PROVISIONAL REMEDIES

The Kind Of Provisional Remedies1. Preliminary Attachment2. Preliminary Injunction3. Receivership4. Replevin5. Support pendente lite        are writ and processes available during the pendency of an action to preserve and

protect certain rights and interests pending the result of the final judgment in the case.

When may it be availed?

How much should be the Bond posted?

Preliminary Attachment

May be sought at any stage of the action but before final judgment.

The amount of bond is addressed to the sound discretion of the court.

Preliminary Injunction

-do- -do-

Receivership Maybe filed at any stage of the action and even after final judgment.

Bond is mandatory and the court fixes it.

Replevin Must be file before the defendant filed his answer.

The bond is double the value of the personal property seized.

Support pendente lite

Maybe sought at any

No bond is generally

stage of the action and even for the first time on appeal.

required.

RULE 57

PRELIMINARY ATTACHMENT What Are Its Purposes?1. To seize the property of the debtor in advance of the final judgment and to hold it for

purposes of satisfying the said judgment2. To enable the court to acquire jurisdiction over the action by the actual or

constructive seizure of the property in instances where summons cannot be effected. What Are The Requirements?1. Affidavit – which must contain all the allegations required and the circumstances on

why it should be granted.2. Bond – it is to answer for the damages and costs, which may be adjudged, to the

adverse party.       the defendant can file a counter bond at the courts discretion but the counter

bond must not be lower than the bond filed by the petitioner. Its purpose is to satisfy the judgment.

Note: No notice to the adverse party or hearing of the application is required. When Shall It Be Discharged?1. The debtor has posted a counter bond.2. The attachment was improperly issued, i.e., when there is no ground for attachment,

or the affidavit and/or bond filed are defective or insufficient.3. The attachment is excessive.4. The property attached is exempt from execution thus, also exempt from attachment.5. The judgment is against the attaching party.

RULE 58

PRELIMINARY INJUNCTION What is Preliminary Injunction?      A judicial writ, process or proceedings whereby a party is ordered to do or refrain from

doing a particular act.      Prior notice is indispensable for the issuance of a writ of Preliminary Injunction(PI)

and a Temporary Restraining Order(TRO).o        Exception:

       If the matter is of extreme urgency and the applicant may suffer injustice and injury, the court may issue an ex parte TRO effective for only seventy-two(72) hours from issuance, renewable after summary hearing for a period not exceeding twenty(20) hours which includes the original 72 hours if previously granted.

The Kinds Of Injunction

a.        Preventive or prohibitive injunction requires a person to refrain from doing a particular act.

b.        Mandatory injunction requires the performance of a particular act. What Is Its Purpose?- to preserve the status quo, i.e., the last actual, peaceable, uncontested status which precedes the pending controversy.

RULE 59

RECEIVERSHIP Who is a Receiver?

- person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the suit and to protect the rights of all the parties under the direction of the court.- as a rule, a party to the case nor the clerk of court should not be appointed. Note: no action maybe filed against the receiver without leave of court. Note: Ex parte appointment of a receiver is no longer authorized, a hearing must be conducted for that purpose. What Are The Requirements?

1. Affidavit – that the applicant has interest in the property that is the subject of the litigation and there is an inevitable damage to it thus, the court must appoint a receiver.

2. Bond – in the amount fixed by the court, to cover all the damages by reason of the appointment of a receiver. The court may require additional bond as further security.

RULE 60

REPLEVIN What Is Its Purpose?- to recover the possession of personal property. What Are The Requirements?1. Affidavit – must allege that the applicant is the owner or entitled to possess the

property, the description of the property, the actual ‘market’ value of the property, and the person and why he withheld the property from the applicant.

2. Bond – the amount to be posted must double the value of the property as stated in the affidavit.

RULE 61

SUPPORT PENDENTE LITE What Is Its Purpose?       To compel adverse party to provide support while action is pending in court.       No bond is required from the applicant.       The application must be verified and shall be set for hearing not more than three(3)

days from the filing of the petition.

SPECIAL CIVIL ACTION

RULE 62INTERPLEADER

What is Interpleader?

                   It is a Special Civil Action whereby a person who has property in his possession or an obligation to perform, either wholly or partially, who claims no interest in the subject, goes to the court and ask that conflicting claimants to that property or obligation be required to litigate among themselves in order to determine finally who is entitled to the same.

                   E.g. a) a warehouseman, with goods being claimed by 2 or more persons.b) an insurer, with 2 or more claimants to an insurance proceeds.

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES

What are the requisites for Declaratory Relief?1. there is a justiciable controversy.2. there must be adverse claim between the real parties in interest.3. the subject matter is a written instrument, (such as a deed, will, contract), statute or a

law.4. the relief sought is to determine the rights and duties under the written instrument or

statute.5. there must be no breach or violation of the written instrument or statute yet. [Note:

The concept of a cause of action as “an act or omission by which a person violates the rights of another” under ordinary civil action does not apply.]

6. there are no other available or sufficient remedy. Instances When the Court Refuse to Grant Declaratory Relief?

1.        When the decision would not terminate the controversy which gives rise to the action.

2.        When the declaration is not necessary and proper under the circumstances.

When should it not be used?1.        to be declared as a Filipino citizen.2.        to solve political question3.        to determine hereditary rights4.        to resolve hypothetical or theoretical questions5.        those involving administrative cases (must first avail of the principle of

exhaustion of administrative remedies) Conversion Into Ordinary Action       If after the filing of the petition but before the rendition of judgment, a breach or

violation occurs, then the petition may be converted into an ordinary action.

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC

AND COA Time for Filing the Petition       Within thirty (30) days from notice of the judgment or final order sought to be

reviewed.       If the motion for reconsideration is denied, the aggrieved party has the remaining

period to file the petition, but not less than five(5) days in any event, reckoned from notice of denial.

Mode of Review

      To be filed exclusively to the Supreme Court.      Petition for Review under rule 65.

[Note: The filing of the petition shall not stay the execution of the judgments or final orders, unless ordered by the Supreme Court.]

RULE 65CERTIORARI, PROHIBITION, AND MANDAMUS

      CERTIORARI

Requisites:1.        there must be a controversy2.        the respondent is a tribunal, board or an officer exercising judicial or quasi-

judicial functions [discretionary acts]. 3.        the respondents acted:

a.        without jurisdictionb.        in excess of jurisdictionc.        with grave abuse of discretion amounting to lack or excess of jurisdiction

4.        there must be no appeal or other plain, speedy and adequate remedy. EXCLUSIVE REMEDY OF APPEAL AND CERTIORARIGENERAL RULE: If after judgment and the petition for certiorari is availed of instead of the remedy of appeal, the certiorari must fail because it may not be resorted to as a substitute to appeal; in such a case appeal is deemed abandoned.EXCEPTIONS: Even when appeal is available, a writ for execution may be allowed;1.        When the appeal does not constitute a speedy and adequate remedy.

2.         When judgment were issued either in excess of or without jurisdiction.3.        When for certain special considerations as public policy or public welfare.4.        When the judgment is patently void.5.        When the decision in the certiorari case will avoid future actions. PROHIBITIONRequisites

1.        there must be a controversy2.        the respondent is a tribunal, board or an officer exercising judicial, quasi-judicial

[discretionary acts] or ministerial functions.3.        the respondent acted:

a.        without jurisdictionb.        in excess of jurisdictionc.        with grave abuse of discretion amounting to lack or excess of jurisdiction

4.        there must be no appeal or other plain, speedy and adequate remedy. MANDAMUSRequisites

1.        there must be a clear legal right or duty.2.        the act performed must be practical- within the powers of the respondent to

perform such if issued and he can comply with it or else the essence will be defeated.

3.        the respondent must be exercising a ministerial duty.4.        the duty or act to be performed must be existing – a correlative right will be

denied if not performed by the respondents.5.        there must be no appeal or other plain, speedy and adequate remedy.

NOTE: An ordinary action for certiorari, prohibition and mandamus are independent action thus:1.        does not interrupt the course of the principal action.2.        does not affect the running of the prescriptive period involved in the case.3.        does not stay the execution of the judgment, unless a TRO or a PI is issued. EXHAUSTION OF ADMINISTRATIVE REMEDYGENERAL RULE: a motion for reconsideration is a prerequisite before the filing of a petition for certiorari, prohibition or mandamus. Its purpose is to give the court a quo the opportunity to correct itself.EXCEPTIONS:1.        If the judgment or order is patently void.2.        If there is extreme urgency.3.        If the issue has been raised and promptly passed by the court.

4.        If the issue is purely a question of law.5.        If for public purpose.

RULE 66QUO WARRANTO

What is Quo Warranto?       It is a special civil action to determine the right to the use or exercise of an office or a

franchise, and to oust the holder from its enjoyment if his claim is not well founded or if he has forfeited his right to enjoy the privilege.

Classification of a Quo Warranto proceedings.1.        Mandatory- brought by the Solicitor General or a public prosecutor when:

a.        directed by the president, andb.        upon complaint or when he has reason to believe that it can be established by

proof.2.        Discretionary- brought by the Solicitor General or a public prosecutor upon the

request a person but there must be:a.        leave of court, andb.        indemnity bond

NOTE: The period for the filing of Quo Warranto proceedings is within one(1) year from the date the cause of action arose. DISTINCTIONS

QUO WARRANTO MANDAMUS1.  There is a

usurpation of public office by another and assumes office.

2.  The right to office of the occupant is not clear so this right becomes the subject of the action.

There is an ousting from office by another but does not assume the office.

The right or legal duty is clear, so the purpose of the action is to enforce the right.

QUO WARRANTO ELECTION CONTEST

1.  As to the basis:The occupant of the office is disqualified from holding the office because of ineligibility or disloyalty to the republic.

2.  As to the effect:If the petitioner succeeds, the respondent will be ousted and the petitioner will assume the office.

The person holding the office is not entitled to it because of irregularity in the conduct of election.

If the protestant succeeds, he will assume office if he had obtained a plurality of the valid vote.

RULE 67EXPROPRIATION

       EMINENT DOMAIN is the right of the state to acquire private property for public use

upon payment of just compensation.       EXPROPRIATION is the procedure to be observed in the exercise of the right of

eminent domain in instances such as:1.        When the owner refuses to sell his property.2.        When he agrees to sell but an agreement as to the price cannot be reached.

NOTE: All properties can be expropriated except money and chooses in action. Two Stages in Expropriation1.        Determine first if the property taken is for public purpose.2.        If it was determined that it is for public purpose, resolve the issue on the amount to

be paid or the just compensation Just Compensation is determined at the time of the taking of the property or at the filing of the complaint which ever comes first. It is the fair and full equivalent for the loss sustained by the defendant.

NOTE: The conflict in the payment of just compensation or an appeal does not delay the right of the plaintiff to enter into the property and appropriate the same for public use.

RULE 68FORECLOSURE OF REAL ESTATE MARTGAGE

Parties:

1.        mortgagee and mortgagor2.        successor in interest3.        junior encumbrancer/s

Nature and purpose:         The remedy used for the satisfaction of any monetary obligation, which a person

owes to another, by proceeding against the property used to secure the obligation.         It purpose is to cut off the rights of the owner of the property mortgaged used to

secure the obligation and all rights acquired thereto.

NOTE:       Within the one(1) year period given to the mortgagor to redeem, the buyer may take

possession of the property but must pay a bond equivalent to the amount of a rent.       If there is deficiency judgment, the action may continue in the same proceedings

except to non-resident defendants. Effect if the Junior Encumbrancer is not pleaded:1.        his right is not affected because he is merely a necessary party not an

indispensable party.2.        the remedy of the senior encumbrancer is to file independent actions to foreclose

the right to redeem by requiring the junior encumbrancer to pay the amount stated in the order of execution.

JUDICIAL

FORECLOSUREEXTRAJUDICIAL FORECLOSURE

Requires court intervention

No court intervention necessary

There is only an Equity of Redemption is the right of the defendant

There exist a Right of Redemption is the right of the debtor, his successor in

mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within 90-120 days after the entry of judgment or even after the sale but before confirmation.

interest or any judicial creditor or judgment creditor of the debtor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property within one(1) year from the registration of the of the sheriff’s certificate of foreclosure sale.

Governed by Rule 68

Governed by sec.29-31 of Rule 39

RULE 69PARTITION

What is Partition?       It is the process of dividing and assigning property owned in common among the

various co-owners in proportion to their respective interests in said property. When can Partition be made?GENERAL RULE: It can be made anytime and the right to demand partition is imprescriptible.EXCEPTION: If the co-owner asserts adverse title to the property in which case the period of prescription runs from such time of assertion of the adverse claim. TWO(2) STAGES:1.        Determination of the Propriety of the Partition. Includes the question whether or not

the property is owned in common or whether or not all the co-owners are made parties. If the court find that there must be partition, the aggrieved party may appeal the decision.

2.        Actual Partitioning of the Subject Property.

       The parties may agree on the partition by executing a Deed of Partition, where it will become final after the court approves it. The aggrieved party may appeal the decision.

       If the parties does come into an agreement as to how to partition the property, the case will be heard through trial by commissioner.

NOTE: No partition of personal property.

RULE 70FORCIBLE ENTRY AND UNLAWFUL DETAINER

FORCIBLE

ENTRYUNLAWFUL DETAINER

   Possession of the land by the defendant is unlawful from the beginning as he acquires it by Force, Intimidation, Strategy, Threat or Stealth [FISTS]

  Possession is lawful but it becomes illegal because of the termination of the right to the possession of the property under his contract w/ the plaintiff.

   No previous Demand is necessary.

  Formal Demand is mandatory if the ground is non-payment of rentals or failure to comply with the lease contract

   The plaintiff must prove that he was in prior physical possession of the premises until he was deprived.

  The plaintiff need not have been in prior physical possession.

   The 1 year period is generally counted from the date of

  Period is counted from the date of last demand or last letter of demand.

actual entry on the land.

NOTE: Demand under this section is jurisdictional. It is a two-fold demand:

a.        to pay and vacate; orb.        to comply with the conditions of the lease and vacate.

How is Demand Made?

1.        personally2.        by posting it at the premises, possible only if there no person found in the

premises3.        substituted service4.        registered mail

GENERAL RULE: Judgment of the MTC in ejectment proceedings is immediately executory when:1)       The defendant perfects his appeal.2)       He files sufficient supersedeas bond to pay the rents, damages and cost accruing

down to the time of judgment appealed from.[NOTE: supersedeas bond is required only if arrearages in the rentals is awarded in the judgment by the court]

3)       He deposits with the appellate court the amount of rent due from time to time under a contract or reasonable amount for the use and occupation of the property in the absence of a contract.

RULE 71CONTEMPT

DIRECT

CONTEMPTINDIRECT

CONTEMPT1. Nature:

   Summary in nature

 There must first be a hearing

2. Grounds:c.  Misbehavior in

the presence of or so near the a court as to interrupt a proceedings.

d.  Disrespect towards the court or judge.

e.  Offensive personalities towards others.

f.    Refusal to be sworn or to answer as a witness or to subscribe an affidavit or deposition.

a.     Misbehavior of an officer of a court in the performance of his official duties.

b.     Disobedience or resistance to a lawful writ, order or judgment.

c.      Any abuse or any unlawful interference with the proceedings not constituting direct contempt.

d.     Any improper conduct tending to degrade the administration of justice.

e.     Assuming to be an attorney or an officer of the court w/o authority.

f.       Failure to obey a subpoena

g.     Rescue, or attempted rescue of a person or property in the custody of an officer.

3. Penalty:a.  RTC- fine not a.        RTC- fine

exceeding P2,000 or imprisonment not exceeding 10 days or both.

b.  MTC- fine not exceeding P200 or imprisonment not exceeding 1 day or both.

not exceeding P2,000 or imprisonment not exceeding 10 days or both.

b.        MTC- fine not exceeding P200 or imprisonment not exceeding 1 day or both.