REPLEVIN

RULE 60

NATURE OF REPLEVIN
It is a possessory action, the gist of
which is the right of possession of the
plaintiff.
It is a form of principal remedy.
it may also be a provisional remedy.

 While an action is pending, the plaintiff may ask

the court to allow him to have possession of the
car in the meantime that the main action is not
yet resolved.
He may justify his application by showing that he
uses the car as an economic tool and the
continued possession by the defendant deprives
him of a vital source of income.
The plaintiff then may ask for the issuance of a
writ of replevin as a provisional remedy.

The writ by virtue of which the sheriff proceeds at

once to take possession of the property therein
described and transfer it to the plaintiff upon his
giving pledges which are satisfactory to the sheriff
to prove his title, or return the chattels taken if he
fails to do so.
In foreclosure under a chattel mortgage, replevin is
sought to pave the way for the foreclosure of the object
covered by the chattel mortgage.

Replevin Distinguished From

Preliminary Attachment
REPLEVIN
Purpose: recover personal
property capable of manual
delivery.

Property belongs to the

plaintiff or one over which
the plaintiff has a right of
possession.
Can only be availed of only if
defendant is in actual or

PRELIMINARY
ATTACHMENT
Purpose: to place the
property under the
custody of the court to
secure the satisfaction of
judgment.
Property belongs to the
defendant.

Can be availed of even if the

property is in the custody of

REPLEVIN
Extends only to personal
property.
May be availed of without
showing the property is being
concealed or disposed of to the
prejudice of the applicant.
Property under custodia legis
cannot be the object of
replevin.
The bond is double the value
of the property as stated in the
affidavit.

PRELIMINARY ATTACHMENT
Extends to all kinds of
property, real, personal, even
incorporeal.
Needs to show that the
property is being removed,
concealed or disposed of in
certain cases.
Can be availed of even if the
property is in custodia legis.
The bond is equal to that fixed
by the court which is sufficient
to satisfy the applicants
demand or the value of the

When A Writ Of Replevin May Be

Applied For
The writ may be applied for at:
a) The commencement of the action,
OR
b) Any time before the answer
May be availed by:
) Plaintiff where the complaint prays for the recovery of
possession of personal property.
) Defendant where a counterclaim was set out in the answer for
the recovery of personal property.

Procedure For Application Of

Replevin
APPLICATION
Commencem
ent of action
Before
answer

AFFIDAVIT
Executed by
applicant
Some other
person who
personally
knows the
facts/
matters
required
under the
Rules.

AFFIDAVIT
SHALL
Particularly
describe
Owner/ right of
possession
Wrongfully
detained
Not been
distrained for
tax assessment,
etc.
Market value

BOND
Executed to
the adverse
party
Double the
value of the
property
stated in the
affidavit

Property In Custodia Legis

Replevin not available when property is in custogia
legis.
A thing is in custodia legis when it is shown that it has
been and is subject to the official custody of a judicial
executive officer in pursuance of his execution of a legal
writ.

Property seized under search

warrant
Where personal property is seized under a search
warrant and there is reason to believe that the seizure
will not anymore be followed by the filing of a criminal
case, the proper remedy is the filing of an action for
replevin.
If there are conflicting claims over the seized property,
an interpleader may be filed in the proper court, not
necessarily the same one which issued the search
warrant.

Seizure and forfeiture conducted by

Bureau of Customs
RTCs are devoid of any competence to pass upon their
validity or regularity.
It is the Collector of Customs who has exclusive
jurisdiction to hear and determine all questions touching
on the seizure and forfeiture of dutiable goods.

Undertaking Of The Replevin Bond

The bond is for:
a) Return of the property to the adverse party if such
return be adjudged.
b) Payment to the adverse party of such sum as he may
recover from the applicant in the action.
Recourse on the bond for damages is not proper if based
on Articles 19 and 20.

Claim against the Bond

Requisites for recovery against replevin bond
Application showing right to damage;
Notice is given to the plaintiff/ applicant and the surety;
There must be a hearing in case recovery is opposed; and
Award of damages must be included in the judgment.

Independent action is not allowed.

Case: Bachrach Motor Company,

Inc vs Summers
Car made subject of chattel mortgage. Defendant
defaulted in payment.
Plaintiff sought recovery of the car through sheriff under
the chattel mortgage contract.
Defendant refused to surrender car. Plaintiff filed an
action for replevin.
Defendant posted counter-replevin bond. Plaintiff
insisted that sheriff proceed with seizure.

Case: Bachrach Motor Company,

Inc vs Summers
HELD: Plaintiff must litigate before seizing the car to
expose it to a public sale.
When the debtor defaults, and the creditor desires to
foreclose the mortgaged chattel, he must necessarily take
the mortgaged property in his hands, but when the debtor
refuses to yield the possession of the property, the creditor
must institute an action, either to effect a judicial
foreclosure directly, or to secure possession as a
preliminary to the sale contemplated under Section 14 of
Act No. 1508.

Case: Fernandez vs International

Corp. Bank
Petitioners car mortgaged in favor of respondent.
Petitioner defaulted in payment.
Bank filed complaint for sum of money with replevin
before the MTC of Pasay City.
Petitioners questions the jurisdiction of MTC over the
case. Allege that writ cannot be executed outside of
Pasay.
CA: MTC has jurisciction. Writ of Replevin can be
executed anywhere in Metro Manila.
Petitioners seek reversal of the rulings.

Case: Fernandez vs International

Corp. Bank
interim rules and guidelines relative to the implementation of BP
129:
3. Writs and processes. --(a) Writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction issued by a regional trial court may be
enforced in any part of the region.
(b) All other processes, whether issued by a regional trial court or a
metropolitan trial court, municipal trial court or municipal circuit trial
court may be served anywhere in the Philippines, and, in the last
three cases, without a certification by the judge of the regional trial
court.

Case: Fernandez vs International

Corp. Bank
HELD: Petitioners confused the jurisdiction of a court to hear
and decide a case on the one hand with, on the other, its
power to issue writs and processes pursuant to and in the
exercise of said jurisdiction.
The rule enumerates the writs and processes which, even if
issued by a regional trial court, are enforceable only within its
judicial region.In contrast, it unqualifiedly provides that all
other writs and processes, regardless of which court issued
the same, shall be enforceable anywhere in the Philippines.