Provisional Remedies

Rule 57Preliminary Attachment

(Secs. 1-20)

Nature of attachmentDavao Light & Power Co., Inc. vs. CA, 204 SCRA 343

(1991)Olib vs. Pastoral, 188 SCRA 692 (1990)

When issued; grounds (Sec. 1)

1. Action for recovery of specified amount2. Action involving embezzled property

3. Action to recover property fraudulenty taken4. Action involving fraud in contracting or performing

obligations5. Action against party who has removed or disposed of

property to defraud creditors6. Action against non-resident defendant

Issuance and contents of order (Sec. 2)

Attachment bond required (Secs. 3, 4)

Writ may issue ex parte; prior or contemporaneous sevice of summons required for enforcement (Sec. 5)

Davao Light & Power Co., Inc. vs. CA, supraWhen attachment may be enforced without service of

summonsValmonte vs. CA, 252 SCRA 92 (1994)

Discharge of attachment1. Upon giving counterbond (Sec. 12)

2. On other grounds (Sec. 13)3. Judgment rendered against attaching party – dismissal

of principal action (Sec. 19)

Third party claim (Sec. 14)Same procedure as in Sec. 16, Rule 39 in levy of property

on execution claimed by third partyTraders Royal Bank vs. IAC, 133 SCRA 141 (1984)

Satisfaction of judgment out of property attached (Sec. 15)

Claims for damages on account of improper, irregular orexcessive attachment (Sec. 20)

Pacis vs. Comelec, 29 SCRA 24 (1969)

Rule 58Preliminary Injunction

(Secs. 1 to 9)

Preliminary injunction defined (Sec. 1)Injunction as a main action

Hernandez vs. National Power Corporation, G.R. No. 145328, March 23, 2006Nature and purpose

Sabalones vs. CA, 239 SCRA 79 (1994)Ulang vs. CA, 225 SCRA 637 (1993)Which court may issue writ (Sec. 2)

Territorial jurisdiction to issue writDecano vs. Edu, 99 SCRA 410 (1980)

Grounds for issuance (Sec. 3)Acts consummated may not be enjoined; exceptions

Verzosa vs. CA, 299 SCRA 100 (1998)When injunction is improper

Tay Chun Suy vs.CA, 229 SCRA 151 (1994)

Laws prohibiting injunctionPD 605 – cases involving concessions, licenses, and otherpermits issued by public administrative officials or bodies

for exploitation of natural resourcesPD 1818 – cases involving infrastructure and natural

resources projects of, and public utilities operated by, thegovernment

PD 385 – against any government financial institution takingforeclosure of loans of which at least 20% thereof are

outstandingExceptions

Hernandez vs. National Power Corporation, G.R. No. 145328, March 23, 2006Verified application and bond (Sec. 4)

Not granted without notice; exception (Sec. 5)

Distinction between RTC, CA and SC TROsFederation of Land Reform Farmers of the Phils. vs. CA,

246 SCRA 175 (1995)

Dissolution of injunction or TRO (Sec. 6)*Counterbond – person enjoined wll pay all damages which

applicant may suffer by the denial or dissolution of theinjunction or restraining order

Judgment to include damages against party and sureties(Sec. 8)

Same procedure as in Sec. 20, Rule 57When final injunction granted (Sec. 9)

Rule 59Receivership

(Sections 1 to 9)

Receiver definedNormandy vs. Duque, 29 SCRA 385 (1969)

Appointment of receiver (Sec. 1)

Receivership other than that under Rule 581. Receivership in aid of execution of judgment under Rule 39, Sec. 1

2. Bank receivership3. Receivership in petitions for insolvency under the Insolvency Law

Notice and hearing required- incumbent upon applicant to present evidence to establish

condition precedent that property is in danger of being lost.removed or materially injured unless a receiver is

appointed to guard and preserve it

Oath and bond of receiver (Secs. 2,4)

Denial of application or discharge of receiver (Sec. 3)1. Upon motion and prior notice, receivership may be

discharged if it shown that his appointment was obtainedwithout sufficient cause;

2. Adverse party files a counterbond – will pay applicant all damages he may suffer by reason of acts, omissions, or other matters specified in the application as ground for

such appointment. (Compare to counter-bond in injunction).

General powers of receiver (Sec. 6)

Judgment to include recovery against sureties (Sec. 9)Same procedure as in Rule 57, Sec. 20

See Rule 58, Sec. 8

Rule 60Replevin

(Sections 1 to 10)

Replevin definedBA Finance Corp. vs. CA, 258 SCRA 102 (1996)

NatureChiao Liong Tan vs. CA, 228 SCRA 75 (1993)

Application (Sec. 1)Affidavit and bond (Sec. 2)

Foreclosure of chattel mortgageNorthern Motors, Inc. vs. Herrera, 49 SCRA 392

(1973)Replevin does not issue against property in custodia

legisOrder to deliver property (Sec. 3)

Where writ may be served (anywhere in the Phils.)Is hearing required? (Compare to preliminary attachment and

preliminary injunction)N.B. Unlike in attachment and injunction which is

usually issued only after hearing, with certain exceptions,order for delivery of personal property as a provisional remedy

is issued ex parte and, given the requisites for its issuance,is granted as a matter of course.

Return of property (Sec. 5)*Counterbond – double the value of the property, for

delivery thereof to the applicant, if such be adjudged, andfor payment of such sum as may be recovered against

the adverse party

Disposition of property by sheriff (Sec. 6)- property seized not to be delivered immediately to

plaintiff but must retain it in custody for 5days and shall return it to the defendant if the

latter files a counterbond and requires its return- counterbond must be filed within 5 days from

taking of property; period mandatory, so that alower court which approves a counterbond filedbeyond the period acts in excess of jurisdiction

Third party claim (Sec. 7)See Rule 39, Sec. 16; Rule 57, Sec. 14

Judgment to include recovery against sureties (Sec. 10)Same procedure as in Rule 57, Sec. 20

See Rule 58, Sec. 8; Rule 59, Sec. 9

Rule 61Support Pendente Lite

(Sections 1 to 7)

Support during pendency of action for supportPendente lite – pending or during litigation

N.B. Amount of support temporarily fixed bythe court in favor of the persons entitled

thereto during the pendency of the actionfor support

Support pendente lite in other actions1. habeas corpus filed by the mother on behalf

of a minor child against the father, where thefather has recognized the child as his own and

has not been giving him support2. rape cases for the offspring of the accused as a

consequence thereof

Special Civil Actions

Rule 62Interpleader

(Sections 1 to 7)

Interpleader definedBeltran vs. People’s Homesite and Housing Corp.,

29 SCRA 145 (1969)

Rule 63Declaratory Relief and Similar Remedies

(Sections 1 to 6)

Declaratory relief definedBoard of Optometry vs. Colet, 260 SCRA 88 (1996)

Distinguish from interpleaderN.B. Interpleader - filed by person who claimsno interest whatsoever in the subject matter.

Declaratory relief – party seeking relief has legalinterest in the controversy

When remedy improper – where there is a breach of acontract, or violation of statute or right

Ollada vs. CB, 5 SCRA 297 (1962)

Conversion into ordinary action (Sec. 6)- the parties may then amend their pleadings

accordingly

RTC has exclusive jurisdiction – SC has no jurisdiction over petitions for declaratory relief

Rule 64Review of Judgments and Final Orders or Resolutions of

COMELEC and COA(Sections 1 to 9)

What may be reviewed by the Supreme CourtGarcia vs. CA, 259 SCRA 99 (1996)

Motion for reconsideration of decision of COMELEC Division required; not of COMELEC En Banc

N.B. Sec. 1 (d) of COMELEC Rules of Procedure = no MR of en banc ruling, resolution, order or decision except in election cases.

N.B. MR of COMELEC Division ruling should first be filed with COMELEC En Banc, whose decision may be brought on

certiorari to SC. Exc. when division committed grave abuseof discretion, in which case the aggrieved party may directly

file a petition for certiorari with SC

Rule 65Prohibition and Mandamus

Prohibition (Sec. 2)Nature and purpose

Vergara vs. Rugue, 78 SCRA 312 (1977)

The writ of prohibition does not lie against the exercise of a quasi-legislative functionHoly Spirit Homeowners Association vs. Defensor, G.R. No. 163980, August 3, 2006

Mandamus (Sec. 3)Will not issue to compel a discretionary act

Sharp International Marketing vs. CA, 201 SCRA299 (1991)

Mandamus is available only to compel the doing of an act specifically enjoined by law as a duty

Henares, Jr. vs. Land Transportation Franchising and Regulatory Board, G.R. No. 158290, October 23, 2006

Exception – where there is grave abuse of discretionFirst Philippine Holdings vs. Sandiganbayan, 253

SCRA 30 (1996)

Common requisites (Secs. 5 to 9)1. Verified petition

2. When and where to file petition

3. Jurisdiction to issue writFortich vs. Corona, 289 SCRA 624 (1998)

4. Who should be respondents5. Contents of petition

6. Non-forum shopping certification

Rule 66Quo Warranto

(Sections 1 to 12)

Definition

Quo warranto and mandamus distinguishedLota vs. CA, 2 SCRA 715 (1961)

Period for filing – within one (1) year from date petitionerousted from his position

Galano vs. Roxas, 67 SCRA 8 (1975)Exception

Cristobal vs. Melchor, 78 SCRA 175 (1977)

Rule 66 of the 1997 Rules of Civil Procedure does not apply to quo warranto cases against persons who usurp an office in a private corporation.Calleja vs. Panday, G.R. No. 168696. February 28, 2006.

Rule 67Expropriation

(Sections 1 to 14)

Distinction between eminent domain and expropriation

Stages of expropriationPeriod to appeal from order of expropriation

Municipality of Binan vs. Garcia, 180 SCRA 576 (1989)

Meaning of just compensationRep. Act No. 8974 mandates immediate payment of the initial just

compensation prior to the issuance of the writ of possession in favor of the Government..

Republic vs. Gingoyon, G.R. No. 166429, December 19, 2005

Motion to dismiss is not permitted in a complaint for expropriation.Masikip vs. City of Pasig, G.R. No. 136349, January 23, 2006

Writ of possessionRepublic vs. Tagle, 299 SCRA 549 (1998)

Rule 68Foreclosure of Real Estate Mortgage

(Sections 1 to 8)

Indispensable and necessary parties in foreclosurecomplaint

Modes of foreclosure of real estate mortgageJudicial – Rule 68

Extrajudicial – Act No. 3135, as am. by Act No. 4118

Modes of foreclosure of chattel mortgageJudicial – Rule 68; Replevin under Rule 60 may be availed of to secure possession of

property as preliminary to its saleExtrajudicial – Section 14, Act No. 1508

Equity of redemptionLimpin vs. IAC, 166 SCRA 87 (1988)

No right of redemption in judicial foreclosureof real estate mortgage except when allowed by law

Ex. Sec. 47, General Banking Law of 2000(RA 8791)

Right of redemption in extrajudicial foreclosureRosales vs. Yboa, 120 SCRA 869 (1983)

Filing of court action to enforce redemption has effect of preserving redemptioner’s rights and “freezing” expiration of one year period.

Banco Filipino Savings and Mortgage Bank vs. CA,463 SCRA 64

Prescriptive period to file action for deficiency inextrajudicial foreclosure of real estate mortgage

- Ten (10) years (Arts. 1144 and 1142, Civil Code)

Writ of possession is a non-litigious proceeding - no need for notice to adverse partyDe Vera vs. Agloro, 448 SCRA 203 (2005)

Writ of possession is like a writ of execution PNB vs. Sanao Marketing Corp., 465 SCRA 287 (2005)

An action to invalidate the mortgage or the foreclosure sale is not a valid ground to oppose issuance of writ of possession.

Sps. Arquiza vs. Court of Appeals, G.R. No. 160479, June 8, 2005

Rule 69Partition

(Sections 1 to 13)

Partition definedVillamor vs. CA, 162 SCRA 574 (1988)

MTC may have jurisdiction in actions for partitionReal property - P20,000.00/P50,000.00

Personal property – P300,000.00/P400,000.00

Final order decreeing partition and accountingappealable (Sec. 2)

Appeal period – 30 days

Action for partition raises two issues1. whether plaintiff is co-owner of property2. assuming plaintiff is co-owner, how to

divide the property between plaintiff anddefendant or among the co-owners

Who are indispensable partiesAll the co-owners (Rule 3, Sec. 7)

Who may effect partitionAlejandrino vs. CA, 295 SCRA 536 (1998)

Extrajudicial partition by heirs (Sec. 1, Rule 74)

Partition of personal property (Sec. 13)

Rule 70Forcible Entry and Unlawful Detainer

(Sections 1 to 21)

Distinguish the different actions to recover possession of realproperty

1. forcible entry and unlawful detainer2. accion publiciana

RTC has jurisdiction where cause of dispossession not among grounds for FEUD, or possession lost for more than one year

Natalia Realty vs. CA, 391 SCRA 370 (2002)3. accion reivindicatoria

Encarnacion vs. Amigo, G.R. No. 169793, September 15, 2006

The RTC does not have jurisdiction over all cases of recovery of possession regardless of the value of the property involved

Quinagoran vs. Court of Appeals, G.R. No. 155179. August 24, 2007Atuel vs. Valdez, June 10, 2003, 403 SCRA 517, 528.

When the complaint fails to aver facts constitutive of forcible entry or unlawful detainerValdez, Jr. vs. Court of Appeals, G.R No. 132424, May 4, 2006

Jurisdiction - Municipal Trial CourtException – estoppel by laches

Velarma vs. CA, 252 SCRA 406 (1996)

Effect of claim of ownership on MTC jurisdictionHilario vs. CA, 260 SCRA 420 (1996)

Cases that do not prejudice ejectment suitWilmon Auto Supply Corp. vs. CA (cited in Hilario)

Forcible entry distinguished from unlawful detainerPrior possession

Forcible entry - requiredUnlawful detainer – not required

Possession by toleranceHeirs of Rafael Magpily vs. De Jesus, 474 SCRA 366 (2005)

When to count one-year periodForcible entry – from actual entry except when there is

stealthOng vs. Parel, 355 SCRA 691 (2001)

Unlawful detainer – from last demand to vacateLabastida vs. CA, 287 SCRA 662 (1998)

Exception: date of the original demand if the subsequent demands are merely in the nature of reminders or reiterations of the original demand.Racaza vs. Gozum, 490 SCRA 313 (2006)

Damages that can be recovered - fair rental value or the reasonable compensation for the use and occupation of the leased property..

Dumo vs. Espinas, G.R. No. 141962, January 25, 2006

Summary nature of FEUDSee Rule on Summary Procedure

Judgment immediately executorywhen stayed (Sec. 19)

cannot be stayed (Sec. 21)Ejectment case survives death of defendantVda de Salazar vs. CA, 250 SCRA 305 (1995)

Rule 71Contempt

(Sections 1 to 12)

Contempt defined

Distinction betweenDirect and indirect contemptCriminal and civil contempt

Two ways of initiating indirect contempt proceedings(Sec. 4)

RemediesDirect contempt (Sec. 2)

Indirect contempt (Sec. 11)

Use of falsified and forged documents constitutes indirect contempt not direct contempt

Judge Dolores Espanol vs. Atty. Benjamin Formoso, G.R. No. 150949, June 21, 2007