6.5. Conocimiento del manejo de la bicicleta
6.7. Problemas específicos de los desplazamientos en la red ciclista
Receiver – A person appointed by the court in behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent its possible destruction or dissipation if it were left in the possession of any of the parties.
Purpose: The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied.
The receivership under Rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under banking laws and other rules or laws. Rule 59 presupposes that there is an action and that the property subject of the action requires its preservation. Receivership under Rule 59 is ancillary to the main action. [Riano]
The guiding principle is the prevention of imminent danger to the property. If an action by its nature, does not require such protection or preservation, said remedy cannot be applied for and granted. [Commodities
Storage v. CA, G.R. No. 125008 (1997)]
C.1. CASES WHEN RECEIVER MAY
BE APPOINTED [SEC. 1, RULE 59]
(1) When it appears from the verifiedapplication and other proof that the applicant has an interest in the property or fund which is the subject of the action or proceeding, and that such property or
fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it;
(2) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;
(3) 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 when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect;
(4) 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.
Specific Cases
(1) If a spouse without just cause abandons the other or fails to comply with his/her obligations to the family, the aggrieved spouse may petition the court for receivership. [Art. 101, Family Code]
(2) The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. [Sec. 41, Rule 39]
(3) After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal. [Sec. 9, Rule 41;
Acuña v. Caluag (1957)]
(4) After final judgment, a receiver may be appointed as an aid to the execution of judgment. [Philippine Trust Company v.
Santamaria (1929)]
(5) Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances, as when it is reasonably necessary to secure and protect the rights of the real owner. [Dolar v. Sundiam (1971)]
C.2 REQUISITES; REQUIREMENTS
BEFORE ISSUANCE
Procedure
(1) Verified application filed by the party requesting for the appointment of the receiver;
(2) Applicant must have an interest in the property or funds subject of the action;
(3) Applicant must show that the property or funds is in danger of being lost, wasted, or dissipated;
(4) Application must be with notice and must be set for hearing;
(5) Before appointing a receiver, the court shall require applicant to post a bond in favor of the adverse party.
(6) Before entering upon his duties, the receiver must be sworn to perform his duties faithfully and shall file a bond. Who Appoints Receiver
(1) Court where the action is pending
(2) CA
(3) SC
(4) During the pendency of an 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. [Sec. 1, Rule 59]
Receivership may be denied or lifted
(1) If the appointment was sought or granted without sufficient cause [Sec. 3]
(2) Adverse party files a sufficient bond to answer for damages [Sec. 3]
(3) Bond posted by applicant for grant of receivership is insufficient [Sec. 5]
(4) Bond of the receiver is insufficient [Sec. 5] Appointment is not proper where the rights of the parties, one of whom is in possession of the property, are still to be determined by the trial court. [Vivares v. Reyes, G.R. No. 155408 (2008)]
C.3 THE RECEIVER
What is a Receiver?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.
Who May Be Appointed
The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. [Alcantara v. Abbas, G.R. No. L-14890 (1963))
A clerk of court should not be appointed as a receiver as he is already burdened with his official duties. [Abrigo v. Kayanan, G.R. No. L- 28601 (1983)]
Powers of a Receiver
(1) Bring and defend in such capacity actions in his own name with leave of court
(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
(10) Invest funds in his hands, only by order of the court upon the written consent of all the parties. [Sec. 6, Rule 59] Liability for refusal or neglect to deliver property to receiver
(1) May be punished for contempt; and
(2) Shall be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. [Sec. 7, Rule 59]
Remedies Against the Receiver
(1) No action against receiver can be maintained without leave of court
(2) An aggrieved party may:
(a) Take the matter into the court which appointed the receiver and ask either for an accounting or take some other
proceeding, and ask for consequent judgment on the acts complained of; or
(b) Ask for leave of court to bring him an action directly
C.4 TWO KINDS OF BOND
APPLICANT’S BOND
Applicant must file a bond executed to the party against whom the application is presented
o Amount: to be fixed by the court
o Undertaking: applicant will pay such party all damages he may sustain by reason of the appointment, in case the applicant shall have procured such without sufficient cause
The court may require additional bond after appointment in the exercise of its discretion as further security for such damages [Sec. 2, Rule 59]
RECEIVER’S BOND
As a precondition before entering into his duties, receiver must file a bond.
o Executed to the person against whom the application is presented
o Amount: in such sum as the court may direct.
o Undertaking: To the effect that he will faithfully discharge his duties and obey the orders of the court [Sec. 4, Rule 59]
DAMAGES RESULTING FROM APPOINTMENT DAMAGES ARISING AFTER APPOINTMENT Damages resulting from appointment
Damages which arise due to receiver’s negligence or mismanagement The right is statutory
The right rests on general principles of law
The damages may be caused before the receiver qualifies or takes possession of the property
Liability rests on the mismanagement or negligence of receiver The applicant’s bond is
C.5 TERMINATION
Ground: The necessity for a receiver no longer exists
Procedure
(1) The court shall determine that the necessity for a receiver no longer exists o Motu proprio, or on motion of either
party
(2) Due notice shall be given to all interested parties
(3) A hearing shall be conducted
(4) The court shall then settle the accounts of the receiver
(5) The court directs delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them
(6) The court will then order the discharge of the receiver
Effect
(1) Settle accounts of receiver
(2) Delivery of funds to person entitled
(3) Discharge of receiver
(4) Receiver entitled to reasonable compensation to be taxed as costs against defeated party