Can a coequal court interfere in that process? Why?
Atty. Tiu: It is because the properties seized do not belong to
the defendant or the attaching debtor. The writ of attachment
will only require the levy of properties belonging to the
attachment debtor. The moment the sheriff seizes the
properties that do not belong to the attachment debtor, there
was no valid levy and the court did not acquire jurisdiction over

So the grounds are there. But the mere filing of a motion for
intervention will not suffice. You have to file a pleading-inintervention and as a third party claimant, what kind of
pleading-in-intervention?
Answer-in-intervention.
That would mean that your causes of action will be tried
together with the main case. But as a third party claimant, you
can also file your case elsewhere. You dont have to intervene.
The rules give you that option.
If you avail of the third party claim (terceria), file your affidavit
with the sheriff. If it is denied, you file a motion to intervene.
Since intervention is discretionary on the court and if the court
denies your motion to intervene, then you can file a separate
action. All of these can be availed of cumulatively.
Discussion on Motion for Intervention: If you are asserting
a claim, you file a complaint-in-intervention. But if you are the
one defending that action and you want to intervene, you would
have to file an answer-in-intervention. When you intervene, you
are either a plaintiff or a defendant. If you are the defendant,
you file a motion for intervention together with your answer-inintervention. If you are the plaintiff, you file a motion for
intervention and your complaint-in-intervention.
Ching vs CA: What remedy was availed of by the third party
claimant? Encarnacion Ching filed a motion to set aside the levy
on attachment.
How do you categorize the remedy availed of?
nature of a motion to discharge the attachment.

It is in the

What is the ground for the motion to discharge here?

Page 32 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
Improper or irregular enforcement of the writ. Because
the sheriff levied on properties not belonging to the
defendant. It was alleged that the shares of stocks
levied were acquired by her and her husband during
their marriage out of conjugal funds.
Under Sec. 13, who can file a motion to discharge?
The party whose property has been ordered attached.
Isnt that available only to the defendant or to the attachment
debtor?

2) Sale of real or personal properties


3) Garnished properties
Take note, the last to be applied are the garnished properties.
The properties seized under garnishment. The first is the sale of
perishable goods, next the sale of real properties and lastly
would be the garnished properties/amounts.
PNB vs Vasquez: What is the effect if the attached property
was not applied to the satisfaction of judgment by reason of the
negligence or fault of the court officer?

No. The remedy is also available to persons whose properties


have been wrongfully attached.

The judgment debtor/defendant cannot be compelled


to pay again. The judgment is deemed satisfied under
Sec. 15. When payment was made to an authorized
person, the sheriff in this case, the payment to the
sheriff is deemed a valid payment to the creditor that
would extinguish the judgment debt.

Apparently, under the case of Ching that remedy is also


available to a third party claimant because the third partys
property has been wrongfully attached. So there are now 4
remedies, under the rules and based on the jurisprudence we
have discussed.

As correctly observed by the trial judge, "once


the decision in the aforesaid civil case had
become final, the proceed of the sugar attached
in connection therewith should be considered as
partial satisfaction of the amount of the
judgment." "Personal property may have been
levied upon under attachment and left in the
possession of the sheriff or other officer levying
the writ to secure the payment of such
judgment as may be recovered in the action.
Where execution issues, it is the duty of such
officer to apply towards its satisfaction the
property so attached and left in his hands; but
he may have embezzled or otherwise
misappropriated it, or allowed it to be lost by his
negligence. When such is the case, we think the
better opinion is, that it must, as between the
plaintiff and defendant, and persons claiming
under defendant, be treated as though it had
been levied upon under execution as well as
under attachment, and therefore as satisfying
the judgment to the extent of its value."

1) Terceria/Third party claim


2) Independent action
3) Motion for intervention
4) Motion to discharge attachment
Section 15. Satisfaction of judgment out of property attached,
return of sheriff. If judgment be recovered by the attaching
party and execution issue thereon, the sheriff may cause the
judgment to be satisfied out of the property attached, if it be
sufficient for that purpose in the following manner:
(a) By paying to the judgment obligee the proceeds of all sales
of perishable or other property sold in pursuance of the order of
the court, or so much as shall be necessary to satisfy the
judgment;
(b) If any balance remains due, by selling so much of the
property, real or personal, as may be necessary to satisfy the
balance, if enough for that purpose remain in the sheriff's
hands, or in those the clerk of the court;

xxx

(c) By collecting from all persons having in their possession


credits belonging to the judgment obligor, or owing debts to the
latter at the time of the attachment of such credits or debts, the
amount of such credits and debts as determined by the court in
the action, and stated in the judgment, and paying the proceeds
of such collection over to the judgment obligee.

How will the judgment be satisfied out of the property


attached?
(a) By paying to the judgment obligee the proceeds of
all sales of perishable or other property sold in
pursuance of the order of the court, or so much as
shall be necessary to satisfy the judgment;
(b) If any balance remains due, by selling so much of
the property, real or personal, as may be necessary to
satisfy the balance, if enough for that purpose remain
in the sheriff's hands, or in those the clerk of the court;

What is the order of satisfaction of judgment under Sec. 15?

xxx

It should be observed that affirmative acts of


the plaintiff Bank have resulted in the
attachment and subsequent sale of the property
of the defendant. It seems fair that plaintiff
having put defendant's property into the hands
of the sheriff, the loss should fall on him and not
on defendant. When a sheriff takes property or
goods in execution or by attachment, he
becomes the bailee for the benefit of all parties
interested, and certainly for the party who set
him in motion. After obtaining the judgment,
plaintiff at once was entitled to have the
proceeds of the sale applied to the satisfaction
of his judgment and it was the duty of the
sheriff to pay the proceeds over. The money
collected or paid the sheriff on the sale of the
goods or property may be regarded just like
money in the hands of a sheriff collected on
execution. If the sheriff collects money from a
judgment debtor, and then fails to pay it over,
the debtor cannot be compelled to pay it again.

The sheriff shall forthwith make a return in writing to the court


of his proceedings under this section and furnish the parties
with copies thereof.

(c) By collecting from all persons having in their


possession credits belonging to the judgment obligor,
or owing debts to the latter at the time of the
attachment of such credits or debts, the amount of
such credits and debts as determined by the court in
the action, and stated in the judgment, and paying the
proceeds of such collection over to the judgment
obligee.

xxx

So, if there is non-satisfaction of the judgment out of the


attached property by reason of the fault or negligence of the
sheriff, who should bear the loss? In other words, can you make
the defendant pay again because the proceeds from the sale of
the property attached was not applied to the satisfaction of the
judgment by reason of the fault or negligence of the sheriff?
The defendant cannot be made liable again. The plaintiff should
bear the loss.

1) Proceeds from the sale of perishable items


Page 33 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
PAL vs CA: Why was the defendant made liable again for the
satisfaction of the judgment despite the attachment of his
property? And the non-satisfaction of the judgment was due to
the fault of the sheriff?
The payment made by the petitioner to the
absconding sheriff was not in cash or legal
tender but in checks. The checks were not
payable to Amelia Tan or Able Printing Press but
to the absconding sheriff.
Making the checks payable to the judgment
creditor would have prevented the encashment
or the taking of undue advantage by the sheriff,
or any person into whose hands the checks may
have fallen, whether wrongfully or in behalf of
the creditor. The issuance of the checks in the
name of the sheriff clearly made possible the
misappropriation of the funds that were
withdrawn. Having failed to employ the proper
safeguards to protect itself, the judgment
debtor whose act made possible the loss had but
itself to blame.
The rule here is simple. If the non-satisfaction of judgment is
due to the fault or negligence of the sheriff, without any
contributory negligence on the part of the judgment debtor,
then the judgment debtor is considered absolved from any
liability. Because the judgment is deemed satisfied out of the
attached property under Sec. 15.

secure the payment of thejudgment shall become charged on


such counter-bond and bound to pay the judgment obligee
upon demand the amount due under the judgment, which
amount may be recovered from such surety or sureties after
notice and summary hearing in the same action.
How will the sureties of the counter-bond be made liable?
The sureties will be made liable upon demand of the amount
due under the judgment.
When will the demand be made?
The demand will be made when the
executory.

How do you recover the amount of the counter-bond?


After demand, the amount may be recovered from the surety
from in the same action, there is no need for a separate action.
What are the requisites?
To recover upon the counterbond, the following requisites must
be present:
1.

The creditor demands upon the surety for satisfaction


of the judgment

2.

The surety be given notice and a summary hearing in


the same action as to his liability for judgment under
the counterbond.

But if, just like what happened in PAL, there is contributory


negligence on the part of the judgment debtor because they
issued the check in the name of the sheriff and not in the name
of the plaintiff or judgment creditor. In that case the judgment
debtor is not absolved from liability rather they are required to
pay again through an issuance of an alias writ of execution. The
difference lies on whether or not there exists a contributory
negligence on the part of the judgment debtor.

a.

The bondsmen are not liable on the bond when


the obligation assumed is premised upon the
issuance of a writ of attachment by the court
which was not actually issued.

b.

The motion by the surety to quash the writ of


execution is sufficient notice.

c.

After demand, the amount may be recovered from


the surety in the same action. There is no need for
a separate action.

d.

The rule of exclusion cannot be invoked by a


bondsman of a counterbond against an
attachment writ where there is already a final and
executor judgment sentencing the bondsman as
solidarily liable pro indiviso.

e.

The bond answers for the judgment even if not


expressly stipulated. The under which this bond is
issued shall be considered as part of the bond.

August 4, 2014 (CJB)


Where will you apply the proceeds of the property?
The proceeds of the property attached is applied to the
satisfaction of the judgment and as well as the expenses of the
whole proceeding of the judgment.
If there is a balance?
If there is a balance or if the said property that was attached
did not satisfy fully the said expenses then the sheriff must
proceed to collect the balance on an ordinary execution.
Supposing there is an excess?
If there is an excess:
Section 16. Balance due collected upon an execution; excess
delivered to judgment obligor. If after realizing upon all the
property attached, including the proceeds of any debts or
credits collected, and applying the proceeds to the satisfaction
of the judgment less the expenses of proceedings upon the
judgment any balance shall remain due, the sheriff must
proceed to collect such balance as upon ordinary execution.
Whenever the judgment shall have been paid, the sheriff, upon
reasonable demand, must return to the judgment obligor the
attached property remaining in his hands, and any proceeds of
the sale of the property attached not applied to the judgment.

judgment has become

If you are the counsel for the plaintiff, if there is now a


favorable judgment, how will you make the surety for the
counter bond liable for the judgment?
REQUISITES TO HOLD SURETY ON A COUNTERBOND
LIABLE:
To hold a surety on a counter-bond liable, what is entailed is:
1.

The filing of an application therefor with the Court


having jurisdiction of the action;

2.

The presentation thereof before the judgment


becomes executory (or before the trial or before
appeal is perfected);

3.

The sheriff must return to the judgment obligor the attached


property that is remaining in his hands.

The statement in said application of the facts showing


the applicant's right to damages and the amount
thereof,

4.

Supposing instead of the attached property, there was a


counter-bond given. How will the counter bond be made to
satisfy the judgment?

The giving of due notice of the application to the


attaching creditor and his surety or sureties; and

5.

The holding of a proper hearing at which the attaching


creditor and the sureties may be heard on the
application.

Section 17. Recovery upon the counter-bond. When the


There should be a summary hearing and the surety is solidarily
judgment has become executory, the surety or sureties on any
liable with the judgment obligor.
counter-bond given pursuant to the provisions of this Rule to
Page 34 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
Who will set the hearing? Judgment obligee.
How? Upon demand.
Who will make the demand? Judgment obligee.
Will there be a hearing then? Who will set the hearing?
With the requirement of notice of hearing, the defendant will be
notified.
What is now the form of your demand?
The judgment obligee will file a motion.
Does it follow that the liability of the surety for the counterbond
will only attach after it is proven? That the judgment debtor has
no property to satisfy the judgment. Do you have to seek the
properties of the judgment obligors first before resulting to a
counter-bond?
No. In the case of PHILIPPINE BRITISH ASSURANCE vs.
IAC under the third paragraph it is also stipulated that the
counterbond is to be "applied for the payment of the
judgment." Neither the rules nor the provisions of the
counterbond is limited in its application to a final and executory
judgment. Indeed, it is specified that it applies to the payment
of any judgment that maybe recovered by plaintiff. Thus, the
only logical conclusion is that an execution of any judgment
including one pending appeal if returned unsatisfied maybe
charged against such a counterbond.
Do you have to seek properties of the obligor before you can
make the counterbond liable?
No. because the liability of thecounterbond is direct and final.
Suppose the judgment is based on a compromise. Will the
surety be made liable to execute a compromise agreement,
even if the surety is not part of the compromise agreement?
Yes. The surety may be held liable, in the case of LUZON
STEEL vs. SIA held thatwhether the judgment be rendered be
rendered after trial on the merits or upon compromise, such
judgment may undoubtedly be made effective upon the
property attached; and since the counter-bond stands in the
place of such property, there is no reason why the judgment
should not be made effective against the counter-bond
regardless of the manner how the judgment was obtained.
In this case, was there compliance with the notice and hearing
requirement?
Yes. In this case the requirement has been substantially
complied with from the time the surety was allowed to move for
the quashal of the writ of execution and for the cancellation of
their obligation.
Can a counterbond be made liable to answer for a judgment
that is pending appeal?
Yes. In the case of PHILIPPINE BRITISH ASSURANCE vs.
IAC, it held that a counterbond that is issued in accordance
with the provisions of Section 5, Rule 57 of the Rules of Court
shall be charged with the payment of any judgment, it covers
not only final and executory judgment but also those pending
appeal.
In the case of THE IMPERIAL INSURANCE, INC. vs. DE
LOS ANGELES, was there compliance with the notice of
hearing requirement?
Yes. The records show that the notice and hearing requirement
was substantially complied with in the instant case.
Prior to the filing of the ex parte motion for a writ of execution,
the respondents filed a motion for recovery on the surety bonds
where the petitioner was duly notified and the said motion was
heard on September 24, 1966.Moreover, on November 23, 1966
the petitioner filed a motion for reconsideration of the order
dated November 10, 1966 rendering judgment against the
petitioner on its counter-bonds in the amount of P60,000.00 in

Civil Case No. Q-5213 and P40,000.00 in Civil Case No. Q-5214.
The respondent judge set the hearing of the ex parte motion for
writ of execution together with the motion for reconsideration of
the order dated November 10, 1966 on December 17, 1966 at
8:30 o'clock in the morning. The petitioner received the notice
of the said hearing on December 9, 1966 as evidenced by
Registry Return Receipt No. 40122. On January 9, 1967, the
respondent Judge issued an order denying the motion for
reconsideration dated November 23, 1966 for lack of merit. In
an order dated January 19, 1967, the motion for writ of
execution was granted by the respondent judge.
It is thus clear from indubitable documents on record that the
requirements of notice and hearing had been satisfactorily
complied with by the respondents. The first error assigned is
overruled.
Is there a need for the judgment to state that the counterbonds
should be made liable?
In Vadil vs de Venecia, was the surety liable for the
counterbond?
No. The Court is inclined to resolve the doubt in favor of
petitioners. As held in People v. De la Cruz, sureties are
favorites of the law. Assuming an obligation without any
thought of material gain, except in some instances, all
presumptions are indulged in their favor.
Another reason in support of the conclusion reached herein is
that actually there was no writ of attachment issued by the
Court. It is to be noted that the obligation to be assumed by the
bondsmen is premised upon the issuance of such a writ.
The Supreme Court cited the case of Pacific Tobacco Co. v.
Lorenzana where the court held that The rationale of this
doctrine is reasonable; an accommodation surety acts without
motive of pecuniary gain and, hence, should be protected
against unjust pecuniary impoverishment by imposing on the
principal duties akin to those of a fiduciary. This cannot be said
of compensated corporate surety which is a business
association organized for the purpose of assuming classified
risks in large numbers, for profit and on an impersonal basis,
through the medium of standardized written contractual forms
drawn by its own representatives with the primary aim of
protecting its own interests. Hence, the court held that
petitioners are not liable to Pablo Espaola Estate, Inc. on their
bond.
What is the effect? Why is the surety not liable?
What was the condition?
The condition said that the surety or the defendant will pay all
the costs which may be awarded to the defendant, and all
damages that the defendant may suffer by reason of the Writ of
Preliminary Attachment should it be finallyadjudged that the
same was done without legitimate cause.
What is that condition for?
The condition is for the defendant and not for the plaintiff.
Why was there no writ of attachment issued here?
How come there was a counterbond posted when there was no
writ of attachment issued?
There was a writ issued because there was a filing of the
counterbond. However, the counterbond is defective. The
condition stated in the counterbondis actually a
condition for an attachment bond. The attachment bond
is to answer for all damages that defendant may suffer
by reason of the issuance of the writ, should it appear
that later on that the issuance has no legal basis. That is
actually a condition for an attachment bond because a
counterbond is a condition to pay the judgment debt if
the plaintiff obtains a favorable decision. There was an
error in the conditions stated in the bond. Instead of
securing the judgment, which is the very purpose of the

Page 35 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
counterbond, it secured any damage that the defendant
might suffer by reason of the issuance of the writ. It
favored the defendant instead of the plaintiff, which in reality is
a condition for an attachment bond. Maybe that was an
inadvertence on the part of the surety. Moral of the story is you
need to read in the detail the content or stipulations stated in
the counterbond. If it does not state the purpose of the
counterbond, then you have every reason to object because it
should not have been approved.
It was stated earlier that there should be a demand. There
should be a summary hearing before the surety on a
counterbound can be made liable.
In the cases that you have encountered, how is the demand
made? And how is the hearing set and conducted by the court?
To whom do you make the demand? So that the court can set it
for hearing.
The demand must be made to the surety.
Can the demand be made without notifying the court? Or
notifying the other party?
Is there a particular form when you make a demand?
What is the form of a demand? Is it in a form of a demand
letter?
Complaint? In a separate case?
Isnt it that a complaint is an initiatory pleading? Do you have to
commence a separate case?
Now how do we file a complaint on a case that is already at its
execution stage? Does that mean you have to start all over
again?
How do you make the demand? Based on the cases that were
assigned to you, how does the demand comply with the
requirement of the judgment title?
In the case of UPPC vs Acropolis, the Supreme Court held
that when UPPC filed a motion to order surety to pay.
You can file again a motion in court, copy furnish the surety and
that in itself would comply with the requirement of the law.
Because there is a notice of hearing requirement here, so you
cannot just demand without having that hearing requirement
under section 17, there must be a summary hearing. You
cannot just demand without complying with the summary
hearing. You can file a motion for recovery from the surety
bond.
In Pioneer Insurance, there was a motion for reconsideration
for the recovery on the surety bond.
In Zaragosa vs Fidelino, how was the demand made here?
How was the surety made liable?
Again, it was mere motion that was filed, there was no
complaint filed. The question here would be can the surety
validly assert that they should not be made liable of the
judgment because it was never made a party to the case.
Is that a valid argument for the surety to evade liability of the
counterbond?
Was there jurisdiction over the person of the surety such that it
can be made liable for the judgment of the court
notwithstanding the fact that it was not actively participating in
the case, it is not even a nominal party to the case. Does the
court have jurisdiction of the person of the surety?

which could no longer be found and therefore could not be


ordered returned)
Is it a party to the case or not? It is a party to the case
The surety of the counterbond becomes automatically a
party to the case by accepting or by filing a counterbond
and agreed to be made liable to the judgment in
exchange for the release of the attached property, the
surety has in effect submitted to the jurisdiction of the
court and that surety has become a party to the case.
Although not specifically mentioned as a defendant but
he becomes solidarily liable with the defendant for the
satisfaction of the judgment in this case. Therefore the
surety cannot argue that it cannot be made liable for the
judgment because of lack of jurisdiction of the court.
Does the rule on excussion apply?
PIONEER INSURANCE & SURETY vs. CAMILON: The rule
of excussion claimed by petitioner under Section 17 of Rule 17,
which petitioner invokes considering it was only the bondsman
to secure the lifting of the writ of preliminary attachment, is not
applicable in the instant case where there is already a final and
executory judgment sentencing the bondsmanas joint and
solidarily liable, as in the case of Luzon Steel Corporation vs.
Sia, 28 SCRA, 58-63, the Court resolved to DISMISS the
petition, without prejudice to petitioner recovering from its cojudgment debtor whatever it has to pay under the writ of
execution herein questioned.
In the case of Luzon Steel, what is the liablity of the surety
here? Why do you say that the excussion here is not available?
Or rather, it is available.
It is not available in this case since there is anagreement which
bound the surety to be jointly and severally liable.
What is the nature of the bond?
What kind of liability has the surety have?
So you have to resort to the properties of the judgment debtor
before you can make the surety liable for the counterbond?
Isnt it that the liability of the counterbond attaches upon the
rendition of the judgment and that judgment becomes final and
executory?
why do we need to resort first to the properties of the judgment
debtor before we can make the counterbond liable?
So the counterbond can only be made liable after there are no
more property of the judgment debtor that can be seized to
satisfy the judgment?
So the liability of the counterbond is merely subsidiary?
Yes. Thats the case of Luzon where the court said that the
counterbond contemplated in the ruling is evidently an ordinary
guarantee where the sureties are subsidiary liability.
How will you reconcile that with the case of Pioneer?
How can there be no declaratory decision when the execution
has been returned unsatisfied? Which case was decided first?
Which case was decided later?
The first case was Luzon and the second case was pioneer.
What year was Luzon decided? 1969. While Pioneer was 1982.
So do you still believe Luzon despite the fact that it was decided
1969?

In ZARAGOZA, vs. FIDELINO, the appellant surety's liability


I believe Pioneer because it is the latest judrisprudence of the
attached upon the promulgation of the verdict against Fidelino.
Sc.
All that was necessary to enforce the judgment against it was,
*Atty Tiu did not explain further*
as aforestated, an application therefor with the Court, with due
notice to the surety, and a proper hearing, i.e., that it be
What happens to the attached property when the defendant
formally notified that it was in truth being made responsible for
wins?
its co-principal's adjudicated prestation (in this case, the
payment of the balance of the purchase price of the automobile
Page 36 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
When the defendant wins the attached property would be
released.

Can you claim damages after the judgment has become final
and executory?

To whom? To the defendant.

No. Because pursuant to section 20, it shall be included in the


judgment of the main case so the award for damages should be
included in the judgment, so if it is already executory then it
would be useless.

Obviously because the plaintiff lost then there is no condition to


hold the property.
So while the defendant wins in the case, what are the remedies
available?
After the property has been attached, pursuant to section 19

Disposition of attached property where judgment is for party


against whom attachment was issued. If judgment be

rendered against the attaching party, all the proceeds of sales


and money collected or received by the sheriff, under the order
of attachment, and all property attached remaining in any such
officer's hands, shall bedelivered to the party against whom
attachment was issued, and the order of attachment
discharged.
If the defendant wins and the attached properties are released
back to him. Thats it? Thats all the remedies available to him
to recall the attached properties?
In case the attachment was improperly, irregularly or
excessively issued, pursuant to section 20, the defendant may
claim for damages.
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 the trial or before appeal is perfected
or before the judgment becomes executory, with due notice to
the attaching party and 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 party not exempt from execution should the bond or
deposit given by the latter be insufficient or fail to fully satisfy
the award.
Are you saying that there is an instance when the defendant
wins and there is a proper or regular attachment of his
properties?
Are you saying that if the defendant wins he may or may not
pay claim damages against the attaching party?
When can you apply for damages against the attachment?
Pursuant to section 20 Claim for damages on account of
improper, irregular or excessive attachment. xxx must be
filed before the trial or before appeal is perfected or
before the judgment becomes executory, xxx
Under section 20, when can you apply for damages?
According to section 20 the party can apply for damages either
before the trial or before appeal is perfected or before the
judgment becomes executory.
Where can you apply for damages?
It will depend on the stage of the trial. If it is still in the trial
court it would be before the trial or before the appeal is
perfected. However if it is already at the appellate court it would
be before the judgment becomes executory or pending appeal.

Can you file a separate case of damages?


Are there exemptions?
Isnt it that under Section 20, the damages can only be awarded
and included in the judgment for the plaintiffs?
How can you claim damages if its not included in the
judgment?
Does it state that section 20 that the defendant can claim
damages in a separate case?
No. It is not expressly stated in section 20.
Does section 20 allow the filing of separate case for damages?
It also does not expressly state.
One cannot file a separate action for damages under section
20.
Under Section 20 its very clear if you want to make the
attachment bond liable for damages you have to file in
the same case. Unlike in the remedy of the *inaudible* where
you can claim damages in a separate case. That is not the case
here in when you claim damages against from the attachment
bond. If you dont file your claim for damages against the
attachment bond in the same case then that claim is barred
forever. So forget about filing a separate case for damages
because you are then barred.
So if you are the defendant and you have a judgment in
your favor, automatically, you are entitled to damages.
Why? Because the attachment bond is conditioned upon the
payment of all the damages that the defendant may suffer by
the reason of the issuance of the writ of attachment should it
appear later on that the plaintiff was not entitled. Na naloka na
sa kaso, ikawang defendant. Ibig bang sabihin entitled parin si
plaintiff to the issuance of the writ?
Remember that the writ of attachment is issued to secure the
judgment that the plaintiff might obtain in his favor. Eh hindi
nga pabor sa kanya, and ikaw na perwisyo ka na at lahat.
An attachment is a harsh remedy. It exposes the defendant to
embarrassment. Ang laking issue yan pag nasherriff ang
property mo, ang laki ng kahihiyan nyan. And it turns out later
that the complaint is dismissed, and when the complaint is
dismissed, meaning to say, all the merits has no basis for the
complaint and since the attachment is a mere ancillary civil
remedy to the main case it also has no basis for the
attachment.
So anong ground niyan for you to claim damages? Improper
issuance of writ of attachment.The moment that you have
judgment in your favor, it follows that the issuance of the writ
was improper because there was no basis for it. That is why if
you avail of the remedy of the writ of attachment, be careful
because that is a double edged sword. You may obtain it at the
start of the trial or at the start of the case pero pag hindi ka
sigurado sa ground moon the merits of the case and the
defendant would win later on. Ang laki nangproblema mo
because the defendant would definitely claim damages against
the attachment for all the prejudice and damages that he has
suffered by reason of the issuance of the writ that has no basis
at all. Assumed by the judgment of the merits of the case
dismissed deciding in favor of the defenant.
So if you are counsel for the plaintiff, gusto niyong makakuha
nang properties to secure for the judgment, well that is your

Page 37 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
option. But just make suresna hindi dismissible ang kaso mo at
the end of the case otherwise mababalikankanang damages.
Automatic yan against the attachment, automatic in the sense
nahinditatangatanga and defendant at nakalimutan niyang mag
claim nang damages. Pag nakalimutan naman niyang magclaim
nang damages in the same case at nagging final and executory
na eh di nakalusot ka. But if you are the counsel for the
defendant at nanaloka automatic claim kannaagadyung
damages on the attachment bond on the grounds of improper
issuance of the attachment.And you cannot file a separate
case because that is part of the moment the judgment
becomes final and executory.

After it is notified, what will happen?

So you can claim damages against the attachment bond before


trial. How do you claim that?

Under section 20, in order to recover damages on a replevin


bond (or on a bond for preliminary attachment, injunction or
receivership) it is necessary:

Yes. You can file a counterclaim against the plaintiffs.


You can put as a compulsory counterclaim in your answer. So
filing palang nang answer, in your responsive pleading you can
already assert your claim for damages. So if you are counsel for
defendant, and you know that based on the facts, walang basis
ang issuance of the writ, there was irregular issuance or
enforcement of the writ. Then you have to state it in you
answer by way of compulsory counterclaim so that you have
basis for claiming damages against the attachment bond or
before appeal is perfected, how do you do that?

It would be solidarily liable with the principal.


Thats it? After you give notice the surety automatically
becomes liable?
No. It is only after proper hearing that the damages shall be
awarded to the proper party.
So what is the procedural requirement before the surety of the
attachment bond becomes liable?
Requisites for recovery of damages:

1.

That the defendant-claimant has secured a favorable


judgment in the main action, meaning that the plaintiff
has no cause of action and was not, therefore, entitled
to the provisional remedy of replevin;

2.

That the application for damages, showing claimant's


right thereto and the amount thereof, be filed in the
same action before trial or before appeal is perfected
or before the judgment becomes executory;

3.

That due notice be given to the other party and his


surety or sureties, notice to the principal not being
sufficient and

4.

hat there should be a proper hearing and the award


for damages should be included in the final judgment.

In before and appeal, the defendant can ask for damages.


In the case of PIONEER INSURANCE vs. HONTANOSAS
how was the claim for damages here made?
In this case the spouses filed a claim for damages against
Pioneer insurance and Allied, it was held that Pioneer and Allied
were liable for damages for the reason of wrongful and
malicious attachments issued by the court.
How was the claim for damages on the attachment bond made?
The claim for damages against a bond in an alleged wrongful
attachment can only be prosecuted in the same court where the
bond was filed and the attachment issued.
Rodriguez sought that judgment be rendered against the surety
for such amount of damages as may be proved or established
by him, and was granted by the court the opportunity to prove
damages against the bond of the surety company. He even
cited the very provision of the Revised Rules of Court, Rule 57,
Sec. 20 to justify his application, and the cases supporting his
application, for otherwise his claim will forever be barred. In
effect, at this point in time, defendant Rodriguez waived the
lack of jurisdiction on his person, be seeking an affirmative relief
from the court, which he cannot now complain before this
Court.
So how the claim for damages?
Defendant sought to be allowed to establish and prove damages
against the bond. He may establish that judgment be rendered
against the surety on such amount of damages as. The court
granted and gave him the opportunity to do against the surety
company.
What kind of damages did he claim? Actual damages.

What kind of hearing here?


The hearing required is summary.
What is the purpose of the hearing?
The purpose of the hearing is for due process, to let the
principal or the surety present their evidences.
Okay. So here is a scenario. There is a writ of attachment
issued and in the answer, the defendant interposed a
compulsory counterclaim for damages for the improper issuance
or irregular issuance or enforcement and in the end after having
presented his evidence and proved it during trial and he
obtained a favorable judgment and was awarded a certain
amount for damages based on the evidence adduced. Now he
claims for damages against the attachment bond.
Now as you said, for the surety of the attachment bond to be
made liable then the application for damages should be served
not only on the plaintiff but also on the surety, there would be a
hearing conducted.
Now, during the hearing for the claim of damages on the
attachment bond, is there a need for the claimant to present
again all the evidences he has presented to support his claim
for damages?
No. because the hearing is in the nature of a summary hearing
so there is no need for the defendant to present the evidence
again.

If there is a judgment rendering the principal liable then the


surety will also be liable.

If you are the surety that is made to appear at that late stage of
the proceeding where he is made liable for the attachment bond
and he has not participated in any of the proceedings before or
during the trial of the case. Can you now say that I cannot be
made liable for all the damages because is have no opportunity
to counter to the evidence and cross examine the witnesses of
the defendant during trial. Therefore I am denied of due
process.

If there is now a claim against the attachment bond, how can


the surety of the attachment bond be made liable?

If the surety would like to cross examine the witnesses, he shall


be given the opportunity to do so.

In application for damages, notice is given to the person as well


as the surety then the surety will also be notified of such
liability.

How? How can he cross examine natapos na nga ang trial?

Only? In cases where the attachment was maliciously filed then


moral and exemplary damages can also be prayed for.
What is the requirement before the surety of the attachment
bond be made liable?

Since there would be a hearing, the surety may ask the court to
give him or her an opportunity to cross examine the witnesses.
Page 38 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
Meaning?
So uulitin ang testimony ng witness is that it?
No. As held in Stronghold vs CA, the hearing will be summary
and will be limited to such new defenses, not previously set up
by the principal, as the surety may allege and offer to prove.
The oral proof of damages already adduced by the claimant
may be reproduced without the necessity of retaking the
testimony, but the surety should be given an opportunity to
cross-examine the witness or witnesses if he so desires.
How can you cross examine the witness when you were not
there during the direct testimony of the witness.
How do you cross examine the witness? If you were not present
during the direct testimony?
You can only cross-examine after the direct testimony was
given. Now there is a judicial affidavit rule that the direct
testimony will be in a form of judicial application. The question
is how you do cross the witness there where you were not
present during the direct examination?
All you have to do is just read the TSN. If youre the
surety, read the TSN and if there are things that you wish to
ask to the witness then the witness would be put back to the
witness stand and you can ask him questions on cause based
on the TSN. If there is a judicial affidavit, raise your questions
on the judicial affidavit. Then you are now given that
opportunity to cross examine, and therefore you cannot
claim that you have been denied due process because
the opportunity to cross examine the witness would be
given to you.
So in other words, during the hearing, all evidence
already presented during trial of the merits in support of
the claim for damages can be adopted, no need to
retake the testimony of the said same evidence that you
have already presented. You already have a judgment, so
whatever is the basis of the judgment then the evidence
presented can be considered part of the evidence for your claim
for damages. The only difference here is that the surety
would be given the opportunity to scrutinize the
evidence you have presented in court to rebut it, to
question it, to challenge it and cross examine all
witnesses. And if there are new defenses that the surety can
interpose to resist you claim for damages then that will be the
opportunity for him to bring it out and then after that the court
will rule WON the surety can be made liable on the attachment
bond. So that is the kind of hearing that is contemplated.
In the case of Carlos vs Sandoval what was the
pronouncement of the court with respect to the hearing
requirement? What is proper hearing as explained in the case of
Carlos vs Sandoval? Does it really require a trial type
proceeding? Does it require a formal presentation of evidence?
Or can written arguments be considered as substantial
compliance for the hearing requirement?
In the case of Carlos vs Sandoval the SC held that Section 20
of rule 57 requires that there be a proper hearing before the
application for damages for the attachment bond be granted.
The hearing requirement ties with theindispensable demand of
procedural due process. Due notice to the adverse party and its
surety setting forth the facts supporting the applicant's right to
damages and the amount thereof under the bond is essential.
No judgment for damages may be entered and executed
against the surety without giving it an opportunity to be heard
as to the reality or reasonableness of the damages resulting
from the wrongful issuance of the writ. Plainly, there is no
express requirement under the rule that the hearing be
done in open court, or that the parties be allowed to
confront adverse witnesses to the claim of damages on
the bond.
From this pronouncement, we can discern that the
proper hearing contemplated would not merely

encompass the right of the parties to submit their


respective positions, but also to present evidence in
support of their claims, and to rebut the submissions
and evidence of the adverse party. This is especially crucial
considering that the necessary elements to be established in an
application for damages are essentially factual: namely, the fact
of damage or injury, and the quantifiable amount of damages
sustained. Such matters cannot be established on the mere sayso of the applicant, but require evidentiary support. At the same
time, there was no equivocal statement from the Court in
Peroxide that the hearing required under the rule should be a
full-blown hearing on the merits

In this case, we rule that the demands of a proper hearing were


satisfied as of the time the Court of Appeals rendered its
assailed judgment on the attachment bond.
So what kind of hearing should there be?
In this case, the SC stated that there is no need to have a full
blown trial. (SUMMARY)
So if the claim for damages is made before the appellate court,
who will resolve that claim? Can the appellate court grant the
claim for damages?
Yes. It may remand the application for damages to the trial
court or it may rule on it.
Here, the claim for damages can be done before trial, before
the perfection of an appeal or during the pendency of an
appeal.
For instance, you have a case decided in favor of the defendant
and the plaintiff appeals, then the defendant can actually claim
for damages before the appellate court. Pwede yon,
kasipending appeal. The appellate court can either resolve it on
its own or remand the case to the trial court. When the case is
decided in the favor of the plaintiff, and the defendant appeals,
the CA reversed on appeal saying that there was no basis for
the complaint and the plaintiff should pay. Can the defendant
claim for damages on the attachment bond in the appellate
court? Yes. There was no way for him to claim it in the trial
court kasitalosiyadoon. So ditosiyasa appellate court magclaim.
Can the appellate court resolve that claim for damages? Or can
it remand to the trial court? It depends.
If the records of the case is correct, any evidence that would
support the claim for damages by the defendant then the
appellate court may remand the case to the trial court for
further reception of evidence. Take note that the CA is an
appellate court and it is not its duty to receive evidence as if it
is a trial court. So kapagkinailanganng additional evidence that
should have been presented during trial, then the rule of thumb
there is that the appellate court would remand that case or that
application for damages to the trial court for reception of
evidence and the trial court will resolve the claim for damages.
But if there are evidence on record already that will support the
claim for damages, no need to submit additional evidence, then
the appellate court can already rule on that claim for damages.
Now how do you comply with the hearing requirement, where
you can cross examine the other parties witnesses etcetc?
That is why in the case of Carlos vs Sandoval it says there
that the hearing requirement or the kind of hearing that will be
conducted will be discretionary. Pwede na yung written
arguments, if there are already sufficient evidence on
record to support your arguments, that can be cited and
then that already complies with the hearing
requirement. So it is a case to case basis, it is not always a
full blown trial type hearing. It depends on the nature of your
case, the circumstances surrounding your claim for damages.

Page 39 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
But at no instance will you ever claim damages on the
attachment bond in a separate case under Section 20.

----

PRELIMINARY INJUNCTION

**but according sa LA TSN & MAKI notes**


EXCEPTION TO THE RULE THAT CLAIM FOR DAMAGES
MUST BE IN SAME ACTION:
1.

Where the court trying the main case has no


jurisdiction (Santos Case).
2. The defendants claim for damages exceeds the
jurisdiction of the MTC where the main action is
pending, in which case, such claim must be made in a
separate action in the RTC.
To be safe, follow Atty. Tius position
What is the extent of damages that you may claim against the
attachment bond?
Up to the amount of the attachment bond.

Paano kung sumobra ang damages mo?


The bond shall not be liable for the excess.
So kung ano yung value nang bond, hanggang dun lang din ang
liability ng surety.

RULE 58
August 11, 2015 (SRA)
What is the purpose of a Preliminary Injunction?
In the case of PNB vs. RJ Ventures, The sole object of a
preliminary injunction is to maintain the status quo until the
merits can be heard. A preliminary injunction is an order
granted at any stage of an action prior to judgment of final
order, requiring a party, court, agency, or person to refrain from
a particular act or acts.
What is the nature of the provisional remedy of preliminary
injunction?
It is a preservative remedy to ensure the protection of a party's
substantive rights or interests pending the final judgment in the
principal action.
What is a status quo ante? What do you understand about this?

You take from the separate properties of the plaintiff.

In the case of First Global vs. Agustin, status quo ante is the
last, actual, peaceful, and uncontested status that preceded the
actual controversy.

That is when you file a separate case. But is no longer


under Section 20. What is your ground? Aquino vs Socorro?

Status quo is the last peaceable uncontested status of the


parties which preceded the pending case.

Malicious prosecution that is the only instance. It may be


based on the facts surrounding the issuance of the writ but your
cause of action there is malicious prosecution then you can
claim damages higher than the amount of the attachment bond.

What do you mean preceded the actual controversy? So


when you say the last peaceful and uncontested status that
preceded the actual controversy, at what point in time are you
talking about?

What if you want to claim some more?

When a writ of preliminary injunction is issued, what happens?


When issued, a party is ordered to do or refrain from doing a
certain act.
What condition or situation is being referred to by the status
quo ante?
Status quo ante means the way things were before. The
condition being referred to must be that before the actual
controversy subject of the court action.
Cite an example. LA TSN: pertaining to squatters area
Isnt it that actual controversy arises upon the filing of the case?
No maam. Actual controversy pertains to the cause of action of
the case filed. Hence, it is necessarily before the filing of the
case.
When Davao Light discovers an illegal connection and cuts it
off. You go to court asking for injunction, to preserve the status
quo ante. When is the status quo ante? Before the line was
disconnected.
Why? Because it was the last uncontested status. Without the
disconnection, there could be no case filed.
If it was already disconnected, why go for injunction? What is
there to be prevented?
Injunction could also one which requires a person to perform a
particular act.
So there are two types of injunction. The real nature of the
remedy is PRESERVATIVE of the status quo ante.
So what is the status quo ante? If you dont know what it is,
then you will not understand injunction. That is basic.
When you speak of status quo ante, it is, as defined, the last
peaceable uncontested status of the parties which preceded the
pending case.

Page 40 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
So that is the situation prevailing prior to any conflict. So in the
case of Davao Light, it is prior to the disconnection. That is
the status quo ante.
The fact of disconnection, that is not a status quo ante since at
that time, there are already conflicting rights being asserted by
the parties. So it should be PRIOR to the issue, PRIOR to the
actual controversy. That is what to be preserved by a writ of
preliminary injunction, be it preventive or mandatory.
So in the case of Davao Light, it could be a mandatory
preliminary injunction. Until there be final judgment of the case,
that status quo ante must be preserved.
So that is the whole point of Rule 58, to preserve the status quo
ante. *That was it? Why spend 45 minutes with this?*
When will the court issue a writ of preliminary injunction?
According to Sec. 1 of Rule 58, it is granted at any stage of an
action or proceeding prior to the judgment or final order.
Who may be enjoined?
Sec. 1 provides that a party or a court, agency or a person can
be enjoined.
Can a government agency or official be enjoined?
Yes. That was ruled in the case of DOH vs. Pharmawealth.
The defense of immunity from suit will not avail despite its
being an unincorporated agency of the government, for the only
causes of action directed against it are preliminary injunction
and mandamus. Under Section 1, Rule 58 of the Rules of Court,
preliminary injunction may be directed against a party or a
court, agency or a person. Moreover, the defense of state
immunity from suit does not apply in causes of action which do
not seek to impose a charge or financial liability against the
State.
We have said that a PI is issued to preserve the status quo.
Against what acts?
Against acts of the adverse party which would injure the rights
of the applicant.
Section 1. Preliminary injunction defined; classes. A
preliminary injunction is an order granted at any stage of an
action or proceeding prior to the judgment or final order,
requiring a party or a court, agency or a person to refrain
from a particular act or acts. It may also require the
performance of a particular act or acts, in which case it shall
be known as a preliminary mandatory injunction.

What do you mean with limited to territorial jurisdiction?


RTCs order of WPI is limited only within the territorial
jurisdiction as defined by the Supreme Court. This territorial
jurisdiction is different from the political subdivisions such as
provinces and/or regions.
Reporter cited the case of Gomos vs. Adiong as the sample
case.
GOMOS vs. ADIONG 2004
Respondent judges failure to comply with procedural due
process is aggravated by his total inattention to the
parameters of his jurisdiction. As the presiding judge of RTC,
Marawi City, he should have known that Makati City was way
beyond the boundaries of his territorial jurisdiction insofar as
enforcing a writ of preliminary injunction is concerned.
Section 21(1) of B.P. Blg. 129, as amended, provides that the
RTC shall exercise original jurisdiction in the issuance of writs
of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction which may be enforced in any part of
their respective regions. The rationale, as explained in
Embassy Farms, Inc. v. Court of Appeals, is that the
trial court has no jurisdiction to issue a writ of preliminary
injunction to enjoin acts being performed or about to be
performed outside its territorial jurisdiction.
So does that mean that a court in Koronadal may enjoined a
court in Davao City? In the case of Mangahas vs. Paredes, how
did the SC ruled on territorial jurisdiction of courts in so far as
the writ of preliminary is concerned.
Under Sec. 17 of B.P. 129, the exercise of jurisdiction of the
Regional Trial Courts and their judges is basically regional in
scope (Malaoan vs. Court of Appeals, 232 SCRA 249), but
under Sec. 18, it may be limited to the territorial area of
the branch in which the judges sits (OCA vs. Matas,
August 2, 1995).
The Regional Trial Court of Caloocan City could not be deemed
to have committed a reversible error when it denied the
petitioners Motion to Suspend Proceedings. Apparently, the
extent of the enforceability of an injunction writ issued by the
Regional Trial Court is defined by the territorial region where
the magistrate presides.
Are there any exceptions?

Who may grant preliminary injunction?

1.

Section 2. Who may grant preliminary injunction. A


preliminary injunction may be granted by the court where
the action or proceeding is pending. If the action or
proceeding is pending in the Court of Appeals or in the
Supreme Court, it may be issued by said court or any
member thereof.
Sec. 2 of Rule 58 provides that it may be granted by the court
where the action or proceeding is pending. If the action or
proceeding is pending in the Court of Appeals or in the Supreme
Court, it may be issued by said court or any member thereof.
For Preliminary Injunction:
1.
2.
3.
4.

Injunctions issued by the RTCs are limited to acts committed or


to be committed within the territorial jurisdiction (territorial
boundaries of their respective regions). That is the Doctrine of
Non-jurisdiction.

MTC
RTC
CA, or any member thereof
SC, or any member thereof, where the action or
proceeding is pending.
What is the extent of the power of the RTC to issue a
preliminary injunction?

when the act sought to be enjoined will be exercised


within the territorial jurisdiction although the person
who issued the order holds office outside the courts
jurisdiction (Decano vs. Edu)
2. Where the act sough to be enjoined at another
jurisdiction, yet the residence (esp. corporations) of
both parties are within thejurisdiction of the court that
issued the writ (Dagupan vs. Pano)
In the case of Decano vs. Edu, what are the essential
elements for the exception to take place?
The issue is the correctness of a national officials decision being
questioned by one residing in the province.
Hence, the provincial courts are given equal jurisdiction with
Manila courts to review decisions of national officials. Otherwise,
litigants of limited means would be practically denied of access
to the courts of the localities where they reside and where the
questioned acts are sought to be enforced.
Where was the action questioned made?
It was made by the Commissioner at the national official
stationed at Quezon City.

Page 41 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
Which court issued the injunction?
RTC Pangasinan, since the applicant affected by the decision of
the national office is the registrar of Dagupan City.
So the Pangasinan court enjoin a person based in Quezon City.
In this case, YES. Since this falls under the exception on
government
agencies
decisions involving government
employees being implement elsewhere. So the court of the
place where the decision be implemented may enjoin.
What is the reason for that? It is equity.
This case enunciated the case of Gayacao vs. The Hon.
Executive Secretary, which laid out the doctrine of RTC
courts having equal jurisdiction with Manila courts to review
decisions of national officials. So it is for reasons of practicality.
(But I would insist it being EQUITY since this involve lowly
employees.)
As to the second exception. What is it all about?
In Dagupan Electric Cooperative vs. Pano, on the question
of jurisdiction, both parties are residents of Quezon City, as they
have their principal offices in Quezon City. The disconnection
order was initiated and had its life and source in Quezon City.
The mandatory injunction is addressed to the corporation in
Quezon City. The Dagupan plant acts only upon order of its
officers in Quezon City.
Here we have a case of the interference of plaintiff's property
rights, with situs in Quezon City by a corporation swith situs in
Quezon City. The exercise of will by defendant had its origin in
Quezon City.
So this second exception is with respect to private corporations,
and not individual persons. The principal criterion here is the
principal place of business of the corporation where its decisions
emanate.
As to the Dagupan case, was there a violation of the doctrine of
non-jurisdiction?
No. Because the principal place of business of the corporation is
within the territorial jurisdiction of the court issuing the
preliminary writ of jurisdiction. This is irrespective of the fact
the acts will be made somewhere else.
Key Elements:
Exception (1)
1.

Government Agencies

2.

Legality of Decisions

3.

Enforcement of decisions outside the main office

Exception (2)
1.

Private Corporations

2.

Implementation of decisions is outside the principal


place of business

Kindly read the two cases to properly differentiate.


The case of Dagupan actually falls in the general rule.
There was a case here in Davao, it was Del Monte vs.
Lapanday. There was a violation of non-compete clause. An
executive of Del Monte was pirated by Lapanday.
The remedy applied was injunction. But that executive was
already performing services for Lapanday. The question raised
was where it would be proper to enforce the injunction here in
Davao City.
The rule there, even if the acts to be performed beyond the
jurisdiction of the court, if the corporation issuing the decision is
within the courts jurisdiction then the injunction could be
properly enforced.

If you file an injunction in the court where the action is to be


implemented while the court is residing somewhere else, the
issue which could be raised is that of venue. Why? Because
when you file a personal action like an injunction, it has to be
the place of either the plaintiff of the defendant. So if neither of
the parties are residing in the place of court, then there might
be some jurisdictional defect.
So you have to review again the Rule on Jurisdiction.
Take note, while a preliminary attachment could be
implemented wherever in the country, the WPI is limited by the
doctrine of non-jurisdiction.
Has the CA have jurisdiction on a main action for injunction? Or
is there a main action for injunction?
There is a main action for injunction but the CA has no
jurisdiction. In the case of ALLGEMEINE-BAU-CHEMIE vs.
METROBANK, the SC held that An original action for injunction
is outside the jurisdiction of the Court of Appeals, however.
Under B.P. 129, the appellate court has original jurisdiction only
over actions for annulment of judgments of the RTCs and has
original jurisdiction to issue writs of mandamus, prohibition,
certiorari, habeas corpus and quo warranto, and auxiliary writs
or processes whether or not they are in aid of its appellate
jurisdiction.
But it may grant a prayer for preliminary injunction. The
appellate courts jurisdiction to grant a writ of preliminary
injunction is limited to actions or proceedings pending before it.
What is the difference of an action for Injunction and the Writ
of Preliminary Injunction?
The main action for injunction seeks a judgment embodying a
final injunction which is distinct from, and should not be
confused with, the provisional remedy of preliminary injunction,
the sole object of which is to preserve the status quo until the
merits can be heard.
A preliminary injunction, on the other hand, is granted at any
stage of an action or proceeding prior to the judgment or final
order. It persists until it is dissolved or until the termination of
the action without the court issuing a final injunction.
A main action of injunction is in the same specie as that of a
specific performance, specifically if such requires the
performance of a particular act or acts. If the obligation in a
contract is the obligation NOT TO DO (i.e. a non-compete
clause), then the remedy for specific performance could be in a
form of injunction. So the aggrieved may file a main action for
injunction, that is the primary remedy. The ancillary would be
the preliminary writ of injunction.
In a main case for injunction, you must be able to show the
court that you are entitled to the main action or you have
strong grounds, to warrant for the court to issue the provisional
remedy of preliminary injunction.
Can the CA issue preliminary injunction enjoining the decisions
of the Civil Service Commission?
Yes. Neither the Administrative Code nor the CSC rules deprive
courts of their power to grant restraining orders or preliminary
injunctions to stay the execution of CSC decisions pending
appeal.
Furthermore, Section 82 of Rule VI of CSC Memorandum
Circular 19-99 recognizes the authority of the CA and the
Supreme Court to issue restraining orders or injunctions.
Having appellate jurisdiction over decisions of the CSC, the CA
clearly has the discretion to issue an ancillary writ of preliminary
injunction to secure the rights of private respondent pending
appeal of his dismissal.
Can the NCIP have jurisdiction to issue writs of preliminary
injunction?

Page 42 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
In City of Baguio vs. Masweng, YES. As can be gleaned from
the foregoing provisions, the NCIP may issue temporary
restraining orders and writs of injunction without any prohibition
against the issuance of the writ when the main action is for
injunction.
The power to issue temporary restraining orders or writs of
injunction allows parties to a dispute over which the NCIP has
jurisdiction to seek relief against any action which may cause
them grave or irreparable damage or injury. In this case, the
Regional Hearing Officer issued the injunctive writ because its
jurisdiction was called upon to protect and preserve the rights
of private respondents who are undoubtedly members of
ICCs/IPs.
Can courts issue injunction against the NCIP?
As mentioned in the same case, in order to reinforce the powers
of the NCIP, the IPRA even provides that no restraining order or
preliminary injunction may be issued by any inferior court
against the NCIP in any case, dispute or controversy arising
from or necessary to the interpretation of the IPRA and other
laws relating to ICCs/IPs and ancestral domains.

MIAA vs. CA: In this case, what are the requisites for the
issuance of a writ of preliminary injunction?
The requisites necessary for the issuance of a writ of
preliminary injunction are: (1) the existence of a clear and
unmistakable right that must be protected; and (2) an urgent
and paramount necessity for the writ to prevent serious
damage.
Which among the grounds you have read do this fall?
1st ground. That the applicant is entitled to the relief demanded,
and the whole or part of such relief consists in restraining the
commission or continuance of the act or acts complained of, or
in requiring the performance of an act or acts either for a
limited period or perpetually.
Was there a right in esse? No.
The records before the Court do not reveal a clear and
unmistakable right on the part of K Services that would
entitle the latter to the protection of an injunctive writ.
The available records show, and the parties do not
dispute, that the last contract between MIAA and K
Services had already expired. K Service's claim to an
"Extended/Expanded Contract" is anchored on the
letter of May 31, 1991 from General Manager
Carrascoso. However, this letter expressly stipulated
that the extension would only be "until further notice"
from MIAA.

Can the CA issue a TRO or WPI? Does it have to be always a


collegiate decision?
Yes, the CA may issue but id does not have to be always a
collegiate decision.
You mean a lone justice may issue a WPI?
In the case of Reyes vs. Demetria, even only one (1) member
of the Court of Appeals may issue a temporary restraining
order. Nevertheless, we maintain that the issuance of temporary
restraining order by only one or two justices of the Court of
Appeals must be exercised sparingly, that is, only in case of
extreme necessity where there is compelling reason to abate or
avoid a grave injury to a party.

The phrase "until further notice" prescribed a limit to


the extension of the contract conditioned on a future
event, specifically, the receipt by K Services of notice
of termination from MIAA.
Indeed, there is nothing in said letter to indicate that
private respondent has until forever to operate the
porterage service as private respondent would like to
make it appear. The fact that the authority to continue
the porterage service was specified up to a certain
period is a clear indication that petitioner did not
intend to allow private respondent to operate the
porterage service for as long as it pleases. Perforce, it
limited such privilege to a certain period or until further
notice.

*Then Atty. Tiu started to discuss HER moments with the Court
of Appeals. #Spotlight #Limelight*
August 18 (HL)
Angeles City vs Angeles City Electric Corp.: In the case of
Angeles, do the courts have the power to enjoin the collection
of taxes?
Yes, the courts can enjoin but only if its local taxes. If its under
the NIRC (national taxes), the court cannot issue injunction as
taxes are the lifeblood of the government.
How about extrajudicial foreclosure? Can the court enjoin
extrajudicial foreclosure? Yes.
Under what conditions?
See AM 99-10-50-0. The AM lays down the conditions on
when injunction can be issued against extra judicial foreclosure.
What are the grounds for the issuance of preliminary injunction?
Section 3. Grounds for issuance of preliminary injunction. A
preliminary injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and
the whole or part of such relief consists in restraining the
commission or continuance of the act or acts complained of, or
in requiring the performance of an act or acts either for a
limited period or perpetually;
(b) That the commission, continuance or non-performance of
the act or acts complained of during the litigation would
probably work injustice to the applicant; or

Paraaque vs. Ebio: What is the right in esse?


A right in esse means a clear and unmistakable right. A party
seeking to avail of an injunctive relief must prove that he or she
possesses a right in esse or one that is actual or existing. It
should not be contingent, abstract, or future rights, or one
which may never arise.
What is the basis in the right of esse?
The basis of a right in esse as discussed in the case of
Boncodin vs. NECU is a clear legal right which is one founded
in or granted by law or is "enforceable as a matter of law."
OWWA vs. Chavez:
Is there right in esse?
No. The respondents were not able to show a clear and
unmistakable right. They merely alleged that they are all
officers and employees of the OWWA without showing of how
they stand to be directly injured by the implementation of the
questioned organizational structure.

(c) That a party, court, agency or a person is doing,


threatening, or is attempting to do, or is procuring or suffering
to be done some act or acts probably in violation of the rights of
the applicant respecting the subject of the action or proceeding,
and tending to render the judgment ineffectual. (3a)
Page 43 of 63

We do not find attendant the requisites for the


issuance of a preliminary injunctive writ. This
Court is not convinced that respondents were
able to show a clear and unmistakable legal
right to warrant their entitlement to the writ. A
mere blanket allegation that they are all officers
and employees of the OWWA without a showing
of how they stand to be directly injured by the
implementation of its questioned organizational

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
structure does not suffice to prove a right in
esse. As was aptly raised by the petitioner,
respondents did not show that they were
dismissed due to the challenged reorganization.
There was no showing that they are the
employees who are in grave danger of being
displaced. Respondents were similarly wanting
in proving that they are the consultants and
contractual and casual employees, who will
allegedly suffer by reason of the reorganization.
Boncodin vs NECU:
No right in esse. There was no law granting the salary increase
so they cannot apply for the issuance of the writ.
From the foregoing conflicting claims of the
parties, it is obvious that the right claimed by
respondent as its basis for asking for injunctive
relief is far from clear. The validity of the
circulars and board resolution has been put into
serious question; more so, in the light of
Napocor Board Resolution No. 2002-81, which
was issued precisely to rectify the previously
issued
resolution
and
circular.
While
respondent's claimed right is not required to be
conclusively established at this stage, it is
nevertheless necessary to show at least
tentatively that it exists and is not vitiated by
any substantial challenge or contradiction as
that raised by petitioner. In our view,
respondent has failed to comply with this
requirement.
APRI vs Municipality of Padre Garcia:
Is there a right in esse? No right in esse.
A perusal of the Motion for Injunction and its
accompanying Affidavit filed before the CA
shows that petitioners rely on their alleged right
to the full and faithful execution of the MOA.
However, while the enforcement of the Writ of
Execution,
which
would
nullify
the
implementation of the MOA, is manifestly
prejudicial to petitioners' interests, they have
failed to establish in their Petition that they
possess a clear legal right that merits the
issuance of a writ of preliminary injunction.
Their rights under the MOA have already been
declared inferior or inexistent in relation to
respondent in the RTC case, under a judgment
that has become final and executory. At the very
least, their rights under the MOA are precisely
disputed by respondent. Hence, there can be no
"clear and unmistakable" right in favor of
petitioners to warrant the issuance of a writ of
injunction. Where the complainant's right or
title is doubtful or disputed, injunction is not
proper.

for injunction for? Was it for infringement or dilution? (Its for


both)
Was there right in esse in so far as the trademark infringement
is concerned? (No)
What is the basis for a right in esse in trademark infringement
cases?
What was infringed here?
How was it infringed?
What features were infringed?
What was the trademark of Levi Strauss and how was it
infringed?
So, was there infringement?
There was no prima facie infringement. As to whether there was
infringement or not, that has still to be determined by the court.
That was the issue there because they were just dealing on the
issue of preliminary injunction. Its not yet on the merits of the
case. There was no categorical holding that there was or there
was no infringement, only that the registration of Levi Strauss
was unclear on whether or not the appropriation of the logo is
sufficient to confer it with the right in esse that will entitle it to a
writ of injunction. Because there has yet to be a full-blown trial
on the merits of the case then there can be no clear and
unmistakable right to be protected.
There was no right in esse because the court has yet to
determine whether the partial appropriation of the design
constitutes infringement that would entitle the applicant to a
writ of injunction. That is in so far as the trademark
infringement issue is concerned.
And the reason for that is because the registration itself of Levi
Strauss does not specify what was covered by the registration,
whether it covers just the logo or the word mark or the entire
design of both the logo and the word mark. Had there been a
separate registration for the logo and only the logo was
appropriated or infringed, then it is entitled to a writ of
injunction. But there was only a single registration for the entire
logo, so the SC said we will still have to determine whether
there was infringement.
Your right in esse in trademark infringement cases would
depend on what is covered by your registration in the IPO. It is
not clear now whether there was infringement because the
word mark of Levi Strauss was Dockers which was replaced by
Paddocks although there was a similar logo used, is there
infringement? That was the issue. So if the grounds relied upon
by the applicant is unclear then the writ of injunction cannot
issue.
Cite other cases where there was no right in esse?
Kho vs CA:
What should be the proper registration here?
Trademark registration.
Why was there NO right in esse here?

What are the instances where injunction will not lie? Where
there is no clear and unmistakable right. Cite an example.
Levi Strauss & Co., vs Clinton Apparelle:
What was not established by the applicant?
What was the basis for the denial of the application?
And why do you say that this is an example of a case where
there is no right in esse? How do you connect that to the
requirement of clear and unmistakable right in the issuance of a
preliminary injunction?
There are two matters in this case, you have trademark
infringement and trademark dilution. What was the application
Page 44 of 63

Petitioner has no right to support her claim for


the exclusive use of the subject trade name and
its container. The name and container of a
beauty cream product are proper subjects of a
trademark inasmuch as the same falls squarely
within its definition. In order to be entitled to
exclusively use the same in the sale of the
beauty cream product, the user must sufficiently
prove that she registered or used it before
anybody else did. The petitioner's copyright and
patent registration of the name and container
would not guarantee her the right to the
exclusive use of the same for the reason that
they are not appropriate subjects of the said

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
intellectual rights. Consequently, a preliminary
injunction order cannot be issued for the reason
that the petitioner has not proven that she has a
clear right over the said name and container to
the exclusion of others, not having proven that
she has registered a trademark thereto or used
the same before anyone did.
Because it was wrongly registered. They did not make a proper
registration to protect the right of the name and the container
of the beauty product. Because of that there was no right
conferred upon the petitioner for the exclusive use of the name
as well as the container. It should have been a trademark
registration, not copyright or patent.
August 25, 2015 (CJB)
Can an uncopyrightedtv visual be accorded protection?
Yes, an artistic creation, upon its creation already belongs to the
creator even without registration. It is already accorded
protection under the Intellectual Property Code. Therefore,
there is a legal right for the issuance of preliminary injunction.
Upon creation, you become the owner of the creation, is that a
source of a right in esse?
Yes, it is provided for under the Intellectual Property Code
How about levy of properties for nonpayment of taxes, can you
enjoin the levy of properties due to nonpayment of taxes? Is
there a right in esse to enjoin the properties?
No, as a general rule. Taxes are the lifeblood of the
government, without which it can not properly perform its
functions; and that appeal shall not suspend the collection of
realty taxes.
Are there exceptions?
In TALENTO vs. ESCALADA, was there a right in esse? Yes,
this case provided for an exception to the general rule where
the taxpayer has shown a clear and unmistakable right
to refuse or to hold in abeyance the payment of taxes.
In the instant case, the respondent contested the revised
assessment on the following grounds: that the subject
assessment pertained to properties that have been previously
declared; that the assessment covered periods of more than 10
years which is not allowed under the LGC.
What is the basis of the right in esse here?
The Local Government Code
Take note that this is a local tax, this is not under the national
internal revenue code. There is nothing in the local government
code that says collection of taxes cannot be enjoined. You can
only find that in the NIRC. The basis of the right in esse here is
the law, the Local Government Code, particularly of the 10 year
period that was alleged here regarding the assessment.
Can a government employee dismissed from service, claim a
right in esse to enjoin the execution of the decision of the CSC?

and/or Preliminary Injunction, his salary and benefits as a


policeman are his family's only source of income.
The right in esse here would be?
The violation of his right to due process provide under the
Constitution.
Is there a vested right for government office?
No, the basis for the right in esse is the violation of his right to
due process.
As already stated before, a right in esse is based on law. It is
something that entitles you as a person to the relief demanded.
That is your right in esse. It is not your employment in the
government in this case. The ombudsman will tell you, you have
no vested right to public office. That is always their justification
to dismiss an employee of the government.
What is now your right in esse? It is your right to due process
as state in the Constitution under the Bill of Rights. That is the
most basic right, regardless whether you are a government of
private employee. If you can show prima facie violation of your
right to due process, then that is enough for you to establish
your right in esse. It is not your irreparable damage, injury, etc.
Those are speculative. A right in esse is something definite,
concrete and exists. You cannot rely on something speculative
or inchoate. It must be existing based on the law. It is
something that the law has conferred upon you.
In the case of creation, even if it is not registered, the law
grants you ownership over your creation. Therefore, you have
the right to protect it. That is your source of right in esse. That
is basic, you should be able to understand the concept
otherwise you would have missed what injunction and TRO is all
about.
Must there be an actual violation of a right for the injunction to
issue? No
What is required?
(b) That the commission, continuance or non-performance of
the act or acts complained of during the litigation would
probably work injustice to the applicant;
Take note that the right must exist. You should establish what
right that is either it is a right of ownership, right of possession,
right to due process, all the rights that you can name provided
for you by law. It must exist, actual, it must be there. But for
you to get an injunction, do you need to show actual violation
of the right? No, a mere probability of the violation of the right
will suffice. You do not have to wait for an actual violation of
the right. A mere threat of violation, a mere probability of
violation should the defendants not be enjoined will suffice. If
there is an actual violation, what do you need injunction? What
is there to prevent is there is already a violation? The very
purpose of your injunction would be to prevent a violation of
your right. Basically even if there is no actual violation, you can
ask for injunction so as you can show high probability of such
violation.

Yes, when his right to due process is violated. This was


discussed in the case of CSC vs. CAIn the interest of justice and
fair play, this Court scrutinized the records of the case and,
indeed, found sufficient grounds for the grant of the injunctive
Writ. Prior to the finality of the CSC Decision dismissing him,
private respondent has a clear and unmistakable right to his
current position in the police service. Unquestionably, the right
to employment, oftentimes the lowly employee's only noble
source of bread and butter, is entitled to protection by the
State.

Supposing there is a violation already, will that foreclose your


right to an injunction?

The immediate implementation of the not yet final penalty of


dismissal from the service would surely cause private
respondent (and his family) irreparable damage. As pleaded in
his Urgent Motion for Issuance of Temporary Restraining Order

What must an order granting the issuance of preliminary


injunction contain?

No, if there is a continuing violation, it can still be issued.


If there will be a continuing violation of your right and unless
prevented, it would cause great and irreparable injury. But is it
is a one time violation, tapos na, walang threat of further
violation, the court will no longer grant it. There is nothing more
to enjoin. If there is a continuing violation or a threat of a
continuing violation, you can still ask for an injunction.

It must contain the facts and the law relied upon by the court.
There must be factual and legal basis for the issuance of a writ.

Page 45 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
What is the nature of the courts determination of the applicants
entitlement to the relief demanded? When the court grants an
injunctive relief, what is the nature of such grant?
Provisional in nature

summary hearing which shall be conducted within twenty-four


(24) hours after the sheriffs return of service and/or the
records are received by the branch selected by raffle and to
which the records shall be transmitted immediately.

When you say preservative in nature what does that mean?

Can you ask for preliminary injunction separately?

What that does mean that the court will be bound by its
findings when it decides the case on the merits?

What is the form of the application? Verified application

When the court grants and injunctive relief, are you saying that
the court will now be bound by the findings on the right of the
applicant?

It is basic that when you ask for injunction, your application


must be verified. Even if you attach affidavits supporting the
factual allegations therein, you have to verify your application,
whether it is in an initial pleading or in a separate motion in the
same case. If it is not verified, it will be denied on technicality.
Another ground for denial is that why would I grant an
injunctive relief on a mere motion. You have to relate this with
section 5.

Will no constitute a prejudgment of the case?


What is now the relation of the findings of the court in an
application for injunction vis a vis the merits of the case?
We are not talking here of the main action for injunction, we
are talking here of any case where and injunction has been
granted. When the court grants an injunction, it has to states
the legal basis and the factual basis. What right has been
established, what is the right in esse and the acts to be
enjoined that violates or tends to violate the rights. Isnt that a
prejudgment of the case?
Are you saying that the order granting a writ of preliminary
injunction is not supported by evidence since there is still
evidence to be submitted?

What does section 4 say?

What is the difference between a preliminary injunction and a


temporary restraining order?
A preliminary injunction is granted at any stage of an action or
proceeding prior to the judgment or final order. It persists
until it is dissolved or until the termination of the action.
It cannot be issued exparte.

Are you saying that the grant for the application of the writ of
preliminary injunction does not require presentation of
evidence?

A restraining order, on the other hand, is issued to preserve the


status quo until the hearing of the application for preliminary
injunction which cannot be issued ex parte. Under Rule 58 of
the Rules of Court, a judge may issue a temporary
restraining order with a limited life of twenty (20) days
from date of issue. If before the expiration of the twenty (20)
-day periods the application for preliminary injunction is denied,
the temporary restraining order would be deemed automatically
vacated.May be issued ex parte in cases of extreme
urgency for 72 hours only.

Only sampling evidence is needed in Preliminary injunction.

When can you apply for temporary restraining order?

Under section 4, when can you apply for a TRO or PI?

It may be included in the complaint.

It may be included in the complaint.

What are the kinds of TRO? TRO issued by:

What is now the nature of an order granting an injunctive relief


if there is still evidence to be presented?
Only sampling evidence is needed in Preliminary injunction.

SEC. 4. Verified application and bond for preliminary injunction


or temporary restraining order. A preliminary injunction or
temporary restraining order may be granted only when;
(a) The application in the action or proceeding is verified, and
shows facts entitling the applicant to the relief demanded; and
(b) Unless exempted by the court, the applicant files with the
court where the action or proceeding is pending, a bond
executed to the party or person enjoined, in an amount to be
fixed by the court, to the effect that the applicant will pay to
such party or person all damages which he may sustain by
reason of the injunction or temporary restraining order if the
court should finally decide that the applicant was not entitled
thereto. Upon approval of the requisite bond, a writ of
preliminary injunction shall be issued.
(c) When an application for a writ of preliminary injunction or a
temporary restraining order is included in a complaint or any
initiatory pleading, the case, if filed in a multiple-sala court,
shall be raffled only after notice to and in the presence of the
adverse party or the person to be enjoined. In any event, such
notice shall be preceded, or contemporaneously accompanied
by service of summons, together with a copy of the complaint
or initiatory pleading and the applicants affidavit and bond,
upon the adverse party in the Philippines.
However, where the summons could not be served personally or
by substituted service despite diligent efforts, or the adverse
party is a resident of the Philippines temporarily absent
therefrom or is a nonresident thereof, the requirement of prior
or contemporaneous service of summons shall not apply.
(d) The application for a temporary restraining order shall
thereafter be acted upon only after all parties are heard in a

Executive Judge

Presiding Judge

Good for 72 hrs

Valid for 20 days including the


first 72 hours

Issued before the raffling

Issued after the raffling

Ex-parte

Issued after summary hearing

Ground is extreme urgency

Ground
is
grave
and
irreparable injury that would
result before the matter can
be heard.

So when do you apply for a TRO?


At what point of the proceeding will you apply for a TRO?
If you are counsel for the plaintiff, you want an injunctive relief
because the defendant is doing something that is injurious to
your client. You want to stop the defendant immediately, how
will you apply for a TRO?
It may be included in the complaint.
How do you apply for the TRO?
So you have here, this is your PI. That is your goal because
when you get that then you prevent the defendants from doing
the acts sought to be prevented for the entire duration of the
case. This is your provisional remedy under rule 58. So when do
you apply for the PI? At what point?

You file it together with your complaint if the grounds for the
injunction are already existing at the time of filing of the
Page 46 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
complaint. Usually it is upon the filing of the complaint. Your
complaint already incorporates your prayer for a preliminary
injunction.
Supposing the defendants are already destroying the property
of your client, are you going to wait for the application for the
PI to be heard before you can prevent the defendants from
doing the acts injurious to your client? By the time na natapos
ang hearing mo sa PI, nadestroy na lahat. That is why your
complaint, aside from the PI application will also include an
application for TRO.

Tatlo yan, your causes of action, your application for PI and


another application for TRO.

Now, there are two kinds of TRO, you have the 72hr TRO and
the 20-day TRO.
When can you ask for a 72hr TRO?
When there is extreme urgency.
If you want to avail of the 72 hours ex parte TRO, you go
before the executive judge of a multi salacourt or presiding
judge of a single sala court and show extreme urgency for
the issuance.
So among the relief you have here (referring to PI, 72hr TRO
and 20-day TRO) the most immediate relief is the 72hr TRO.
When can you get it? As soon as you file the complaint in court.
As soon as you file it, pay the docket fees and go to the
Executive Judge and ask for a 72hr TRO.
Will the court require notice to the defendant before issuing the
TRO? NO
Will the court require presentation of evidence? NO
The executive judge will grant the 72hr TRO upon filing of the
case. That is your most immediate relief. But take note, it can
only be granted by the executive judge in a multiple sala court
or the presiding judge of a single sala court. If you are talking
of Davao City, we have a multiple sala court, only the executive
judge can grant that. If you go to some far flunk places, where
there is only one sala court, then that judge there can issue the
72 hour TRO.

SEC. 5. Preliminary injunction not granted without notice;


exception. No preliminary injunction shall be granted without
hearing and prior notice to the party or person sought to be
enjoined. If it shall appear from facts shown by affidavits or by
the verified application that great or irreparable injury would
result to the applicant before the matter can be heard on
notice, the court to which the application for preliminary
injunction was made, may issue ex parte a temporary
restraining order to be effective only for a period of twenty (20)
days from service on the party or person sought to be enjoined,
except as herein provided. Within the said twenty-day period,
the court must order said party or person to show cause, at a
specified time and place, why the injunction should not be
granted, determine within the same period whether or not the
preliminary injunction shall be granted, and accordingly issue
the corresponding order.
However, and subject to the provisions of the preceding
sections, if the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable
injury, 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 for only
seventy- two (72) hours from issuance but he shall
immediately comply with the provisions of the next
preceding section as to service of summons and the
documents to be served therewith. Thereafter, within the
aforesaid seventy-two (72) hours, the judge before whom the
case is pending shall conduct a summary hearing to determine
whether the temporary restraining order shall be extended until
the application for preliminary injunction can be heard.In no
case shall the total period of effectivity of the temporary
restraining order exceed twenty (20) days, including the original
seventy-two hours provided herein.
In the event that the application for preliminary injunction is
denied or not resolved within the said period, the temporary
restraining order is deemed automatically vacated. The
effectivity of a temporary restraining order is not extendible
without need of any judicial declaration to that effect and no
court shall have authority to extend or renew the same on the
same ground for which it was issued.

What happens when you apply with the executive judge? Talk
to the executive judge and present your complaint. Let the
executive judge appreciate what you have alleged their together
with your supporting affidavits. If the judge is convinced that
you are entitled for a TRO, then the TRO will issue.

However, if issued by the Court of Appeals or a member


thereof, the temporary restraining order shall be effective for
sixty (60) days from service on the party or person sought to be
enjoined. A restraining order issued by the Supreme Court or a
member thereof shall be effective until further orders.

I have handled a case where the executive judge now retired. I


had to rush to him almost 5 in the afternoon and ask for a TRO.
The judge said ok Atty Tiu, I will rely on your representations
that what you have stated here, are true and correct. I will
grant the TRO. Hindi na niya binasa, simply because kilala niya
yung tao, he granted it. He said I will grant since no harm can
be done in 72 hours. It is only good for 3 days, after 3 days
wala na. Unless it is extended, I this case it can be up to a
maximum period of 20 days.

What do you mean by irreparable injury?

Who will extend the TRO up to 20 days? Is it still the executive


judge?
No more, since within the 72 hours, your complaint will be
raffled to a presiding judge. The presiding judge now will call
for a summary hearing. During the summary hearing that
presiding judge will determine if there is a need to extend the
TRO. If there is a need to extend, then an additional 17 days
will be granted. Therefore, the total TRO that you have will be
20 days.
What will happen during the summary hearing?
The judge will only say ok, this requires further proceeding, I
will extend the TRO.
What is the ground for you to get a 72hr TRO?
What does the rule say?

The term irreparable injury has a definite meaning in law. It


does not have reference to the amount of damages that may be
caused but rather to the difficulty of measuring the damages
inflicted. If full compensation can be obtained by way of
damages, equity will not apply the remedy of injunction. (PNB v.
RJ Ventures)
In APRI v. the Municipality of Padre Garcia, how was
irreparable damage defined?
Damages are irreparable where there is no standard by which
their amount can be measured with reasonable accuracy. In this
case, petitioners have alleged that the loss of the public market
entails costs of about 30,000,000 in investments, 100,000
monthly revenue in rentals, and amounts as yet unquantified
but not unquantifiable in terms of the alleged loss of jobs of
APRIs employees and potential suits that may be filed by the
leaseholders of the public market for breach of contract. Clearly,
the injuries alleged by petitioners are capable of pecuniary
estimation. Any loss petitioners may suffer is easily subject to
mathematical computation and, if proven, is fully compensable
by damages. Thus, a preliminary injunction is not warranted.28
With respect to the allegations of loss of employment and
potential suits, these are speculative at best, with no proof
adduced to substantiate them.

Page 47 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
Take note that irreparable injury is not one of the grounds for
the issuance of preliminary injunction under section 3.
Irreparable injury was only mentioned in section 5, in relation to
the issuance of the TRO. Therefore, for purposes of obtaining a
TRO, a 72hr TRO, you have to be able to show grave injustice
and irreparable injury. It only becomes relevant in an
application for a TRO. But then again, once you get a TRO, and
you get it extended for 20 days, eventually you have a good
chance of getting your PI. It is a step by step process.
Can you have a WPI when a TRO is only applied for? No
There a different grounds for a preliminary injunction and a
temporary restraining order. That is why if you ask for a TRO, it
has to be specifically stated in your application. Aside from your
application for preliminary injunction, you have another
application for 72-hour temporary restraining order. That is how
you apply. It must be specific. If there is no application for a
TRO, there is no basis for the court to issue one. Obviously, the
judge in this case nagkaroonng interest sakaso, even if there
was no application for a TRO, he set I for hearing. Like I said, a
lot of anomalies happen during the application of provisional
remedies including itongpinakamadugo, injunction. A lot of
judges lost their position to favor a party who desperately wants
an injunction by forsaking the rules. Kaya sapulsilasa
administrative case. If you do not know the rules,
makakalusotangmgaganya. You should be vigilant. You should
know the rules and point it out.
Alright, so you have here the 72-hour TRO. What happens
during the 72-hour TRO?
Thereafter, within the aforesaid seventy-two (72) hours, the
judge before whom the case is pending shall conduct a
summary hearing to determine whether the temporary
restraining order shall be extended until the application for
preliminary injunction can be heard
How do you serve the TRO?

,tutukanmoang
sheriff,
tutukanmoangmga
clerks
paramataposlahatng paper work. Then you go to the place and
serve it to the defendant so that as soon as possible, you can
stop them.
In that order nakalagay doon kung kalian an sila mag aapear sa
court. That should be within the 3-day period for purposes of
that summary hearing on whether or not to extend the 72-hour
TRO.
Now, the rules say that within the three days or after the grant
of the TRO, there would be a raffling of the case in the
presence of the defendant. That is what the rule says, is it
mandatory that the defendants are present during the raffling
of the case?
What does the case of GONZALO vs. STATE PROPERTIES
say? It is clear that the prerequisites for conducting a raffle
when there is a prayer for a writ of preliminary injunction or
temporary restraining order are (1) notice to and (b) presence
of the adverse party or person to be enjoined. The above rule
also provides that the notice shall be preceded or accompanied
by a service of summons to the adverse party or person to be
enjoined.
In such event, the notice of raffle and the presence of the
adverse party must also be dispensed with. As pointed out by
respondent, the requirement of notice of the raffle to the party
whose whereabouts are unknown does not also apply xxx
because the case will have to be raffled first before the court
can act on the motion for leave to serve summons by
publication.
So there are exceptions to the rule. Same exceptions on the
service of summons insofar as the presence and notice to the
adverse party.
Now after the executive judge has issued the 72-hour TRO, can
the executive judge opt not to set the case for raffling? Yes
After the case has been raffled, when should the summary
hearing be conducted?

Who serves it? Sherriff


Before or after the service of summons?
General rule: Notice of PI/TRO shall be preceded, or
contemporaneously accompanied by service of summons,
together with a copy of the complaint or initiatory pleading and
the applicants affidavit and bond. So the presence of adverse
party is required during raffling.

The application for a temporary restraining order shall


thereafter be acted upon only after all parties are heard in a
summary hearing which shall be conducted within twenty-four
(24) hours after the sheriffs return of service and/or the
records are received by the branch selected by raffle and to
which the records shall be transmitted immediately.

Exceptions:
1.

where the summons could not be served personally

2.

where the summons could not be served


substituted service despite diligent efforts,

3.

the adverse party is a resident of the Philippines


temporarily absent therefrom or

4.

the adverse party is a nonresident

Who will conduct the summary hearing? The presiding judge


by

When do you serve the 72-hour TRO?


Supposing the 72-hour TRO has been issed, what happens to it?
Thereafter, within the aforesaid seventy-two (72) hours, the
judge before whom the case is pending shall conduct a
summary hearing to determine whether the temporary
restraining order shall be extended until the application for
preliminary injunction can be heard.
What happens to the TRO that was issued?

Maghihintay ka? In the meantime nagpapatayan na ang cliente


mo? Wala na lahat ng properties ng client mo.

When will you reckon the 24 hour period? 24 hours after the
records are transmitted to the branch to which it is raffled.
In the case of BAGONG WEST KABULUSAN vs. LERMA, The
period within which to conduct a summary hearing is not 24
hours after the case has been raffled but 24 hours after the
records are transmitted to the branch to which it is raffled.
What is the purpose of the summary hearing?
To determine whether or not the 72-hour TRO should be
extended up to a maximum of 20 days.
Supposing there is an extension of the 72-hour TRO, what will
happen within that period of extension?
How many summary hearings are mentioned there in the rule?
What does section 5 say?
So within this period, we have here the 72 hours issued by the
executive judge and then the case was raffled. In those 72
hours, the presiding judge will call for a summary hearing.

So with this one, you have to arrange immediately for the


issuance of the TRO since there is no presiding judge yet. It is
When should the presiding judge make that summary hearing?
the executive judge who issued it. It is the office of the ex
Within the 72 hours.
officio sheriff or the RTC OCC that will process or bring out the
Can the presiding judge conduct the summary hearing and
TRO, they will appoint a sheriff to serve it, together with that
extend the TRO after the 72 hours?
you have the copy of the complaint. So mabilisanto
Page 48 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
No, the hearing must be conducted prior to the expiration prior
to the expiration of the 72-hour period for a 72-hour TRO.
Within that 72 hour period, the case should have heard, raffled,
the summons have been served together with the notice for the
summary hearing and the presiding judge should have
conducted the summary hearing for the extension of the TRO
within the 72 hours.
If the summary hearing is held beyond the 72 hours then that
would be too late. There is nothing to extend because the 72
hours have already expired. That is your burden now.
If you are the counsel for the plaintiff, you have to see to it that
everything is in order. All the timelines are in place. Ano
gagawin niyo? Kulitin niyo ang court staff in order to accomplish
everything within the 72 hours. You really have to make things
happened, otherwise matetechnical ka. That is the downside
when you obtain a 72-hour TRO. Everything will be in a hurry.

Madalian ito, kung ikaw papataypatay walang mangyayari saiyo.


You are running against time here. Takbo dito takbo doon.
Running in heels ang peg! That is precisely what I did when I
handled my TRO and injunction. The clock is ticking on you, you
have to accomplish everything within 72 hours.
Then you would say, the rules say that it should be the court,
the sheriff, the staff that should prepare everything, bakit ako
ang maprepressure as a lawyer? Unless kulitin mo ang mga tao
na yan, they will not care. Why should they bother to hurry up
for you? Busy sila, tambak ang mga papeles. Why should we
prioritize your case? So it is up to you as counsel for the plaintiff
to ensure na lahat pasok, lahat na-accomplish so that you wont
get technical.
So kung nakakuha ka nang extension then you can breath. That
means the defendant cannot do anything for the next 17 days.
Question is what will happen during that 17 days?
What will the presiding judge do?
Can an executive judge issue an extension? No
Can an executive judge issue a TRO good for 20 days? No
The executive judge can only issue a 72-hour TRO, no more no
less. Pag nag-issue yan ng 20 day TRO, malaki ang problema
ng executive judge because only a presiding judge may issue a
20-day TRO and extend the 72-hour TRO granted by the
executive judge. All of these are functions of the presiding
judge.
So you got now the extension, kasi within the 72-hour period,
na-raffle ang case, naserve ang summons, naserve ang TRO,
nagkaroon ng summary hearing. Ang sabing presiding judge, I
will extend. What will happen within those 17 days?
The presiding judge will conduct a hearing for the issuance of
the preliminary injunction.
Who has burden of proof for the issuance of the WPI?
Rule 58 of the Rules of Court clearly lays the burden on the
shoulders of the petitioners, as the parties against whom the
TRO was issued, to show cause why the application for the writ
of preliminary injunction should not issue.
So there will be a hearing conducted by the presiding judge to
determine the propriety of the issuance of the preliminary
injunction. The rules provide that the hearing should be
conducted. Therefore, the PI could not be granted ex parte. You
cannot grant a PI exparte. That is very explicit under section 5.
There has to be notice and hearing. The defendant must be
notified. Kaya nga dapat within 72 hours nanotify na siya.
Nagkaroon na ng summary hearing and then there will be a
determination of the propriety of the issuance of the PI.

party or person to show cause, at a specified time and place,


why the injunction should not be granted, determine within the
same period whether or not the preliminary injunction shall be
granted, and accordingly issue the corresponding order.
So who has the burden of proof now?
Why is it that the defendant here is ordered to show cause why
the PI should not issue?
The burden of proof in PI as well as in TRO, when you get it
always on the applicant. Why? Dibanga the grounds are very
clear, you have to have a right in esse. So when you got the 72hour TRO, there is already a preliminary finding of your right in
esse. When there is an extension of your TRO, to another 17
days to complete the 20 day period for TRO, there is a
confirmation of your right in esse. That entitles the applicant to
the injunctive relief. Now, within the 17 days extension, must
the applicant still prove his right in esse?
No more, it is now the defendant who will rebut and say you
are not entitled, you have no right in esse. Klaro nay yun from
the granting of the 17-day extension of the TRO.
The question here is, what if walakang TRO, you only applied
for PI?
That is the time that you need to prove your right in esse.
Can the court say that defendant; show cause why the PI
should not be granted without any prior proof of the applicants
entitlement to the relief? No.
I have this case, they were able to get a 72-hour TRO. The
same judge na nag-grant sa akin on my mere representation.
Ano ang inenjoin? Auction sale of real properties to be
conducted in Metro Manila so red flag kaagad.
How can you enjoin something that is to be performed in
Manila? No jurisdiction, doctrine of non-jurisdiction, pero judge
granted it. May 72-hour TRO sila. So when we got notified,
obviously attack na kami sa jurisdiction. There is no jurisdiction
for the injunctive relief.
Obviously, pagdating sa presiding judge, wala na. Hindi na nila
na-extend to the 20 days. I have already pointed out that there
was no jurisdiction. Here comes the hearing for the PI. They are
insisting that tama sila. The plaintiffs counsel is arguing that
under section 5, it is the burden of the defendants to show why
the injunctive relief should not issue. We got the TRO,
therefore, it is their duty to show that we are not entitled for
the WPI. I saw red, how dare you! =) You are only entitled
to shift the burden of proof if you are able to get a 20day TRO, not the 72 hours. Mahiya naman siya! His PI was
not granted. When you hear arguments like that in court
talagang maiinis ka. These are lawyers arguing in court, they
pretend that not to know the rules. They try to push their way
around just to get what they want, regardless of the proper
interpretation of the rules. You can only shift the burden if you
are able to get the 20-day TRO.
What does the rule say?
Within the 20 day period.
This means na dapat may 20-day TRO ka, if hanggang 72 hours
kalang, huwag kang umasa na ishift ang burden on the
defendant on why the PI should not issue. It is very clear under
the rules. If you are able to get the 72-hour TRO, hindi na siya
naextend but still you want to insist on your PI, then you have
to show your right in esse. The burden of proof remains on the
applicant. It was never shifted to the defendant.

Generally, the one who has the burden of proof is the applicant,
but read the last sentence of the first paragraph of section 5,
what does it say?

I hope you are able to appreciate what the whole Rule 58 is all
about. If you just read the rules, boring. But if you contextualize
it in real situations, in real cases then you get to appreciate how
it will apply. Take note that sections 4 and 5 are closely
interrelated.

Within the said twenty-day period, the court must order said

In fact, mali yung section 5. When it says there first paragraph.

Page 49 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
It says:
If it shall appear from facts shown by affidavits or by the
verified application that great or irreparable injury would result
to the applicant before the matter can be heard on notice, the
court to which the application for preliminary injunction was
made, may issue ex parte a temporary restraining order
to be effective only for a period of twenty (20) days.
Mali! The ex parte TRO is good only for 72 hours and can only
be issued by the executive judge. Naoverlook siguro ito ng SC.
The 20-day TRO issued by the presiding judge should be with
prior notice and hearing. Take note of that.
Kung wala kayong 72-hour TRO, can you still get a 20-day
TRO? Yes. Provided that you apply for that in your pleading, in
your application. There are instances that he executive judge
will not issue the 72-hour TRO. Ipaparaffle niya lang kaagad
ang case, so mapupunta na ngayon kay presiding judge. The
presiding judge can still entertain your 20-day TRO.
In that case, it will now be the presiding judge who will grant if
he finds merit in you case, for a full 20-day TRO. Walang
extension but always after notice and hearing. Kailangan
nanotify ang other party, naserve ang summons, etc. Then you
can entertain the TRO application. If he grants it, it will be good
for a full 20 days. But never can the presiding judge issue a
TRO good for 20 days ex parte. Only the executive judge can
issue exparte in case of extreme urgency good for 72 hours
only.
September 1, 2015 (SRA)
What are the basic requirements for the issuance of the writ of
preliminary injunction?
Section 4 of Rule 58 provides for the two of basic requirements
--- verified application and bond.
How do you establish the grounds for the issuance of the WPI?
Upon filing of the verified application
How do you determine the amount of the bond?
The bond is in an amount to be fixed by the court.
Is the bond required for the issuance of the TRO?
In the case of Universal Motor vs. Rojas, the SC said YES.
Prior to the effectivity of the 1997 Rules of Civil Procedure, no
bond was required for the availment of a temporary restraining
order. However, the present Rules now regulate the issuance of
temporary restraining orders, not only by requiring a hearing,
but also by imposing a bond on the applicant to prevent the
abuse of this relief by litigants.
In a Writ of Preliminary Injunction, is it right?

granted, in which case the policy of the Supreme Court was to


require a bond equivalent to the monetary award or benefits
granted as a condition for the issuance of a temporary
restraining order. The exemption from bond in other cases, plus
the fact that no hearing was required, made a temporary
restraining order a much sought relief for petitioners.
What is the form of your application for preliminary injunction?
It must be verified and must show the facts entitling the
applicant to the relief demanded.
You mentioned that one must execute an affidavit. Can you
dispense with the affidavit? Can you have an injunction without
affidavits?
No. Affidavit is indispensable.
Aside from trial court judges, who else can issue a TRO?
The Court of Appeals and the Supreme Court
How long is the effectivity of these TROs?
Last paragraph of Sec. 5 provides that the Court of Appeals or a
member thereof, the temporary restraining order shall be
effective for 60 days from service on the party or person sought
to be enjoined.
A restraining order issued by the Supreme Court or a member
thereof shall be effective until further orders.
What are the grounds for objection to, or for motion of
dissolution of, injunction or restraining order?
Sec. 6. Grounds for objection to, or for motion of dissolution
of, injunction or restraining order. The application for
injunction or restraining order may be denied, upon a
showing of its insufficiency. The injunction or restraining
order may also be denied, or, if granted, may be dissolved,
on other grounds upon affidavits of the party or person
enjoined, which may be opposed by the applicant also by
affidavits. It may further be denied, or, if granted, may be
dissolved, if it appears after hearing that although the
applicant is entitled to the injunction or restraining order, the
issuance or continuance thereof, as the case may be, would
cause irreparable damage to the party or person enjoined
while the applicant can be fully compensated for such
damages as he may suffer, and the former files a bond in an
amount fixed by the court conditioned that he will pay all
damages which the applicant may suffer by the denial or the
dissolution of the injunction or restraining order. If it appears
that the extent of the preliminary injunction or restraining
order granted is too great, it may be modified.
Sec. 6 provides for the grounds, to wit:

Yes, but this shall be upon the discretion of the court. Sec. 4 (b)
provides the phrase Unless exempted by the court which
could be interpreted that the bond requirement could be
dispensed with upon the discretion of the court.
Is there a difference between the two?
In the case of Universal Motor vs. Rojas, Justice Regalado
said that under this amended section, a temporary restraining
order has been elevated to the same level as a preliminary
injunction in the procedure, grounds and requirements for its
obtention.
Specifically on the matter of the requisite bond, the present
requirement therefor not only for a preliminary injunction but
also for a restraining order, unless exempted therefrom by the
court, puts to rest a controversial policy which was either
wittingly or unwittingly abused.
Heretofore, no bond was required for the issuance of a
temporary restraining order, except in labor cases brought to
the Supreme Court on certiorari from a decision of the National
Labor Relations Commission where a monetary award was
Page 50 of 63

1.) The application for injunction or restraining order may


be denied, upon a showing of its insufficiency.
2.) The injunction or restraining order may also be denied,
or, if granted, may be dissolved, on other grounds
upon affidavits of the party or person enjoined, which
may be opposed by the applicant also by affidavits.
3.) It may further be denied, or if granted, may be
dissolved, if it appears after hearing that although the
applicant is entitled to the injunction or restraining
order, the issuance or continuance thereof, as the case
may be, would cause irreparable damage to the party
or person enjoined while the applicant can be fully
compensated for such damages as he may suffer, and
the former files a bond in an amount fixed by the court
conditioned that he will pay all damages which the
applicant may suffer by the denial or the dissolution of
the injunction or restraining order.

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
4.) If it appears that the extent of the preliminary
injunction or restraining order granted is too great, it
may be modified.

2.

That the application for damages showing the


claimants right thereto and the amount thereof be
filed in the same action before the judgment becomes
final and executor;

3.

That due notice be given to the other party and his


surety or sureties, notice to the principal not being
sufficient;

4.

That there should be proper hearing and the award of


damages should be included in the final judgment.

What are the requirements for the filing of the counter bond?
In order for the court to allow the establishment of the bond by
the party upon which WPI is being applied, the party may
convince the court that the continuance of the injunction would
cause great damage to the defendant, while the plaintiff can be
fully compensated for such damages as he may suffer.
What is the purpose of such counter bond?
Section 4 provides that a bond executed to the party or person
enjoined, in an amount to be fixed by the court, to the effect
that the applicant will pay to such party or person all damages
which he may sustain by reason of the injunction or temporary
restraining order if the court should finally decide that the
applicant was not entitled thereto.
What is the purpose of the counter bond?
Section 6 provides that bond in an amount fixed by the court
conditioned that he will pay all damages which the applicant
may suffer by the denial or the dissolution of the injunction or
restraining order.
When you move to object to the writ of injunction already
issued, what evidence do you need? To whom do you need to
submit?
Through affidavits of your witnesses because this is supposed to
be a mere hearing on motion so you dont need to go to a full
blown trial on the merits.
Does the objection need to be verified?
How do you serve the bond?
Section 7. Service of copies of bonds; effect of disapproval
of same. The party filing a bond in accordance with the
provisions of this Rule shall forthwith serve a copy of such
bond on the other party, who may except to the sufficiency
of the bond, or of the surety or sureties thereon. If the
applicant'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 injunction shall be
dissolved. If the bond of the adverse party is found to be
insufficient in amount, or the surety or sureties thereon fail
to justify a bond sufficient in amount with sufficient sureties
approved after justification is not filed forthwith, the
injunction shall be granted or restored, as the case may be.

Can you file a separate claim of damages, independent of the


main case, against the bond?
So its the same as that in Rule 57, Sec. 20
Section 8. Judgment to include damages against party and
sureties. At the trial, the amount of damages to be
awarded to either party, upon the bond of the adverse party,
shall be claimed, ascertained, and awarded under the same
procedure prescribed in section 20 of Rule 57.
Supposing after the trial of the case, a judgment based on its
merits is rendered in favor of the applicant, what will happen to
the injunction?
Section 9. When final injunction granted. If after the trial
of the action it appears that the applicant is entitled to have
the act or acts complained of permanently enjoined the court
shall grant a final injunction perpetually restraining the party
or person enjoined from the commission or continuance of
the act or acts of confirming the preliminary mandatory
injunction.
The preliminary injunction becomes a permanent injunction.
CODAL! Very basic.
In Kho vs. CA, the said decision on the merits of the trial court
rendered the issuance of the writ of a preliminary injunction
moot and academic notwithstanding the fact that the same has
been appealed in the Court of Appeals.
Being an ancillary remedy, the proceedings for preliminary
injunction cannot stand separately or proceed independently of
the decision rendered on the merit of the main case for
injunction. The merit of the main case having been already
determined in favor of the applicant, the preliminary
determination of its non-existence ceases to have any force and
effect.

Why is the adverse party has to be notified of the posting of the


counter bond?
What is the effect if the other party is not furnished of the
posting of the bond?
So is the failure of notice to the other party of the posting of the
bond a fatal? Does it make the issuance of the WPI null and
void?
No. In Fortune Life Insurance Co. vs. Luczon, Jr., the SC
held that the failure of the defendants to furnish the adverse
parties with copies of the bonds prior to their approval is not
sufficient to invalidate the orders dissolving the preliminary
injunction where the attorneys for the latter were notified of the
filing of the first bond; where they ultimately received copies of
the bonds; and where they do not contend that said bonds are
insufficient or that the sureties are not solvent.
What damages may be claimed against the bond?

The issuance of a final injunction renders any question on the


preliminary injunctive order moot and academic despite the fact
that the decision granting a final injunction is pending appeal.
Conversely, a decision denying the applicant-plaintiffs right to a
final injunction, although appealed, renders moot and academic
any objection to the prior dissolution of a writ of preliminary
injunction.
What if the decision is against the applicant? What happens to
the injunction?
Obviously, the injunction is automatically vacated.
Supposed the decision adverse to the applicant is appealed, or
rather the issuance of the WPI subject to a certiorari petition
before the higher court, and the trial court issued judgment
adverse to the applicant. What is the effect of the finding of the
TC adverse to the applicant of WPI pending?
If you are questioning the propriety of the issuance of the WPI,
or you do not agree with its issuance, what is your remedy?

How do you apply for damages?


1.

So when you claim damages against the bond, it has to be


before the judgment becomes final and executory.

That the defendant-claimant has secure a favourable


judgment in the main action;

Who enforces the writ? The sheriff.

Page 51 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
Suppose the sheriff is backed up by police authorities; can that
affect the validity of the writ?
No. So long as the sheriff was there to enforce the writ and the
police were only there to help the sheriff enforce it. In certain
cases where the implementation of the writ will meet strong
resistance from the defendants, the assistance of police
authorities has been recognized to be advisable in such cases.

RECEIVERSHIP
RULE 59
What do you understand about receiver?
A receiver is a person appointed by the court in behalf of all the
parties to the action for the purpose of preserving and
conserving the property in litigation and prevent its possible
destruction or dissipation, if it were left in the possession of any
of the parties.
What are the grounds for the appointment of a receiver?
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.
Sec. 1, Rule 59 provides for the following:
(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;

Page 52 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
(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.
(e) 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.
When can you apply for the appointment of a receiver?

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.

When there is already a pending case

What bond is supposed to be posted here?

What courts may appoint a receiver?

What is the condition of the bond? (The purposes of the bond)

1.

MTC where action is pending

When would the bond be held for damages?

2.

RTC where action is pending

How much was the amount of the bond?

3.

CA or any member thereof

Fixed by the court.

4.

SC or any member thereof

Can the court require additional bond?

5.

In case of dissolution of corporations, the SEC has


jurisdiction over dissolution of corporations and the
appointment of receiver (Sec 117-122 of Corp Code)

If you are the counsel of the other party and want to oppose
the application, what will be your grounds?

In the case of Commodities Storage and Ice Plant vs. CA,


was there a ground for the appointment of a receiver?

Now supposing a counter bond was posted, is it enough to deny


the application?

There was no ground. Since there was no showing that the


subject property is in danger of disappearing or being wasted
and reduced to a scrap heap.

No. The court has still the discretion.

What was the ground cited?

It is not automatic since Sec. 3 grants the court discretion.

That the property is a danger to the lives, health, and peace of


mind of the inhabitants
Where does it fall in the provision?
Was it proper?
What facts were cited in the application to justify the
appointment of a receiver under that ground?
Of all the three grounds cited in Commodities, only number 3
falls under the ground cited. The first one, the danger was not
to the property but to the lives of inhabitants living near the ice
plant. The second, the possible sanction which could be brought
by the plaintiff, it is actually a possible law suit. It is not a
danger to the property but rather to the parties. Number 3 was
the one, which would fall under the proper ground it being
directed to the property.
The main criterion of the appointment of receiver is the need of
preservation of the property subject of the action. The danger is
not against the parties, not against the occupants of the
property, but against the property itself. The second ground is
for the safety of the property subject to foreclosure. Third is for
the preservation of the property during the pendency of an
appeal, fourth is the appointment most convenient
In the case of Commodities, why is it that a receiver was not
appointed?
There were no sufficient proof as to the danger to the property
apart from the fact that the allegations of danger were already
addressed and remedied.
What is the nature of the remedy of receivership?
What are the basic requirements for the application of
appointment of a receiver?
If youre a lawyer, applying for a receiver, what do you need to
produce? How do you apply?
What is the form of the application?
It must be under oath.
Section 2. Bond on appointment of receiver. Before

What are the two basic modes of discharging the receiver?

Why is it not automatic?

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.
What is there as to the discretionary power of the court?
In the case of Ibarra, what is the nature or main purpose of
the receivership?
How about the preservation of a bond of surety, is it covered by
receivership?
In the case of Vivares, there was already a notice of
lispendens as applied, given that the notice of lispendens is
alreadt annotated, is it already enough to preserve the rights of
the parties? (Distinguish this with receivership)
Does that suffice to preserve the rights of the parties, the
annotation of the notice of lispendens?
It is enough. The rights of the parties can be preserved by the
annotation of the notice of lispendens. In other words, when
you merely state the preservation of the rights of the parties,
there is no need for you to apply for a receivership. The notice
of lispendens already serve as constructive notice to subsequent
buyers, making them in bad faith and not an innocent purchaser
for value, binding them to that of stated in the notice of
lispendens annotated.
Does the annotation of notice lispendens totally preclude the
appointment of a receiver?
Can they be remedies that cannot co-exist? NO.
Take note in the case of Vivares, you have to distinguish,
precisely there are preserving the rights of the parties to the
property vis a vis to the preservation of the property per se. If
merely preserving the rights, the notice of lispendens can

Page 53 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
already take care of that. But if the preservation of the
property, then you need a receiver as that will not be addressed
by the notice of lispendens. Precisely because there must be
someone who must administer and preserve the property --the receiver.
It was not proper for a court to appoint a receiver if one of the
parties is in possession and there was still dispute as to the
right of possession. If the appointment of a receiver will result
to the disposition of the property and such question of
possession is the subject of litigation, then you can not avail of
the remedy of receivership. Why?
The appointment of a receiver is already dispossessing the
party, then it is tantamount to already a judgment as to the
subject matter of the action.
What are the requirements for a receiver to assume his position
as such?
What is the amount of the bond? (that posted by a receiver)

is not filed forthwith, the receiver shall be appointed or reappointed, as the case may be. (6a)
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. (7a)
No action may be filed by or against a receiver without leave
of the court which appointed him. (n)

What are the conditions of the bond?


Who needs to make notice as to the bond?
Supposing the receiver has already posted of the bond, what
are the power or functions of a receiver?
The receiver can take possession of the property in a
controversy.
What happens now if the property is not delivered to the
receiver?
What are those properties that the receiver may take
possession?
The properties shall not be limited to real properties, As long as
they are subject of the controversy, they may be taken by the
receiver.
What are the penalties for not delivering the property to the
receiver?
How do you terminate the receivership?
How many grounds to terminate? What are they?
If it is by motion, what is the procedure? (pertaining to
termination)
How will the receiver be paid for his compensation? Who will
pay the receiver?
How do you pay damages against the receivers bond?
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 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. (n)
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. (8a)
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.

What is the difference of the receivership bond and that of the


receivers bond? Different conditions.
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
Page 54 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
conducted by the Bureau of Customs and to
enjoin or otherwise interfere with these
proceedings. It is the Collector of Customs,
sitting in seizure and forfeiture proceedings,
who has exclusive jurisdiction to hear and
determine all questions touching on the seizure
and forfeiture of dutiable goods. The Regional
Trial Courts are precluded from assuming
cognizance over such matters even through
petitions of certiorari, prohibition or mandamus.
The Court further explained:

REPLEVIN
RULE 60
Sept. 5, 2015 (HL)
What is replevin?
The term replevin is popularly understood as
"the return to or recovery by a person of goods
or chattels claimed to be wrongfully taken or
detained upon the person's giving security to try
the matter in court and return the goods if
defeated in the action;" "the writ by or the
common-law action in which goods and chattels
are replevied," i.e., taken or gotten back by a
writ for replevin;" and to replevy, means to
recover possession by an action of replevin; to
take possession of goods or chattels under a
replevin order.

It is likewise well-settled that the provisions of


the Tariff and Customs Code and that of
Republic Act No. 1125, as amended, otherwise
known as "An Act Creating the Court of Tax
Appeals," specify the proper fora and procedure
for the ventilation of any legal objections or
issues raised concerning these proceedings.
Thus, actions of the Collector of Customs are
appealable to the Commissioner of Customs,
whose decision, in turn, is subject to the
exclusive appellate jurisdiction of the Court of
Tax Appeals and from there to the Court of
Appeals.

The term therefore may refer either to the


action itself, for the recovery of personality, or
the provisional remedy traditionally associated
with it, by which possession of the property may
be obtain[ed] by the plaintiff and retained
during the pendency of the action.

The rule that Regional Trial Courts have no


review powers over such proceedings is
anchored upon the policy of placing no
unnecessary hindrance on the government's
drive, not only to prevent smuggling and other
frauds upon Customs, but more importantly, to
render effective and efficient the collection of
import and export duties due the State, which
enables the government to carry out the
functions it has been instituted to perform.

What is the objective of the provisional remedy of replevin?


To protect the plaintiffs right of possession of said property or
prevent the defendant from damaging, destroying or disposing
of the same during the pendency of the suit.
Section 1. Application. A party praying for the recovery of
possession of personal property may, at the commencement of
the action or at any time before answer, apply for an order for
the delivery of such property to him, in the manner hereinafter
provided.
When do you apply for replevin?

Section 2. Affidavit and bond. 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;

At the commencement of the action or at any time before


answer.

(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 ;

Can it be issued ex parte? Yes.


Under the rules, does it say ex parte?
The writ of replevin is issued upon the filing of the required
affidavit and the approval of the bond (Sec. 3). It is based only
on the allegation in the pleading because of the time element
involved. (previous TSN)
Who has jurisdiction to issue the writ?

(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 court where the case is pending.


In what action must you avail of the writ of replevin?
Actions involving recovery of possession of personal property.
Which court has jurisdiction to issue the writ?
Depends on the value of the property sought to be recovered.
MTC/RTC.
Can the CA issue a writ of replevin? (No)

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.
What are the basic requirements in applying for a writ of
replevin? Affidavit and a bond.
What do you need to state in the affidavit?

Atty. Tiu: The CA has no jurisdiction to hear recovery of


possession cases, so it cannot issue a writ of replevin.

(a) That the applicant is the owner of the property


claimed, particularly describing it, or is entitled to the
possession thereof;

CASE: Asian Terminals, Inc. vs Ricafort


Can the courts recover properties seized by the Bureau of
Customs? No.
As the Court ruled in Jao v. Court of Appeals,
Regional Trial Courts are devoid of any
competence to pass upon the validity or
regularity of seizure and forfeiture proceedings
Page 55 of 63

(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

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
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.
Whats the condition of the bond?
The 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.
Superlines Transportation Company, Inc., vs PNCC:
If a property is involved in a case, if it is an evidence of a case,
can it be replevied?
If the property was held as evidence in a criminal case, it
cannot be replevied. But the rule applies only where the
property is lawfully held.
It is true that property held as evidence in a criminal case
cannot be replevied. But the rule applies only where the
property is lawfully held, that is, seized in accordance with the
rule against warrantless searches and seizures or its accepted
exceptions. Property subject of litigation is not by that fact
alone in custodia legis.
As the Court said in Tamisin v. Odejar, "A thing is in custodia
legis when it is shown that it has been and is subjected to the
official custody of a judicial executive officer in pursuance of his
execution of a legal writ." Only when property is lawfully taken
by virtue of legal process is it considered in the custody of the
law, and not otherwise.
When a vehicle is impounded due to an accident, does it place
the vehicle under custodia legis? No.
So what constitute custodia legis?
Only when the property is lawfully taken by virtue of legal
process it is considered in the custody of the law.
Factoran vs CA:
Can the properties (logs and the vehicle used) seized by the
DENR be considered in custodia legis? Yes.
Issuance of the confiscation order by petitioner
Secretary was a valid exercise of his power
under Sec. 68-A of P.D. No. 705. By virtue of
said order, the narra lumber and six-wheeler
truck of private respondents were held in
custodia legis and hence, beyond the reach of
replevin.
Property lawfully taken by virtue of legal
process is deemed to be in custodia legis. When
a thing is in official custody of a judicial or
executive officer in pursuance of his execution
of a legal writ, replevin will not lie to recover it.
Otherwise, there would be interference with the
possession before the function of law had been
performed as to the process under which the
property was taken.

alleged to be wrongfully detained and requiring the


sheriff forthwith to take such property into his custody.
Section 4. Duty of the sheriff. Upon receiving such order,
the sheriff must serve a copy thereof on the adverse party,
together with a copy of the application, affidavit and bond, and
must forthwith take the property, if it be in the possession of
the adverse party, or his agent, and retain it in his custody. If
the property or any part thereof be concealed in a building or
enclosure, the sheriff must demand its delivery, and if it be not
delivered, he must cause the building or enclosure to be broken
open and take the property into his possession. After the sheriff
has take possession of the property as herein provided, he must
keep it in a secure place and shall be responsible for its delivery
to the party entitled thereto upon receiving his fees and
necessary expenses for taking and keeping the same.
When should the sheriff enforce the writ? Before or after the
service of summons? Do you need prior service of summons?
What will be the duty of the sheriff? How will it seized the
property?
Upon receiving such order, the sheriff must serve a copy thereof
on the adverse party, together with a copy of the application,
affidavit and bond, and must forthwith take the property, if it be
in the possession of the adverse party, or his agent, and retain
it in his custody.
So in taking possession of the property, what must the sheriff
do when the property is an enclosed building?
If the property or any part thereof be concealed in a building or
enclosure, the sheriff must demand its delivery, and if it be not
delivered, he must cause the building or enclosure to be broken
open and take the property into his possession.
Section 5. Return of property. If the adverse party objects
to the sufficiency of the applicant's bond, or of the surety or
sureties thereon, he cannot immediately require the return of
the property, but if he does not so object, he may, at any time
before the delivery of the property to the applicant, require the
return thereof, by filing with the court where the action is
pending a bond executed to the applicant, in double the value
of the property as stated in the applicant's affidavit for the
delivery thereof to the applicant, if such delivery be adjudged,
and for the payment of such sum, to him as may be recovered
against the adverse party, and by serving a copy of such bond
on the applicant.
After the sheriff has taken possession of the property, what will
the defendant do in order to get the immediate repossession of
the property? (Note that the remedies are ALTERNATIVE)
1) Object to the sufficiency of the bond OR
2) Require the return of the property by filing with the
court where the action is pending a bond executed to
the applicant in double the value of the property as
stated in the applicants affidavit.
What is the condition attached to the replevin bond?
A 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.

Section 3. Order. Upon the filing of such affidavit and


approval of the bond, the court shall issue an order and the
corresponding writ of replevin, describing the personal property
alleged to be wrongfully detained and requiring the sheriff
forthwith to take such property into his custody.

What is the condition of the counterbond?

What will the court do after the affidavit and bond has been
filed?
The court shall issue an order and the corresponding
writ of replevin, describing the personal property

Page 56 of 63

The counterbond is to answer for damages that the


plaintiff may suffer if it turns out that all along the
plaintiff is entitled to the possession of the property.
And also if after the case is won by the plaintiff and

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
the defendant is ordered to retain the property if by
that time the property is already dilapidated or its
value has already depreciated. (TSN)
CODALS: . . .by filing with the court where the action is

pending a bond executed to the applicant, in double


the value of the property as stated in the applicant's
affidavit for the delivery thereof to the applicant, if
such delivery be adjudged, and for the payment of
such sum, to him as may be recovered against the
adverse party. . .
Can you object to the sufficiency of the replevin bond when you
have already posted a counterbond?
No. The remedies are alternative. The defendant can
either post a counterbond or object to the sufficiency
of the bond.

against a third-party claimant who filed a frivolous or plainly


spurious claim, in the same or a separate action.
When the writ of replevin is issued in favor of the Republic of
the Philippines, or any officer duly representing it, the filing of
such bond shall not be required, and in case the sheriff is sued
for damages as a result of the replevin, he shall be represented
by the Solicitor General, and if held liable therefor, the actual
damages adjudged by the court shall be paid by the National
Treasurer out of the funds to be appropriated for the purpose.
What happens if the property replevied is actually
owned/claimed by a third party?
File a third party claim (Terceria).
Section 7. If the property taken is claimed by any
person other than the party against whom the writ of
replevin had been issued or his agent, and such person
makes an affidavit of his title thereto, or right to the
possession thereof, stating the grounds therefor, and
serves such affidavit upon the sheriff while the latter
has possession of the property and a copy thereof
upon the applicant, the sheriff shall not be bound to
keep the property under replevin or deliver it to the
applicant unless the applicant or his agent, on demand
of said sheriff, shall file a bond approved by the court
to indemnify the third-party claimant in a sum not less
than the value of the property under replevin as
provided in section 2 hereof.

How will the sheriff dispose of the property replevied?


Section 6. Disposition of property by sheriff. If within five
(5) days after the taking of the property by the sheriff, the
adverse party does not object to the sufficiency of the bond, or
of the surety or sureties thereon; or if the adverse party so
objects and the court affirms its approval of the applicant's
bond or approves a new bond, or if the adverse party requires
the return of the property but his bond is objected to and found
insufficient and he does not forthwith file an approved bond,
the property shall be delivered to the applicant. If for any
reason the property is not delivered to the applicant, the sheriff
must return it to the adverse party.
What are the instances that the sheriff shall deliver the
properties to the applicant?
1) The adverse party does not object to the sufficiency of the
bond or of the surety or sureties thereon;
2) The adverse party so objects and the court affirm its
approval of the applicants bond or approves a new bond;
3) The adverse party requires the return of the property but his
bond is objected to and found insufficient and he does not file
an approved bond.

Atty. Tiu: So the same rule applies when there is a third party
claim under Rule 57. If the property that was seized or
replevied belongs to another person.
Section 8. Return of papers. The sheriff must file the order,
with his proceedings indorsed, thereon, with the court within
ten (10) days after taking the property mentioned therein.
After the sheriff has taken the property, what should the sheriff
do?
The sheriff must file a return with the proceedings taken within
10 days after taking the property.
--------

What are the instances when the sheriff has to deliver the
property to the adverse party?

SECTIONs 1 & 2

1) Section 6: xxx If for any reason the property is not


delivered to the applicant, the sheriff must return it to the
adverse party.

Who can maintain an action for replevin?


The owner of the property or one who is entitled to the
possession thereof.

2) If the adverse party files a counterbond.


Section 7. Proceedings where property claimed by third
person. If the property taken is claimed by any person other
than the party against whom the writ of replevin had been
issued or his agent, and such person makes an affidavit of his
title thereto, or right to the possession thereof, stating the
grounds therefor, and serves such affidavit upon the sheriff
while the latter has possession of the property and a copy
thereof upon the applicant, the sheriff shall not be bound to
keep the property under replevin or deliver it to the applicant
unless the applicant or his agent, on demand of said sheriff,
shall file a bond approved by the court to indemnify the thirdparty claimant in a sum not less than the value of the property
under replevin as provided in section 2 hereof. In case of
disagreement as to such value, the court shall determine the
same. No claim for damages for the taking or keeping, of the
property may be enforced against the bond unless the action
therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond.
The sheriff shall not be liable for damages, for the taking or
keeping of such property, to any such third-party claimant if
such bond shall be filed. Nothing herein contained shall prevent
such claimant or any third person from vindicating his claim to
the property, or prevent the applicant from claiming damages

PCI Leasing vs Dai:


What is the nature of the action of replevin?
It is possessory in nature.
If it is possessory in nature, what kind of action is that?
Mixed action partly in rem and partly in personam.
Replevin is so usually described as a mixed
action, being partly in rem and partly in
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.
Citibank vs CA:
Can the writ of replevin be issued without an affidavit? No.
Is that rule absolute? No.

Page 57 of 63

There is substantial compliance with the rule


requiring that an affidavit of merit to support

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
the complaint for replevin if the complaint itself
contains a statement of every fact required to
be stated in the affidavit of merit and the
complaint is verified like an affidavit.

In default of the mortgagor, the mortgagee is


thereby constituted as attorney-in-fact of the
mortgagor, enabling such mortgagee to act for
and in behalf of the owner. That the defendant
is not privy to the chattel mortgage should be
inconsequential. By the fact that the object of
replevin is traced to his possession, one properly
can be a defendant in an action for replevin.

Can the writ be issued without the bond? No.


What is the basis of the bond?
Actual market of the property subject of the replevin suit.
How do you determine the actual market value of the property?
Actual value (or actual market value) is "the price which
an article would command in the ordinary course of
business, that is to say, when offered for sale by one
willing to sell, but not under compulsion to sell, and
purchased by another who is willing to buy, but under
no obligation to purchase it.
Who should provide the actual market value of the property?
The applicant.

-------What kind of possession by the defendant must be shown in


order for the writ to be issued?
Atty. Tiu: There must be wrongful possession of the property. If
you do not allege wrongful possession or wrongful detention of
the property, you are not entitled to a writ of replevin. You
should have a right to the possession with the corresponding
wrongful possession by the defendant of the property sought to
be replevied.
In a complaint for replevin, the claimant must
convincingly show that he is either the owner or clearly
entitled to the possession of the object sought to be
recovered, and that the defendant, who is in actual or
legal possession thereof, wrongfully detains the same.

Where will you state it?


In the affidavit.
If the applicant will only state the probable value of the
property, will that suffice? No.

(CASE: Superlines vs PNCC)

The actual value of the properties subject of a replevin


is required to be stated in the affidavit because such
actual value will be the basis of the replevin bond
required to be posted by the plaintiff. Therefore, when
the petitioner failed to declare the actual value of the
machineries and equipment subject of the replevin suit,
there was non-compliance with Section 2, Rule 60 of the
Revised Rules of Court.
Can the writ of replevin be issued if the value of the property
sought to be replevied is disputed?

SECTION 3
What kind of properties must be replevied? Personal
Sergs Products, Inc. vs PCI Leasing:
How about immovable properties?
No, except if it was agreed upon by the parties that they be
considered as immovable pursuant to the provisions of the Civil
Code.
What happened in the case of Sergs Products, what kind of
properties are involved here?

No. The court has to determine first the value of the property
before it can issue the writ.
The Rules of Court requires the plaintiff to "give
a bond, executed to the defendant in double the
value of the property as stated in the affidavit . .
. ." Hence, the bond should be double the actual
value of the properties involved. In this case,
what was posted was merely an amount which
was double the probable value as declared by
the plaintiff and, therefore, inadequate should
there be a finding that the actual value is
actually far greater than P200,000.00. Since the
valuation made by the petitioner has been
disputed by the respondent, the lower court
should have determined first the actual value of
the properties. It was thus an error for the said
court to approve the bond, which was based
merely on the probable value of the properties.

Why they were treated as personal properties when they were


already considered immovable properties by destination?
In the present case, the machines that were the
subjects of the Writ of Seizure were placed by
petitioners in the factory built on their own
land. Indisputably, they were essential and
principal elements of their chocolate-making
industry. Hence, although each of them was
movable or personal property on its own, all of
them have become "immobilized by destination
because they are essential and principal
elements in the industry."
In that sense,
petitioners are correct in arguing that the said
machines are real, not personal, property
pursuant to Article 415 (5) of the Civil Code.
Be that as it may, we disagree with the
submission of the petitioners that the said
machines are not proper subjects of the Writ of
Seizure.

Servicewide Specialists vs CA:


Can a mortgagee maintain an action for replevin? Yes.
There can be no question that persons having a
special right of property in the goods the
recovery of which is sought, such as a chattel
mortgagee, may maintain an action for replevin
therefor. Where the mortgage authorizes the
mortgagee to take possession of the property on
default, he may maintain an action to recover
possession of the mortgaged chattels from the
mortgagor or from any person in whose hands
he may find them."
What if the property is in possession of a third person who
asserts ownership over the thing, can the mortgagee recover
the property by a writ of replevin? Yes.

The Court has held that contracting parties may


validly stipulate that a real property be
considered as personal. After agreeing to such
stipulation, they are consequently estopped
from claiming otherwise.
Because there was a stipulation as to these properties as
personal despite the fact that they are machineries in the
industry which under the law should have been immobilized by
destination.
SECTION 4
Torres vs Cabesuela:
Can the sheriff delegate the implementation of the writ? No.

Page 58 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015

custodia legis should be placed infront of

Can the writ of replevin be implemented anywhere in the


Philippines?

respondents residence without taking into


account the problem of safety and security. He
unduly exposed the jeep to undesirable
elements, making it an easy prey for thieves
and carnappers.

Yes but the sheriff enforcing the writ outside his territorial
jurisdiction must first notify in writing and seek the assistance of
the sheriff where the execution shall take place.
"No sheriff or deputy sheriff shall execute a
court writ outside his territorial jurisdiction
without first notifying in writing, and seeking
the assistance of the sheriff of the place where
the execution shall take place."

"Section 4, Rule 60 of the Rules of Court


provides: . . . When the officer has taken
property as herein provided, he must keep it in a
secure place and shall be responsible for it and
ultimately deliver it to the party entitled thereto
upon receiving his fees and necessary expenses
for taking and keeping the same.

Rivera vs Vargas:
When a sheriff serves the writ, who should be given a copy
thereof?

"Evidently, the respondent was remiss in the


performance
of
his
official
duty
and
responsibility to safely secure the property in
his custody until its delivery to the party entitled
to it, as mandated by the rules. The vehicle
could have been deposited in the premises of
the court where it is secured, or, at any other
place where the required security is provided for
and available. For after all, the respondent
should have known that his office could have
charged the party entitled to it, allowable fees
for storage, necessary in safely keeping the
property in custodia legis.

As provided in Sec. 4, the adverse party.


The process regarding the execution of the writ
of replevin in Section 4 of Rule 60 is
unambiguous: the sheriff, upon receipt of the
writ of replevin and prior to the taking of the
property, must serve a copy thereof to the
adverse party (petitioner, in this case) together
with the application, the affidavit of merit, and
the replevin bond. The reasons are simple, i.e.,
to provide proper notice to the adverse party
that his property is being seized in accordance
with the court's order upon application by the
other party, and ultimately to allow the adverse
party to take the proper remedy consequent
thereto.
Service of the writ upon the adverse party is
mandatory in line with the constitutional
guaranty on procedural due process and as
safeguard against unreasonable searches and
seizures. If the writ was not served upon the
adverse party but was instead merely handed to
a person who is neither an agent of the adverse
party nor a person authorized to receive court
processes on his behalf, the service thereof is
erroneous and is, therefore, invalid, running
afoul of the statutory and constitutional
requirements. The service is likewise invalid if
the writ of replevin was served without the
required
documents.
Under
these
circumstances, no right to seize and to detain
the property shall pass, the act of the sheriff
being both unlawful and unconstitutional.
In the case at bar, petitioner avers that the writ
of replevin was served upon the security guard
where the rock-crushing plant to be seized was
located.
. . . since the writ was invalidly served,
petitioner is correct in contending that there is
no reckoning point from which the mandatory
five-day period shall commence to run. xxx
Gomez vs Concepcion:
After taking the property, where should the sheriff take the
property?
"Section 4, Rule 60 of the Rules of Court provides: .
. . When the officer has taken property as herein
provided, he must keep it in a secure place and shall
be responsible for it and ultimately deliver it to the
party entitled thereto upon receiving his fees and
necessary expenses for taking and keeping the same.
Keep it in a safe place, can he keep it in his home? Can he do
that? No.
"The
undersigned
cannot
find
a
valid
explanation why the passenger jeepney under

SECTION 6
Hao vs Andres:
Can he place it in the possession of the applicant?
Yes but the property seized should not be immediately delivered
to the plaintiff; the sheriff must retain custody of the seized
property for at least 5 days. (Sec. 6)
The rules provide that property seized under a
writ of replevin is not to be delivered
immediately to the plaintiff. In accordance with
the said rules, Andres should have waited no
less than five days in order to give the
complainant an opportunity to object to the
sufficiency of the bond or of the surety or
sureties thereon, or require the return of the
seized motor vehicles by filing a counter-bond.
The purpose of replevin is for the applicant to recover the
property from the defendant who has wrongfully detained the
property. But under the rules the sheriff must wait for 5 days.
Within the 5-day period, the defendant may post a counterbond
in which case the property cannot be turned over to the
applicant but to the defendant OR if there is no counterbond
filed but there is an issue as to the sufficiency of the applicants
bond then the property will have to be turned over to the
defendant.
So there is no immediate turn over. But eventually it will be
turned over either to the applicant if there is no counterbond or
back to the defendant. Under the rules, the sheriff does not
take possession of the property for the entire duration of the
case. That is where it differs with the remedy of attachment.
In attachment, it has to be in the possession and custody of the
court or the sheriff the entire time that the main case is
pending. But for replevin, it has to be in possession of the
applicant if there is no counterbond or the defendant if a
counterbond is posted. So under the rules on replevin, the
sheriff will take possession of the seized property only for 5
days until the court should have resolved on who should have
possession of the property while the case is pending. Because
the issue on replevin is temporary possession of the property
during the pendency of the case.
Whats the other term for the counterbond? Redelivery bond.
When do you post the counterbond/redelivery bond?

Page 59 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
Within 5 days after the taking of the property by the sheriff
(Sec.6).

replevin was resorted to for the purpose of extrajudicial


foreclosure.

When do you start counting the 5 day period?

Why is section 9 not applicable to a mortgagee?

From the valid service of the writ of replevin.

What precisely in section 9 is not applicable?

What is the purpose of the 5 day waiting period?

Which came first the replevin or the extrajudicial foreclosure?

The purpose of the five (5) day period in Section 6, Rule 60 is


to give defendants in a replevin case a chance to require the
return of the property by filing a counterbond.

Can you maintain both replevin and extrajudicial foreclosure?

Supposing the 5 day period is over and no counterbond is filed,


what should the sheriff do?
Return the property to the applicant. (Sec. 6)
What is the nature of that duty to deliver the property to the
applicant? Ministerial.
September 5, 2015 (CJB)
After trial in the merits, what should the judgment contain?
Sec. 9. Judgment. After trial of the issues, the court shall
determine who has the right of possession to and the value of
the property and shall render judgment in the alternative for the
delivery thereof to the party entitled to the same, or for its
value in case delivery cannot be made, and also for such
damages as either party may prove, with costs.
The judgment shall contain an order:
5.

Determination on who has the right of possession to


and the value of the property

6.

In the alternative, either for


a.

The delivery of the property to the party entitled


thereto

b.

The payment of the value of the property in case


delivery thereof cannot be made

3. Damages as either party may prove, with costs.


Does Section 9 apply where the replevin was applied by a
mortgagee for the purpose of foreclosing the mortgage? NO
In Allandale Sportsline vs. Good Development: The effect
of the election by respondent of the remedy of extra-judicial
foreclosure is the inapplicability of Section 9, Rule 60 of the
Rules of Court.
In extrajudicial foreclosure, you have to really seize the property
and sell it at public auction. It cannot be that only the value of
the property will be returned to you in case return of the
property is not possible. Thats why Section 9 does not apply.
The purpose of your replevin is to gain possession of the
property so you may sell it at public auction. Thats the main
reason why you ought to replevin preparatory to an
extrajudicial foreclosure.
Whereas, in an ordinary replevin case, the issues that are to be
tried and must be settled in the judgment includes who has the
right to possession over the property. That is no longer
applicable in an extrajudicial foreclosure because, by virtue of
the mortgage contract, the mortgagor has already granted
authority to the mortgagee to obtain possession of the
mortgaged property for purposes of public auction. No issue at
all with respect to who has the legal right to possess the
property because that has already been conceded by the
mortgagor in the mortgage contract, which is the main basis of
the foreclosure.
Second, delivery of the property or the value thereofthat is
out of the question. The property has to be delivered because
that is the very property that will be publicly sold, subject of the
public auction and the proceeds thereof applied to the
outstanding loan.So that is an exception to the rule. If the

If you are a chattel mortgagee, the only way you can foreclose
the chattel mortgage is to seize the property. If it is a car that is
the subject of the chattel mortgage, how do you foreclose it?
You have to take possession of the chattel. Otherwise you
cannot foreclose. That is why in a chattel mortgage, there is
always that power of attorney for you to take possession of the
property when there is default, for purposes of foreclosure.
Most replevin actions in court are precisely for the purpose of
foreclosing a chattel mortgage. These two are not inconsistent
remedies. Precisely, you need to get a writ of replevin in order
to get possession the property for purposes of foreclosing the
chattel mortgage.
What does not apply in section 9 is the delivery of the
property to you because you are not really entitled to
the possession of the property or to keep it. Your main
purpose is just to have possession in order for you to
foreclose and sell the property at a public auction. So
who has the real possession? It will be the highest bidder,
during the auction sale, who is entitled to possession. That is
what does not apply under section 9. There may be a judgment
rendered by the court, but the court will not say that you are to
keep the property as a rightful possessor or owner thereof
because it is very clear from the start that you are only using
replevin as a means to foreclose on the chattel mortgage.
Normally under section 9, there is a dispute on the issue of
possession. That is why the possession there or the issue on
possession will have to be adjudged by the court in the
decision. The court will now determine who should have
possession over the property. To whom should the property be
delivered. But if you are the mortgagee, there is no really
a real issue on possession, because by virtue of the
contract of mortgage, the mortgagor had already
relinquished possession to the mortgagee upon default
that is why you are entitled possession of the property.
The moment there is default, the possession by the mortgagor
has become handed, which entitles the mortgagee possession
over the chattel for purposes of foreclosure.
What happens to the writ if the case is dismissed for failure to
prosecute?
In Advent Capital vs. Young, upon the dismissal of the
replevin case for failure to prosecute, 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 therewas no determination of the issue who
has the better right to possess the subject car. Advent cannot
therefore retain possession of the subject car considering that it
was not adjudged as the prevailing party entitled to the remedy
of replevin.
So when there is failure to prosecute, the ancillary remedy of
replevin or the writ of replevin shall also be considered
terminated or no longer effective. It is automatically vacated.
When do you claim damages against the replevin bond?
Sec. 10. 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 as
prescribed in section 20 of Rule 57.
Just like in Section 20 of Rule 57, you need to file it in the same
proceeding.

Before or after final judgement?


Page 60 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
Pursuant to:
RULE 57. Section 20. 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 party
and 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.

SUPPORT PENDENTE LITE


RULE 61
What is support pendente lite?
Support pendent lite is an amount adjudicated by the trial court
during the pendency of an action for support upon application
by the plaintiff at the commencement of the proper action or at
anytime afterwards. It is a remedy by the Revised Rules of
Court and classified as a provisional remedy rendered by the
court as equity and justice may require.
When do you apply for support pendente lite?
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.
Must the main action have to be support?
NO, the law provides in a proper action It is not only limited to
the main action for support. It also includes actions for legal
separation, declaration of nullity of marriage, annulment of
marriage, cases for rape, seduction and other crimes against
chastity.
How do you apply for support pendente lite? What are the
requirements?
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.
What is the condition sine qua non before you can ask for
support or support pendente lite?
The must first be an extra-judicial demand.
Can you ask for support in a case for recovery of property?
No.
In Coquia vs. Baltazar, Rule 63 of the Rules of the Court,
which authorizes the granting of alimony pendente lite" at the
commencement of the proper action, or at any time afterwards
but prior to the final judgment," is not applicable to this case.
The action commenced before the respondent judge was not for
support but for the recovery of the ownership and possession of
real property. Manifestly such an action is not "the proper
action" contemplated by said rule The mere fact that the
plaintiffs have legal and equitable rights in the property
they seek to recover does not authorize the court to
compel the defendants to support the plaintiffs pending
the determination of the suit.
Can you ask support pendente lite during the pendency of an
appeal?
Yes. Under Section 1 At the commencement of the proper
action or proceeding, or at any time prior to the
judgment or final order.
What happens after the application for support pendente lite is
filed in court?
SEC. 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.
Page 61 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
How many days to comment?

2.

the resources or means of the adverse party

5 days to comment thereon unless a different period is fixed by


the court upon his motion

3.

the terms of payment or mode for providing the


support

What is the form of the comment?


The comment shall be verified and shall be accompanied by
affidavits, depositions or other authentic documents in support
thereof.

What is the nature of the order granting support pendente lite?


It is interlocutory and immediately executor.
If the application for support pendete lite has been denied,
what is the remedy?

After the comment has been filed, can the court issue support
pendete lite? Not yet, there must be a hearing.

The remedy is petition for certiorari under Rule 65

SEC. 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)

There can be no appeal in an interlocutory order. Under Rule 39


Section 4, judgment for support is immediately executory and
enforceable after its rendition and shall not be stayed by an
appeal.

What will happen during the hearing?


What is the hearing all about?
Presentation of evidence to show that there is a prima facie
proof for entitlement of support pendete lite.
Supposing that the defendant denies any obligation to give
support, meaning the applicant has no right to demand support
from the defendant. What kind of proof or what kind of
evidence must be presented in order for the court to grant
support pendente lite?
Clear and satisfactory Proof. (According
Fundamentals of Support Pendente Lite)

to

SCRA

In Mangonon vs. CA, the SC said, after the hearings


conducted on this matter as well as the evidence presented, we
find that petitioner was able to establish, by prima facie
proof, the filiation of her twin daughters to private respondents
and the twins entitlement to support pendente lite.
When the defendant denies the ground for support pendente
lite, is the court required to hear and receive the defendants
evidence?
What are the possible defense against support pendente lite?

[2] Non-existence of marriage

The principal case shall be tried and decided as early as


possible.
What is the nature of the order granting support pendente lite?
It is interlocutory
How do you enforce it?
SEC. 5. Enforcement of order. If the adverse party fails to
comply with an order granting support pendente lite, the court
shall, motuproprio or upon motion, issue an order of execution
against him, without prejudice to his liability for contempt. (6a)
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. (n)
What kind of order is that? What is the nature of that order?
The order is immediately executory.

When do you ask for an order of execution? If the adverse party


fails to comply with an order granting support pendente lite, the
court shall, motuproprio or upon motion, issue an order of
execution against him, without prejudice to his liability for
contempt.

[3] Death of Recipient


[4] Improper conduct of the person seeking support
What happens after the hearing? What will the court do?
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. (5a)
In determining whether to grant the application for support
pendente lite, what factors must the court consider?
The pertinent facts and the sufficiency of the evidence
presented. It must show a clear and satisfactory proof that the
applicant is entitled for support pendente lite.
In determining the amount of support pendente lite, what
should the court consider? What are the factors?
the necessities of the applicant

If the court denies the application for support pendent lite what
should you do?

So a support pendente lite as a provisional remedy is


immediately executory. Meaning, you do not have to wait for
the judgment on the merits to ask for an order of execution.

[1] Denial of Paternity

1.

Why not an appeal?

Aside from execution, what other remedy can you ask from the
court if there is failure to comply with the order granting
support? 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.
If the court grants or requires the defendant to reimburse the
third party, what is the remedy of the third party against the
defendant if the latter fails to reimburse?
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.
So it is still subject to execution in case of failure to reimburse
the support given by the third party.
Can there be support pendente lite in a criminal case? Yes
SEC. 6. Support in criminal cases. 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 or instituted prior to its filing, the accused

Page 62 of 63

PROVISIONAL REMEDIES TRANSCRIPT


From the lectures of Atty. Geraldine Tiu
Ateneo de Davao College of Law | Tres Manresa 2015
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 this Rule. (n)
Who should file the application in that case considering that it is
a criminal case? Who should file for support pendente lite?
The application therefor may be filed successively by the
offended party, her parents, grandparents or guardian
and the Statein the corresponding criminal case during its
pendency, in accordance with the procedure established under
this Rule.
Supposing it is found out later on after trial on the merits that
the defendant who was required to give support pendente lite is
not liable? Meaning there is a valid denfense, what happens
now?
SEC. 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. (n)
So there will be a restitution. A return of all the support that
was given plus legal interest.
Supposing the applicant cannot reimburse the amount, what will
happen?
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.
If the defendant is not the real father of the child and the real
father has not been part of the case. The support that has
been given by the defendant can be reimbursed or
returned to him in the same case from the recipient or
against the person legally obliged in a separate action.
Can a judgment granting support be executed pending appeal?
Yes, it is immediately executory even pending appeal.
What is support in arrears?
It would be that amount of support that should have been
granted to the applicant adjudged to be entitled for support.
Is the order granting support pendente lite fixed? No.
In the case of San Juan vs. Valenzuela, the court held that
the order fixing the amount of support is not final in character
in the sense that it can be subject to modification depending in
the change of the conditions affecting the ability of the obligor
to pay the amount for support.
The amount of support can vary depending on the needs of the
applicant as well as the capability of the defendant to support.
It varies based on the circumstances.

[those in RED are answers given by classmates or


transcribers themselves, please double-check ]
COMPLETE TSN FOR PROVREM. KJ
Page 63 of 63