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Provisional Remedies- protection of rights before final judgment

-temporary remedies. In the meantime. While the main action is pending.


Judgment satisfied. But civil procedure doesnt end there.
When you file an action because you want a permanent relief.
But there are times when a protection of a right cannot wait for the judgment.
If you are going to wait for the judgment, your rights may not be amply protected
Reason: before a case is resolve. It takes a long time.
Example: Apt Dwelling (lease 1k per month)
By stealth and strategy the defendant has taken the possession of the apt
dwelling.
How will the lawful possessor regain possession.
File a civil case: Forcible Entry (summary procedure) main action
Rule 70 section 15- Writ of Preliminary Mandatory Injunction- Provisional Remedy
( to restore possession)
If you dont know that there is such remedy but judgment is rendered against the
defendant ( immediately executory) but defendant appealed ( Rule 70 Sec 19)
execution is stayed.
Def filed supersedeas bond to cover the damages and cost and filed periodic
deposit to cover the normal use of property
What is you remedy: (Rule 70 Sec 20) within 10 days
Example:
(petition for relief. No right to appeal. But equitable remedy 60 days from learning of
the judgment and 6 months from entry in the same court and in the same case BUT
the judgment is already final and executory. the wining party may file a motion for
execution.)
Provisional Remedy writ of preliminary injunction and or temporary restaining
order ( Rule 38 sec 5)
1978 bar problem
Plaintiff who accdng to NAWASA is not paying water bills. Plaintiff says he is
paying.
He filed a case: action for specific performance.
Provisional Remedy: Writ of Preliminary Mandatory Injucntion to restore the water.
Provisional Remedy requires a main action.
Which court has jurisdiction to issue a provisional writ?

Ans: the court which has jurisdiction over the main action.
Main action: injunction- RTC
Xpn: MTC
Fmtc
Forcible entry
Unlawful detainer
Accion Publiciana- not exceeding 200k. it it exceeds 200k RTC
Main action: support Family Court issue support pendent lite
XPN: RTC if there are no Family Courts.

What are Provisional Remedies?


Rule 57 Preliminary Attachment
Rule 58 Preliminary Injunction
Rule 59 Receivership
Rule 60 Replevin
Rule 61 Support Pendente Lite
The enumeration is not exclusive
Some are not mention but has the same effect of Provisional Remedies
Example: adoption and custody of minors (Rule 99)
Provisional temporary custody and visitation rights
Proviosional Remedies in a writ of amparo

1. TPO
2. WPO
3. Interim relief of inspection order
4. Production order
# 3 & 4 also available to defendant

Can the court formulate a provisional remedy that is not even in the rules Pro Hac
Vice?
Ans: YES under the power to promulgate rules. And under the power of equity
jurisdiction.
In the absence of the law. Equity will come in (natural concepts of what is just and
right)

Under Article 9 NCC no judge should shall decline to render judgment based
obscurity or silence or insufficiency of the law.

Equity Jurisdiction
Example: Reyes v Lim
Contract to sell (land amounting to 28 m)
Buyer down 10 m. Buyer discovered that the land has been sold to other
person
So he filed a rescission of the contract. (obligation of restitution)
Provisional Remedy: deposit the 10k (Down).

General Comparison

HEARING
Is the hearing mandatory in Preliminary attachment? pdeng notice and
hearing and ex parte
Ex parte : at the commencement of the case
Hearing In preliminary injunction- Mandatory (not granted without hearing)
TRO even without hearing on the ground of irreparable injury or extreme
urgency
Hearing in Receivership- hearing is needed for the objection of the sufficiency
of the bond.
Hearing in Provisional Replevin- no hearing. Writ will be immediately issued
upon application and filing of bond.
Hearing in Suport Pendente lite- may hearing

BOND
Preliminary Attachment attachment bond together with affidavit
Preliminary Injunction- GR: YES
XPN: Unless exempted by the court
Receivership- 2 bonds
Sec2- applicant double the value of the bond

Sec4- Receiver
Support pendent lite none

PRELIMINARY ATTACHMENT
Final attachment when the case has been resolved
Purpose of PA : to secure the judgment that may be rendered in a case.
The creditor won the case, he filed for the execution. But he discovered that the
debors immediately disposed of the property. In this case, he will file a case of an
accion pauliana. (1381, NCC)
Provisional Remedy: Writ of PA
Annotated in the RD
Property attached: such property which is sufficient to the claim as to the
amount
Effect of Attachment: if your property has been attached. The property sold even if
it is not covered by attachment. Such disposal is presumed to be fraudulent.
(Badges of Fraud)
Badges of Fraud (1387, NCC)
1. Disposal Property gratuitous title leaving nothing for the satisfaction of the
debt
2. Disposal of property by onerous title if the seller is under a writ of PA.
In garnishment the bank is the forced intervenor.
Q: Is it possible that the property of a person under writ of attachment be sold?
A: Yes under Sec 5 of Rule 57 provides that not all properties can be subject of WPA
because only those properties which could satisfy the debt can be attached.
Disobedience to a lawful writ (if the person under a writ of PA disposed the
property covered by Attachment) INDIRECT CONTEMPT
Punishment:
1. Damages (fraud)
2. Fine RTC ( not more than 30k) MTC ( not more than 5k) or
imprisonment RTC (of not more than 6 months) MTC ( not more than
1 month)
BAR EXAM QUESTION
Can we ask for a writ of PA in every case that we file?
ANS: no. only in those in cases specified in rule 57 Rule 57 Sec 1

Example:
Action for sum money (35K)
Asked Writ PA on the ground that the debt has long been matured or that the
debt is substantial? Is such ground valid?
ANS: NO. Theres no such ground specified in Rule 57 Sec 1.

Q: Can you ask writ of PA in an action for damages?


A: Yes. EXPN: Moral and Exemplary
Note: amount of Damages must be expressly specified

Grounds:
1. Action for Sum money- amount must be specified?
2. NOTE: You cant ask for Writ PA by merely alleging that the debtor is about to
depart the country. There must be intent to defraud.
Defendant is a corporate treasurer who embezzled the fund. The corporate filed an
Action to recover the funds. Is there a need to allege that the defendant is
about to depart the Philippines with intent to defraud? NO!!! Fiduciary
capacity and relationship is sufficient.
NOTE: Insolvency is not a ground for WPA
1. You borrowed a money from the bank. You mortgage your property as a
collateral. The bank found out that the title to your property is fraudulent.
Can the suit for foreclosure can the bank ask for a WPA? YES!!! Because
there was fraud in contracting a debt or incurring the obligation. DOLO
CAUSANTE (the collateral induced the court to lend you money).
2. You borrowed the money in good faith. (no fraud in borrowing the money),
the collateral is okay. The bank filed a collection of sum of money. You
delivered it. 2 days the bank discovered that the money you delivered is
bogus. Can the bank ask WPA? Yes!!! The Fraud was committed in the
fulfillment of the obligation.
3. Rule 57 sec1 f NO FRAUD.
a. Example: action for sum of money
b. Defendant is outside the Philippines
c. Action in personam. (court needs jurisdiction over the person of
defendant). You cannot use extra- territorial service.
d. If he has property in the Philippines you can file WPA for it. (The
action is converted to action in rem.
e. NOTE: if there is deficiency in the claim, you cannot ask for it
because it is an accion in personam.

If the action is Foreclosure instead. You cannot ask for deficiency. Because the
jurisdiction is over the res and not over the person.
Can a writ of PA be issued ex parte? Yes. Only at the commencement of the action.
But cannot be enforced if jurisdiction is not acquired
There can also be notice and hearing - at the pendency of the proceedings.
BAR EXAM QUESTION
Davao Light Case
3

Stages in attachment
1. issuance order of attachment
2. Issuance of writ of attachment

3. Enforcement of writ- Jurisdiction is required. (by service of


summons and simultaneous service) XPN: summons cannot be
served personally or by substituted service despite diligent
efforts, or def is temporarily absent therefrom, or the def is a
non-resident of the Philippines. Or the action is in rem or quasin
in rem.

How do you ask for a WPA


Application supported by an affidavit
WHEN? in the commencement of the action. Or even if there is already judgment
but before entry.
Can you ask for it on SC??? Yes!!! if it is on appeal on the SC. (you appeal to SC from
CA. RULE 45)
What are you going to alleged?
1.
2.
3.
4.

STATE THAT YOU HAVE COA


COA covered in cases specified in Rule 57 sec 1
Attachment bond
Property to be attached. Sufficient only as to the claim.

Opposing Party
1.
2.
3.
4.

Discharge the attachment ex parte


Prevent attachment- hearing
Sec 12. Rule 57 file a counter bond or deposit.
If you dont have a counter bond? Sec 13 attachment not supported by
sufficient COA. Not fall in one of the cases were attachment is allowed or
insufficient bond.

Q: Is it possible that the applicant for attachment will be liable for damages
even if he be the winner in the litigation?
A: Yes, because there might be a showing that the WPA is wrongfully
obtained.
Q: Can the property in custodial legis be attached?
A: YES. In which case the sheriff will not get the property, he shall only serve
the other proper court a copy of writ of attachment and notice of such.

PRELIMINARY INJUNCTION
Main action of Injunction is separate and distinct from PR of Injunction
Preliminary Mandatory Injunction
Preliminary Prohibitory Injunction
Main action of PMI- can be an action for damages.
Article 26 of NCC- not crime but may give rise to a COA.
(Those acts can be prevented by INJUNCTION). While the action is pending,
you may ask for WPI as there is still no court order to stop the person.
A WPI will not be issued ex parte.
Restrain of an act- TRO (grave or irreparable injury or extreme urgency) ex
parte
If the TRO is granted it would only have a life of 20 days from the service of
the order. Within that 20 day period the court will have a hearing to
determine if TRO would ripen to WPI.
IF theirs is still no decision after 20 days. It automatically dies even without
judicial pronouncement. It may be extended if it is for different reason.
There is no renewal of TRO.
Another kind of TRO which could be issued immediately if you allege extreme
urgency. Effective only for 72 hours. But within 72 hours the court can
determine if it could ripen into 20 days and within 20 days the court will
determine if it could ripen to WPI.
72 hour TRO- if asked in a multi sala court. It could only be asked from the
executive judge.
TRO 20 day period is not extendible- it should ripen to WPI.
IF it issued by CA 60 day period.

FE and UD- apply WPI to restore possession.


PR to prevent execution.
There are acts which cannot be enjoined by the Regular court
Injunction for Labor cases- NLRC
SC injunction- to stop the presidential agrarian reform council, to stop the
infrastructure of the Government.
GR: No injunction in the prosecution of criminal offenses
XPN: prosecution is oppressive and baseless. The prosecution is in violation
of consti provision like double jeopardy.
GR: no injunction in the collection of taxes
XPN: collection violates consti
NOTE: Courts cannot enjoin acts of court of equal rank.
Defendant filed MTD in the RTC on the ground of improper venue, failure to state a
cause of action denied. MR- denied. Rule 65 on CA.
PLAINTIFF FOUND OUT THAT THERE IS NO ANSWER FILED. The 15 day period has
lapsed. Motion to declare the defendant in default. Granted. Issued an order of
default.
Defendant alleged that RTC cannot declare def in default because there is a pending
certiorari in CA.
Did the RTC can be faulted? No because the filing of the certiorari on CA does not
have the effect of interrupting the proceedings below. The defendant should have
filed I, WPI, TRO to stop the proceedings of the court below

Provisional Remedies
RULE 57
Writ of Preliminary Attachment
(Conceptual Approach)
Involved in the litigation (building, property or funds being held by the other party.
Reasons to believe that such property may be lost, dissipated, wasted, materially
altered).
Remedies to preserve the property under the litigation RECEIVERSHIP

-Occupation of prop thru force and intimidation. (you sued the person for the
recovery of real property. You are using the property for your livelihood and plant
products there and your livelihood depends upon that land.
- Provisional Remedy available. Writ of Preliminary Mandatory Injucntion ( to
restore possession during the pendency of the case.

RECEIVERSHIP- the property is in danger of being lost, dissipated, wasted or


materially altered.
FORECLOSURE OF REAL ESTATE MORTGAGE- it is not the creditor who holds the
property. It is the debtor.
Do not confuse Rule 59 in the receivership on banks. Receivership is taken care of
the monetary board of the central bank)
A judgment was rendered in your favor in rel to certain prop which were the subject
matter of the litigation. The opposing party appealed therefore judgment cannot be
executed. (APPLY RECEIVERSHIP)
When you apply for receivership you have to post a bond.
When the other party does not want the receivership he will object and post a
counter bond which will have the effect of discharging Receivership.
If the other party has no capacity to post a bond and the court decided to a
Receivership.
When the receiver assumes his responsibility and functions, he is under the power
and control of the court. He also has to post a bond. Because certain properties will
be under his control. The receiver might be the one responsible for the dissipation
etc. of the property.
What are the powers of a Receiver?

1. Only powers of management


2. He cannot sell and dispose it unless the parties consent to it. And the
court authorizes it.
3. Can the Receiver sue and be sued in his own name as a Receiver? Yes.
There must always be by leave of court.
Keyword: preservation of the property. Not dissipated, lost, wasted, or
materially altered.

Deprived of personal property capable of manual delivery


Example: Truck.. unlawfully withheld. (possession)
Action: Replevin

If the truck is used as an indispensable means of livelihood. But if you want to have
possession of the truck in the meantime. Provisional Remedy: Writ of Replevin.
When to file: before an answer has been served and filed (very limited period)
NOTE: you cannot ask for replevin once the property is subject of seizure, warrant or
in custodia legis
NOTE: immediately executory once you have a filed a verified application and bond
is approved. RULE 60 Sec. 3
NOTE: writ will issue even without hearing
The writ will now be given to the sheriff but he will not immediately deliver it to the
applicant. He will wait for 5 days where in the opposing party may object and post a
redelivery bond. The bond will be double the value of the property.
Main action of replevin is a long process so in the meantime PR of Replevin (interim
relief).
SUPPORT PENDENTE LITE
Girl victim of rape who later on gave birth who does not have any money to support
her child can ask for a PR pendent lite
Seduction- yes even if the case is pending and theres still no judgment
NOTE: There is provisional remedy in criminal cases.
What if the accused was acquitted because it is proven that he did not commit the
crime?
ANS: The remedy of the accused is to demand for Restitution
CIVIL CASE: there must be a main action
Main Actions:
1. Action for support
2. Action for recognition as natural child
3. Habeas corpus of a child
The applicant for SPL is not required to post a bond. But there must be a hearing to
determine WON the latter is entitled for support.
What to allege?
1. You are entitled to support under the family code (Art. 195)
2.
3.