3. Marco Metodológico
4.1 Encuesta observación estructurada
attachment.
It aims to prevent or discharge a preliminary attachment.
This bond shall answer for all the costs which may judgment which the applicant may be entitled to.
The liability of surety under the applicant’s bond must be enforced by an application after motion with due notice has been given to the applicant and the sureties and after
The sureties on the counter-bond
are charged out of Property attached
a. Ifjudgmentberecoveredbytheattach
b. By paying to thejudgmentobligee the
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Preliminary Injunction
Anorderrequiringapartyoracourt,agencyor a
persontorefrainfromaparticularactoracts.I tmaybegrantedatanystageofanactionorpro ceedingpriortothejudgmentorfinalorder.
A writ of preliminary injunction is an ancillary or preventive remedy that may only be resorted to by a litigant to protect or preserve his rights or interests and for no other purpose during the pendency of the principal action. The dismissal of the principal action thus results in the denial of the prayer for the issuance of the writ (DFA vs. Falcon, 1 September 2010)
A writ of preliminary injunction may be issued upon the concurrence of the following essential requisites, to wit:
a. the invasion of right sought to be protected is material and substantial;
b. the right of the complainant is clear and unmistakable; and c. there is an urgent and paramount
necessity for the writ to prevent serious damage.
While a clear showing of the right is necessary, its existence need not be conclusively established. Hence, to be entitled to the writ, it is sufficient that the complainant shows that he has an ostensible right to the final relief prayed for in his complaint (Lukand vs Pagbiilao Development Corp. 10 March 2014).
PreliminaryMandatoryInjunction Anorderrequiringapartyoracourt,agencyor a persontoperformaparticularactoracts.
Itmaybegrantedatanystageofanactionorpr oceedingpriortothejudgmentorfinalorder.
TemporaryRestrainingOrder
An order to maintainthestatus quountil the
determinationoftheprayerforawritofprelimi naryinjunction
ObjectoftheIssuanceofPreliminaryInjun ction
Topreservethestatusquo
untilthemeritsofthecasecanbeheard.
Status Quo
The last actual peaceable uncontested status that preceded the controversy.
Q: Differentiate a TRO from a status quo order (BAR 2006)
A: A status quo order (SQO) is more in the nature of a cease and desist order, since it does not direct the doing or undoing of acts, as in the case of prohibitory or mandatory injunctive relief.
A TRO is only good for 20 days if issued by the RTC; 60 days if issued by the CA;
until further notice if issued by the SC.
The SQO is without any prescriptive period and may be issued without a bond.
A TRO dies a natural death after the allowable period; the SQO does not.
A TRO is provisional. SQO lasts until revoked. A TRO is not extendible, but the SQO may be subject to agreement of the parties.
PRELIMINARY INJUNCTION TE MP OR ARY RES TRA INI NG OR DE
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R An order granted at any stage of an action or proceeding prior to the judgment, requiring a person, a party or a court or agency or to cannot be issued ex parte. There must be notice and hearing.
It
It may exceed 20 days.
Note: WPI issued bytrial
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60 days . 2.
TRO issu ed by SC or a me mbe r, effe ctiv e unti l furt her orde rs.
INJUNCTION PROHIBITION Generally directed
against any person not exercising judicial,
quasi-judicial or
ministerial functions.
Directed against a court, tribunal or person exercising judicial powers.
Does not involve the jurisdiction of the court
May be on the ground that the court against whom the writ is
sought acted
without or in
excess of
jurisdiction.
May be main action itself or just provisional remedy in the main action.
Always a main action.
Requisites:
1. Invasion of the right is material and substantial;
2. Right of the complainant is clear and unmistakable; and
3. Urgent and paramount necessity for the writ to prevent serious damages.
There must be a right in esse or the existence of a right to be protected and the act against which the injunction is to be directed is a violation of such right (Idolor v. Court of Appeals, G.R. No.
141853, 2001, Gustilo v. Real, A.M. No.
MTJ-00-1250, 2001).
Injunction may be an action itself, brought specifically to restrain or command the performance of an act. As an action, it is immediately executory under Sec. 4, Rule 39.
Kinds of Injunction
1. Preliminary Injunction 2. Final Injunction 3. Prohibitory Injunction 4. Mandatory Injunction Preliminary
Injunction
Final Injunction The writ secured
before the finality of the judgment.
Issued as a judgment making the injunction permanent.
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Section 1: When Writ May Be Issued.
Thewritmaybegrantedatanystageofthe
proceeding prior to
thejudgmentorfinalorder
Section 2: Who may grant preliminary injunction:
1. The court where the action is pending 2. Court of Appeals, or any of its justices 3. Supreme Court, or any of its justices Section 3: Grounds for Issuance of Preliminary Injunction
1. Plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is preliminary mandatory injunction);
2. The commission of acts or non-performance during pendency of litigation would probably work injustice to the plaintiff;
3. Defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the action and tending to render judgment ineffectual.
Notes:
1. Independent action merely to obtain preliminary injunction is not allowed.
2. Substantive relief must be sought as well as a clear and positive right calling for judicial protection must be shown.
Requirements for the Grant of a Preliminary Injunction or TRO:
1. Verified application – shows the facts entitling the applicant to the relief demanded.
2. Bond – unless exempted by the court.
The applicant files a bond with the court where the action or proceeding is pending in an amount to be fixed by the court to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or TRO.
If the court should finally decide that the applicant was not entitled thereto.
Upon approval of the requisite bond, a writ of preliminary injunction shall be issued.
3. Notice of Raffle – When an application for a writ of preliminary injunction or TRO is included in a complaint or any initiatory pleading.
If filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined.
In any event, notice shall be preceded, or contemporaneously accompanied by:
Prohibitory Injunction
Mandatory Injunction To prevent a person
from the
performance of a particular act.
To require a person to perform a particular act.
The act has not yet
been performed. The act has already been performed and this act has violated the rights of another.
The status quo is preserved.
The status quo is restored.
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a. Service of summons, b. Together with a copy of the
complaint or initiatory pleading;
c. The applicant’s affidavit and
d. Bond, upon the adverse party in the Philippines.
Prior or contemporaneous service of summons shall not apply in the following cases:
a. The summons could not be served personally or by substituted service despite diligent efforts.
b. The defendant is a resident of the Philippines Temporarily absent therefrom.
c. Defendant is a Non-resident of the Philippines.
SUMMARY HEARING
General Rule: For TRO, the application shall thereafter be acted upon only after all the parties are heard in a summary hearing which shall be:
a. Conducted within 24 hours
b. After the sheriff’s return of service and/or the records are received by the branch
c. Selected by raffle and
d. To which the records shall be transmitted immediately (Riguera, 2013).
Note: The period within which to conduct summary hearing is 24 hours after the records are transmitted to the branch to which it is raffled. (Riguera 2013, citing Bagong West Kabulusan 1 Neighborhood Association v. Lerma, A.M. No. RTJ-05-1904, 2005).
Exceptions: TRO may be issued ex parte or without summary hearing:
a. If it shall appear from the facts shown by affidavits or by the verified application that GREAT OR
IRREPARABLE INJURY would result to the applicant before the matter can be heard on notice, in which case the court to which the application for preliminary injunction was made may issue a TRO ex parte effective for only 20 days from service on the party or person sought to be enjoined.
The court must order the applicant to show cause within the 20-day period why the injunction should not be granted, and the court shall also determine whether or not the preliminary injunction shall be granted; or
b. If the matter is of EXTREME URGENCY and the applicant will suffer GRAVE INJUSTICE AND IRREPARABLE INJURY, in which case the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue a TRO ex parte effective for only 72 hours from issuance but he shall immediately comply with the rule on SCAB. The judge before whom the case is pending shall conduct a summary hearing within 72 hours to determine whether or not the TRO shall be extended until the application for preliminary injunction can be heard.
Note:
TRO under exception is 1. Non- extendible while
2. May be extended for 20 days, inclusive of the initial 72-hour period.
SECTION 5. Duration of A TRO
General Rule:
Periodnotexceeding20daysfromservicetoth e partysoughttobeenjoined.
Exceptions:
Ifthematteris:
a. Extremeurgency;and
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b. Theapplicantwill suffer graveinjusticeandirreparableinjury ,
Thejudgemayissueexparteatemporaryrest raining order:
a. Itshallbeeffective foronly72hours;
b. HeshallimmediatelycomplywithSectio n4regardingserviceofsummonsandacc ompanyingdocument;and
c. Heshallconductasummaryhearingwith insaid72hourstodeterminewhetherthe restrainingordershallbeextendeduntilt heapplicationforthepreliminaryinjunct ioncanbeheard.
Section 6: Grounds for objection to or for the Dissolution of Injunction for Restraining Order.
1. Application is insufficient;
2. Other grounds upon affidavits of the party or person enjoined
3. Applicant’s bond is insufficient. Refer to Rule 58, Sec. 7
DOCTRINE OF COMPARATIVE INCONVENIENCE OR DAMAGE
The injunction or restraining order may be denied or dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order.
In relation to RA No. 8975, Ban on Issuance of TRO or Writ of Injunction in cases involving Government Infrastructure Projects
Nocourt,excepttheSupremeCourt,shalliss ueanytemporaryrestrainingorder,prelimin aryinjunctionorpreliminarymandatoryinju nctionagainst
thegovernment,oranyofitssubdivisions,offi cialsoranypersonorentity,whetherpublicor privateactingunderthegovernmentdirectio n,torestrain,prohibitorcompelthefollowing acts:
a. Acquisition,clearanceanddevelopm entoftheright-of-wayand/or
siteorlocationofanynationalgovern mentproject;
b. Biddingorawardingofcontract/proj ectof the national government asdefined underSection2hereof;
c. Commencementprosecution,execu tion,implementation,operationofan ysuchcontractorproject;
d. Terminationorrescissionofanysuch contract/project;and
e. The
undertakingorauthorizationofanyo therlawfulactivitynecessaryforsuch contract/project.
Thisprohibitionshallapplyinallcases,dispu tesorcontroversiesinstitutedbyaprivatepar ty,includingbutnot
limitedtocasesfiledbybiddersorthoseclaimi ngtohaverightsthroughsuchbiddersinvolvi ngsuchcontract/project.
Thisprohibitionshallnotapplywhenthe matterisofextremeurgencyinvolvingaconst itutionalissue,suchthatunlessatemporary restrainingorderisissued,graveinjusticean dirreparableinjurywillarise.
Theapplicantshallfileabond,inanamountto befixedby
thecourt,whichbondshallaccruein favor ofthegovernmentifthecourtshouldfinallyde cidethattheapplicantwasnotentitledtother eliefsought.
Ifafterduehearingthecourtfinds that theawardofthecontractisnullandvoid,theco
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urtmay,ifappropriateunderthecircumstan ces,awardthecontracttothequalifiedandwi nningbidderororderarebiddingofthe
same,withoutprejudicetoanyliabilitythatth eguiltypartymayincurunderexistinglaws.
RULE ON PRIOR OR
CONTEMPORANEOUS SERVICE OF SUMMONS IN RELATION TO
ATTACHMENT
PRINCIPLE OF PRIOR
CONTEMPORARY JURISDICTION When an application for a writofpreliminaryinjunction or a temporary restraining order isincludedin acomplaintor
anyinitiatorypleading,thecase,iffiledinamu
ltiple-salacourt,shallberaffledonlyafterNOTICEt o
andINTHEPRESENCEoftheadversepartyor thepersontobeenjoined. Refer to Rule 58,Sec.4(c).
Thereisdifferenceontheapplicationofthepri ncipleinpreliminaryattachmentandprelimi naryinjunction.
Inattachment,theprincipleappliesonlyinth eimplementationofthewrit,while
inapplications
forinjunctionorTRO,thisprincipleappliesbe foretheraffleandissuanceofthewritsorTRO.
GeneralRule:PreliminaryInjunctionwillno tissuetoprotectcontingentorfuturerights;ri ghtswhicharenotclear.
Exception:Itmayhoweverbeissuedtopreve ntfuturewrongs thoughnoright yethasbeenviolated.
Example:Topreventthehusbandfrominterf eringwife’smanagementpendingdesignatio noftheadministrator.
RULE 59 RECEIVERSHIP
Receivership
It is a provisional or ancillary remedy wherein the court appoints a receiver to receive and preserve the property or fund in the litigation pendente lite, when it does not seem reasonable to the court that either part should hold it (Primer-Reviewer on Remedial Law, Manuel R.
Riguera).
A receiver is a person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the suit and to protect the rights of all the parties under the direction of the court (Mallari v. CA, G.R. No. L-26467, July 15, 1981).
Before appointing a receiver, courts should consider:
a. Whether or not the injury resulting from such appointment would probably be greater than the injury ensuing if the status quo is left undisturbed; and b. Whether or not the appointment
will imperil the interest of others whose rights deserve as much a consideration from the court as those of the person requesting for receivership. (Tantano vs. Espina-Caboverde 29 July 2013)
Section 1.Cases When Receiver May Be Appointed.
The Court may appoint a receiver in the following cases:
a. Applicant has an Interest in the property or fund subject of the proceeding and such property is in danger of being lost, removed, or materially injured unless a receiver is appointed;
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b. In foreclosure of mortgage, when the property is in Danger of being dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt or that it has been agreed upon by the parties;
c. After judgment, to Preserve the property during the pendency of an appeal or to dispose of it according to the judgment or to aid execution;
d. When appointment of receiver is the most Convenient and feasible
means of preserving,
administering or disposing of the property in litigation.
Note: The property must be under litigation.
Requisites:
1. Property or fund subject of receivership is under litigation 2. Appointment of receiver is
warranted under Sec. 1 Rule 59 3. Applicant files a sufficient bond to
the effect that the applicant will pay the receiver all damages he may sustain by reason of the appointment in case such applicant shall have procured the appointment without sufficient cause. Refer to Rule 59, Sec. 2.
4. No counterbond filed by the adverse party to deny the application for receivership. Refer to Rule 59, Sec. 3.
5. Receiver shall be:
a. Sworn to perform his duties faithfully, and
b. Shall file a bond to the effect that he will faithfully discharge his duties in the action or proceeding and
c. Obey the orders of the court.
6. Service of copies of bonds shall be made by the party filing the same
to each interested party who may except to its sufficiency, or of the surety or sureties thereon.
Requisites before Issuance of an Order:
1. Verified application and such other proof as the court may require that the applicant has an interest in property or fund which is the subject of the action or proceeding and such property or fund is in danger of being lost, removed, or materially injured unless a receiver is appointed to administer and preserve it (Riguera, Primer-Reviewer on Remedial Law).
2. Bond – an applicant’s bond is required:
a. It is an executed to the party against whom the application presented, b. In an amount fixed by
court,
c. To the effect that the application will pay such party all damages he may sustain by reason of the appointment of such receiver (Riguera, Primer-Reviewer on Remedial Law).
3. Notice and Hearing is conducted to determine that:
a. The applicant has interest in the property or fund, and
b. In danger of being lost, removed or materially injured, and
c. Appointment of a receiver is the most convenient and feasible means of preserving, administering or disposing the property in litigation.
Where to file:
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During the pendency of the appeal, the appellate court, may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court.
GENERAL POWERS OF A RECEIVER 1. Bring and defend, in such capacity,
actions in his own name;
2. Take and keep possession of the property in controversy;
3. Receive rents;
4. Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver;
5. Compound for and compromise the same;
6. Make transfers;
7. Pay outstanding debts;
8. Divide the money and other property that shall remain among the persons legally entitled to receive the same;
9. Generally to do such acts respecting the property as the court may authorize; and
10. Invest funds in his hands, only by order of the court upon the written consent of all the parties.
Note: Section 30 of the General Banking Law of 2000 (RA 8791) states that the
“appointment of a receiver shall be vested exclusively with the monetary board.” The term “exclusively” connotes that only the Monetary Board can resolve the issue of whether a bank is to be placed under receivership and, upon an affirmative finding, it also has authority to appoint a receiver (Koruga v Arcenas; G.R. No.
168332; 2009).
Two Kinds of Bonds 1. Applicant’sbond.
Sec. 2 of Rule 59 is very clear in that before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against whom the applicant is presented. The filing of an applicant’s bond is required at all times (Tantano vs.
Espina-Caboverde 29 July 2013).
2. Receiver’sbond
On the other hand, the requirement of a receiver’s bond rests upon the discretion of court. Sec. 2 of Rule 59 clearly states that the court may, in its discretion, at any time after appointment, require an additional bond as further security for such damages (Tantano vs. Espina-Caboverde 29 July 2013).
Termination Of Receivership Receivership may be denied or lifted:
a. If the appointment sought or granted is without sufficient cause.
b. Adverse party files a sufficient bond to answer for damages (Sec.
3);
c. Bond posted by the applicant for grant of receivership is insufficient.(Sec. 5); or
d. Bond of the receiver is insufficient (Sec. 5).
RULE 60 REPLEVIN
Section 1: When May Writ Be Issued.
Replevin is a provisional remedy wherein a party praying for the recovery of possession of personal property may apply for an order for the delivery of such property to him.
It may also refer to the main action for the recovery of personal property wrongfully detained by the defendant (Riguera 2013).
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Notes:
1. Principal Action: Recovery of possession of personal property 2. Provisional Remedy: Replevin Subject Matter: Personal Property
The contracting parties may validly stipulate that a real property be considered as personal. After agreeing to such stipulation, they are consequently estopped from claiming otherwise. Under the principle of estoppel, a party to a contract is ordinarily precluded from denying the truth of any material fact found therein. The Court upheld the intention of the parties to treat a house as personal property because it had been made the subject of a chattel mortgage.
(Serg’s Product vs. PCI Leasing & Finance Co. 22 August 2000)
Note: The applicant seeking immediate possession need not be the holder of legal title. It is sufficient that he is entitled to the possession thereof.
When May Writ Be Issued
Replevin may be applied for and issued at the commencement of the action or at any time before answer.
Note: Once an answer has been filed, the replevin is no longer available and the remedy would be to move for preliminary attachment under Sec. 1(c) Rule 57.
(Riguera 2013)
Requisites for the Issuance of a Writ of Replevin
1. The applicant must show by his own affidavit or that of some other person who personally knows the facts:
a. That the applicant is entitled to the possession of the subject property
b. That the property is wrongfully detained by the adverse party c. That the property has not been
distrained or taken for a tax assessment or a fine, or seized under a writ of execution or preliminary attachment, or otherwise placed in custodia legis, or if so seized, that it is
distrained or taken for a tax assessment or a fine, or seized under a writ of execution or preliminary attachment, or otherwise placed in custodia legis, or if so seized, that it is