NATURE OF PROVISIONAL REMEDIES Provisional remedies are temporary, auxiliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. They are writs and processes which are not main actions and they presuppose the existence of a principal action.
Provisional remedies are resorted to by litigants for any of the following reasons:
1) To preserve or protect their rights or interests while the main action is pending;
2) To secure the judgment;
3) To preserve the status quo; or
4) To preserve the subject matter of the action.
Provisional remedies specified under the rules are:
1. Preliminary attachment (Rule 57);
2. Preliminary injunction (Rule 58);
3. Receivership (Rule 59);
4. Replevin (Rule 60); and 5. Support pendent lite (Rule 61).
JURISDICTION OVER PROVISIONAL REMEDIES The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action.
Even an inferior court may grant a provisional remedy in an action pending with it and within its jurisdiction.
PRELIMINARY ATTACHMENT (RULE 57)
Preliminary attachment is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the.
When availed of and is granted in an action purely in personam, it converts the action to one that is quasi in rem. In an action in rem or quasi in rem, jurisdiction over the res is sufficient. Jurisdiction over the person of the defendant is not required.
There is no separate action called preliminary attachment. It is availed of in relation to a principal action.
Preliminary attachment is designed to:
1) Seize the property of the debtor before final judgment and put the same in custodial egis even while the action is pending for the satisfaction of a later judgment.
2) To enable the court to acquire jurisdiction over the res or the property subject of the action in cases where service in person or any other service to acquire jurisdiction over the defendant cannot be affected.
Three stages in the grant of the Preliminary Attachment 1) The court issues the order granting the
application
2) The writ of attachment issues pursuant to the order granting the writ
3) The writ if implemented
For the 2 initial stages, it is not necessary that jurisdiction over the person of the defendant be first obtained.
However, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power or authority to act in any manner against the defendant.
PRELIMINARY ATTACHMENT HAS THREE TYPES
(a) PRELIMINARY ATTACHMENT – one issued at the commencement of the action or at any time before entry of judgment as security for the satisfaction of any judgment that may be recovered. Here the court takes custody of the property of the party against whom attachment is directed.
(b) GARNISHMENT – plaintiff seeks to subject either the property of defendant in the hands of a third person (garnishee) to his claim or the money which said third
person owes the defendant. Garnishment does not involve actual seizure of property which remains in the hands of the garnishee. It simply impounds the property in the garnishee’s possession and maintains the status quo until the main action is finally decided. Garnishment proceedings are usually directed against personal property, tangible or intangible and whether capable of manual delivery or not.
(c) LEVY ON EXECUTION – writ issued by the court after judgment by which the property of the judgment obligor is taken into custody of the court before the sale of the property on execution for the satisfaction of a final judgment. It is the preliminary step to the sale on execution of the property of the judgment debtor.
" The grant of the remedy is addressed to the discretion of the court whether or not the application shall be given full credit is discretionary upon the court. In determining the propriety of the grant, the court also considers the principal case upon which the provisional remedy depends.
GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT
At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:
1) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors;
2) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;
3) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any party thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;
4) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action the action is brought, or in the performance thereof;
5) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or
6) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication (Sec. 1).
REQUISITES
The issuance of an order/writ of execution requires the following:
1) The case must be any of those where preliminary attachment is proper;
2) The applicant must file a motion whether ex parte or with notice and hearing;
3) The applicant must show by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced; that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims; and 4) The applicant must post a bond executed to the
adverse party.
# This is called an ATTACHMENT BOND, which answers for all damages incurred by the party against whom the attachment was issued and sustained by him by reason of the attachment.
ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT
An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the CA or the SC.
It may issue ex parte and even before the summons is served upon the defendant. However, the writ may not be enforced and validly implemented unless preceded or simultaneously served with the summons, a copy of the complaint, application for attachment, the order of attachment and the attachment bond.
AFFIDAVIT AND BOND
The order of attachment shall be granted only when it appears by the affidavit of the applicant that the requisites for a grant of attachment are present.
The applicant must thereafter give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ, conditioned that the latter will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS
$ Enforcement of the writ or preliminary attachment must be preceded by contemporaneously
accompanied by the service of summons, copy of the complaint, application and affidavit of the attachment and the bond in favor of the adverse party.
$ The failure to acquire jurisdiction over the person of the adverse party shall render the implementation of the writ void.
Exceptions to the requirement:
1) Where the summons could not be served personally or by substituted service despite diligent efforts;
2) The defendant is a resident of the Philippines who is temporarily out of the country;
3) The defendant is a non-resident; or
4) The action is one in rem or quasi in rem (Sec. 5).
MANNER OF ATTACHING REAL AND PERSONAL PROPERTY
The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand.
In attaching REAL PROPERTY, or growing crops thereon or any interest therein, a copy of the order shall be filed with the registry of deeds along with a description of the property attached and by leaving a copy of such order with the occupant of the property, if any or such other person or his agent if found within the province.
In attaching PERSONAL PROPERTY capable of manual delivery - by taking and safely keeping it in his custody after issuing the corresponding receipt therefor.
As to STOCKS OR SHARES, or an interest thereon, by leaving with the president or managing agent of the company, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ.
DEBTS AND CREDITS, including bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery shall be attached by leaving with the person owing such debts, or in possession or control of such credits or other personal property, or with his agent, a copy of the writ, and notice that such properties are attached.
As to interest of the party against whom attachment is issued in property BELONGING TO THE ESTATE OF THE DECEDENT are attached by giving a copy of the writ and notice to the executor or administrator and the office of the clerk of court where is the estate is being settled.
If the property to be attached is IN CUSTODIA LEGIS, a copy of the writ shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property.
WHEN PROPERTY ATTACHED IS CLAIMED BY THIRD PERSON
The third party may resort to any of the following remedies which are cumulative and thus could be resorted independently and separately from the others:
a) He may avail of the remedy of terceria - by making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching party. The sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court.
b) The third person may invoke the court’s authority in the same case and move for a summary hearing on his claim to decide if the sheriff has acted correctly or not.
c) The third party may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. This action may be totally distinct from the case in which the attachment was issued.
HOW TO PREVENT THE ATTACHMENT The party whose property is sought to be attached, my prevent the attachment by doing either of two things:
1) By depositing with the court an amount equal to the value of the property to be attached; or 2) By giving a counter bond executed to the
applicant, in an amount equal to the bond posted by the latter to secure the attachment.
DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND
If the attachment has already been enforced, the party whose property has been attached may file a MOTION to discharge the attachment. This motion shall be with notice and hearing. After due notice and hearing, the court shall discharge the attachment if the movants makes a CASH DEPOSIT or files a COUNTER-BOND executed to the attaching party with the clerk of court where the application is made.
Attachment may likewise be discharged without the need for filing of a counter-bond. This is possible when the party whose property has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion, he proves that:
1) The attachment was improperly or irregularly issued or enforced; or
2) The bond of the attaching creditor is insufficient;
or
3) The attachment is excessive and must be discharged as to the excess; or
4) The property is exempt from execution, and as such is also exempt from preliminary attachment.
" “Improperly” (e.g. writ of attachment was not based on the grounds in Sec. 1)
" “Irregularly” (e.g. writ of attachment was executed without previous or contemporaneous service of summons)
SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED
If judgment is rendered in favor of the attaching party and execution issued, the sheriff may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose.
PRELIMINARY INJUNCTION (RULE 58)
" Can be provisional remedy and can also an action
DEFINITIONS AND DIFFERENCES:
PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to either refrain (prohibitory) from or to perform (mandatory) a particular act or acts during the pendency of the action.
Temporary restraining order (TRO) is issued is an order to maintain the status quo between and among the parties until the determination of the prayer for a writ of preliminary injunction. The status quo is the last, actual, peaceable and uncontested situation which precedes a controversy.
The judge may issue a TRO with a limited life of 20 days from date of issue. If before the expiration of the 20 day period, the application for preliminary injunction is denied, the TRO would be deemed automatically vacated. If no action is taken by the judge within the 20 day period, the TRO would automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect being necessary.
A writ of preliminary injunction cannot be granted without notice and hearing. A TRO may be granted ex parte if it shall appear from 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, the court in which the application for preliminary injunction was made my issue a TRO ex parte for a period not exceeding 20 days from service to the party sought to be enjoined.
REQUISITES 1) There must be a verified petition,
2) The application must establish that he has a right of relief or a right to be protected and that the act against which the injunction is sought violates such right,
3) The applicant must establish that there is a need to restrain the commission of the continuance of the acts complained of and if not enjoined would work injustice to him,
4) A bond must be posted, unless otherwise exempted by the court.
5) The threatened injury must be incapable of pecuniary estimation.
KINDS OF INJUNCTION
PROHIBITORY – its purpose is to prevent a person from the performance of a particular act which has not yet been performed.
1) Preliminary – secured before the finality of judgment.
2) Final – issued as a judgment, making the injunction permanent. It perpetually restrains a person from the continuance or commission of an act and confirms the previous preliminary injunction. It is one included in the judgment as the relief or part of the relief granted as a result of the action, hence, granted only after trial and no bond is required.
MANDATORY – its purpose is to require a person to perform a particular positive act which has already been performed and has violated the rights of another.
a) Preliminary b) Final
Requisites for the issuance of mandatory preliminary injunction
(a) The invasion of the right is material and substantial;
(b) The right of a complainant is clear and unmistakable;
(c) There is an urgent and permanent necessity for the writ to prevent serious damage.
WHEN WRIT MAY BE ISSUED
It may be issued at any stage prior to the judgment or final order.
GROUNDS FOR ISSUANCE OF PRELIMINARY
INJUNCTION
1) The applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or perpetually;
or
2) The commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or 3) A party, court, agency or a person is doing,
threatening or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.
GROUNDS FOR OBJECTION TO OR FOR THE DISSOLUTION OF INJUNCTION OR
RESTRAINING ORDER
1) Upon showing of insufficiency of the application;
2) Other grounds upon affidavit of the party or person enjoined;
3) Appears after hearing that irreparable damage to the party or person enjoined will be caused while the applicant can be fully compensated for such damages as he may suffer, and the party enjoined files a counter-bond;
4) Insufficiency of the bond;
5) Insufficiency of the surety or sureties.
DURATION OF TRO
The lifetime of a TRO is 20 days, which is non-extendible (AM 02-02-07-SC).
If it is shown that the applicant would suffer great or irreparable injury before the application for the writ of injunction can be heard, the court may issue a temporary restraining order (TRP) ex parte which shall be effective for a period not exceeding twenty (20) days from service on the party sought to be enjoined. Within the said twenty-day period, the court must order said party to show cause why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order.
If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single sala court may issue ex parte a temporary
If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single sala court may issue ex parte a temporary