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PROVISIONAL REMEDIES - writs and processes available during the pendency

of the action which may be resorted to by a litigant to preserve and protect


certain rights and interests therein pending rendition, and for the purpose of the
ultimate effects, of a final judgment in the case.
PRELIMINARY ATTACHMENT - issued upon order of the court where an action is
pending to be levied upon the property of the defendant for the same to be held by
the Sheriff as security for the satisfaction of whatever judgment may be rendered in
the case
This is only an ancillary remedy. There is no separate action called preliminary
attachment. It is not a distinct proceeding and is availed of within a principal action
because it is a mere provisional remedy. The grant of remedy is addressed to the
discretion of the court.
- Can be filed separately after an action has been filed
- Ex parte or upon motion, even before acquiring jurisdiction over the
defendant as long as summons have been served (prior or contemporaneous
service, except if cannot be served even if with best efforts, not in PH, or
action is in rem or quasi in rem)
1. Applicant submit an affidavit (can be another but who knows the facts)
2. Affidavit shows that the PL has sufficient cause of action and contains the
grounds found in R57 S1
3. No sufficient security to protect the claim of the PL
4. Must show how much the claim / value of the property
5. Post bond
a. Executed in favor of an adverse party in an amount fixed by court
b. To answer for all costs and damages
PURPOSE
1. seize the property of the debtor before final judgment and put the same in
custodia legis even while the action is pending for the satisfaction of a later
judgment
2. enable the court to acquire jurisdiction over the res or the property subject of
the action in cases where service in person or any other service to acquire
jurisdiction over the defendant cannot be effected
GROUNDS FOR THE ISSUANCE OF A WRIT OF PRELIMINARY ATTACHMENT
1. Actions for the recovery of a specified amount of money or damages
XPN:
o moral and exemplary damages
o against a party who is about to depart from the Philippines which intent to defraud
his creditors
2. Actions 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
3. Actions 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
4. Actions against a party who has been guilty of a fraud in contracting the debt or
incurring or performance the obligation upon which the action is brought
5. Actions against a party who has removed or disposed of his property, or is about
to do so, with intent to defraud his creditors
6. Actions against non-residents not found in the Philippines, or person upon whom
summons may be served by publication
Note: Insolvency of defendant is not a ground for attachment especially when
defendant has not been shown to have committed any act intended to defraud its
creditors

Counterbond or Cash deposit


- Upon submission to the court, attachment is discharged
Flow
Complaint Application for PA Affidavits Bond Order Authorize the issuance of
write Fixing bond (amount) Posting of Bond - Actual writ of attachment issued
(issued by CoC) directs sheriff to attach (RD if real; possession if personal;
recording if incorporeal) Counterbond (same amount of the PL bond) Court
approve CB Property seized to be returned by Sheriff remove annotation in RD
OR if no CB then remain with Sheriff and sold to satisfy claim after judgment

PRELIMINARY INJUNCTION - ancillary or preventive remedy where a court requires a


person, a party or even a court or tribunal either to refrain (prohibitory) from or to
perform (mandatory) particular acts during the pendency of an action.
- Principal action or provisional remedy
Prohibitory prevents a party in performing a particular act
Mandatory directs a party to perform an act
- Cannot take the possession or transfer of possession of property already in
the hands of 3rd person
Purpose: To preserve the status quo ante (before the controversy)
REQUIREMENT:
1. Principal action
2. Verified application
a. Right to be protected
b. Actual / threatened violation of such right
c. Irreparable injury if injunction is not issued UNCOMPENSABLE (no
amount will be able to repair the injury if writ of inunction is not
granted)
Note: If money judgment (compensable) but if will cause irreparable injury then still
allowed
GROUNDS FOR THE ISSUANCE OF A PRELIMINARY INJUNCTION
A: (Sec. 3, Rule 58)
1. Clear legal right of the applicant
2. The commission, continuance or non-performance of the act or acts
complained of will cause injustice to the applicant
3. Person against whom injunction is sought is doing, threatening, attempting,
procuring or suffering to do some act or acts in violation of applicants rights
tending to render the judgment ineffectual.
GROUNDS FOR OBJECTIONS OR DISSOLUTION OF INJUNCTION OR
RESTRAINING ORDER
1. Insufficiency of application for injunction or restraining order
2. Issuance or continuance of injunction or restraining order causes irreparable
injury while applicant may be fully compensated for damages by bond
3. Extent of injunction or restraining order is too great
Effect: modification
4. Insufficiency or defective bond
Note: Filing of verified motion and bond as well as hearing is required
TRO 72 hrs or 20 days
Applicant:
Judicial affidavit + bond (fixed by court)
Complaint / initiatory pleading + application for TRO/ PI
filed in multi-sala court (executive judge) filed in single-sala court (presiding
judge)
matters of extreme urgency filed within 72 hours (only TRO that can be issued ex
parte)
- Discretionary
Summons + complaint + application + notice of raffle (so DF can observe that raffle
is not riged)
Summary hearing = If 3 (72h) + 17 days OR full 20 days
- Lapse of 20 days TRO vacated or expired
- Period of 20 days the court should hold hearings on the application of PI
proper
Counterbond in PI will not necessarily lift the injunction (discretion with the court;
unlike in attachment that it is mandatory)
Periods:
20 day TRO trial court
60 days CA
Indefinite - SC
Preliminary Injunction

RECEIVERSHIP to preserve the property subject of litigation (ex: property of


corporation)
- Receiver can sue, collect rent and debts
- Trust relationship between receiver and court; subject liability if misused
Verified Application Bond by Applicant Approval - Notice and Hearing
3 Bonds:
1. Applicants Bond to answer for damages might suffer should the
appointment be wrong
2. Counterbond avoid receivership; to take to place the property sought to be
under receivership
3. Receivers Bond assurance that the receiver will not misuse the property
REPLEVIN
Principal Action
PR only in actions involving possessions of personal property
Ex: financing companies
Affidavit
- Right of possession
- Property not subject of taxes or judicial process
- value
Bond double the value of personal property
1. Replevin bond posted by the applicant
2. Redelivery bond Bond filed by the defendant, which must be double the
value of property, to answer for the return of property if adjudged and pay for
such sum as he may recover from the applicant. It is required that the
redelivery bond be filed within the period of 5 days after the taking of the
property.
EXCEPTION: Cannot do replevin if the property is under custodia legis

SUPPORT PENDE LITE can be availed for action for support, annulment of
marriage, legal separation; in cases of estate proceedings to provide support to
the heirs
- Judgment of support does not become final
- Can be granted anytime even after judgment

SPECIAL CIVIL ACTIONS


Jurisdiction over SCA
1. Interpleader Trial Courts
2. Declaratory Relief RTC only
3. Review COA / COMELEC (R64) SC only
4. R65 (CPM) RTC, CA, SB, SC
- COMELEC election cases in connection with acts of trial courts
INTERPLEADER conflicting claims made upon an disinterested person needs to
prove that there is conflicting claims
When: Reasonable time after the dispute arises (rules on laches)
Who: include all claimants in the action
Answer pre-trial trial
DECLARATORY RELIEF can be filed by an person relating to interested under a
deed, will, contract or other written instrument, or whose rights are affected by a
statute, executive order or regulation, ordinance or any other governmental
regulation, before breach or violation thereof, asking the court to determine any
question of construction or validity arising, and for a declaration of his rights or
duties thereunder.

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