Brondial Notes

8/17/2019 Brondial Notes

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REMEDIAL LAW REVIEW 2007

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTEMENDOZA and SARAH JANE CASAUAY

UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED

PROVISIONAL REMEDIES

We are now on provisional remedies from Rule 57 - 61. So there are 5provisional remedies. Just remember the word AIRRS.

But if you are asked, don't say attachment as a provisional remedy but rather it ispreliminary attachment. Don't say injunction as a provisional remedy but ratherpreliminary injunction. As to receivership, yes it is both an action and aprovisional remedy. Technically, it is not the receivership which is the provisionalremedy but rather appointment of a receiver because in receivership it is also akind of action. And then you have replevin or delivery of possession of personalproperty. And then finally you have support pendente lite. Support is not aprovisional remedy but it is support pendente lite which is a provisional remedy.

Now, let me give you a bird's eye view of these provisional remedies.

First, because they are provisional, they cannot stand alone. Being provisionalremedies, they are dependent, contingent, or adhere to a principal action. So thatyou cannot find an action for preliminary attachment. It must always be adheredto the principal action.

Q: Because of that, what are the principal actions to which these provisionalremedies attach?

A:1.) As to preliminary attachment, the principal action is recovery of real or

personal property. If you try to look at Section 1 Rule 57, you will find out thatall the actions there are for recovery of either real or personal property.

2.) As to preliminary injunction, the principal action is injunction although theseseldom find, in actual practice, an action for injunction because it always goeswith some other actions. Like for example specific performance and injunctionplus damages with prayer of preliminary injunction. Is there an action which isinjunction? Yes. Under Section 4 of Rule 39.

3.) As to receivership, receivership is the principal action. The provisional remedyis appointment of a receiver. If you go and look at Section 4 of Rule 39, youwill see that receivership is an action.

4.) As to replevin, the principal action is recovery of personal property. Inreplevin, a foreclosure on mortgage is possible.

5.) As to support pendente lite, the principal action is support.

Q: Which court has jurisdiction over these provisional remedies? A: General answer is because they are contingent, that court which has jurisdiction over the principal action also has jurisdiction over these provisionalremedies. Precisely because they adhere to the principal action.

But let us be more specific, because prior to the 1997 Rules of Court injunction,for example, is cognizable only by the RTC. But with RA 7691 (expansion of the


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inferior courts) and looking at Rule 70 (Sections 15 and 19, all about injunction),therefore under the present rules, the preliminary injunction is now cognizable bythe inferior courts. Before the effectivity of the 1997 Rules, that was applied alsoby jurisprudence only on unlawful detainer. But now it applies to both unlawfuldetainer and forcible entry as is specifically provided under Rule 70.

Q: How about support pendente lite which adheres to an action for support? A: Remember that it cannot be taken cognizance of by the inferior courtsbecause support is an action which is incapable of pecuniary estimation.Therefore, support pendente lite is only cognizable by the RTC because supportto which it adheres is incapable of pecuniary estimation. Exception: In criminalcases. Because the present rules on criminal procedure speaks that once acriminal case is filed, the civil aspect is deemed instituted with it under Rule 111.Hence, if the action is criminal in nature but cognizable by the inferior court andthe prosecution includes the civil action for support, then support pendente litecan be taken cognizance of by the inferior courts. Example: complaint for

seduction which is cognizable by the inferior courts. And together with that youpray for the acknowledgment of the child (suppose merong anak) and you prayfor support pendente lite. In this instance the support pendente lite is takencognizance of the inferior courts.

In Receivership: both inferior courts and RTC.

In Replevin: both inferior courts and RTC.

In Injunction: both inferior courts and RTC.

In Attachment: both inferior courts and RTC depending now on the principalaction to which the provisional remedy attaches.

Q: What are the requirements in applying for these provisional remediesattaching to the principal action?

A:1.) In case of preliminary attachment, what is required is the affidavit and bond.2.) In case of preliminary injunction, the requirement is a bond and a verified

petition.3.) In case of receivership, also a bond and verified petition.4.) In case of replevin, affidavit and bond.5.) In case of support pendente lite, only a verified application. No bond.

Q: How do you secure, aside from these requirements, the writs for theseprovisional remedies?

A:1.) In case of preliminary attachment, you may secure it ex parte. Although the

writ cannot be implemented ex parte but it can be issued ex parte.2.) In case of preliminary injunction, as a general rule you cannot secure it ex


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parte under Section 5, Rule 58, although in cases of urgency, that injunctiverelief for a period of 72 hours can be granted summarily (meron pa din noticeand hearing for due process). That is how stringent in applying for injunctiverelief.

3.) In replevin, you cannot get it ex parte.

4.) In support pendente lite, there is a peculiar provision under Section 2 (Rule61) wherein the respondent, within a period of 5 days from notice, is bound tofile his comment. And if he does not file his comment, the case will be heardon the application only (Section 3) within 3 days.

Q: Once the writ is granted or issued, how do you discharge the writ? A:1.) In case of preliminary attachment, it may be discharged under Sections 5, 12

and 13 of Rule 57. Cash deposit or counter bond (Secs 5 and 12) or a motionquestioning the propriety or regularity of the issuance of the writ (Section 13).

2.) In case of preliminary injunction, it cannot be discharge it by a bond neither if

it be granted by a bond, although bond is required but a counter bond doesnot discharge a writ of preliminary injunction.3.) The same thing with replevin and receivership, you cannot discharge it with a

bond. You have to file a motion questioning the propriety or regularity of theissuance of the writ.

4.) In support pendente lite, there is no bond. If the judgment is in favor of therespondent, the support pendente lite must also be discharged because it hasno basis to stand with.


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RULE 57PRELIMINARY ATTACHMENTProvisional remedy: Preliminary AttachmentPrincipal action: recovery of either real or personal property

Memorize Section 1 (the grounds) of Rule 57. Remember, you will appreciateRule 57 had you understood Rule 39 because there are cross-referencesbetween these provisions. Section 7 of Rule 57 you will find out that that is alsopractically the same or similar provision in Section 9-11 of Rule 39. Section 16 inRule 39 is Section 14 Rule 57, and Section 7 Rule 60 (Replevin). Try to analyzeit, pare-pareho. The 3rd party claimant will simply execute an affidavit. The sheriffwill not be bound to hold it but deliver it to the 3rd party claimant. Yang v. Valdez (was given in the bar about 5 years ago) - the 5 day period of redelivery bond.You have now to distinguish a bond from a counter bond. Later on, rememberthat it is different from a supersedeas bond which you have studied and under

Settlement of Estate. Here, we are dealing with bond and counter bond. Bond isrequired of the applicant. Counter bond is required of the person againstwhom the application was filed. Deposit can be cash either on the part of theplaintiff or the defendant as the case may be.

Q: Take note of Section 1. When can you file or apply for a writ of preliminaryattachment?

A: It says there at the commencement of the action or at any time before entry of judgment.

Q: Bakit? Why should you not apply for a writ of preliminary attachment when judgment has already been entered? A: Because your remedy is not attachment but your remedy is execution underRule 39. Remember when we were discussing Section 27-29 of Rule 39(regarding redemption and redemptioner), so that when a property was sold onattachment, there are possible redemptioners because Section 1 says at thecommencement of the action, you already apply for the issuance of the writ ofpreliminary attachment. And if the writ is issued and implemented, the sheriff, towhom the writ is addressed, takes actual custody of the property if it is capable ofmanual delivery. In the case of replevin, ibibigay ng sheriff sa applicant after 5days if there is no redelivery bond is filed. But in the case of preliminaryattachment, kukunin niya yan for safe keeping. And it will only be sold after

judgment is rendered in favor of the plaintiff (applicant).

Q: Once a property has been replevined and again it was attached, is it stillvalid?

A: Yes. once the property is replevined it can still be attached. But if the propertyis attached it cannot be replevined. Because in attachment, you may not takepossession but in replevin you have to take possession.


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Q: A 3rd party can deal with the property that has been attached. Suppose it wasmortgaged with a bank after it has been attached, is it possible?

A: Yes. The mortgage becomes a lien subsequent to the lien under which theproperty was sold if ever the plaintiff wins in the case.

You cannot just attach right and left if there is no ground. That is why let meemphasize Section 3 of Rule 57.1. There must be a valid cause of action. Because preliminary attachment is

only provisional so if the cause of action is invalid, the preliminary attachmentis also invalid.

2. There must be a valid ground among the 6 enumerated grounds underSection 1.

3. There must be no other security. Or if ever there is, the security is notsufficient.

4. The order must be equivalent to the sum for which you are asking.

NOTE: These 4 requirements must be contained in an affidavit. So your affidavitis pro forma or insufficient if it does not allege these 4 basic requirements asenumerated under Section 3. Aside from that affidavit of merits, bond mustaccompany it.

Q: What do you notice in the grounds under Section 1? A: Yung first three, it is a kind of action. Yung last three, it is the party involved.First action, it is an action for specific amount of money and damages other thanmoral and exemplary damages on an action arising from law, contracts, quasi-contracts, delicts, quasi-delicts against a party who is about to abscond in fraudof creditors.

Q: Why other that moral and exemplary damages? A: There is no basis. The basis must be personal, wounded feelings etc.

Q: Ano yung mga requirements niyan? A:1. Your actions should be for sum of money and damages, other than moral and

exemplary damages.2. Your cause of action is based on a law, contract, quasi-contract, delict, or

quasi-delict.3. It must be directed against a party who is to depart from the Philippines with

intent to defraud.

Second action, an action also for recovery. But look at the defendant here, thedefendant is a public officer, officer of a corporation, attorney, factor, broker,agent, or clerk. In other words there must be a fiduciary relationship betweenthe applicant and the respondent.

Third action, recovery of possession, this time, against a party who removed,


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disposed, or does not disclose it, or who hid these properties.

Q: What is then a common denominator here? A: There is an element of FRAUD.

When you go to paragraphs d, e, and f the phraseology is different. It is against aparty this time, not anymore to the kind of action but to the kind of person who isa party defendant.

In paragraph d, a person who is guilty again of fraud in contracting a debt orobligation upon which the action is brought or in the performance thereof.

Javellana v. D.O. Plaza Enterprises, Inc., L-28297, March 30, 1970 illustratesthe rule prior to the 1997 Rules of Court.Facts of this case: There was a simple sale of property, let's say the purchaseprice was P100, 000.00 D.O. Plaza paid 50% and the balance was secured with

postdated checks. Plaza took possession of the property sold. Later on, thechecks, which were in payment of the obligation contracted, bounced. It allbounced. An action for sum of money was filed with prayer of preliminaryattachment using that the respondent was guilty of fraud in contracting itsobligation. When it reached the Supreme Court, the SC said no. Preliminaryattachment must be discharged because there was no fraud in contracting theobligation but there was fraud in the performance thereof. And at that time, walapa yung term na in the performance thereof. Hence, the defendant here won inthe sense that the preliminary attachment was invalid.

That is why when they amended the 1997 Rules of Court, using the case of D.O.Plaza, they included it in the present rules.

Paragraph e, is one against a party who tries to dispose the property again infraud of creditors.SC case: So here is a businessman who was engaged in buying and selling. Sowhen he owed somebody a sum of money, that somebody filed a case againstthis businessman and applied for a writ of preliminary attachment on the groundthat the businessman was disposing his property in fraud of creditors. The SCsaid NO. He is disposing his property in line of his business precisely he is in buyand sell. If he does not dispose his property, how will he ever be able to pay you.The attachment was invalid.

Another SC case: Wherein the businessman who had a sari-sari store. A casewas filed against him for a sum of money and a writ of preliminary attachmentwas applied for. The SC said YES, the writ of preliminary attachment was validlyissued because there was disposal of the property in fraud of creditors. Even ifthe disposal was made in line of his business, the SC held that the disposal wasmade at midnight and through the backdoor. So there is fraud.


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NOTE: Paragraph f is peculiar because it speaks about his situation orresidence. So in this instance, any person who left the country and temporarilyreside there, you file an action and you can apply for a writ of preliminaryattachment. But take note of the last phrase there and those who may be served

by publication. So you cross-refer that to Section 15-17 of Rule 14 on Summons,who must be served through publication. It applies only on actions in rem orquasi in rem. Actions which are strictly in personam, summons by publication isnot allowed.

One of the objectives of a writ of preliminary attachment is to convert an actionwhich is strictly in personam to an action quasi in rem. Once you convert it, thenyou can now serve summons through publication.

Q: In writ of preliminary attachment, there are three stages: A:

1. Application. Together with the application is the order granting the application.2. Issuance of the order or the writ of preliminary attachment.3. Implementation or execution of the writ of preliminary attachment.

NOTE: The first two stages may be done ex parte. But the last stage mustalways be with prior or contemporaneous service of summons. Hence thatapplied, you can avail of paragraph f of Section 1 of Rule 57 in converting theaction in to an action in rem. Because the writ of preliminary attachment can beissued even without service of summons.

In paragraph f, nakalagay dun that if a person cannot be found in the Philippinesor is temporarily residing out of the Philippines, then that can be a ground forasking the court to issue the writ of preliminary attachment. But we said, it saysthere further, and all those persons who may be served summons throughpublication. But sabi natin, who are these persons who may be served summonsthrough publication? Ala yan diyan. So you go back to Section 15-17 of Rule 14,Extra-territorial service. But we said that even if summons by publication isallowed, that is only in cases where the action is not strictly in personam (quasi inrem). Sabi natin, so contradictory apparently. Why? Because you are askingprecisely for a writ of preliminary attachment on that ground but you cannot servesummons to a person if your action is strictly in personam. Sabi natin, hindi. Angexplanation diyan is that in the application for the writ of preliminary attachment,there are three stages. Yung una hindi mo kailangan ng summons. So you canalready apply, on the basis that the defendant is outside of the country. Youapply irrespective whether the summons can be issued or not because it can beissued ex parte. But dito lang sa issuance. Pero pag hawak na yan ng sheriff,iimplement na niya under Section 7, levy on attachment, hindi ka pwede maglevy on attachment if the court has not acquired jurisdiction over the person ofthe defendant. Kaya nakalagay diyan, prior or contemporaneous. Prior isMangila case. Contemporaneous sabay na ng pag implement ng writ of


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preliminary attachment ang service of summons.When the property has been attached, it does not mean that the property isalready yours. You have to wait for the judgment before you can dispose of theproperty either by public auction or possess it as owner.

Q: Suppose the plaintiff loses under Section 20, what will answer for damages? A: The bond will answer for damages.

NOTE: This is the peculiarity of rule 57. Unlike all other bonds which answer onlyfor damages, it is only in Rule 57 will the bond answer for the judgment. So youunderline the word judgment. Kasi dito mo lang makikita yan sa Rule 57.Because in Rules 58-61, the bond answers for damages. While in Rule 57, thebond answers for judgment. Ano'ng ibig sabihin nun? Sometimes damages canbe separated from judgment. But in most instances hindi. Let's say defendant isordered to pay P20,000 as principal obligation and damages of P10,000, so

hiwalay. In other cases the bond or counter bond only answers for the P10,000.But in preliminary attachment, the bond or counter bond answers for theP30,000, judgment and damages.

Do not be misled therefore by cross-references to Section 20 by the other rules.Do you notice that? di ba puro cross-references. Section 8 of Rule 58, Section 9of Rule 59, and Section 10, Rule 60 cross-refer to Section 20, Rule 57. Thecross-reference is correct but the difference is that the bond and counter bond inall these provisional remedies answer only for damages. But in writ of preliminaryattachment because of its precedent section which is Section 19, which answersfor any judgment.

Q: How do you discharge the writ of preliminary attachment? A: So the writ of preliminary attachment has already been issued or served asthe case may be. At any stage, you can always discharge the writ. UnderSections 5, 12, and 13. These are important sections. Read that and you willnote the differences.

Q: What is the difference between Section 5 and Section 12? A: Apparently, there is no difference. But if you try to analyze it, there is adifference. The means to discharge are the same which is either a cash depositor counter bond, which you find in Section 5. If you go to Section 12, pareho dinang means which is a cash deposit or a counter bond. Tignan niyo, sino anghihingi ng discharge of the writ? Siyempre that party against whom the writ wasissued. A is the plaintiff and B is the defendant. If A applies for preliminaryattachment and it was issued, who seeks for the discharge? Siyempre si B. Is itpossible that A, in an instance, may also seek the discharge of the writ?Ordinarily no, but if B as a counterclaim, which is permissive, B will ask for a writof preliminary attachment against A. Thus A may also seek the discharge thewrit. A can file for a counter bond.


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Section 5 speaks of a cash deposit or a counter bond. The counter bond willanswer for the judgment. The cash deposit will also answer for the judgment,May pinagkaiba ba yun? Siyempre iba yun. Yung cash deposit, pera na yun. Butbusinessmen don't usually do that. What they do is through surety. And this is an

instance where surety is automatically impleaded without the requisite service ofsummons in acquiring jurisdiction over the person of the defendant.

The difference is, in Section 5, the writ has not been implemented but it isalready issued. In the case of Section 12, the writ has already been implementedand custody of the property sought to be attached is already in the hands of thesheriff. The property is already in custodia legis.

Regardless in what stage, whether the writ was just issued but not yetimplemented or is contemporaneously implemented, the defendant canimmediately file for a counter bond. The counter bond, in effect, automatically

discharges the writ.

Section 13, another means of discharging the writ by filing a motion in courtquestioning the propriety or regularity of the issuance of the writ. Whether thewrit has already been implemented or not, you can avail of Section 13.

Q: What are some grounds of irregularity in the issuance? A: Insufficiency of the bond. Remember that the requirement for the issuance areaffidavit and bond. So if the affidavit for example did not contain the requiredstatement as provided for in Section 3 of Rule 57, then that is an irregularity. Or itcontains but it was untruthful. It was a lie, then it is irregular.

Or suppose the bond which was filed was very insufficient. There was a claim forP20M and the bond was only P1M. So, the issuance of the writ is irregular andimproper.

Or it was issued by the court on the ground not specifically stated in Section 1 ofRule 57. Because the 6 grounds there are EXCLUSIVE. Wala ng iba.

Remedies are Sections 5, 12 and 13. These are the means to discharge the writof preliminary attachment.

Q: Can one avail of Section 12 and avail again Section 13 in the same case? A: Yes, it can happen. If I was a businessman and a case was filed against meand a writ of preliminary attachment was issued against my sari sari store, andthe writ is implemented, I cannot proceed with my business because it is alreadyin custodia legis. I cannot start selling this because the property which has beenattached is reserved for judgment. Remedy? I immediately file a counter bond,and the writ is automatically discharged. So i can again continue in selling mymerchandise. Meanwhile when there was no writ anymore, I'll file a motion before


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the court claiming that the issuance was improper and irregular. I'm not prayinganymore for the discharge of the writ but rather for the discharge of the counterbond. So answer is YES. One can avail both 12 and 13.

Q: How about Sections 13 and 5?

A: Hindi. Kasi yung Section 5 before the implementation.

I was saying, it is possible that the applicant loses in the case. It is not aguarantee that when you ask for a writ of preliminary attachment, you will win inthe case. Even if you win in the case, but you may lose in your application for thewrit of preliminary attachment.

Q: How can this happen? A: It can happen in such a way that during the proceeding, it was establishedthat the issuance of the writ was irregular and improper. And what does the ruleprovide? The rule provides that if this happens right there and then before entry

of judgment, you already have to file for damages. You cannot file that after entryof judgment because you are considered to have waived your right. Andremember Section 46 of Rule 39, you can file now a case against the surety evenwithout impleading the principal. In like manner, provided there is notice, you cango after the surety if it is a counter bond or surety bond.

Q: How about a 3rd party claim, which you find in Section 14 of Rule 57? A: If there is a 3rd party claim, the same provision as you find in Section 16 ofRule 39 applies. The 3rd party claimant executes an affidavit, gives it to thesheriff and then the sheriff will deliver back the property, which has beenattached, to the 3rd party claimant unless the applicant secures the sheriff withanother bond. Pareho rin yan sa Replevin, Section 7 of Rule 60 and Section 16of Rule 39.

NOTE: Common error of the students think that since the 3rd party claimant fileshis claim, then the 3rd party claimant should file for the bond. Atty. Brondialcorrects that it is not. The applicant for the writ who should file the bond withoutprejudice, of course, to a filing a case against the 3rd party claimant who filed a3rd party claim frivolously and fraudulently. And that case can be threshed out inthe same action or even in a separate action.


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RULE 58PRELIMINARY INJUNCTIONProvisional Remedy: Preliminary injunctionPrincipal Action: Injunction

We said you find an action for injunction in Section 4 in Rule 39. But seldom willyou find an action filed specifically for injunction only. It is coupled always withother causes of action. Like damages, or recovery of property with injunction andprayer for preliminary injunction and TRO.

Q: When do you apply? A: We said any court has jurisdiction over injunctive relief.It is often said that SC has no jurisdiction over an action for injunction. Of coursenot, in the sense you do not file an original action with the SC. But if your actionis certiorari which is cognizable by the SC, you can ask for injunction.

Madaling intindihin ito ngayon, these are always in the papers. Ngayon,maraming mga pulitiko ang hinahabol at dinidismiss, kaya they are all filinginjunctive relief. They are praying for annulment of the order of dismissal orcancellation of the order of dismissal with prayer for injunction and writ ofpreliminary injunction. Where do they go? To the CA because the defendant hereis the DILG. So pwede yun.

While injunction can be availed of in any court, including the SC, but if you readcases and statements to the effect that you cannot file for an action for injunctionto the SC it is because it is not a court of original jurisdiction over this actionexcept certiorari, prohibition, mandamus, quo warranto, habeas corpus.

Q: What are the requirements in order for a party to file an injunction with prayerfor preliminary injunction?

A: This basic requirement is a right of the applicant.1. First requirement: The applicant must have a right. This right must be

actual, existing and valid and not just an inchoate right or a right not in esse(substantial).Example of an inchoate right is the property of your parents. And you claimto be an heir. You are not entitled to the property unless your parents die.Your right to the property is just inchoate.

2. Second requirement: There must be a violation of that right or threatenedviolation. So the violation may not be actual. It can only be a threat and youcan already seek protection through injunction.

3. Third requirement: The violation or threatened violation will result inirreparable damage and injuries.

Take note of these three fundamental requirements.Example is the Idolor case.


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NOTE: Preliminary injunction is preparatory to injunction. TRO is preparatory topreliminary injunction. And within that TRO is the 72 hour period of the TRO.Tatandaan niyo to a.

Preliminary injunction has no time frame. After trial that can become permanent.But remember that a preliminary injunction is a provisional remedy attached toinjunction. So when a preliminary injunction has become permanent, it meansthat you already won the case of injunction. But not the TRO, because the TROis preparatory to preliminary injunction. That is why there is a time frame in theTRO which is 20 days in cases of the RTC and MTC and 60 days of CA.

Q: The requirement is verified application and bond, when do you apply for this? A: You apply for preliminary injunction at any time in the course of the actioneven at the commencement of the action or anytime thereafter but before

judgment.

Q: Preliminary injunctions are of 2 kinds: A: Prohibitory injunction or mandatory preliminary injunction.In prohibitory injunction, you seek to maintain the status quo. In mandatoryinjunction, you seek to return to the status quo.

Let me illustrate: Suppose when you go home tonight, you found your homewithout electricity because it has been cut by MERALCO for non-payment of yourelectric bill. So you want a return to the status quo, so you file for a mandatoryinjunction, mandating the MERALCO to return electricity to your residence.

Suppose when you arrived at home what you got was a notice of disconnection,may ilaw pa kayo. The notice of disconnection is a warning. It is a threat of aviolation of your right or violation of your contract. So what do you file?Prohibitory injunction, you seek to maintain the status quo of having lights in yourhouse.

Q: Can you get injunctive relief ex parte? A: In no way. It must always be after hearing. You cannot get injunctive relief exparte. I would like to emphasize there as to where you are applying because thishas always been a case for discussion. If you apply for the writ for injunctiverelief before a multi-sala court, there are 2 notices necessary for issuance of thewrit of preliminary injunction.

Q: Ano ba ang multi-sala court? A: There is only one RTC Manila. But there are many salas, RTC Branches 45-48, etc. Quezon City marami din yun. Yan ang tinatawag na multi-sala. Pag 2 nayan, multi-sala na yan.


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The rules provide that when you apply for injunctive relief before a multi-salacourt, the executive judge, even before hearing the case, must give notice ofraffle. Raffle pa lang, may notice na dapat. So that if there is no notice of theraffle date, it is already violative of the due process clause of the constitution.

Kung single sala, wala na. Ang notice mo ay notice of hearing because hearing ismandatory. But if it is in Metro Manila or if it is a multi-sala court, 2 notices,Notice of raffle and notice of hearing. So ang ipapadala munang notice iswhen is the raffle date and your failure to attend after notice, you waive your rightto be present at the raffle. And then later on is notice of hearing.

During the hearing, the applicant should present evidence and the defendantshould present his evidence. Ordinarily, what is given is TRO. This TRO, if it isissued by the RTC or MTC, is good only for 20 days. Upon expiration, it cannotbe renewed. It is grave abuse of discretion on the part of the court to extend evenupon agreement of the parties cannot and should not be extended. In the case of

the CA, it is 60 days.

Q: Where do you count the 20 day or 60 day period as the case may be? A: From issuance.

I would like to find out, that every TRO cannot be granted ex parte except on avery urgent matter where the hearing can be done summarily. In the case of aTRO which is good for 72 hours, this time from notice.

Q: Why 72 hours? A: Kasi dito sa Pilipinas, ordinarily non-working day ang Saturday and Sunday.So hindi pwedeng 48 hours baka kasi pumatak dun sa Saturday or Sunday. Kaya72 hours because it is 3 days, kahit yun pumasok ng friday ng hapon, papatakyun ng lunes. O pag binigay yang ng saturday, papatak pa din yan ng lunes.

If the court continues your 72 hour TRO to a full 20 day TRO, the 72 hours will beincluded in the 20 days. This time counted from the issuance of the TRO of the72 hours.

Q: Why 20 days? A: It is because this is roughly 3 weeks. And within a 3 week period, the courtmust hear whether or not to grant the writ of preliminary injunction. The court is avery busy body and you cannot set it for hearing immediately because there areother cases filed before it.

Q: How do you discharge the writ? A: You cannot discharge the writ through a counter bond. The only way is toquestion the propriety or regularity of the issuance. But even then, chances are itwill just be denied. Kaya pag na issue ang TRO for 20 days, wait ka na lang afterthat period. That's why it's not that long because it is really to be threshed out


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whether there was violation of the right, whether it will cause irreparable damageor injury.

Any action, if there is a violation of a right, you can ask for injunctive relief.

How about damages, you are cross-referred to Section 20 of Rule 57. But thebond here answers only for damages.


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RULE 59 RECEIVERSHIP

When we talked about receivership it is both a provisional remedy and a principalaction. Although it can happen that receivership is attached as a provisional

remedy to an action for a recovery.

Q: What is the principal action for receivership? A: If the receivership is used as a provisional remedy, the principal action here isfor recovery of property whether real or personal.

Q: What would be the jurisdiction? A: Jurisdiction shall depend upon the principal action. It can be taken cognizanceby the inferior court or the regional trial court. You cannot file it to the Court of

Appeals or the Supreme Court. You only file original actions in the SC or CA in avery peculiar actions and we already know that when we studied jurisdictions.

Concurrent jurisdictions like certiorari, prohibition, mandamus, quo warranto,habeas corpus.

Q: If you file an annulment of judgment of the MTC, where will you file it? A: We do not apply Rule 47 because it is for the order of the Regional TrialCourt, we apply the general rule that no actions on appeal can go to the CA orSC because it is a judgment of MTC. RTC has jurisdiction even though it isannulment of judgment.

If receivership can be taken cognizance depending on the principal action, but ifthe principal action is receivership itself since receivership may be the principalaction. While preliminary injunction can never be the principal action, what is theprincipal action there is injunction. In receivership it may be a principal action orprovisional remedy. If it is a provisional action it must attached to a principalaction which is recovery. But unlike attachment, Sec. 1 Rule 57, states thegrounds for attachment. Sec. 1 Rule 59 also gives the different kinds of instanceswhere you can apply for receivership.

Q: What are these instances? A: Sec. 1 Rule 59

a. When it appears from the verified application, and such other proof asthe court may require, that the party applying for the appointment of areceiver has an interest in the property or fund which is the subject ofthe action or proceeding, and that such property or fund is in danger ofbeing lost, removed, or materially injured unless a receiver beappointed to administer and preserve it;

b. When it appears in an action by the mortgagee for the foreclosure of amortgage that the property is in danger of being wasted or dissipatedor materially injured, and that its value is probably insufficient to


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discharge the mortgage debt, or that the parties have so stipulated inthe contract of mortgage;

c. After judgment, to preserve the property during the pendency of anappeal, or to dispose of it according to the judgment, or to aidexecution when the execution has been returned unsatisfied or the

judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise 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.

Q: What is the purpose or the reason for assigning or appointing a receiver inthese instances?

A: It is for the preservation, administration or disposal of the property.

Note: You must be logical in your analysis. Why do we have to preserve the

property? If the property is already there, why do you have to preserve it?Because it is not being preserve. It is in danger of being loss, dissipated, damageor the value is being diminished. If such reason does not exist, you cannot askfor receivership. In administration, the value may be diminished hence the needfor receiver to retain the value of the property or the property is supposed to bedisposed but it is disposed irregularly.Even a mortgagee can file for a receivership because the property beingmortgaged is in danger of being loss, dissipated, destroyed or the valuediminished.

Q: How do you apply for receivership? Procedure for receivership? A: File an application for appointment of a receiver which is ordinarily a verifiedpetition.

Q: What do you mean by a verified petition? A: When you talk about verified petition it simply means that the petition must beunder oath. Verified under oath.

Q: When do you apply? A: From the commencement of the action even after appeal because theproperty is still in danger of being loss, dissipated, destroyed or its valuediminished.

Q: Where do you apply? Is it in the appellate court or trial court? A: Amendment of the rule, the appellate court may allow the application to befiled in and decided by the court of origin and the appointed receiver of the courtof origin has control over the property under receivership. Sec. 1 Rule 59 lastparagraph.

This amendment is exceptional because under Sec. 9 Rule 41 perfectionand loss of jurisdiction. The court of origin has no more jurisdiction over the


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action but still the court of origin can still appoint a receiver, this is the reasonwhy it is exceptional. If you look at the 1960 rule which was amended by the1997 rules of court hindi pa yan pwede but now pwede na. because the rationalethere is what is actually appealed is not the subject matter of receivership but theprincipal action, here it is merely a provisional remedy. Sir does not totally agree

with that because as said earlier receivership may be a provisional remedy or aprincipal action, so if it is a principal action definitely it is appealed there. The realreason there is that it is in the exercise of its residual jurisdiction.

Q: What are the requirements? A: Affidavit and bond.

Q: What constitutes the affidavit? A: The affidavit here pertains to the affidavit of merits, same as Rule 57 Sec. 3requirements but different grounds. It is a mandatory requirement forreceivership.

Q: Who should file the bond? A: The applicant and the receiver shall file the bond. An applicants bond and areceivers bond because the applicant may not be appointed as the receiver. Asmuch as possible, a party to the case should not be appointed as receiver, if youare the applicant it does not follow that you will be appointed as the receiver.Because these are 2 different bonds they must undergo 2 different things. Theapplicants bond answer for the damages caused by the applicant while thereceivers bond answer for the damages caused by the receiver.

Q: What happens if the applicant is appointed as the receiver himself? Does hefile 2 bonds?

A: Yes, that’s why you do not limit yourself to replevin where the bond is twicethe value of the property. It can also happen here that 1 person files 2 kinds ofbonds although not necessarily the value of the property because here just likeattachment it is with the discretion of the court. The court may only require hisbond not necessarily an amount equal to the value of the property but in replevinthe rules specifically provide that the bond must be twice the value of theproperty. Here not necessarily, pero 2 pa rin, one coming from the applicant andanother from the receiver, so if the applicant was appointed as the receiver hefiles 2 bonds. One as an applicant and another as receiver.

Q: If the 2 requirements are complied with, the affidavit and bond, the court shallissue an order appointing a receiver, so what are the duties and responsibilitiesof a receiver?

A: Sec. 6 Rule 59 a receiver shall have the power to bring and defend actions inhis own name; to take and keep possession of the property in controversy; toreceive rents; to collect debts due to himself as receiver or to the fund, property,estate, person, or corporation of the same; to make transfers; to pay outstandingdebts; to divide money and other property that shall remain among the persons


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legally entitled to receive the same. However, funds in the hands of the receivermay only be invested only upon order of the court and upon written consent of allthe parties to the action. No action may be filed by or against a receiver withoutthe leave of the court which appointed him.

Q: Can a receiver be sue or be sued? How is it related to Sec. 1 Rule 3? A: Yes, cross referring it to Rule 3 Sec. 1 who may be a party? A party is onewho may be benefited or prejudiced by the suit. A receiver shall not be damageor prejudiced by the suit nor benefited thereto. He is not a party in interest, sowhy can he sue and be sued? Because he will fall under an entity authorized bylaw just like an executor or administrator, he has no interest on the estate so heis not a party in interest actually. But he is authorized, he has what we call legalstanding.

Q: An order of receivership or appointing a receiver will take over and must havepossession of the property, if necessary these properties refer to everything

under litigation including books of accounts and everything. They are alsoobliged to deliver or surrender do not comply what should the receiver do? A: He can ask the court to cite him for contempt.

Q: How receivership is terminated? A: When there is no more reason for its existence it has to be terminated.Therefore if the properties subject of receivership is no longer in danger of beingwasted, lost, damage, injured or value dissipated then receivership will terminate.

One common example here is when a corporation who is now in the stages ofwinding up its affairs. During that time, the stock holders usually…nakaw ditonakaw doon…usually the better solution is for the appointment of a receiver. Areceiver is not necessarily an individual person, it may also be a corporation.Banko Pilipino for example, it was placed by receivership by the Sentral Bank.The problem was that the receiver assigned was more corrupt than the stockholders before the termination of the receivership he left for the States andstayed there permanently bringing with him all the assets of Banko Pilipino. Ittook Banko Pilipino more than 20 years to recover. That is why the receiver isalso obliged to give a report, a return or an accounting of his duties andresponsibilities to the court otherwise before you know it baka lalo lang nawalaand lahat.


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Rule 60 ReplevinQ: What is the principal action?

A: Recovery of possession of PERSONAL property

Q: Which court has jurisdiction? A: MTC or RTC depending upon the value of the property because technicallyreplevin is only a provisional remedy.

Note: only receivership may only be a principal action but replevin will always bea provisional remedy.

Q: What are the grounds for application of replevin? A: Sec. 2

a. That the applicant is he owner of the property claimed, particularly

describing it, or is entitled to the possession thereof;b. That the property is wrongfully detained by the adverse party, allegingthe cause of detention thereof according to the best of his knowledge,information, and belief;

c. That the property has not been distrained or taken for a taxassessment or a fine pursuant to law, or seized under a writ ofexecution or preliminary attachment, or otherwise placed undercustodia legis, or if so seized, that it is exempt from such seizure orcustody; and

d. That actual market value of the property is stated in the affidavit.

Q: If A sold a lot to B, then B caused the titling of the property fraudulently in hisfavor can A ask for recovery of the property being entitled to the recovery of theproperty?

A: No, because replevin only applies to personal property.

The other provisional remedies we studied so far, you apply for the provisionalremedy from the commencement of the action or before judgment and even after

judgment in the case of receivership. But in replevin it should be availed of beforeanswer.

Q: Why should replevin can only be availed of before answer? Why would ananswer disqualify an application for replevin? After answer it cannot be appliedfor anymore, why?

A: When an answer is filed issues are joined and because issues are joined, thecourt already knows whether the applicant is entitled to the ownership orpossession. So hindi na igagrant ng court, kaya it must be before the answerbecause it is an immediate remedy.


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Q: To whom the writ of replevin addressed? What should he do after issuance ofwrit?

A: To the sheriff, and after issuance of the writ of replevin he shall take actualpossession of the property for safe keeping.

Note: In attachment the taking of the property is for the purpose of awaiting forthe final judgment, here in replevin the reason for the taking of the actualpossession of the property is for safe keeping.

Q: How long should the sheriff hold in possession of said property? A: Only 5 days, after said period he must deliver said property to the applicant.

Q: So the defendant must object? If he does not object, what happens? A: Yes, it requires an objection. If such objection is not made the possession ofthe property shall be given to the applicant.

Q: How do you discharge the writ of replevin? A: By filing a counter bond which is called redelivery bond within the period of 5days. And within that period if the writ of replevin is intended to be discharge thedefendant must file a counter bond which is also known as redelivery bond. If thedefendant puts up a redelivery bond then the sheriff is now required to return theproperty to the person to whom he got it. But if the defendant fails to put aredelivery bond then the sheriff will deliver it to the applicant.

Remember that this is only a provisional remedy, the principal action is recoveryof possession of personal property. Later on, in the principal action you canthresh out ownership as the basis for the recovery of possession. Thereforepossession becomes an effect of ownership. If he is only entitled for possession,pwede pa rin.

Yang vs ValdezThe 5 day period is mandatory, even if you put up a redelivery bond but beyondthe 5 day period it will not have the effect intended for.

Note: This is the shortest period wherein the sheriff have custody of the property,in attachment from application which may be from the commencement of theaction until final judgment which may last for 10 years. Here, you may even filefor receivership kasi baka yung property e ginagamit na ng sheriff. And usuallyyou do not assign the sheriff or the clerk of court as a receiver. It is evenadvisable not to assign a party to the case as a receiver.

Q: How much the bond be? A: Twice the value of the property.


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Q: If the defendant objects on the ground of insufficiency of the bond or to thevalidity or capacity of the surety, what happens now?

A: Sec. 5 Rule 60. Then the court must ask the applicant to satisfy theinsufficiency of the bond, and only when the order comes out and there is still nosatisfaction of the insufficiency of the bond then the property shall be delivered to

the person to whom it was taken by the sheriff.

Q: What are the requirements? A: Affidavit and bond.

We said in receivership that it can happen that there is 2 bond if the applicant isappointed at the same time as the receiver. In replevin it can be thrice.

Q: Give the circumstance wherein it can happen? A: If there is a 3rd party claimant.

Note: We’ve studied 3

rd

party claim in Rule 39 execution, 3

rd

party claim inattachment and again here in replevin. Sec. 16, 14 dito naman 7. The sameprovision, meaning if a 3rd party claims ownership or entitlement of possession ofthe property subject of replevin then the applicant must file another bond which isnot less than the value of the property. So 3 na. This is without prejudice to apossible action for damages filed against the 3

rd party claimant if the 3

rd party

claimant’s claim is found to be frivolous or fraudulent. Where do you file it? Eitherin the same action or a separate action for damages.

In attachment if you file for damages Sec. 20 Rule 57 you have to do it beforeentry of judgment, dito sa replevin it can be file in a separate action. You shouldknow the distinctions between the different provisional remedies, they aredifferent, one from another.

Q: If there is already a writ of replevin and the sheriff already took possession ofthe property and given it to the applicant, how can it be discharged?

A:

Q: How do you discharge a writ of attachment? A: Sec. 5, 12, 13 Rule 57. Sec. 13 is by motion, Sec. 5 is by counterbond. Ditonaman sa replevin may equivalent for that, a counterbond also or by redeliverybond, how much is the redelivery bond? Equal to the bond therefore twice thevalue of the property also. Or you question the propriety or regularity of theissuance.

Q: What are the possible grounds there? A: That there is no basis, or there is no entitlement of ownership or possession ofthe property. Then the writ can be discharged. But the immediate way todischarged it is thru a redelivery bond which is equal to the value of the bondwhich is twice the value of the property.


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Yung 3rd party claim, the same provision yun, the same application. In otherwords, thru an affidavit furnishing the same to the sheriff, the sheriff is entitled todeliver it to the 3rd party claimant unless the applicant puts up another bond. Sothrice na lahat, the value of the property.

Do you recall the peculiarity in what we studied in the writ of execution? UnderRule 39, when there is a 3rd party claim, during the auction sale, even if thepurchaser is the judgment obligee he has to pay. Ordinarily, the judgmentobligee, if he is the purchaser during an auction sale pursuant to an execution hedoes not have to pay. But if there is a 3 rd party claim, then he has to pay. Why?Because precisely the ownership is in question.

Dito naman delivery until you put up another bond equivalent to the value of theproperty.

While the property now is in the hands of the applicant, the main action shouldproceed and what should be the judgment? Important to.

Orosa caseSec. 9 only in the alternative. Hindi pwede yung 2 ang ibigay.

Q: What are the alternative decisions here? A: It is either give the property or pay the value.

The best example of replevin is buying a car. But most buyers don’t buy in cashalmost everyone is buying thru installment. Here you are not the owner yet, whenthe car is given to you, you execute a mortgage, mortgaging the same car to theseller. Read the contract, it always has a clause in default, if it says there that ifyou default for example 2 months of payment, the seller will have the right toforeclose the mortgage judicially or extrajudicially. Here, the foreclosure willalways carry a prayer for replevin and the seller is willing to pay twice as much asthe value of the property because the bond is not a cash bond but merely asurety. Once they foreclose they get the car, complying with all the requirements.Once they recover it after the case, the same car shall be resold.

Replevin as well as attachment is known as custodia legis. Property which hasbeen attached can no longer be the subject of replevin, but a property replevinedcan be the subject of attachment minus/less delivery. Note parehong maydelivery, pag replevin kinuha na, pero pwede mo pang iattach without deliverybecause in attachment you also take but first right sa replevin, di mo na pwedekunin yun. But you can attach, because attachment simply furnish him with thecopy of the order. So ano ka? Subsequent lien holder ka dun. The attachingcreditor shall be a subsequent lien holder. Replevin replevin no… attachmentattachment yes why? Because it depends upon the value, if the value of theproperty for example a 100 square meter property in makati worth 2m and it was


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attached for a debt worth 1m, it can again be attached. But in the case of levy,levy on attachment who is …. the first attaching creditor. Kung may sobraibabalik dun sa may owner. And you can even be a redemptioner there becauseyou are a subsequent attaching creditor. So if there are 2 attachment, the 2 nd attaching creditor is or maybe a redemptioner if the property is sold thru levy in

attachment.


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RULE 61 SUPPORT PENDENTE LITEQ: What is the principal action?

A: Support, support pendent lite being a provisional remedy cannot stand alone,it must be attached to a principal action which is an action for support.

Q: Which court has jurisdiction? A: The court which has jurisdiction over the principal action. RTC

Q: Why RTC? Can it be MTC? A: Because the subject of support is not capable of pecuniary estimation so onlycognizable by the RTC. The amount asked or prayed in the action of support isimmaterial because the issue here is whether or not the applicant is entitled tosupport.

Q: Is there any exception to the rule? Are there circumstances wherein supportpendent lite can be taken cognizance by the MTC or inferior courts?

A: Yes, in criminal cases because support pendent lite which attaches to supportcan be filed together with the criminal case because in criminal procedure it isnow provided that once you filed a criminal case the civil aspect is deemedinstituted with it.

Q: What are exceptions to that? A: Reservation, prior institution.

Q: The usual case of an unwed mother goes to court and ask support for thechild. When can she file it?

A: From the commencement of the action or at anytime prior to final judgment.

Q: Then the court must take immediate action on the provisional remedy ofsupport pendent lite. What does the court do?

A: The court shall issue an order directing the respondent to file a commentwithin 5 days. And with or without comment, hearing must be held by the court.The hearing here is for the provisional remedy. (parang injunction, it cannot begranted without a hearing. In preliminary attachment pwede, kasi it can begranted ex parte but it cannot be implemented without prior or comtemporaneousservice of summons). If he failed to appear, court grant an order of supportpendent lite, here it is only provisional.

An unwed mother living in the squatters area in Tondo asked the court forsupport and asked to be granted provisional support to her only child in theamount of 50k a month. The court will ask why 50k? Panggasulina po. Ilan bakotse mo? Wala po. Nanghihiram lang ako ng kotse. Ilang taon na ba ang anakmo? 3 months old po. Ano ba ang gatas nya? Breast fed po? Sabihin ng court dimo kailangan ng 50k ang kailangan mo lang e malunggay…LOL. Para mayroonggatas, and you are only feeding milk to your son… o baka naman may


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pinapadodo ka pang iba dyan…LOL. Provisional lang to, kya the court may grant5k a month provisional remedy.

Note: That this provisional remedy shall depend upon the capacity, eto ang verywide discretion ng court. Capacity ng person who will give support.

Q: Suppose the respondent does not comply, what should the court do? A: The court shall issue an order to execute

As we have studied under the Rule 39, only final order or judgment may beexecuted. Then why should it be executed? In fact, this is an interlocutory orderlike an appointment of a receiver, it is not appealable only subject to certiorari ifthere is a ground.

Q: If these is merely an interlocutory order, why should it be executed? A: The rule so provides that this is the only instance where an interlocutory order

may be executed. That provisional remedy of support pendent lite can be subjectof a writ of execution. It is a very exceptional character. It is an exception to therule that only a final and executory order may be executed.

Q: Mother was granted 10k a month, in the process the main action is beingheard which is support proper to make the support pendente lite support already.Suppose the respondent was able to establish that he is not liable to give supportbecause he was able to prove that he was not the father. What happens now?

A: Court shall order the return of the paid amount with payment of legal interestfrom the dates of actual payment, without prejudice to the right of the recipient toobtain reimbursement in a separate action from the person legally obliged to givesupport. Should the recipient fail to reimburse the amounts, the person whoprovided the same may seek reimbursement in a separate action from theperson legally obliged to give such support.

Q: What happens to the provisional remedy which has already been granted, yunba ang ibabalik?

A:

Q: If the applicant cannot return the support granted then what happens? A: She cannot be forced nor be imprisoned for that. But the respondent mayseek reimbursement in a separate action to the person legally obliged to givesupport.

Note: 2 remedies restitution and reimbursement plus damages.


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Mongonon vs CA 495 or 496 or 497 SCRADe Asis doctrineSupport never becomes final, so res judicata does not apply. Because if granted10k by court as support (not just pendent lite) may judgment na for support. Youcan always go back to court and asked for increase or decrease of support

because it depends upon the capacity of respondent and needs of recipient. Inthe De Asis case, the parties thereto made a compromise and later on the otherparty filed another case for support. The respondent alleged that the compromise

judgment is immediately executory and there is res judicata. SC ruled that thereis no res judicata in support, it is never final.

People vs Manahan Acknowledgment must be distinguish and separated from support. If thedefendant is married, under that doctrine, he may be forced to give support butnot to acknowledge the child. The rationale there is in the Family Code becauseit would introduce bad blood in the family.

Sir: Doesn’t like that doctrine, he should be forced to acknowledge the child. It ishis fault so why should not he acknowledge.


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SPECIAL CIVIL ACTIONS

Q: What is so special about special civil actions? Why are they called special civilactions?

A: Because each particular civil actions are governed by their own special rules.

Ordinary rules of court does not apply to them but is only suppletory in character.For example some special civil actions have no summons, the court acquire jurisdiction over the respondent in a different manner but in ordinary actionssummons is mandatory. Like in certiorari, there is no issuance of summons there,the court acquire jurisdiction by the issuance of order to file a commnent.

Distinguish Rule 65 with Rule 45In special civil actions in Rule 65 it says there that the tribunal, body, board,officer, corporation are only nominal parties and under regulations now of the SC,circulars, the tribunal, corporations under or impleaded as respondent are notsuppose to appear and not suppose to file pleadings, let the private respondents

do that for them.That is why in certiorari, you say petition for certiorari Juan De la Cruz vs RTCbranch 45 manila then name of respondent. The principal respondent there is thetribunal court or bodies, but they become nominal in the process.

Q: Name the special civil actions? A:

1. Rule 62 Interpleader2. Rule 63 Declaratory Relief and Similar Remedies3. Rule 64 Review of judgments and final orders or resolutions of the

COMELEC and COA4. Rule 65 Certiorari, Prohibition and Mandamus5. Rule 66 Quo Warranto6. Rule 67 Expropriation7. Rule 68 Foreclosure of Real Estate Mortgage8. Rule 69 Partition9. Rule 70 Forcible Entry and Unlawful Detainer10. Rule 71 Contempt


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RULE 62 INTERPLEADERQ: Which court has jurisdiction in an action for interpleader?

A: It may be taken cognizance by MTC or RTC. It depends upon the subjectmatter of the interpleader.

Q: Why does it depend upon the subject matter? What can be the subject matterof an interpleader? A: Property whether real or personal may be the subject matter of aninterpleader, aside from that performance of an obligation may also be thesubject matter of an interpleader.

Note: Performance of the obligation cannot be filed in the MTC because it isincapable of pecuniary estimation which is only cognizable by the RTC.Performance of an obligation amounts to specific performance which is notcapable of pecuniary estimation.

For example you found a wallet, you surrender it to the dean, upon opening ofthe wallet it was found to contain a check worth 350k payable to cash. A,B,C,and D alleges ownership. The dean has no other choice but to file an action forinterpleader because there are 4 different claimants. Another example is A and Bare lessor and lessee over an apartment unit. At the end of the contract of lease

A would like to surrender the premises to B, but C and D came forward and saidthey are entitled to that. A now does not know to whom to deliver, therefore Ashould file an interpleader. Example of obligation, to paint, sculpt, perform.

Q: How do you distinguish now interpleader from intervention? A: Interpleader is a special civil action while intervention is an ancillary action. Inthe former there can be no single defendant, there must be at least 2 defendantswhile in intervention there can be 1 defendant. In the former there is no action yetwhile in the latter there is already a pending action.

Note: If you are asked to make a distinction do not define one and periodbecause you are not stating a distinction at all.

Q: After an action of interpleader is filed, what happens next? A: The court shall order the respondents to file their answer.

Note: This is the only rule where there is a section for a motion to dismiss.Defenses and objections, that is what is meant there.

After filing an answer and once the issues are joined then you go to the regularrules of court which is you go to pretrial then trial.


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Q: What should the judgment be by the court in an interpleader case? A: The judgment shall be a declaration as to who is entitled or who is thelegitimate or entitled to the real or personal property or of the performance of theobligation.

Wakwak golf caseInterpleader is a compulsory counterclaim. When Tan filed a case againstWakwak knowing already that there is another claimant, it could have and itshould have filed a compulsory counterclaim of interpleader. For not doing so, itis considered that it had waived its right to any action against the defendant.

Q: Can there be a compulsory intervention? A: Yes it can happen.

Eternal Garden vs IACCourt may order that the subject matter be paid or delivered to court. And the

person who filed the interpleader having no interest over the subject mattershould be ordered by the court to do so.

So if you have an action for interpleader you should ask the court to deposit.

Q: What if the action is for the performance of an act, can you ask for its deposit? A: No, the person who is obliged to perform will not stay there. It is onlyapplicable to real or personal property.


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RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIESQ: Which court has jurisdiction over declaratory relief?

A: RTC has original and exclusive jurisdiction because the subject matter is notcapable of pecuniary estimation.

Note: The real declaratory relief is stated in the first paragraph of Sec. 1 Rule 63,the 2nd paragraph which pertains to reformation of instrument or quieting of title isnot declaratory relief it is similar remedies. The 2nd paragraph was added there togive life to certain provisions of the Civil Code which has no correspondingprocedural aspect. It is even misplaced, it should fall under ordinary action.

Q: What’s the venue? A: If personal action, where the plaintiffs or respondents resides at the option ofthe plaintiff.

Q: What is the subject matter?

A: Any contract, will, deed, or other instruments or whose rights are affected by astatute, executive order or regulation, ordinance or any other governmentalregulation.

Q: What is the condition? What is the peculiarity there? A: Before breach of contract or violation of the statute. If there is already violationin the contract or statute then declaratory relief is no longer applicable.

Meralco vs Philippine Consumers 374 SCRAThere was a PD by Marcos reducing the Tariff rate of electricity from 5% to 2%and then the Phil. Consumers Foundation Inc. wanted that the 3% reduction begiven to the consumers. The BOE denied it. It was never appealed so the orderof BOE became final and executory. 5 years after PCFI filed an action fordeclaratory relief. SC dismissed it because the PD has long been breachedalready. The doctrine here is that you cannot file an action for declaratory relief ifthere is already breach.

Example Makati issued an ordinance banning smoking even on the streeteffective on Dec. 20, 2008. Before Dec. 20, 2008 arrives you have the right to filean action for declaratory relief. Pero pagdating ng Dec. 20 no more, becauseonce Dec. 20 arrives there is a reasonable presumption that there is already aviolation.

Q: Suppose you’ve already filed an action before breach, then pending actionthere is already breach, then what happens?

A: Then the action shall be converted into an ordinary action.

Q: How do you convert the action? A: File a motion to amend action with leave of court.


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Q: Example a regulation of a school was issued stating that by the school year2008-2009 starting June tuition fees shall be raised by 120%. There was alreadya circular to that effect. Declaratory relief was filed, pending action June 2008came. The increase was already collected from the students so you convert youraction for declaratory relief to what kind of action?

A: Convert is to collection of sum of money.

A and B are lessor and lessee of a property. And the contract of lease is for aperiod of 10 years from year 1990 to year 2000. In 1995 the land was overrun byMNLF and so the lessee left the property. 4 years thereafter, in 1999 the MNLFwas driven away by the military so B returned to the premises. He files for anaction of declaratory relief asking the court to determine whether the contract willexpire 2000 or 2004. why? Because he was not able to avail of the 4 year periodwhen it was under the possession of the MNLF. So he filed for declaration ofrelief, but the action has not yet terminated it is already 2001, by 2001 the actionmust be converted into what? Into either unlawful detainer or forcible entry as the

case may be or for recovery accion publiciana.

Q: Is the court bound to make a judgment in an action of declaratory relief? A: No, another peculiarity here is that the court is not bound to make a judgment.

Q: When is it not bound to make a judgment? A: When there will be no finality in the resolution of the rights and privileges

Manhattan Bank New YorkMBNY is a trustee of a will and one of the named devisee in the will filed anaction for declaratory relief without asking the court to determine who are thecompulsory heirs and what are their specific rights under the will. The petitionerdid not implead the compulsory heirs, the court refused to render judgmentbecause even if it did it will not finished or end the controversy.

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OF THECOMELEC AND COARemember that Rule 64 cross refer you to Rule 65 so we do not have to discussRule 64

Q: What is the difference between Rule 64 and Rule 65? A: In Rule 64 it only applies to COA and COMELEC while in Rule 65 there is nospecific agency. In the former the petition should be filed 30 days from receipt ofnotice while in the latter it is filed 60 days from notice. In the former it is solelycognizable only by the SC while in the latter there is concurrent jurisdictionbetween SC, CA, RTC and even Sandiganbayan but in the case of the latter theonly limitation being is it should only be in aid of its appellate jurisdiction.


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RULE 65 CERTIORARI, PROHIBITION, AND MANDAMUS

Rule 65 Certiorari Prohibition Mandamus

Petitioner(Plaintiff)

Any aggrievedparty

Same same

Respondent T – B – O Tribunal, Board,Officer, Person,Corporation

T – B – O – P – C

Grounds 1. Lack of jurisdiction2. Excess of

jurisdiction3. Grave abuse ofdiscretionamounting to lackof jurisdiction

Same 1. Neglect in theperformance ofthe act enjoinedby the law2. Unlawfullyexcludes theenjoyment of anoffice or franchise

Functions ofrespondents

Judicial/quasi judicial functions(discretionary)

Same + ministerialfunctions

Same asprohibition

Conditions 1. No appeal2. No plain,speedy, adequateremedy in theordinary course oflaw

Same

Judgment To annul/void judgment or final

order

To cease anddesist

Order to do butmay award

damages

Let us now discuss these:Q: We do not have any problem in the aggrieved parties. How about therespondents?

A: In prohibition you add the person and the corporation and remember that thisused to be under the jurisdiction of the SEC, but this is no longer true. How aboutthis person? This is not ordinary individual person but a person exercising quasi

judicial function. Remember that quasi judicial bodies as we have studied doesnot belong to the judiciary and a lot of them falls under the executive branch of

the government and that includes the NLRC. The NLRC is not a judicial body butit exercises quasi judicial functions.

UP Board of Regents vs TailanBoard was considered as a body exercising discretionary function, in effect quasi

judicial. Even in an administrative bodies, a school board, when it rules that astudent is not entitled to be enrolled in said school due to some grounds.


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Lapid vs LaureaRequirement of certiorari

Q: Give example of lack of jurisdiction? A: Tribunal, body, board or officer has no authority to decide the case. Example

MTC rendered a judgment on an issue which the subject is not capable ofpecuniary estimation.

Russel vs Vestil

Note: Under Rule 45 which is a mode of appeal, the body there acted with jurisdiction that is why the ground cannot be any of the 3 because it is a mode ofappeal. It is called errors in judgment. Under Rule 65 it is errors of jurisdiction.Errors of judgment are correctible by an appeal, while error of jurisdiction iscorrectible by certiorari.

Q: Give example of excess of jurisdiction? A: Here the court has jurisdiction but it exceeded its authority. Example is whenMTC in a case of reckless imprudence resulting to homicide rendered a judgmentof conviction of 20 yrs imprisonment. This is clearly excess of jurisdiction.

Before amendment in summary procedure, attorneys fees are limited to 20k walana yan ngayon. So if a court grants more than 20k as attorneys fees under theold law it is clearly excess of jurisdiction. Under the new law it may be graveabuse of discretion but not anymore excess of jurisdiction.

Court penalizes lawyer in the amount of 20k for direct contempt for coming late.Maximum penalty is 20k so no excess of jurisdiction but maybe grave abuse ofdiscretion.

Q: What is grave abuse of jurisdiction amounting to lack of jurisdiction? A: It is a capricious or whimsical exercise of judgment and despotic or arbitraryexercise thereof.

Certiorari is always questioned in the bar or at least it is always mentioned. So ifyou are asked a question about certiorari and you do not know whether it isexcess of jurisdiction or grave abuse of jurisdiction amounting to lack of

jurisdiction, just remember 4 adjectives – whimsical, capricious, despotic andarbitrary. When you see any of these words, it is grave abuse of discretionbecause in all jurisprudence involving certiorari, these are the words often usedby the SC. But there may be a case wherein it does not use the specific words,kaya dapat alam nyo ang meaning and synonyms of these terms.

Q: When is it capricious? How about whimsical? Despotic? Arbitrary? A:


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Note: That the word capricious and whimsical always go together. You will notfind one without the other. It means it is only based on whim, there is no need, nonecessity. It is unreasonable.

Arbitrary naman is no basis, unwarranted, baseless, the law does notprovide. Despotic on the other hand is when it is done out of passion, out of

revenge, out of hatred or out of love. Remember despotic pa rin yan kahit out oflove. Relationships, maraming jurisprudence dyan, kaya lawyers always filemotion for inhibition.

Q: Give example of grave abuse of discretion? A: In filing a motion to quash grounded on double jeopardy and in your motionyou attached the judgment of conviction of your client. Very clear he has beenconvicted already. Court denied motion stating yes you have been convicted ofrape of my daughter but it is still denied. Why? Because I have 2 moredaughters….LOL.

Note: In all of these grounds – lack of jurisdiction, excess of jurisdiction, graveabuse of discretion. Ang malimit mong mabasa is grave abuse of discretion kasivery clear pag excess of jurisdiction and lack of jurisdiction.

It is important that you must establish the existence of whimsical, capricious,despotic or arbitrary. If you cannot establish that then the court should deny itbecause it would then be an error of judgment and not error of jurisdiction. Theremedy would be wrong. And at the time of said judgment the case would be finaland executory because the right to appeal is lost because the period for filing anappeal has already lapse.

Note: That certiorari does not stop the running of the period of appeal.

Note: Discuss mandamus with quo warranto because of the similarities betweenthe 2.

Q: Let us now go to functions of the respondent. In Certiorari the functions are judicial and quasi judicial function. Now, what is judicial function? A:

Q: The distinction lies in the root of its power since both exercises the samepower which is the power to hear and determine a case, so what is the root of itsauthority?

A: In judicial function the root of its power comes from the judiciary itself while inquasi judicial function the roots of its power comes from the legislative or theexecutive department.

Note: Do not confuse it to discretionary or ministerial functions


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Q: How do you distinguish one from the other? A: In ministerial, the court is left without the choice but to grant it if all the rulesand requirements are complied with, while in discretionary it may deny or grantbut within the parameters, it cannot go beyond said parameters. Example isgiving penalty of 6 years 1 day to 12 years. The court has discretion what specific

penalty to give but it must be within said period depending upon certaincircumstance.Note: That the grounds in prohibition is the same even if the function is merelyministerial kasi pwede pa rin na whimsical, capricious, despotic or arbitrary. Butwhich is clearer? Yung discretionary function sa certiorari because it is very clearbecause of the parameter in discretionary. So if it exceeds the parameter clearlygrave abuse of discretion amounting to lack of jurisdiction (????).

Conditions are that there must be no appeal and there is no other plain, speedy,adequate remedy in the ordinary course of law.

Q: Why no appeal? A:

Generally, certiorari cannot be a substitute for an appeal. Remember this,madaming ramifications to. If appealable, no certiorari, as a general rule, so whygo to certiorari? Because it is not appealable. Example of those which are notappealable are interlocutory orders. Decisions in labor cases, does not allowappeal so your remedy is certiorari. Why no appeal again? Because you couldhave appealed but you did not, you have now lost your right to appeal. But thesetime the loss of appeal here is not due to any others fault but your own. If it isyour own fault, you cannot apply for certiorari. You loss your right to appeal notbecause of your own fault. Example lawyers fault, although the general rule isfault of lawyer is also fault of client, but there are exceptions there like Rule 38Sec 1 Relief from judgment; Sec. 2 Rule 38 Relief from denial of appeal. You leftfor abroad while pending case, lawyer received decision but he did not notify you.When you return it can be excused.

The other condition, no plain, speedy, or adequate remedy in the course of law,in other words you could have filed a motion for reconsideration or you couldhave appealed because it is still available, but appeal or MR are not speedy oradequate remedy in the ordinary course of law. Example motion to quash wasdenied, may appeal dun, pero certiorari is the better rule, why? Because if yousaw appeal, tuloy tuloy pa rin ang kaso. You cannot desist from proceeding thecase, are you going to subject, are you going to endanger the client to beconvicted later on? So instead of an appeal or MR then you go to certiorari wherethe other court will immediately strike down the resolution.


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Q: What is the character of Rule 65 as distinguished from rule 45? A: Rule 65 is a special civil action while rule 45 is a mode of appeal.The ground for filing an appeal under Rule 45 is error of judgment which caneither be:

1. Insufficiency of evidence

2. Judgment is not according to the facts3. Damages awarded is contrary to lawThe ground for filing certiorari under Rule 65 is error of jurisdiction which caneither be:

1. Lack of jurisdiction2. Excess of jurisdiction3. Grave abuse of discretion amounting to lack or excess of jurisdiction.

Q: What are the grounds for filing of an action for prohibition? A: Same grounds with certiorari.

Q: What are the grounds for filing an action for mandamus? A: 1. Neglect in the performance of duty imposed by law2. Exclusion from enjoyment of an office

Q: Doctrine in the case of Lapid V. Laurea A:

1. Requirement preparatory to the filing of petition for certiorariGeneral Rule: Filing of a motion for reconsideration is mandatory to givethe tribunal a chance to correct itselfException: Purely questions of law which raises questions of error of

jurisdiction2. Specific dates must be stated as to when the judgment was rendered,

when notice of judgment was received, filing of Motion for reconsiderationand receipt of order with respect to the denial or grant of the motion.

Q: What is the period for filing of certiorari? A: Period of 60 days from receipt of copy of judgment.

Q: Does the Neypes doctrine or fresh day rule apply?

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