Mickey Rem Review 2

7/27/2019 Mickey Rem Review 2

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a m + d gRemedial Law Review: Prov Rem, SCA, and Crimpro

Mickey Ingles4C Ateneo Law 2012Atty Tranquil (and some stuff from Atty Guevarra)

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PROVISIONAL REMEDIES 1RULE 57 PRELIMINARY ATTACHMENT 1RULE 58 PRELIMINARY INJUNCTION 7RULE 59 RECEIVERSHIP 11RULE 60 REPLEVIN 13RULE 61 SUPPORT PENDENTE LITE 15SPECIAL CIVIL ACTIONS 16RULE 62 INTERPLEADER 16

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES 18RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ONELECTIONS AND THE COMMISSION ON AUDIT 19RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS 21RULE 66 QUO WARRANTO 24RULE 67 EXPROPRIATION 26RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE 30RULE 69 PARTITION 33RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER 36RULE 71 CONTEMPT 40CRIMINAL PROCEDURE 43VENUE IN CRIMINAL CASES 43SPECIAL AGRARIAN COURT JURISDICTION 45SANDIGANBAYAN JURISDICTION 45OMBUDSMAN JURISDICTION 46

POWER OF THE SECRETARY OF JUSTICE OVER THE PROSECUTORS 47ROLE OF THE OSG IN CRIMINAL CASES 47RULE 110 PROSECUTION OF OFFENSES 48RULE 111 - PROSECUTION OF CIVIL ACTION 53RULE 112 - PRELIMINARY INVESTIGATION 57RULE 113 - ARREST 63RULE 114 - BAIL 66RULE 115 - RIGHTS OF ACCUSED 72RULE 116 - ARRAIGNMENT AND PLEA 77RULE 117 MOTION TO QUASH 80RULE 118 PRE-TRIAL 84RULE 119 - TRIAL 86RULE 120 JUDGMENT 91RULE 121 - NEW TRIAL OR RECONSIDERATION 94RULE 122 - APPEAL 95RULE 123 - PROCEDURE IN THE MUNICIPAL TRIAL COURTS 99

RULE 124 - PROCEDURE IN THE COURT OF APPEALS 99RULE 125 - PROCEDURE IN THE SUPREME COURT 101RULE 126 - SEARCH AND SEIZURE 102

This reviewer is based onAtty. Tranquil Salvadors lectures, SCA notes from Atty. Guevarras class, Glenn Tuazons(ALS 2011) brilliant notes. Enjoy!

PROVISIONAL REMEDIES

Prov rems are ancillary to principal actions.o So if the principal action is dismissed, then youre prov rem shall be dizmizzed.

GR: No principal action of preliminary attachment, etc.o EXCEPT:

Receivership in Corporation or Banking Law In Arbitration Law, where you can file any provisional remedy as a main action in

aid of an arbitration clause.

RULE 57PRELIMINARY ATTACHMENT There are three stages of attachment (Torres v Satsatin, 2009):

o Court issues order granting such applicationo Writ of attachment issues pursuant to the ordero Implementation of the writ

For the first 2 stages, jd over the defendant is not required. Its only requiredwhen you implement the writ.

How do you acquire jd during the 3 rdstage?


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o By service of summons prior to or contemporaneous with the orderfor implementation. (see Sec 5)

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 properparty may have the property of the adverse party attached as security for the satisfaction of anyjudgment that may be recovered in the following cases:

(a) In an action for the recovery of a specified amount of money or damages, other than moral andexemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict againsta party who is about to depart from the Philippines which intent to defraud his creditors;(b) In an action for money or property embezzled or fraudulently misapplied or converted to his ownuse by a public officer, or an officer of a corporation, or an attorney, factor, broker agent, or clerk, inthe course of his employment as such, or by other person in a fiduciary capacity, or for a willfulviolation of duty;(c) In an action to recover the possession of property unjustly or fraudulently taken, detained orconverted, when the property, or any part thereof, has been concealed, removed, or disposed of toprevent its being found or taken by the applicant or an authorized person;(d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring theobligation upon which the action is brought, or in the performance thereof;(e) In an action against a party who has removed or disposed of his property, or is about to do so, withintent to defraud his creditors; or(f) In an action against a party who does not reside and is not found in the Philippines, or on whomsummons may be served by publication.

The magic word for attachment: secure Where?

o Court in which the action is pending. (Even the MTC!) When?

o Any time before entry of judgment, as long as case is pending and there is a groundavailable

What do you need?o Grounds must be presento An affidavit (see Sec 3)o Bond to be determined by the court (see Sec 3)

What are the grounds for attachment?o Any claim for money or damages, except moral and exemplary, with the claim arising from

an obligation, AND the defendant is about to depart from the Philippines WITH intent todefraud

Must show facts showing intent to depart and defraud (like selling property,withdrawing all money from the BPI, etc)

You can only use this if the defendant is about to depart and there is intent todefraud

o Embezzlement/abuse of trust by one with a fiduciary relationship Usually in estafa cases Also a prov rem in criminal cases1

o Action to recover property and there is willful fraudulent concealment of the property Compare this to replevin

In replevin, the property is a specific one, the thing object of the action. Inattachment, the property to be attached is anyproperty, not necessarilythe object of the action.

In replevin, you can only avail of it before an answer is filed. Inattachment, any time.

1Rule 127, Sec. 2.Attachment.When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party

may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in thefollowing cases:(a) When the accused is about to abscond from the Philippines;(b) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the

accused who is a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by

any other person in a fiduciary capacity, or for a willful violat ion of duty;(c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and(d) When the accused resides outside the Philippines.


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In replevin, the property is personal property. In attachment, anyproperty.

o Fraud in contracting the obligation or fraud in the performance thereof In contracting the obligation: if not for the fraud, the other party would not have

entered into the transaction In the performance: in the manner of performance, there was fraud

o Action against a person who removes/conceals property, or is about to do so, with intentto defraud

Directed against the persono Defendant is a non-resident, or on whom summons by publication is made

Sec. 2. Issuance and contents of order.An order of attachment may be issued either ex parte or upon motion with notice and hearing by thecourt in which the action is pending, or by the Court of Appeals or the Supreme Court, and must requirethe sheriff of the court to attach so much of the property in the Philippines of the party against whom itis issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unlesssuch party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed inthe order, which may be the amount sufficient to satisfy the applicant's demand or the value of theproperty to be attached as stated by the applicant, exclusive of costs. Several writs may be issued atthe same time to the sheriffs of the courts of different judicial regions.Sec. 3. Affidavit and bond required.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, that a sufficient cause of action exists, that thecase is one of those mentioned in section 1 hereof, that there is no other sufficient security for theclaim sought to be enforced by the action, and that the amount due to the applicant, or the value of theproperty the possession of which he is entitled to recover, is as much as the sum for which the order isgranted 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.Sec. 4. Condition of applicant's bond.The party applying for the order must thereafter give a bond executed to the adverse party in theamount fixed by the court in its order granting the issuance of the writ, conditioned that the latter willpay all the costs which may be adjudged to the adverse party and all damages which he may sustain byreason of the attachment, if the court shall finally adjudged that the applicant was not entitled thereto. What are the contents of the affidavit?

o Cause of actiono The grounds in Sec 1o No other sufficient security for the claim sought to be enforced by the actiono Amount due to the applicant

Why post a bond?o To answer for damages of the adverse party

Who must issue the bond?A bond company certified by the SC to operate within a judicial area or region.

Sec. 5. Manner of attaching property.The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to awaitjudgment and execution in the action, only so much of the property in the Philippines of the partyagainst whom the writ is issued, not exempt from execution, as may be sufficient to satisfy theapplicant's demand, unless the former makes a deposit with the court from which the writ is issued, orgives a counterbond executed to the applicant, in an amount equal to the bond fixed by the court in theorder of attachment or to the value of the property to be attached, exclusive of costs. No levy onattachment 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, theapplication for attachment, the applicant's affidavit and bond, and the order and writ of attachment, onthe defendant within the Philippines. The requirement of prior or contemporaneous service ofsummons shall not apply where the summons could not be served personally or by substituted servicedespite diligent efforts, or the defendant is a resident of the Philippines temporarily absent therefrom,or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem.Sec. 6. Sheriff's return.After enforcing the writ, the sheriff must likewise without delay make a return thereon to the courtfrom which the writ issued, with a full statement of his proceedings under the writ and a complete


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inventory of the property attached, together with any counter-bond given by the party against whomattachment is issued, and serve copies thereof on the applicant.Sec. 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 theregistry of deed of the province in the name of the party against whom attachment is issued, or notappearing 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 otherperson, by filing with the registry of deeds a copy of the order, together with a description of theproperty attached, and a notice that it is attached, or that such real property and any interest thereinheld 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 agentif found within the province. Where the property has been brought under the operation of either theLand Registration Act or the Property Registration Decree, the notice shall contain a reference to thenumber of the certificate of title, the volume and page in the registration book where the certificate isregistered, and the registered owner or owners thereof. The registrar of deed must index attachmentsfiled under this section in the names of the applicant, the adverse party, or the person by whom theproperty is held or in whose name it stands in the records. If the attachment is not claimed on theentire area of the land covered by the certificate of title, a description sufficiently accurate for theidentification of the land or interest to be affected shall be included in the registration of suchattachment;

(b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after

issuing the corresponding receipt therefor;(c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving withthe president or managing agent thereof, a copy of the writ, and a notice stating that the stock orinterest of the party against whom the attachment is issued is attached in pursuance of such writ;(d) Debts and credits, including bank deposits, financial interest, royalties, commissions, and otherpersonal property not capable of manual delivery, by leaving with the person owing such debts, orhaving in his possession or under his control, such credits or other personal property, or with hisagent, a copy of the writ, and notice that the debts owing by him to the party against whomattachment is issued, and the credits and other personal property in his possession, or under hiscontrol, belonging to said party, are attached in pursuance of such writ;(e) The interest of the party whom attachment is issued in property belonging to the estate of thedecedent, whether as heir, legatee, or devisee, by serving the executor or administrator or otherpersonal representative of the decedent with a copy of the writ and notice that said interest isattached. A copy of said writ of attachment and of said notice shall also be filed in the office of theclerk of the court in which said estate is being settled and served upon the heir, legatee or deviseeconcerned. 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 uponthe custodian of such property.

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 personalproperty belonging to the party against whom attachment is issued, or owing any debts to him, at thetime of service upon them of the copy of the writ of attachment and notice as provided in the lastpreceding section, shall be liable to the applicant for the amount of such credits, debts or other similarpersonal 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 otherproper officer of the court issuing the attachment.Sec. 9. Effect of attachment of interest 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 ofa decedent shall not impair the power of the executor, administrator, or other personal representativeof 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 theorder made upon such petition, distribution may be awarded to such heir, legatee, or devisee, but theproperty attached shall be ordered delivered to the sheriff making the levy, subject to the claim of suchheir, legatee, or devisee, or any person claiming under him.Sec. 10. Examination of party whose property is attached and persons indebted to him or controllinghis 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 attendbefore the court in which the action is pending, or before a commissioner appointed by the court, and


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be examine on oath respecting the same. The party whose property is attached may also be required toattend 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 belongingto him, in the possession of the person so required to attend before the court, to be delivered to theclerk of the court or sheriff on such terms as may be just, having reference to any lien thereon or claimagainst the same, to await the judgment in the action.Sec. 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 withnotice to both parties, that the party attached is perishable, or that the interests of all the parties tothe action will be will be subserved by the sale thereof, the court may order such property to be sold atpublic auction in such manner as it may direct, and the proceeds of such sale to be deposited in courtto abide the judgment in the action.Sec. 12. Discharge of attachment upon giving counterbond.After a writ of attachment has been enforced, the party whose property has been attached, or theperson 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 ifthe movant makes a cash deposit, or files a counter-bond executed to the attaching party with theclerk of the court where the application is made, in an amount equal to that fixed by the court in theorder of attachment, exclusive of costs. But if the attachment is sought to be discharged with respectto a particular property, the counter-bond shall be equal to the value of that property as determined bythe 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 forth with beserved on the attaching party. Upon the discharge of an attachment in accordance with the provisionsof this section, the property attached, or the proceeds of any sale thereof, shall be delivered to theparty making the deposit or giving the counter-bond, or to the person appearing on his behalf, thedeposit or counter-bond aforesaid standing in place of the property so released. Should such counter-bond for any reason to be found to be or become insufficient, and the party furnishing the same fail tofile an additional counter-bond, the attaching party may apply for a new order of attachment.Sec. 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 toset aside or discharged the attachment on the ground that the same was improperly or irregularlyissued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge shallbe limited to the excess. If the motion be made on affidavits on the part of the movant but nototherwise, the attaching party may oppose the motion by counter-affidavits or other evidence inaddition 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 improperlyor irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive,and the defect is not cured forthwith. How do you discharge an attachment?

o Most common: post a counter-bond Availed of when the attachment has already been enforced

You cant anticipate the enforcement Amount is usually the value of the subject matter of the action (Insular Savings v

CA, 2006) Note: mere posting of a counter-bond will NOT automatically discharge the

attachment, there must be a court order to that effect (Security Pacific v Amelia,2005)

o Motion to set aside based on improper, irregular, or excessive attachment; or when thebond is insufficient

Availed of even beforeenforcement (compare to posting a counter-bond) Improper: grounds are not present in the case Irregular: wrong process, like when writ is given without a bond, or the jurisdiction

is not yet acquired Important: no ex parte discharge allowed Can there be partial release on a counterbond?

o Yes.Sec. 14. Proceedings where property claimed by third person.


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If the property attached is claimed by any person other than the party against whom attachment hadbeen issued or his agent, and such person makes an affidavit of his title thereto, or right to thepossession thereof, stating the grounds of such right or title, and serves such affidavit upon the sheriffwhile the latter has possession of the attached party, and a copy thereof upon the attaching party, thesheriff shall not be bound to keep the property under attachment, unless the attaching party or hisagent, on demand of the sheriff, shall file a bond approved by the court to indemnify the third-partyclaimant in a sum not less than the value of the property levied upon. In case of disagreement as tosuch value, the same shall be decided by the court issuing the writ of attachment. No claim fordamages for the taking or keeping of the property may be enforced against the bond unless the actiontherefor 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 such prevent such claimant or anythird person from vindicating his claim to the property, or prevent the attaching party from claimingdamages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or aseparate action.

When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer dulyrepresenting it, the filing of such bond shall not be required, and in case the sheriff is sued for damagesas a result of the attachment, he shall be represented by the Solicitor General, and if held liabletherefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of thefunds to be appropriated for the purpose.

Same as when the property subject to execution is claimed by a 3rdparty, except for the provisionregarding vindicating a claim

o In attachment: the vindication can be done in the same or separate actiono In execution: the vindication can be done only in a separate action

Since intervention can only be done before judgment in the trial court (andexecution presupposes execution)

Same rule applies to replevinSec. 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 thejudgment to be satisfied out of the property attached, if it be sufficient for that purpose in the followingmanner:(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 benecessary to satisfy the balance, if enough for that purpose remain in the sheriff's hands, or in those ofthe clerk of the court;(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 determine by the court in the action, and stated in the judgment, and paying theproceeds of such collection over to the judgment obligee. The sheriff shall forthwith make a return inwriting to the court of his proceedings under this section and furnish the parties with copies thereof.

Sec. 16. Balance due collected upon an execution; excess delivered to judgment obligor.After realizing upon all the property attached, including the proceed of any debts or credits collected,and applying the proceeds to the satisfaction of the judgment, less the expenses of proceedings uponthe judgment, any balance shall remain due, the sheriff must proceed to collect such balance as uponordinary execution. Whenever the judgment shall have been paid, the sheriff, upon reasonabledemand, must return to the judgment obligor the attached property remaining in his hands, and anyproceeds of the sale of the property attached not applied to the judgment. When the properties attached are not sufficient to satisfy the judgment, the court can proceed

with ordinary execution to cover the balance.

Sec. 17. Recovery upon the counter-bond.When the judgment has become executory, the surety or sureties on any counter-bond given pursuantto the provisions of this Rule to secure the payment of the judgment shall become charged on suchcounter-bond and bound to pay the judgment obligee upon demand the amount due under thejudgment, which amount may be recovered from such surety or sureties after notice and summaryhearing in the same action.Sec. 18. Disposition of money deposited.Where the party against whom attachment had been issued has deposited money instead of givingcounter-bond, it shall be applied under the direction of the court to the satisfaction of any judgmentrendered in favor of the attaching party, and after satisfying the judgment the balance shall be


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rendered to the depositor or his assignee. If the judgment is in favor of the party against whomattachment was issued, the whole sum deposited must be refunded to him or his assignee.Sec. 19. Disposition of attached property where judgment is for party against whom attachment wasissued.If judgment be rendered against the attaching party, all the proceeds of sales and money collected orreceived by the sheriff, under the order of attachment, and all property attached remaining in any suchofficer's hands, shall be delivered to the party against whom attachment was issued, and the order of

attachment discharged.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 becomesexecutory, with due notice to the attaching party and his surety or sureties, setting forth the factsshowing his right to damages and the amount thereof. Such damages may be awarded only afterproper 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 wasissued, he must claim damages sustained during the pendency of the appeal by filing an application inthe appellate court, with notice to the party in whose favor the attachment was issued or his surety orsureties, before the judgment of the appellate court becomes executory. The appellate court may allowthe application to be heard and decided by the trial court.

Nothing herein contained shall prevent the party against whom the attachment was issued fromrecovering in the same action the damages awarded to him from any property of the attaching partynot exempt from execution should the bond or deposit given by the latter be insufficient or fail to fullysatisfy the award.

If there is improper, irregular or excessive damages, damages can be recovered. How? By drawing on the bond. GR: Section 20 applies to all provisional remedies.

o EXCEPT: support pendent lite. Where can you apply for it?

o In the trial court. When?

o During or after trial even within the reglementary period, or when appeal has beenperfected, as LONG as it is pending, and not yet final and executory.

What damages can be recovered?o As long as wrongful attachment: actual damages Evidence needed: fact of injury or loss, and amount thereof

Unrealized profits can be recovered as long as there is independentevidence of mean income of the business undertaken

o If none, then temperate damages na lang (Yu v. Ngo Yet Te, 2007)o If there is malicious attachment: actual, moral and exemplaryo What about attorneys fees?

GR: no attys fees when no moral or exemplary EXCEPTION; when a party incurs expenses to lift wrongfully issued writ of

attachment

RULE 58 PRELIMINARY INJUNCTION

Section 1. Preliminary injunction defined; classes.A preliminary injunction is an order granted at any stage of an action or proceeding prior to thejudgment or final order, requiring a party or a court, agency or a person to refrain from a particular actor acts. It may also require the performance of a particular act or acts, in which case it shall be knownas a preliminary mandatory injunction.

Sec. 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 bysaid court or any member thereof.

Magic word: enjoin or stop


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When to apply: any time before judgment or final order Who may grant:

o Court where the action or proceeding What are the types of prelim injunction?

o Preliminary injunction to prohibit or stop: maintain the status quoo Preliminary mandatory injunction: requires something to be performed or done to

maintain the status quo

o And you also have the restraining order which is issued to preserve the status quo untilthe hearing on the application for preliminary injunction. (Bacolod City Water v Labayen)

Can there be a main action for injunction?o Yes, its an ordinary civil action which seeks a judgment for a final injunction.

Different from a PI whose object is merely to preserve the status quo Requisites for a PI:

o Clear and unmistakable righto Such right has been violated and invasion has been material and substantialo Urgent and permanent necessity for the writ to prevent great and irreparable injury

(never quantify this or else its not great and irreparable) Can an injunction have an effect if enforced outside the judicial district? (enforced in Makati by a

judge stationed in Benguet)o No, a writ can only be issued in the judicial region.

Whats a status quo order?o Its not a PI, so the requirements for PI/TRO do NOT apply to it.o It can be applied in the TC or CA. it can be issued without a bond or without a fixed term.

But in 2007 SC Circular: the requirements for TRO (bond and affidavit) must applyto status quo orders if issued for judicial or extrajudicial foreclosure of mortgage.

Additional requirements:o Show actual payment of the loano Mere claim that the interest is unconscionable or excessive does

not justify the issuance of the PI unless the legal interest is paid.

Sec. 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 inrestraining the commission or continuance of the act or acts complained of, or in requiring theperformance 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

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuringor suffering to be done, some act or acts probably in violation of the rights of the applicant respectingthe subject of the action or proceeding, and tending to render the judgment ineffectual.

Grounds:o Applicant entitled to the relief demanded and the whole or part of the relief is restraining

or requiring the performance of an act or actso The commission, continuance or non-performance of the acts will work injustice to the

applicant

o Someone is violating the rights of the applicant and it tends to render the judgment of themain case ineffectual

What kind of evidence do you need to prove your case?o Only a sampling of evidence is needed. (Landbank v Continental, 2004)o You need not present evidence of the entire cause of action

Except: If cause of action is same basis for the TRO (but be careful of

prejudgment)

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 therelief demanded; and(b) Unless exempted by the court, the applicant files with the court where the action or proceeding ispending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to theeffect that the applicant will pay to such party or person all damages which he may sustain by reasonof the injunction or temporary restraining order if the court should finally decide that the applicant was


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not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall beissued.(c) When an application for a writ of preliminary injunction or a temporary restraining order is includedin a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled onlyafter 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, togetherwith a copy of the complaint or initiatory pleading and the applicants affidavit and bond, upon theadverse 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 Philippinestemporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneousservice of summons shall not apply.(d) The application for a temporary restraining order shall thereafter be acted upon only after allparties are heard in a summary hearing which shall be conducted within twenty-four (24) hours afterthe sheriffs return of service and/or the records are received by the branch selected by raffle and towhich the records shall be transmitted immediately.

Sec. 5. Preliminary injunction not granted without notice; exception. No preliminary injunction shall begranted without hearing and prior notice to the party or persons sought to be enjoined. If it shallappear from facts shown by affidavits or by the verified application that great or irreparable injurywould result to the applicant before the matter can be heard on notice, the court to which theapplication for preliminary injunction was made, may issue ex parte a temporary restraining order tobe effective only for a period of twenty (20) days from service on the party or person sought to beenjoined, except as herein provided. Within the 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. Thecourt shall also determine, within the same period, whether or not the preliminary injunction shall begranted, and accordingly issue the corresponding order.

However, subject to the provisions of the preceding sections, if the matter is of extreme urgency andthe applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-salacourt or the presiding judge of a single-sala court may issue ex parte a temporary restraining ordereffective for only seventy-two (72) hours from issuance, but shall immediately comply with theprovisions of the next preceding section as to service of summons and the documents to be servedtherewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case ispending shall conduct a summary hearing to determine whether the temporary restraining order shallbe extended until the application for preliminary injunction can be heard. In no case shall the totalperiod of effectivity of the temporary restraining order exceed twenty (20) days, including the originalseventy-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 temporaryrestraining order is not extendible without need of any judicial declaration to that effect, and no courtshall have authority to extend or renew the same on the same ground for which it was issued.

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

The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that issued a writ ofpreliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide themain case or petition within six (6) months from the issuance of the writ.

No preliminary injunction can be issued without notice and hearing. But for TROs, a court can issue a TRO without notice and hearing. TROs are issued to preserve the status quo until the hearing of the application for preliminary

injunction which cannot be issued ex parte.

o There are two kinds of TRO: The 72-hour TRO Ground: matter of extreme urgency and applicant will suffer grave

injustice and irreparable injury Issued by the executive judge of a multi-sala court, or presiding judge of a

single sala court ALWAYS without a hearing Only lasts for 72 hours.

o Note: NOT 3 days, but 72 hours. (So make sure to file it on aMonday or Tuesday. If you file it on a Thursday, itll expire on a


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weekend and you wont have a chance to extend it until Mondaysince no court on weekends.)

It automatically expires after 72 hours.o But this can be extended to 20 days, how?

The TRO, summons, complaint and NOTICE of RAFFLE willbe given to the defendant

The parties have to be present during raffle Within the 72 hours, the judge will conduct a summary

hearing to determine whether the TRO should be extendedto 20 days (including the 72 hours)

Normal 20 day TRO Ground: great or irreparable injury Issued by regular court judge AFTER raffle

o Two instances where the normal 20 day TRO will come about: Following the 72-hour TRO (thats why you need the notice

of raffle) Following service of the complaint and summons (normal

manner, when the case is not one of extreme urgency). Also without notice and hearing, but judges rarely do this since people

might think badly of them Within the 20-day period, the court will determine if the preliminary

injunction should be given (Bacolod City Water v Labayen, 2004) Only lasts for 20 days, can NOT be extended. It automatically expires.

NOTE: Both TROs need a bond. Can TROs be issued by the court motu propio?

o NO! TROs must be applied for. (Universal Motors v Rojas, 2005) Can a regular court judge issue a 72-hour TRO and say that it will stay effective until further

orders?o NO! (Greenstar v Andiong, 2008)

First, a regular court judge generally issue a 72-hour TRO. The executive judgedoes that.

Second, theres no such thing as a TRO until further orders (exceptin the SC) Can the CA and SC issue TROs?

o Yes. CA: lasts 60 days SC: until further orders

Can you apply for a 2ndTRO after your first one expired?o Yes, if based on a different and new ground.

What is the duty of the court who issued a PI?o Decide the main case within 6 monts. (See last paragraph)

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 othergrounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also byaffidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing thatalthough the applicant is entitled to the injunction or restraining order, the issuance or continuancethereof, as the case may be, would cause irreparable damage to the party or person enjoined while theapplicant can be fully compensated for such damages as he may suffer, and the former files a bond inan amount fixed by the court conditioned that he will pay all damages which the applicant may sufferby the denial or the dissolution of the injunction or restraining order. If it appears that the extent ofthe preliminary injunction or restraining order granted is too great, it may be modified. Ground to object:

o Insufficiency of application (only a ground to DENY, not to dissolve) How to both object or dissolve:

o File affidavits showing there was no reason for the PIo File counterbond and affidavit (and undergo a hearing) that the party will suffer more

damage than the applicant will because of the PI

Sec. 7. Service of copies of bonds; effect of disapproval of same.


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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 orsureties thereon. If the applicants bond is found to be insufficient in amount, or if the surety orsureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved afterjustification is not filed forthwith, the injunction shall be dissolved. If the bond of the adverse party isfound to be insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient inamount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be

granted or restored, as the case may be.

If the bonds or counterbonds are insufficient, the PI can either be dissolved or granted, as thecase may be.

Sec. 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 Rule57.Sec. 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 complainedof permanently enjoined, the court shall grant a final injunction perpetually restraining the party orperson enjoined from the commission or continuance of the act or acts or confirming the preliminarymandatory injunction.RULE 59RECEIVERSHIPSection 1. Appointment of receiver.Upon a verified application, one or more receivers of the property subject of the action or proceedingmay be appointed by the court where the action is pending, or by the Court of Appeals or by theSupreme 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, thatthe party applying for the appointment of a receiver has an interest in the property or fund which is thesubject 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 propertyis in danger of being wasted or dissipated or materially injured, and that its value is probablyinsufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract ofmortgage;(c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of itaccording to the judgment, or to aid execution when the execution has been returned unsatisfied or thejudgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carrythe judgment into effect;(d) Whenever in other cases it appears that the appointment of a receiver is the most convenient andfeasible means of preserving, administering, or disposing of the property in litigation. During thependency of an appeal, the appellate court may allow an application for the appointment of a receiverto be filed in and decided by the court of origin and the receiver appointed to be subject to the controlof said court.

Magic word: preserve! Salient features:

o Only provisional remedy that can be applied for post-judgment and even if it is alreadyfinal and executory.2

o Requires two bonds: Applicants bond(Sec 2) Receivers bond (Sec 4)

Grounds:o Property is in danger of being losto Property mortgaged is in danger of being wasted/dissipated and the security in the

mortgage is not enough to cover the value of the application

o Stipulation in a mortgage contract2Sec. 41. Appointment of receiver.The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any

interference with, the property of the judgment obligor not exempt from execution.


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o Preserve the property during appeal or to aid execution of judgmento Other reasons the court finds that the appointment of a receiver is the most convenient

and feasible means of administering the property Sequestration proceedings by the PCGG are akin to receivership and attachment. (Republic v

Saludares, 2000)

Sec. 2. Bond on appointment of receiver.Before issuing the order appointing a receiver the court shall require the applicant to file a bondexecuted 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 theappointment of such receiver in case the applicant shall have procured such appointment withoutsufficient cause; and the court may, in its discretion, at any time after the appointment, require anadditional bond as further security for such damages.Sec. 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 paythe applicant all damages he may suffer by reason of the acts, omissions, or other matters specified inthe application as ground for such appointment. The receiver may also be discharged if it is shown thathis appointment was obtained without sufficient cause. Filing of a counterbond:

o Discharges a receiver, oro Denies an application

Receiver may also be discharged if it is shown that his appointment was without sufficient cause.Sec. 4. Oath and bond of receiver.Before entering upon his duties, the receiver shall be sworn to perform them faithfully, and shall file abond, executed to such person and in such sum as the court may direct, to the effect that he willfaithfully discharge his duties in the action or proceeding and obey the orders of the court.

Can an agreement stipulate that the receivers bond can be dispensed with?o Yes. (Citibank v CA, 1999)

But in that same case, the SC held that the receivership was defective because ofthe receivers failure to take the oath.

Sec. 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 copythereof on each interested party, who may except to its sufficiency or of the surety or sureties thereon.If either the applicants or the receivers bond is found to be insufficient in amount, or if th e surety orsureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved afterjustification is not filed forthwith, the application shall be denied or the receiver discharged, as thecase may be. If the bond of the adverse party is found to be insufficient in amount or the surety orsureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved afterjustification is not filed forthwith, the receiver shall be appointed or re-appointed, as the case may be.

Sec. 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 possessionof the property in controversy; to receive rents; to collect debts due to himself as receiver or to thefund, property, estate, person, or corporation of which he is the receiver; to compound for andcompromise the same; to make transfers; to pay outstanding debts; to divide the money and otherproperty that shall remain among the persons legally entitled to receive the same; and generally to dosuch 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 theaction.No action may be filed by or against a receiver without leave of the court which appointed him. Receivership only covers acts of administration, receiver cant do acts of ownershipSec. 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 orinvolved in the action or proceeding, or in case of disagreement, as determined and ordered by thecourt, may be punished for contempt and shall be liable to the receiver for the money or the value ofthe property and other things so refused or neglected to be surrendered, together with all damages


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that may have been sustained by the party or parties entitled thereto as a consequence of such refusalor neglect.Sec. 8. Termination of receivership; compensation of receiver.Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for areceiver no longer exists, it shall, after due notice to all interested parties and hearing, settle theaccounts of the receiver, direct the delivery of the funds and other property in his possession to theperson 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 ofthe case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires.Sec. 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 provisionsof this Rule, shall be claimed, ascertained, and granted under the same procedure prescribed in section20 of Rule 57.RULE 60REPLEVINSection 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.

Covers only personal propertyo Actually covers specific personal property

When: at the commencement of the action or any time before answero Compare to other prov rems, where you can apply anytime while the action is pending (or

in receivership, even after) What if answer already given?

Just go for attachment, but you wont get the specific property, and thegrounds for issuance must be present.

What if personal property is perishable? Go for attachment since it allows for the sale of the property. Just make

sure the grounds are present. Replevin is a prov rem, remember that. The main action is recovery of possession of property.Sec. 2. Affidavit and bond.The applicant must show by his own affidavit or that of some other person who personally knows thefacts:(a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled tothe possession thereof;(b) That the property is wrongfully detained by the adverse party, alleging the cause of detentionthereof according to the best of his knowledge, information, and belief;

(c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law,

or seized under a writ of execution or preliminary attachment, or otherwise placed under custodialegis, or if so seized, that it is exempt from such seizure or custody; and(d) The actual market value of the property. The applicant must also give a bond, executed to theadverse party in double the value of the property as stated in the affidavit aforementioned, for thereturn of the property to the adverse party if such return be adjudged, and for the payment to theadverse party of such sum as he may recover from the applicant in the action.

What should the affidavit contain?o Applicant is the owner of the thing, or is entitled to possession thereofo Property is wrongfully detained

If the detention is actually allowed by law, then no replevin (Twin Ace Holding vRufina, 2006, wherein gin bottles were used and allowed by law to be used forstoring suka and patis.)

o Property is not lawfully taken Lawfully taken: levy, execution, custodia legis, tax assessment, under preliminary

attachment Custodia legis: subjected to the official custody of judicial/executive officer

in pursuance of his execution of a legal writ


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o A bus impounded after an accident is not under lawful custodysince there is no law authorizing such. It violates the Constitutionalright of unlawful seizures. Hence, it can be subject to a replevin.(Superlines v PNCC, 2007)

o Logs under DENR custody based on a lawful DENR order can NOTbe released (Dagudag v Paderanga, 2008)

o Evidence seized under search warrants or valid warrantlesssearches can NOT be released.

o The FMV of the property How much is the bond?

o DOUBLE the value of the property Only prov rem where its double the value

Sec. 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 andrequiring the sheriff forthwith to take such property into his custody.Sec. 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 partthereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be notdelivered, he must cause the building or enclosure to be broken open and take the property into hispossession. After the sheriff has taken possession of the property as herein provided, he must keep itin a secure place and shall be responsible for its delivery to the party entitled thereto upon receivinghis fees and necessary expenses for taking and keeping the same.Sec. 5. Return of property.If the adverse party objects to the sufficiency of the applicants 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 filingwith the court where the action is pending a bond executed to the applicant, in double the value of theproperty as stated in the applicants affidavit for the delivery thereof to the applicant, if such deliverybe 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.Sec. 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 objectsand the court affirms its approval of the applicants bond or approves a new bond, or if the adverseparty requires the return of the property but his bond is objected to and found insufficient and he doesnot forthwith file an approved bond, the property shall be delivered to the applicant. If for any reasonthe property is not delivered to the applicant, the sheriff must return it to the adverse party. The adverse party can file a counterbond (worth double the value of the property) to prevent the

delivery of the property by the sheriff to the applicant. (so, this can be availed of before the sheriffdelivers the property to the applicant)

o But if within 5 days: No objection is made Objection is made but is overruled by the court Counterbond is insufficient

Then the property will be delivered to the applicant.o Whats your remedy if the property has already been delivered to the applicant?

Intervene, but possession cant be given to you. Na-deliver na eh.Sec. 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 thepossession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while thelatter has possession of the property and a copy thereof upon the applicant, the sheriff shall not bebound to keep the property under replevin or deliver it to the applicant unless the applicant or hisagent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party


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Okay, but what if you were wrongfully compelled to give support3, what doyou do?

o Ask for reimbursement. (Sec 7) If action is still pending, apply for reimbursement in the

same action. If there is judgment already, apply for it in a separate

case. Can the court dissolve support pendente lite?

o Yes. If there is no more reason to give such. Can the court give support in arrears?

o YES! (Mangonon v CA, 2006, where a grandfather was asked to support hisgranddaughters education in the US)

Sec. 5. Enforcement of order.If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu

proprio or upon motion, issue an order of execution against him, without prejudice to his liability forcontempt.When the person ordered to give support pendente lite refuses or fails to do so, any thirdperson 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 providesuch support.

If there is refusal to comply with the court order to give support, what in the world happens?o

The court can order execution (without prejudice to contempt). Interestingly: there are only TWO instances where there can be writ of execution

even when there is no final judgment. When? Secret.4

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, theaccused may be ordered to provide support pendente lite to the child born to the offended partyallegedly because of the crime. The application therefor may be filed successively by the offendedparty, her parents, grandparents or guardian and the State in the corresponding criminal case duringits pendency, in accordance with the procedure established under this Rule. Applied in rape cases. Application should be filed successively by the offended, her parents, grandparents or guardian

and the State.

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 theamounts already paid with legal interest from the dates of actual payment, without prejudice to theright of the recipient to obtain reimbursement in a separate action from the person legally obliged togive the support. Should the recipient fail to reimburse said amounts, the person who provided throughsame may likewise seek reimbursement thereof in a separate action from the person legally obliged togive such support. BREAK MUNA!SPECIAL CIVIL ACTIONS

RULE 62INTERPLEADERSection 1. When interpleader proper.Whenever conflicting claims upon the same subject matter are or may be made against a person whoclaims no interest whatever in the subject matter, or an interest which in whole or in part is notdisputed by the claimants, he may bring an action against the conflicting claimants to compel them tointerplead and litigate their several claims among themselves.

3Like when you go to Maury and tells you, you are NOT the father. And you start jumping up and down like a madman.41) Support pendente lite and 2) when the court finds out that the purported indigent party is not in fact an indigent party for purposes of filingfees


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Sec. 2. Order.Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants tointerplead with one another. If the interests of justice so require, the court may direct in such orderthat the subject matter be paid or delivered to the court. Why would one file an interpleader?

o There are or may be conflicting claims upon the same subject mattero Against a person who either

Claims NO interest, Or his interest is NOT disputed

o The conflicting claimants are called to interplead and litigate amongst themselves Interpleader is proper not to protect a person against double liability but to protect him against

double vexation in respect of one liability.o Proper when lessee does not know the person to whom rentals will be paid. (Ocampo v

Tirona, 2005, where unlawful detainer was filed against a lessee who did not pay rent to

the proper person. SC said the lessee should have filed for interpleader if she wasnt surewho to pay)

Differentiate from intervention.o In intervention, there is already a pending case.o Here, the applicant still has to initiate the action.

Sec. 3. Summons.Summons shall be served upon the conflicting claimants, together with a copy of the complaint andorder.Sec. 4. Motion to dismiss.Within the time for filing an answer, each claimant may file a motion to dismiss on the ground ofimpropriety of the interpleader action or on other appropriate grounds specified in Rule 16. The periodto file the answer shall be tolled and if the motion is denied, the movant may file his answer within theremaining period, but which shall not be less than five (5) days in any event, reckoned from notice ofdenial.

Sec. 5. Answer and other pleadings.Each claimant shall file his answer setting forth his claim within fifteen (15) days from service of thesummons upon him, serving a copy thereof upon each of the other conflicting claimants who may filetheir reply thereto as provided by these Rules. If any claimant fails to plead within the time hereinfixed, the court may, on motion, declare him in default and thereafter render judgment barring him

from any claim in respect to the subject matter.The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints andresponsive pleadings thereto, as provided by these Rules. Note that you can file counterclaims in your answer to an interpleader.

o Failure to set up a compulsory counterclaim is a WAIVER to such claim. (Arreza v Diaz,2001, where the losing party in an interpleader failed to raise a claim of reimbursement.After she lost, she filed a claim for reimbursement, but this was deemed waived)

Sec. 6. Determination.After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted inaccordance with the Rules, the court shall proceed to determine their respective rights and adjudicate

their several claims. Does a writ of possession necessarily follow an adjudication on an interpleader?

o No, not necessarily. Depends on the facts of the case.o In Maglente v Padilla (2007), the issue was who between 2 parties had the right of firstrefusal to purchase property. After the court ruled on the interpleader for one party, the

winning party moved for a writ of possession. The SC ruled that the interpleader merelyresolved the question of who could purchase the property, nothing more. Ownership hadnot yet transferred to the winning party, they only had the right to purchase the property.

Sec. 7. Docket and other lawful fees, costs and litigation expenses as liens.The docket and other lawful fees paid by the party who filed a complaint under this Rule, as well as thecosts and litigation expenses, shall constitute a lien or charge upon the subject matter of the action,unless the court shall order otherwise. The filing fees is paid by the party who filed the complaint.


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o But he is entitled to a lien on the judgment award to reimburse him for the filing fees sincehe is not a real party in interest anyway.

RULE 63DECLARATORY RELIEF AND SIMILAR REMEDIESSection 1. Who may file petition.Any person interested under a deed, will, contract or other written instrument, whose rights are

affected by a statute, executive order or regulation, ordinance, or any other governmental regulationmay, before breach or violation thereof, bring an action in the appropriate Regional Trial Court todetermine any question of construction or validity arising, and for a declaration of his rights or duties,thereunder.An action for the reformation of an instrument, to quiet title to real property or remove cloudstherefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under thisRule. Rule 63, Sec 1 covers scenarios:

o Declaratory reliefo Other similar remedieswhich can be brought under an action for declaratory relief

reformation (remember Civil Code provisions on this one) quieting title removal of clouds5 consolidate ownership (usually in pacto de retro sales)

Requisites for declaratory relief (Almeda v Bathala, 2008, where a lease contract was underissue):

o Subject matter of the controversy must be a deed, will, contract or other writteninstrument, statute, EO, regulation or ordinance

o Terms and the validity thereof are doubtful and require judicial constructiono NO breach of the documents in questiono Actual justiciable controversy or the ripening of one between adverse partieso Ripe for judicial determinationo Adequate relief is not available elsewhere

So if administrative remedies are still available, then declaratory relief improper.(Mejia v Gabayan, 2005)

Purpose:o declaration of rights/dutieso interpretation/constructiono determination of validity

Important that NO breach has happened yet.o In Malana v Tapa, 2009, an action for quieting title was brought under Rule 63, but the SC

said it was improper because there was already a breach (refusal to vacate), so an actionpubliciana was the proper action.

o So if there is a pending unlawful detainer case, declaratory relief will be improper as well. What if there was a breach?

Before action filed: improper If it happened during the pendency of the case: the action will be

converted to an ordinary civil action. (Sec 6)o In this case, you need to pay filing fees upon conversion.o Sir says the case is usually re-raffled upon conversion.

Where do you file it?o It depends.

If based on the first paragraph: RTC If based on the second paragraph: The rules on determining which court has

jurisdiction must still be followed. If quieting of title of property only worth P410: MTC (Malana v Tappa) If reformation: RTC (since incapable of pecuniary estimation)

Can you file a counterclaim to declaratory relief?o Yes. (PDIC v CA)

Can there be execution in a declaratory relief?5what is a cloud now?


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o Yes. (DBM v Manilas Finest, 2007, where police retirees moved for execution of adjustedretirement benefits based on a favorable judgment in a case of declaratory relief)

Can you file a MTD based on failure to state a cause of action?o No, since no breach yet.

Sec. 2. Parties.All persons who have or claim any interest which would be affected by the declaration shall be made

parties; and no declaration shall, except as otherwise provided in these Rules, prejudice the rights ofpersons not parties to the action. Failure to join parties who have any interest in the matter will NOT prejudice them. (Non-joinder is

a ground for dismissal)o Except if action is quasi-in-rem (Atty. Guevara)o

Sec. 3. Notice on Solicitor General.In any action which involves the validity of a statute, executive order or regulation, or any othergovernmental regulation, the Solicitor General shall be notified by the party assailing the same andshall be entitled to be heard upon such question.Sec. 4. Local government ordinances.In any action involving the validity of a local government ordinance, the corresponding prosecutor orattorney of the local governmental unit involved shall be similarly notified and entitled to be heard. If

such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitledto be heard. Statute, EO or regulation: notify the OSG Local ordinance:

o Validity: notify the respective prosecutoro Constitutionality: notify the OSG

Sec. 5. Court action discretionary.Except in actions falling under the second paragraph of section 1 of this Rule, the court, motu proprioor upon motion, may refuse to exercise the power to declare rights and to construe instruments in anycase where a decision would not terminate the uncertainty or controversy which gave rise to theaction, or in any case where the declaration or construction is not necessary and proper under thecircumstances. For Par 1 of Sec 1: Court can motu propio or upon motion refuse to exercise its power if

o Would not terminate the uncertaintyo Declaration not necessary and proper

But for Par 2 of Sec 1 (reformation, quieting title, etc): Court action is mandatorySec. 6. Conversion into ordinary action.If before the final termination of the case, a breach or violation of an instrument or a statute, executiveorder or regulation, ordinance, or any other governmental regulation should take place, the action maythereupon be converted into an ordinary action, and the parties shall be allowed to file such pleadingsas may be necessary or proper.RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ONELECTIONSAND THE COMMISSION ON AUDITSection 1. Scope.This Rule shall govern the review of judgments and final orders or resolutions of the Commission onElections and the Commission on Audit.Sec. 2. Mode of review.A judgment or final order or resolution of the Commission on Elections and the Commission on Auditmay be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except ashereinafter provided.Sec. 3. Time to file petition.The petition shall be filed within thirty (30) days from notice of the judgment or final order orresolution sought to be reviewed. The filing of a motion for new trial or reconsideration of said


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judgment or final order or resolution, if allowed under the procedural rules of the Commissionconcerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may filethe petition within the remaining period, but which shall not be less than five (5) days in any event,reckoned from notice of denial.Sec. 4. Docket and other lawful fees.Upon the filing of the petition, the petitioner shall pay to the clerk of court the docket and other lawfulfees and deposit the amount of P500.00 for costs.Sec. 5. Form and contents of petition.The petition shall be verified and filed in eighteen (18) legible copies. The petition shall name theaggrieved party as petitioner and shall join as respondents the Commission concerned and the personor persons interested in sustaining the judgment, final order or resolution a quo. The petition shallstate the facts with certainty, present clearly the issues involved, set forth the grounds and briefarguments relied upon for review, and pray for judgment annulling or modifying the questionedjudgment, final order or resolution. Findings of fact of the Commission supported by substantialevidence shall be final and non-reviewable.The petition shall be accompanied by a clearly legible duplicate original or certified true copy of thejudgment, final order or resolution subject thereof, together with certified true copies of such materialportions of the record as are referred to therein and other documents relevant and pertinent thereto.The requisite number of copies of the petition shall contain plain copies of all documents attached tothe original copy of said petition.The petition shall state the specific material dates showing that it was filed within the period fixed

herein, and shall contain a sworn certification against forum shopping as provided in the thirdparagraph of section 3, Rule 46.The petition shall further be accompanied by proof of service of a copy thereof on the Commissionconcerned and on the adverse party, and of the timely payment of docket and other lawful fees.The failure of petitioner to comply with any of the foregoing requirements shall be sufficient ground forthe dismissal of the petition.Sec. 6. Order to comment.If the Supreme Court finds the petition sufficient in form and substance, it shall order the respondentsto file their comments on the petition within ten (10) days from notice thereof; otherwise, the Courtmay dismiss the petition outright. The Court may also dismiss the petition if it was filed manifestly fordelay, or the questions raised are too unsubstantial to warrant further proceedings.Sec. 7. Comments of respondents.The comments of the respondents shall be filed in eighteen (18) legible copies. The original shall beaccompanied by certified true copies of such material portions of the record as are referred to therein

together with other supporting papers. The requisite number of copies of the comments shall containplain copies of all documents attached to the original and a copy thereof shall be served on thepetitioner.No other pleading may be filed by any party unless required or allowed by the Court.Sec. 8. Effect of filing.The filing of a petition for certiorari shall not stay the execution of the judgment or final order orresolution sought to be reviewed, unless the Supreme Court shall direct otherwise upon such terms asit may deem just.Sec. 9. Submission for decision.Unless the Court sets the case for oral argument, or requires the parties to submit memoranda, thecase shall be deemed submitted for decision upon the filing of the comments on the petition, or of suchother pleadings or papers as may be required or allowed, or the expiration of the period to do so. This is actually a petition for certiorari which will get you straight to the SC. It has the same requisites as Rule 65. Take note: 30 day NON-extendible period

o The period will be interrupted if you file an MR. BUT the Neypes ruling will NOT apply, so if youre MR is denied, you only get the

remaining period (which shouldnt be less than 5 days).

Only covers decisions by the:o COMELECo COA

Like in Rule 43, ALL attachments must be certified true copies.


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o Since youre coming from a quasi judicial agency and the court has no way of gettingthese documents internally.

RULE 65CERTIORARI, PROHIBITION AND MANDAMUS This is NOT an appeal. Ordinarily filed with the CA first, and then the SC. Rule 65 is a three-headed monster:

o Certiorario Prohibitiono Mandamus

For all three, it is important to refer to Rule 46, Sec 3 since Rule 65 is an original action6o You need to serve the petition to the other party.

If not, dismissed.o Duplicate originals of the decisions assailed of, instead of certified true copies, are also

allowed. (Rep v Carmel Development, 2002)

Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without orin excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess ofjurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary courseof law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts

with certainty and praying that judgment be rendered annulling or modifying the proceedings of suchtribunal, board or officer, and granting such incidental reliefs as law and justice may require.The petition shall be accompanied by a certified true copy of the judgment, order or resolution subjectthereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certificationof non-forum shopping as provided in the third paragraph of section 3, Rule 46. Certiorari:

o Against who: tribunal, board, officero Questioning what: judicial or quasi-judicialo Relief sought for: nullify, set aside or modify the proceedings

GR: no damageso Requisites:

GADALEJ present No plain, available, speedy ordinary remedy available

Sec. 2. Petition for prohibition.

When the proceedings of any tribunal, corporation, board, officer or person, whether exercisingjudicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or withgrave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or anyother plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved therebymay file a verified petition in the proper court, alleging the facts with certainty and praying thatjudgment be rendered commanding the respondent to desist from further proceedings in the action ormatter specified therein, or otherwise granting such incidental reliefs as law and justice may require.The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolutionsubject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworncertification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.6Sec. 3. Contents and filing of petition; effect of non-compliance with requirements.The petition shall contain the full names and actual addresses of all the petitioners and respondents, a concise statement of the matters involved,

the factual background of the case, and the grounds relied upon for the relief prayed for.It shall be filed in seven (7) clearly legible copiestogether with proof of service thereof on the respondent with the original copy intended for the court indicated as such by the petitioner, and shall

be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof, such

material portions of the record as are referred to therein, and other documents relevant or pertinent thereto. The certification shall beaccomplished by the proper clerk of court or by his duly authorized representative, or by the proper officer of the court, tribunal, agency or office

involved or by his duly authorized representative. The other requisite number of copies of the petition shall be accompanied by clearly legible

plain copies of all documents attached to the original. The petitioner shall also submit together with the petition a sworn certification that he hasnot theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof,

or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn

that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or

any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days

therefrom. The petitioner shall pay the corresponding docket and other lawful fees to the clerk of court and deposit the amount of P500.00 for

costs at the time of the filing of the petition. The failure of the petitioner to comply with any of the foregoing requirements shall be sufficientground for the dismissal of the petition.


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Prohibition:o Against who: tribunal, board, officer, corporation, persono Questioning what: judicial, quasi-judicial, or ministerial

Ministerial: like registration or cancellation of title by the RDo Relief sought for: desist from further proceedings

GR: No damageso Requisites:

GADALEJ present No plain, available, speedy ordinary remedy available

Hence, when the properties had already been levied, prohibition will beallowed. No other speedy ordinary remedy. (Quezon City v Bayantel,

2006, which was a tax case wherein Bayantels properties were alreadylevied because of nonpayment of real property taxes. No need to exhaustadmin remedies as well since question was purely on law)

Sec. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an actwhich the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfullyexcludes another from the use and enjoyment of a right or office to which such other is entitled, andthere is no other plain, speedy and adequate remedy in the ordinary course of law, the personaggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and

praying that judgment be rendered commanding the respondent, immediately or at some other time tobe specified by the court, to do the act required to be done to protect the rights of the petitioner, andto pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.The petition shall also contain a sworn certification of non-forum shopping as provided in the thirdparagraph of section 3, Rule 46.

Mandamus:o Against who: tribunal, board, officer, corporation, persono Questioning what:

Ministerial function, or Exclusion of another from the use and enjoyment of a right or office to which the

other is entitled Compare this with Quo Warranto (where the one doing the excluding is

actually keeping office. Here, it can be a third person doing the excluding)o Relief sought for: command to do the act required with damageso Requisites:

No plain, available, speedy ordinary remedy available No need for GADALEJ

Ministerial functions:law specifically enjoins as a duty resulting from an office, trust, or stationo Ministerial when the discharge of the duty requires neither the exercise of official

discretion nor judgment. (Esquivel v OMB, 2002)o The conditions of law must be complied with before mandamus can lie. (Lambino v

Comelec, 2006, wherein the conditions for a proper initiative and referendum was notcomplied with, so man

Documents

Mickey Rem Review 2