PROVISIONAL REMEDIES Those to which party litigants may resort for the preservation or protection of their rights or interests

and for no other purpose during the pendency of the principal action. RULE 57 PRELIMINARY ATTACHMENT Attaching property while case is on-going as security for satisfaction of any judgment that may be recovered. When Issued? From commencement or any time before entry of judgment be made. How issued? By ex parte or upon motion with notice and hearing. What are required? Affidavit and Bond What should be the content of the affidavit? a. Sworn and verified application b. With substantial allegations a. That a sufficient cause of action exist b. That there is no sufficient security for the claim sought to be enforced by the action c. That the amount due to the applicant for attachment or value of property of which he is entitled to recover is as much as the sum for which the order is granted above all legal counterclaims d. That the case is one of those mentioned in Section 1 i. To recover amount or damages arising from quasi/contract, quasi/delict against party whos going abroad with intent to defraud creditor ii. Recover amount based on Estafa iii. Recover property fraudulently taken/hidden as not to be found by applicant iv. Recover from party guilty of fraud in contracting or in performance of obligation v. Recover from party who slowly disposes his property with intent to defraud vi. Party not found in Philippines and summoned by publication only Bond amount discretionary, fixed by court, or equal to the value of the property to be attached. PRINCIPLE OF PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS No levy on attachment shall be enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment, the applicants affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines. Sheriffs return after enforcing writ must make return WITHOUT DELAY Manner of Attaching: a. If real property registrar of deeds must index attachments, make notice containing title number, volume, page in reg book b. If personal property if capable of manual delivery, take it for safekeeping, after issuing receipt therefor c. Stocks/shares leave copy of writ to president or manager and attach notice d. Debts, credits, deposits, and alike give agent a copy of writ and attach notice e. Interest in estate give copy of writ to heir and attach notice, including clerk of court f. If property under custodia legis copy of writ to proper court and notice to custodian

EFFECT OF ATTACHMENT TO PERSONAL PROPERTY anyone having its possession is liable to the applicant until attachment is discharged or judgment recovered by him is satisfied unless it is delivered or transferred to proper officer of court issuing the attachment. WHEN ATTACHED PROPERTY CAN BE SOLD 1. When it is perishable. 2. If interest of parties to action will be subserved by the sale thereof. REMEDIES BY DEFENDANT WHEN PROPERTY IS ATTACHED 1. Give counter-bond to dissolve attachment or cash deposit equal to the claim (12) 2. File motion to discharge attachment on grounds: a. That it was improperly or irregularly issued b. That it was improperly or irregularly enforced c. That the bond of plaintiff is insufficient Note: you can do partial discharge. REMEDIES OF THIRD PERSONS 1. File independent action (within 120 days from filing of bond) 2. File third-party claim 3. File motion for intervention Judgment done already and attached property insufficient, go for ORDINARY EXECUTION is

In case defendant wins, release of attachment is not automatic. Wait for order of release. INJUNCTION judicial writ, process ordering a party to do or refrain from doing an act. Can be main action or merely provisional remedy incidental to main action. 58 PRELIMINARY INJUNCTION (strong arm of equity) Order granted at any stage of an action prior to the final judgment, requiring a person to refrain from a particular act, or to perform a particular act. Note: cannot be issued ex parte, can be action itself TYPES OF INJUNCTION 1. Preventive or mandatory 2. Preliminary or Final (58) TYPES OF PRELIMINARY INJUNCTION 1. Preventive Preliminary Injunction to maintain status quo of things prior to controversy, requires person to refrain from doing particular act/s. 2. Preliminary Mandatory Injunction to maintain pre-existing rights, requires person to perform particular act/s. Who may grant preliminary injunction? Court where case is pending, CA, or SC Note: Order granting or denying a preliminary injunction is NON-APPEALABLE. GROUNDS FOR ISSUANCE PRELIMINARY INJUNCTION 1. Applicant is entitled to relief demanded 2. Non/Performance of act/s would probably work injustice to applicant 3. That party is attempting/doing threatening that caused violation of right of applicant REQUIREMENTS FOR ISSUANCE OF PI 1. Existence of right sought to be protected 2. Act/s which injunction is directed are violative of such right Mandatory Injunction purpose to re-establish and maintain pre-existing right rather than to create a new relationship between them.

Right in Esse clear and unmistakable right, one that is actual or existing. PI or TRO may be granted only when; a. Theres verified application and shows facts entitling applicant to the relief demanded b. UNLESS EXEMPTED BY THE COURT, applicant files bond to court where case is pending c. d. PI To preserve the status quo until the merits can be heard. TRO order issued to preserve status quo UNTIL HEARING OF APPLICATION FOR PI which cannot be issued ex parte. It has limited life of 20 days from issue. If app of PI is denied before 20-days then TRO shall automatically be vacated. If no action taken, then automatically expire on 20th day. This period is ABSOLUTE FOR RTC. For CA is 60 days, but may be shortened. TRO issuance need be acted ONLY AFTER SUMMARY HEARING is conducted within 24-hours after records are transmitted to branch selected by raffle. TRO issuance EX-PARTE can be done only due to extreme urgency that grave injustice and irreparable injury will arise. Such TRO is effective only for 72 hour. Within such time raffle of case and summary hearing be done to determine whether to extend TRO - not over 20 days. Gen.Rule NO PI BE GRANTED WITHOUT NOTICE except when great and irreparable injury would result to applicant may happen then TRO be granted within 20 days. GROUNDS FOR OBJECTION OR DISSOLUTION OF PI OR TRO 1. Application has no basis 2. Counter affidavits filed 3. Putting up counterbond (when PI may cause great damage to defendant and defendant is willing to pay damage through bond in case damage may be done to plaintiff) FINAL INJUNCTION one included in the judgment AS RELIEF or part of relief granted as result of the action. SPECIAL LAWS PROHIBITING ISSUANCE OF WRIT OF PI OR TRO 1. BP 227 prohibits issuance of PI or TRO to labor cases 2. PD 605 prohibits issuance against projects for exploitation or devt of govt projects 3. PD 1818 prohibits issuance against public infra proj and public utilities, and NAPOCOR 4. PD 385 prohibits issuance against govt financing institutions, mandatory closures or against CARL 5. RA 7181 as amended by RA 7061 against Asset Privatization Trust (Prevent injunction over cases with technical matters and not with regards to its legalities alone) 59 RECEIVERSHIP Appointment of receiver, an indifferent person, between parties of case, appointed by court to receive and preserve the property in litigation pendente lite, when it does not seem reasonable to the court that either party should hold it. (an agent of the court) Who may appoint? Court where case is pending, CA, or SC.

GROUNDS FOR RECEIVERSHIP 1. Appears from verified application that party applying has interest over property WHICH IS SUBJECT of proceeding, and that it is in danger of being lost or materially injured. 2. Mortgagee seeks for foreclosure of property which is in danger of being wasted 3. Preserve property DURING PENDENCY OF APPEAL 4. In cases were appointment of receiver is most convenient for preservation of property in litigation. REQUISITES FOR RECEIVERSHIP 1. Verified application 2. Bond DENIAL OF APPLICATION OR DISCHARGE OF RECEIVER 1. When adverse party files bond to pay damages suffered 2. When appointment is obtained without sufficient cause Oath and bond of receiver to faithfully discharge duties as receiver General Powers of Receiver like of a manager. However if funds invested, need order from court and consent from all parties of action. NO ACTION BE FILED BY OR AGAINST RECEIVER WITHOUT LEAVE OF COURT WHICH APPOINTED HIM. Refusal or neglect to deliver property to receiver liable for CONTEMPT OF COURT. When is receivership terminated? When grounds under section1 no longer exists. Receiver shall receive reasonable compensation, cost against defeated party or apportioned. 60 REPLEVIN (delivery of personal property) Action whereby owner or person entitled of goods or chattels may recover those goods or chattels from one who has wrongfully distrained or taken, or who wrongfully detains such goods or chattels. The main action is the recovery of possession of personal property Where to file? Depends upon the amount of personal property. (MTC-P200,000 below) When to file? At commencement of action or anytime BEFORE ANSWER. What to file? Affidavit of owner or disinterested person and bond Affidavit must contain: 1. Plaintiff owns property particularly describing the same or that he is entitled to it 2. Wrongful detention by defendant of said property 3. That property is not taken by virtue of tax assessment or seized pursuant to law 4. The actual value of property Replevin Bond double the value of the property Order upon filing of affidavit and approval of bond, court shall issue order and writ of replevin describing personal property alleged to be wrongfully detained. Sheriff detains it for 5days. Within that period defendant may have right to demand by putting counterbond double the value of property. After 5-days deliver property to plaintiff.

RETURN OF PROPERTY if defendant objects to the sufficiency of applicants bond or by filing counterbond, double the amount of property. Replevin title or right to the property must be threshed out during the trial NOT IN THE MOTION TO DISCHARGE THE WRIT OF REPLEVIN. Injunction and attachment you can question the right of plaintiff to attach the property. Property claimed by third persons file bond to indemnify third party claimant in sum not less than the value of property Sheriff to make RETURN within 10 days NATURE OF JUDGMENT OF REPLEVIN always IN THE ALTERNATIVE either defendant will be ordered to return the chattel or alternatively pay for the value. SPECIAL CIVIL ACTIONS actions with rules that are peculiar to them unlike OCA where rules are general. Still for protection of rights or redress of wrongs. 61 SUPPORT PENDENTE LITE aka alimony pendente lite, allowance or support during the pendency of the main action. How to apply? 1. Make verified application at commencement or anytime before judgment accompanied with 1) affidavit, 2) depositions, or 3) authenticated documents. 2. Court will give copy of application for support with attached docus and give defendant FIVE DAYS TO ANSWER 3. After comment is filed, HEARING will be set WITHIN THREE DAYS 4. Court will then determine TEMPORARILY if theres right to support or not based on SIMPLE FACTS only not yet the whole evidence. In case of failure to comply order granting support, ORDER OF EXECUTION be issued against adverse party, without prejudice to his liability for contempt. Any third person may obtain writ of execution subject to reimbursement from adverse party. General Rule: Interlocutory Order cannot be executed because it is not final. Exception: ORDER FOR SUPPORT PENDENTE LITE Restitution when defendant ordered for support is found to be not liable, recipient has to pay all amounts actually paid with legal interest from date of actual payment. 62 INTERPLEADER SCA where person in possession of property with obligation to render which is not disputed by claimants, comes to court and ask disputing claimants to litigate among themselves who really is entitled to the same. REQUISITES OF ACTION OF INTERPLEADER 1. Plaintiff claims no interest to subject matter or his claim is not disputed 2. At least two conflicting claimants 3. Parties to be interpleaded must make effective claims 4. Subject matter must be one and the same PURPOSE OF INTERPLEADER determine true claimant to prevent double vexation in respect of ones liability and deposit property or funds in controversy with court.

ORDER 1. Upon filing of complaint, court shall issue order requiring conflicting claimants to interplead with one another. If needed, require the payment or delivery of subject matter. 2. Summons shall be delivered to claimants with copy of complaint and order. Motion to dismiss on grounds of impropriety of interpleader or on grounds under Rule16. Period to file an answer be tolled and if motion is denied movant has to file answer within remaining period but not less than 5 days from notice of denial. Effect of failure to answer be declared in default and render judgment barring him from any claim with respect to subject matter. Determination pleadings filed, pre-trial conducted, court shall determine who has right. Docket fee be paid by complainant which can be charged upon the deposit. Attorneys fees be paid by wrong claimant. 63 DECLARATORY RELIEF AND SIMILAR REMEDIES REQUISITES 1. Justiciable controversy 2. Controversy must be between persons whose interests are adverse 3. Person seeking DR must have legal interest over controversy 4. Issue involved must be ripe for judicial determination EXCLUSIVE subject matter of DR: deed, will, contract, other written instrument, statute, executive order or regulation, ordinance, and other government regulation. Included also: action for reformation of an instrument, quiet title to real property or remove clouds therefrom, and consolidate ownership under art1616 RULE 63 is challenge BEFORE breach or violation happens. It will be OCA when there is breach already COURT ACTION FOR DR IS DISCRETIONARY, refused due to conditions: 1. When it would not terminate the uncertainty which gives rise to the action 2. When declaration is not necessary and proper under circumstances CONVERT TO OCA when effectivity of instrument took place before DR was decided If DR for statutes notify SG If DR for local laws notify LGU attorney 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND COMMISSION ON AUDIT COMELEC and COA only. CSC under rule 43 where appeal is to CA first. Review may be brought to SC on certiorari under rule 65 except as hereinafter provided APPEAL MAY BE REFUSED BY SC for being: 1. Without merit 2. Prosecuted manifestly for delay 3. Raising questions too unsubstantial to require consideration

Time to file petition 30 days from notice of judgment. If MR is denied file petition within remaining period but not less than 5 days. NOT Fresh period rule. Pay docket and other lawful fees and deposit P500 for costs Follow all forms and contents needed in petition- or be dismissed due to technicalities If petition granted order to comment will be given by SC within 10 days from notice Once filed, it may be for final resolution or if given due course youll be asked for memoranda or oral argument. The latter is rare as it happens only if national security is at stake. 65 CERTIORARI, PROHIBITION, MANDAMUS Original actions. Certiorari writ issued from a Superior Court to ANY inferior court, board, or officer exercising judicial or quasi-judicial functions whereby the records of a particular case is ordered to be elevated up for review and correction in matters in law. REQUISITES FOR PETITION FOR CERTIORARI 1. Theres controversy 2. Tribunal, board, or officer against whom controversy is brought exercises quasi/judicial function 3. They acted WITHOUT JURISDICTION OR IN EXCESS OF ITS JURISDICTION OR GRAVE ABUSE OF DISCRETION and 4. THERE IS NO APPEAL NOR ANY PLAIN, SPEEDY, OR ADEQUATE REMEDY in the ordinary course of law. Exception to rule of Exhaustion of Admin Remedies 1. Pure questions of law 2. Admin body is in estoppels 3. Act complained is patently illegal 4. Urgency of judicial intervention to avoid irreparable injury 5. No plain, speedy, and adequate remedy 6. When theres strong public interest 7. The claim is too small 8. Appeal to the Office of President 9. Quo Warranto 10. Subject of controversy is private land DISTINGUISH 45 AND 65 45 is mode of appeal. 65 is original action. 45 raise question of law only. 65 raise jurisdictional issue (w/out excess juris grave abu of dis) 45 be done without MFR since its optional. 65 MFR prerequisite no plain, speedy, adequate remedy 45 tribunal not included as respondent. 65 judge or tribunal is included as respondent PROHIBITION writ by which a superior court prevents the inferior courts, a CORPORATION, board or persons from usurping or exercising a jurisdiction or a power with which they have not been vested by law. PROHIBITION vs CERTIORARI P preventive remedy, restrain the doing of some act about to be done, not as remedy for acts already accomplished. C corrective remedy, annul proceedings or order issued by lower tribunal, acts already consummated. P Corporation can be made respondent but not in C because it doesnt exercise quasi-judicial function. C quasi/judicial functions in P including ministerial functions

MANDAMUS writ issued in the name of the state, to an inferior tribunal, a CORPORATION board or persons, commanding the performance of an act which the law enjoins as a duty resulting from an office, trust or station, which is A MINISTERIAL DUTY. Where and when to file? 60 days from notice of judgment in SC 66 QUO WARRANTO Aka by what warrant or BY WHAT AUTHORITY Demand made by the State upon some individual or association to show by what right they exercise some franchise or privilege appertaining to the State which according to the constitution and laws of the land they cannot legally exercise by virtue of grant or authority of the State. Who may petition? 1. Solicitor general 2. Public Prosecutor 3. Person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another Commenced by SG only upon DIRECTIVE of President or upon complaint established by proof Types 1. Compulsory quo warranto MUST commence (sec2) 2. Discretionary quo warranto MAY commence (sec3) Classes 1. QW in the name of RP burden of proof upon defendant 2. QW in the name of private individual burden of proof upon respondent a. He must allege that he is entitled to the position b. Defendant is unlawfully in possession thereof Where to file? SC, CA, RTC with jurisdiction, Sandiganbayan, COMELEC, MTC (Brgy contest) Once ousted turn-over office together with books and papers or else be held in contempt LIMITATION should be filed WITHIN ONE YEAR FROM USURPATION for appointment and TEN DAYS FROM DATE OF PROCLAMATION for elected officials QW vs MANDAMUS QW remedy to the office and to oust the holder from its enjoyment M tries to clear duties. Not remedy to disputed titles. 67 EXPROPRIATION Power of sovereign state to take or authorize the taking of any property within its jurisdiction for public use without the owners consent. IF THE OWNER CONSENTS, there is no need for filing of case. POWER OF EMINENT DOMAIN together with expropriation govt take property for public use and owner doesnt want to sell or sells in excessively high price LIMITATIONS IN EXERCISE OF EMINENT DOMAIN 1. Exercised only by State or its entities authorized by law. 2. Just compensation must be paid to property owner. 3. Due process of law must be observed.

4. Only as much property be taken for legitimate purpose of expropriation PRELIMINARY DEPOSIT deposit of assessed value subject to expropriation filed by plaintiff while case is pending. EFFECT: govt can continue with its project. 1. If government wins it will become downpayment for expropriation 2. If government loses it will be claimed for damages. DEFENDANT AFTER COMPLAINT FILED MAY 1. File notice of appearance and manifest nonobjection, 2. Outline objections, state extent of interest claimed. BUT no counterclaim, crossclaim If defendant waives, amendments may be made within TEN DAYS from answer Value of land will be based on time of taking or time complaint filed whichever comes first Uncertain owner court will deposit the payment and once conflict is resolved it will be given to rightful owner 68 FORECLOSURE OF REAL ESTATE MORTGAGE 69 PARTITION Separation, division, and assignment of a thing held in common among those to whom it may belong. (accio commune debidendo division of the community property) Kinds Judicial Procedure (69) Extrajudicial WHEN PARTITION NOT ALLOWED? 1. Agreement by co-owners as not to divide it for a period of time but not to exceed 10 years 2. Partition prohibited by donor but no exceeding 20 years 3. Partition is prohibited by law 4. Property not subject to physical division which its division would render it unserviceable 5. Conditioned imposed upon voluntary heirs before they can demand partition has not yet been fulfilled. Filing 1. 2. 3. 4. of complaint Put nature and extend of title of complainant Adequate description of real estate Implead all indispensable parties Note: include all demands, rents profits, and other income barred if not set up in action

Unlawful detainer (des halicio) Forcible entry depriving a person of the possession of land or building for a period of time not exceeding ONE YEAR by force, intimidation, strategy, threat, or stealth (FISTS). Sole issue is who has the better right to possess not of ownership. Unlawful detainer unlawful withholding by a person from another, for not more than a year of the possession of any land or building after the expiration or termination of the right to hold such possession by virtue of a contract, express or implied. FE unlawful from beginning, formal demand not required, should be filed 1 year from entry. UD lawful then became unlawful, NEED FORMAL DEMAND TO VACATE and to pay, should be filed 1 year from last demand. SUMMARY PROCEDURE 1. Only pleadings allowed complaint, compulsory counterclaim and cross-claim pleaded in the answer, and answers thereto. All VERIFIED. 2. Complaint when all grounds are in, issue SUMMONS 3. Answer within 10 days from summons. Affirmative and negative defenses not pleaded shall be deemed waived. Cclaims not asserted shall be barred 4. Failure to answer court render judgment 5. PreliCon shall be held within 30 days from filing of answer. No postponement allowed except for HIGHLY MERITORIOUS grounds 6. Order be issued by court within 5 days from prelicon 7. Judgment may be rendered within 30 days from issuance of order on basis of pleadings 8. Affidavits and position papers be submitted within 10days from issuance of order. 10days NON-EXTENDIBLE DISCRETIONARY EXECUTION may filed pending appeal for GOOD CAUSE If not, wait for decision judgment is IMMEDIATELY EXECUTORY Remedy of Defendant 1. File appeal to RTC 2. File Supersedeas bond for all arrears in rentals and pay before 10th of every month for succeeding rentals. Failure will be ground for plaintiff to file for motion for execution for NON-COMPLIANCE.

Court shall then determine if parties are true co-owners and that partition is indeed allowed. If partition by agreement make proper instruments of conveyance If parties do not agree appoint commissioners If partition not possible, sell portion to one party and pay the other. If one party ask the property to be sold instead of being assigned then PUBLIC SALE OF PROPERTY IS MANDATORY 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER FE and UD UNDER MTC Accion Publiciana under MTC if less than 20K Accion Reinvindicatoria recovery of ownership Accion Publiciana recovery of possession Accion Interdictal Forcible entry (detentacion)