PRELIMINARY ATTACHMENT-RULE 57 Application

SECTION 1 Purpose- security for satisfaction of the judgment When to applyAt commencement Or before final entry Grounds: 1. Action for specified amount of money/damages (other than moral or exemplary) , on a cause of action arising from contract , quasi-contract, delict or quasi-delict against a defendant ABOUT TO DEPART from the Phil with INTENT TO DEFRAUD HIS CREDITORS. 2. Action for MONEY OR PROPERTY EMBEZZLED OR FRAUDULENTLY MISAPPLIED OR CONVERTED into his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent , or clerk, in the course of his employment as such, or by any other person in a FIDUCIARY CAPACITY OR WILLFUL VIOLATION OF DUTY; 3. Action to recover possession of property unjustly taken or fraudulently taken, detained, or converted, when the property, or any part thereof, has been CONCEALED, REMOVED, or DISPOSED of to prevent its being found or taken by the applicant or an authorized person; 4. In an action against a party who has been guilty of FRAUD IN CONTRACTING THE DEBT OR INCURRING THE OBLIGATION upon which the action is brought, or in the PERFORMANCE thereof; 5. In an action against a party who has REMOVED or DISPOSED of his property, or is ABOUT TO DO SO, with INTENT TO DEFRAUD his creditors; or 6. In action against a PARTY WHO DOES NOT RESIDE AND IS NOT FOUND in the Philippines, or on whom SUMMONS may be served BY PUBLICATION.

Order -issued ex parte or upon motion

Requirements: 1. AFFIDAVIT showing that sufficient cause of action exists; case is one of those mentioned under Sec. 1 of Rule 57; no other sufficient security for the claim sought; amount due the applicant (or value of property sought) is as much as the sum for which the order is granted above all legal counterclaims. 2. BOND (1st bond)-equal to amount of claim or the value of the property conditioned that will pay all damages/costs that the adverse party may sustain by reason of the attachment if the court shall finally adjudge that the applicant was not entitled thereto.

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Writ of Attachment

Enforcement

REQUIREMENTS- to be served on the defendant (scaabow) 1. Prior or contemporaneous service of summons 2. 3. does not apply where summons could not be served personally or by substituted service despite diligent efforts resident defendant but temporarily out of the Phil. Non resident defendant Action in rem or quasi-in-rem

Copy of the complaint, application for attachment, affidavit and bond Order and writ of attachment

MANNERReal property- any interest standing in the name of the party or in the name of other person -file with the Register of Deeds copy of the Order , description of the property and Notice that the property (or interest held or standing in the name of other person) is attached. AND leaving a copy of the Order, Description, and Notice to the occupant, if any or with such person or agent if found in the province.

Personal

capable of manual delivery- take custody not capable of manual delivery- leaving a copy of the Writ & Notice -President/managing agent, in case of stocks/shares -person owing such debts or who has control or possession of such credits or other personal property in case of debts and credits, including bank deposits, etc. -Executor /Administrator or other representative AND to the office of the Clerk of Court where the estate is being settled, in case of interest in estate properties -In case the property is in custodia legis, a copy of the Writ shall be filed with the proper court or quasi-judicial agency and Notice of the attachment shall be served upon the custodian of such property.

EFFECT OF ATTACHMENT (Sec. 8, 9) -On debts/credits-shall be liable to the applicant until the attachment is discharged or judgement satisfied UNLESS such property or debts is delivered to the clerk or sheriff or proper officer of the court issuing the attachment. -On attachment of interest in property belonging to the estate, it shall not impair the powers of executor/administrator/personal representative of the decedent for purposes of administration. The personal representative however shall report to the court when there is order of distribution, and the property attached shall be delivered to the sheriff making the levy.

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Sec. 10- Examination of party whose property is attached or person indebted to him or controlling his property; delivery to the sheriff. Sec. 11- Attached property may be sold after levy (but before entry of judgment) if perishable or serve interest of all the parties

DISCHARGE OF ATTACHMENT

Section 12- -cash deposit or -counter-bond executed in favor of the applicant equal to the amount fixed in the Order or the value of the property as determined by the Court which shall stand in place of the property released Sec. 13. Before or after levy or even after release of the attached property, the party whose property has been ordered attached, may file a motion to set aside the Order of attachment on the following grounds: 1. 2. 3. Improperly or irregularly issued or enforced Bond is insufficient Attachment is excessive

The Order of attachment may be lifted if grounds are found not to be true AND the defect is not cured forthwith. NOTE: However, if the grounds of the motion is the same basis of the complaint, the hearing on such motion would be tantamount to trial on the merits of the action (GB Inc. vs. Sanchez, 98 Phil. 886).

THIRD PARTY CLAIMANT File an Affidavit of his claim with the Sheriff while the latter has possession and copy thereof furnished to the applicant Sheriff not bound to keep the attached property unless nd applicant files a BOND (2 applicants bond) in sum not less than the value of the property. nd Claim damages against the bond (2 bond) within 120 days. Vindicate claim in the SAME or SEPARATE ACTION. NOTE: applicant may also vindicate in the same or separate action claim for damages against any frivolous and plainly spurious third party claim.

RETURN of the SHERIFF Judgment

-any balance unsatisfied may be collected by ordinary execution -after judgment has become final and executory, the surety on the counter bond may proceeded against after notice and summary hearing.

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Damages
on account of improper, irregular or excessive attachment may be made in the SAME CASE which must be filed before the trial e.g. counterclaim before appeal is perfected with the trial court before judgment becomes executory with the appellate court with due notice to the attaching party and his sureties showing his right to damages and the amount which shall be awarded only after proper notice and hearing and SHALL be included in the judgment on the main case. The damages may be enforced on the property of the attaching party if the bond or deposit posted is insufficient. In a SEPARATE CASE, if the party did not have the opportunity to interpose because of the dismissal of the main case on lack of jurisdiction. Or if, it cannot be presented because the court does not have jurisdiction to entertain it. NOTES: Even if the judgment is against the defendant, he could recover damages on his counterclaim for damages if the attachment was improper, irregular or excessive.

RULE 58-PRELIMINARY INJUNCTION

WHAT order granted at any stage of an action or proceeding PRIOR TO JUDGMENT or FINAL ORDER, requiring a court, agency or person to REFRAIN from a particular act/s. It may also require PERFORMANCE of a particular act/s. Preliminary injunction - It does not apply to consummated acts. Preliminary MANDATORY injunction-performance of a particular act/s. Requisites: 1). Clear legal right 2). There is violation and invasion is material and substantial 3). Urgent and permanent necessity to prevent serious damage. The purpose of which is to re-establish and maintain a PRE-EXISTING continuing relation between the parties, recently and arbitrarily interrupted by the defendant, than to establish a new relation. This is an EXCEPTION to the rule that injunction does not apply to consummated acts. It cannot be used to take possession out of another. Preliminary preventive prohibitory injunction; Distinguished from prohibition Preliminary mandatory injunction; Distinguished from mandamus GROUNDS: 1.

Applicant is ENTITLED TO THE RELIEF demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act/s complained of, or in requiring the performance of act/s, either for a limited period or perpetually. Acts complained of during the litigation would probably WORK INJUSTICE to the applicant. Party/court/person is DOING, THREATENING, or is ATTEMPTING to do, or is procuring or suffering to be done, some act/s probably in violation of the rights of the applicant concerning the subject of the action, and TENDING TO RENDER JUDGMENT INEFFECTUAL.

2.

3.

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WHO grants TRO - MTC or RTC, (both effective for 20 days from service); CA or any member (effective for 60 days from service) or SC or any member (effective until further orders) LIMITATIONS: - Cannot be issued to enjoin acts done outside its territorial district The decisions of a corporation are made by its Board which has its office at the principal office at Quezon City. The Quezon City court has jurisdiction to order the restoration of the connection of electrical power.Dagupan Electric Corp. v. Pao, 95 SCRA 693 (1980)

The implementation of the questioned act may be enjoined by the court where the implementation is to be made-Decano v. Edu, 99 SCRA 410 (1980) - Should not issue if it would in effect dispose the main case without trial. WHEN may it be granted: upon commencement or anytime before judgment. Thereafter, it may be included in the judgment where the injunction is not stayed by appeal under Sec. 4, Rule 39 PD 1818- prohibits courts from issuing injunctions in cases involving infasfracture projects, against administrative acts in controversies involving facts or the exercise of discretion in technical cases. - Exceptions: questions of law- Hernandez v. NPC, GR 145328, 3/23/06 REQUIREMENTS BEFORE GRANT Verified application with Bond- fixed by the court

Hearing and prior notice to adverse party 1. Case raffled only after notice and in the presence of adverse party or Page person to be enjoined. The notice shall be preceded by, or contemporaneously accompanied by service of summons, copy of the complaint or initiatory pleading, affidavit and bond. (SCAB) Except if summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom, or a non-resident. (Prior service of summons or raffling may be dispensed with if could not be served despite diligent efforts. Gonzales v. State properties Corp. GR 140765, 1/25/01)

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2. Application to be HEARD upon NOTICEUnextendible 20-day TRO after summary hearing with notice to the adverse party or person to be enjoined. 72 hour TRO effective upon issuance by the Exec. Judge of a multi-sala court in case of extreme necessity due to grave and irreparable injury, BUT within 24 hrs from filing, the case should be raffled with notice and presence of adverse party. A summary hearing should be conducted within the 72 hours whether to extend the TRO to 20 days. Within the 20-day period, a full hearing should be conducted as to the propriety of granting the application for writ of preliminary injunction.

OBJECTIONS TO, OR FOR MOTION OF DISSOLUTION OF, INJUNCTION OR RESTRAINING ORDER: -insufficiency -applicant entitled, but he can be compensated while party/person enjoined would suffer irreparable damage, AND the latter posts a counterbond. JUDGMENT TO INCLUDE DAMAGES AGAINST PARTY/SURETY as in Sec. 20 of Rule 5

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RULE 59 - RECEIVERSHIP
May be an action itself, just like injunction. VERIFIED APPLICATION

Section 1. Appointment of receiver. in the following cases: (a) party applying for the appointment of a receiver has an interest in the property or fund which is the subject 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) In an action by the mortgagee for the foreclosure of a mortgage, that the mortgaged property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; (c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; (d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. During appeal, the appellate court may allow an application for the appointment of a receiver to be filed in, decided, and subject to control by the court of origin.

GROUNDS for denial of application or discharge of receiver: COUNTERBOND. If bond of adverse party is found to be insufficient, or the surety fails to justify, the receiver shall be appointed or re-appointed, as the case may be. (6a) Appointment was obtained without sufficient cause. receivers bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the application shall be denied or the receiver discharged, as the case may be. Sec. 4. Oath and bond of receiver. OATH and RECEIVERs BOND Sec. 6. General powers of receiver. power to bring and defend, in his own name; to take and keep possession of the property in controversy; to receive rents; to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; to compound for and compromise the same;

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to make transfers; to pay outstanding debts; to divide the money and other property that shall remain among the persons legally entitled to receive the same; and generally to do such 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 the action. No action may be filed by or against a receiver without leave of the court which appointed him. (n) Sec. 7. Liability for refusal or neglect to deliver property to receiver. punishable by contempt and liable to the receiver for the value of the property plus damage

RULE 60 - REPLEVIN
Sec.1- Application.
a party praying for the recovery of possession of personal propertycommencement or before answer.

Sec. 2. Affidavit and bond.

affidavit showing: (a) applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; (b) property is wrongfully detained, alleging the cause of detention; (c) 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 custodia legis, or if so seized, that it is exempt from such seizure or custody; and (d) actual market value of the property. The applicant must give a bond, executed to the adverse party in DOUBLE the value of the property

Sec. 3. Order.
Upon filing of affidavit and approval of the bond, the court shall issue an ORDER and the WRIT of replevin, describing the personal property and requiring the sheriff to take it into custody.

Sec. 5 & 6- Return & Disposition of property by sheriff.

If he OBJECTS to the sufficiency of the bond, he cannot immediately require the return of the property (NOTE: objections should be presented to the court)

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 filing a (REDELIVERY BOND) If within (5) days after the property is taken, 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 objects and the court affirms its approval of the applicants bond or approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party.

NOTE: the seizure of a motor vehicle in violation of Forestry laws places it under custodia legis. FELIPE CALUB et al.,vs. CA [GR No. 115634 April 27, 2000]

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Sec. 7.

PROPERTY CLAIMED BY THIRD PERSON.

AFFIDAVIT of third party claim - serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant. o the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond (counterbond) approved by the court to indemnify the thirdparty claimant in a sum not less than the value.

CLAIM DAMAGES against the bond within 120 days. VINDICATE CLAIM (in the same or separate case)

APPLICANT

claim damages against third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action.

Judgment.- delivery, or for its value if delivery cannot be

made and damages. Recovery against sureties same procedure as prescribed in section 20 of Rule 57.

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RULE 61 - SUPPORT PENDENTE LITE Section 1. Application.

At the commencement, or at any time prior to the judgment, a verified application for support pendente lite may be filed by any party stating the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic documents.

Sec. 2. Comment.
5 days (or such period fixed by the court) by verified comment, affidavits and documents.

Sec. 3. Hearing.
not more than 3 days after comment or after the expiration of the period for its filing.

Sec. 4. Duty of the sheriff. (aabow)

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 part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same.

Sec. 4. Order.
The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support.

Support in criminal- 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. o The application therefor may be filed successively by the offended party, her parents, grandparents or guardian and the State in the corresponding criminal case during its pendency, in accordance with the procedure established under this Rule. (n)

Sec. 5. Enforcement of order.

motu proprio or upon motion, issue an order of execution, without prejudice to his liability for contempt. Any third person who furnished that support to the applicant may, after due notice and hearing in the same case, obtain a writ of execution.

Restitution.- in case of adverse decision against the recipient.

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