6.5. Conocimiento del manejo de la bicicleta
7. ACCIONES PARA LA MEJORA DE LA MOVILIDAD PEATONAL
Replevin is the provisional remedy seeking for the possession of the property prior to the determination of the main action for replevin. Replevin may also be a main action with the ultimate goal of recovering personal property capable of manual delivery wrongfully detained by a person. In this sense, it is a suit in itself
REPLEVIN ATTACHMENT PRELIMINARY
The purpose is to recover personal property capable of manual delivery from the defendant
The purpose is to have the property put in the custody of the court to secure the satisfaction of the judgment that may be rendered in favor of the plaintiff at some future time
The property either belongs to the plaintiff or one over which the plaintiff has a right of
The property does not belong to the plaintiff but to the defendant
REPLEVIN PRELIMINARY ATTACHMENT
May be sought only when the principal action is for the recovery of personal property
Available even if recovery of property is only incidental to the relief sought
Can be sought only when defendant is in actual or constructive possession of the property
May be resorted to even if property is in possession of a third person Cannot be availed of when property is in custodia legis
Can be availed of even if property is in custodia legis Available before defendant answers Available from commencement but before entry of judgment Bond is double the
value of the property
Bond is fixed by the court Extends only to
personal property capable of manual delivery
Extends to all kinds of property whether real, personal, or incorporeal Available to recover
personal property even if the same is not being concealed, removed, or disposed of Attachment to recover possession of personal property unjustly detained presupposes that the same is being concealed, removed, or disposed of to prevent its being found or taken by the applicant
NOTE: There can be no replevin and preliminary attachment in the same case because the purposes are different.
(1) In Rule 57, it is for security
(2) In Rule 60, it is for recovery of possession
D.1. WHEN WRIT MAY BE ISSUED
The provisional remedy of replevin is available where the principal purpose of the action is to recover the possession of personal property.When Applied For
A writ of replevin must be applied for:
(1) At the commencement of the action, or
(2) At any time before defendant files his answer
NOTE: There can be no replevin before the appellate courts
Who May Avail
(1) Plaintiff – where the complaint prays for recovery of possession of personal property
(2) Defendant – where a counterclaim was set out in the answer for recovery of personal property
It is available to any other party asserting affirmative allegations praying for the recovery of personal property unjustly detained.
Does the applicant have to be the holder of the legal title to the property?
GENERAL RULE: No. It is in the nature of a possessory action. It is sufficient that at the time he applied for a writ of replevin he is found to be entitled to a possession thereof. Primarily, the action of replevin is possessory in character and determines nothing more than the right of possession. However, when the title to the property is distinctly put in issue by the defendant's plea, the question of ownership may be resolved in the same proceeding because a replevin action is sufficiently flexible to authorize a settlement of all equities between the parties, arising from or growing out of the main controversy. [Chiao Liong v. CA, G.R. No. 106251 (1993)]
D.2. REQUISITES
(1) Applicant is owner of the property claimed or is entitled to possession
(2) Property is wrongfully detained by the adverse party
(3) Property is not distrained or taken for tax assessment or fine pursuant to law, or seized (if seized, that the property is exempt)
(4) Principal purpose of the action is to recover possession of personal property Procedure [Secs. 2-3, Rule 60]
(1) An application is filed at the commencement of the action or at any time before answer of defendant
(2) Application must contain an affidavit
(3) Applicant must file a bond
(4) Approval of the bond by the court
(5) Court shall then issue an order and the writ of replevin:
(a) It must describe the personal property alleged to be wrongfully detained
(b) Requiring the sheriff to take such property into his custody
NOTE: The writ of replevin may be served anywhere in the Philippines.
D.3.
AFFIDAVIT
AND
BOND;
REDELIVERY BOND
Contents of the Affidavit The affidavit shall:(1) Particularly describe the property
(2) State that the applicant is:
(a) the owner of the property claimed; or
(b) entitled to possession
(3) State that the property is wrongfully detained by adverse party, allege the cause of detention according to his best knowledge, information, belief
(4) State either
(a) That the property has not been: (i) Distrained,
(ii) Taken for a tax assessment, (iii) Taken as a fine pursuant to law, (iv) Seized under a writ of execution
or preliminary attachment, or (v) otherwise under custodia legis
(b) That, if the property is so taken, it is exempt from such seizure or custody.
(5) State the actual value of the property subject of replevin and not just its probable value.
Applicant’s Bond
(1) Executed to the adverse party
(2) Amount is DOUBLE the value of the property stated in the affidavit
(3) Conditions of the Bond:
(a) The return to of property to adverse party, if such return be adjudged, and
(b) The payment to adverse party of such sum as he may recover from the applicant in the action
Return of Property[Sec. 5]
If the adverse party does not object to the sufficiency of the bond, he may require the return of the property
When: At any time before delivery to applicant
How: By filing a redelivery bond Redelivery Bond
This is executed to the applicant and filed where the action is pending
o Amount: double the value of the property as stated in the affidavit of the applicant
o Undertaking:
(a) The delivery thereof to the applicant, if such delivery be adjudged, and
(b) The payment of such sum to him as may be recovered against the adverse party
D.4.
SHERIFF’S
DUTY
IN
IMPLEMENTATION
Duties of the Sheriff [Sec. 4, Rule 60]
(1) Serve a copy of the order, together with the copies of the application, the affidavit, and bond to the adverse party
(2) Take the property:
(a) If it be in the possession of the adverse party or his agent – Take the property into custody
(b) If property is concealed in a building or enclosure:
(i) Demand delivery of the property (ii) If not delivered, cause the
building or enclosure to be broken open and then take the property into possession
(3) After taking possession:
(a) Keep the property in a secure place
(b) He shall be responsible for delivery to party entitled
Unlike a preliminary attachment and preliminary injunction, the rule on prior or contemporaneous jurisdiction is not provided for in replevin.
However, the rule requires that upon such order, the sheriff must serve a copy on the adverse party together with the required documents.
A sheriff’s prerogative does not give him the liberty to determine who among the parties is entitled to possession.
When a writ is placed in the hands of a sheriff, it is his duty to proceed with reasonable celerity and promptness to execute it according to its mandate.
Disposition of Property by Sheriff The sheriff shall retain the property for 5 days. Within such period, the adverse party:
(1) May object to the sufficiency of the applicant’s bond or surety; or
(2) May file a redelivery bond, if he does not object to the sufficiency of the bond
The adverse party is entitled to the return of the property taken under writ of replevin, if:
(1) He seasonably posts a redelivery bond
(2) The applicant’s bond is found to be insufficient or defective and is not replaced with a proper bond
(3) The property is not delivered to the plaintiff for any reason
D.5. WHEN PROPERTY CLAIMED BY
THIRD PARTY
Procedure
Third party claiming the property must:
(1) Make an affidavit of his title to the property, stating his grounds;
(2) Serve such affidavit upon the sheriff while the latter has possession of the property; and
(3) Serve a copy upon the applicant. Effect
The sheriff shall not be bound to keep property under replevin or deliver property to the applicant, unless the applicant files a bond approved by the court to indemnify the third person, in an amount not less than the value stated in the affidavit of the applicant. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action is filed within 120 days from filing of the bond. NOTE: The procedure in Sec. 7, Rule 60 is similar to that in third-party claims in execution [Sec. 16, Rule 39] and in attachment (Sec. 14, Rule 57].
Difference in Service of Affidavits: o Sec. 14, Rule 57 – affidavit is served
upon the sheriff while he has possession of the attached property
o Sec. 7, Rule 60 – affidavit is served within 5 days in which sheriff has possession (in connection with Sec. 6)
D.6. JUDGMENT [Sec. 9, Rule 60]
After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove, with costs.A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES
Preliminary
Attachment Preliminary Injunction Receivership Replevin
PURPOSE To have the
property of adverse party attached as security for satisfaction of judgment that may be recovered in cases falling under Sec. 1, Rule 57 To require a party or a court, agency, or a person to reframe from doing a particular act/s To place the property subject of an auction or proceeding under the control of a third party for its preservation and administration pendente lite or as an aid to execution To recover possession of personal property
To enable the court to acquire
jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on creditor cannot be effected Or to require the performance of particular act/s SUBJECT
MATTER Personal or real property Particular act/s Personal or real property Personal property capable of manual delivery WHEN APPLIED/ GRANTED At the commencement of action
OR `At any time prior to entry of judgment
At any stage prior to final judgment or final order
At any time prior to satisfaction of judgment It may be availed of even after judgment becomes final under Sec. 41, Rule 39 At the commencement of the action BUT before the filing of answer
HOW APPLIED FOR
File affidavits and applicant’s bond File verified application and applicant’s bond File verified application and applicant’s bond
File affidavits and applicant’s bond If application is included in initiatory pleading, adverse party should be served with summons together with a copy of initiatory pleading and applicant’s bond
Application may also be included in initiatory pleading in actions for foreclosure of mortgage REQUIREMENT OF A HEARING Not required May be issued ex parte
Required Required Not Required
May be issued ex parte
EXCEPT:
Great or irreparable injury would result or
Preliminary
Attachment Preliminary Injunction Receivership Replevin
Extreme urgency and applicant will suffer grave injustice and irreparable injury (Sec. 5, Rule 58 WHO MAY
GRANT
Courts where the action is pending, the CA or the SC even if action is pending in lower court
Only the court where the action is pending Lower court, CA or SC provided action is pending in the same court which issues the injunction Also with the Sandiganbayan and CTA Court where action is pending The CA or SC even if action is pending in the lower court Appellate court may allow application for receivership to be decided by the court of origin
Only the court were action is pending REQUISITES FOR GRANTING APPLICATION 1. Sufficient cause of action 2. Case is covered by Sec. 1, Rule 57 3. No other sufficient security for the claim exists 4. Amount due to applicant or value of property he is entitled to recover is equal to the sum which the order of attachment is granted 1. Applicant is entitled to relief demanded 2. Act/s complained of would work injustice to applicant if not enjoined 3. Acts sought to be enjoined probably violates applicant’s rights respecting the subject of the action or proceeding 4. Threatened injury incapable of pecuniary estimation 1. Applicant has interest in property or fund, subject matter of action 2. Property or fund is in danger of being lost, or removed, or material injured 3. Appointment is the most convenient and feasible means of preserving, administering, disposing of property in litigation 1. Applicant is owner of the property claimed or is entitled to possession 2. Property is wrongfully detained by the adverse party 3. Property is not distrained or taken for tax assessment or fine pursuant to law, or seized (if seized, that the property is exempt)