Preliminary Attachment- Provisional remedy where the court takes custody of the property against the

party it is directed. ( reason: to protect the rights of the client for possibilities that the defendant may
abscond).

When a writ of preliminary injunction may be applied for?

- At any stage including the time of the filing of the claim before a final judgement

Lapse of the Reglementary Period (15 days) lapse of the time to file a Motion for Reconsideration

Final judgment- order from the court which disposes of the case. (before the judgment attained finality).

Court issues a final judgement or decision- barred to file a preliminary injunction.

Garnishment- Kind of attachment wherein the attaching party seeks to subject a property of the adverse
party in the hands of the person e.g. Bank, stocks

Levy on Execution- Levy when the judgement is already final and executory.

Requisites for issuance of an order of Preliminary Attachment

1. Petition/motion
2. 2 Affidavit of Merit
3. Bond- executed in favor of the adverse party to pay for costs and damages if ever the decision in
the main case is in favor.

Contents of the affidavit of Merit

a. That a sufficient cause of action exists,

b. The grounds upon which it is prayed for as enumerated in Section 1 of Rule 57 of the Rules of
court
c. That there is no other sufficient security for the claims sought to be enforced by the action
d. That the amount due to the applicant, of the value of the property the possession of which he is
entitled to recover, is as much as the sum for which the order is granted above all legal
counterclaims.

How is writ of attachment is issued?

1. Ex parte
2. After motion and hearing

Stages in the grant of preliminary attachment

1. Issuance of an Order granting the Application

2. Issuance of a writ of attachment
3. Implementation of the writ

Section 5 of Rule 57 of the rules of court

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Section 5 Manner of attaching 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, unless the former makes a deposit with the court
from which the writ is issued, or gives a counter-bond executed to the applicant, in an amount equal to
the bond fixed by the court in the order of attachment or to the value of the property to be attached,
exclusive if costs.

General Rule

No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless it is
preceded, or contemporaneously accompanied, by service of summons, together with a copy of the
complaint, the application for attachment the applicant’s affidavit and bond, and the order and writ of
attachment, on the defendant within the Philippines.

Exceptions

1. Summons could not be served personally or

2. Summons cannot be served by substituted service despite diligent efforts
3. Defendant is a resident of the Philippines temporarily absent therefrom
4. Defendant is a non-resident of the Philippines
5. The action is one in rem or quasi in rem.

GR:

The attached property shall only be placed in custodia legis and shall not be sold until the decision in the
main case becomes final and executory

EXC:

1. If the property is perishable

2. If the interest of all parties to the action will be subserved by the sale thereof, the court may
order such property to be sold at public auction.

Remedy of third party Claimants

1. Terceria
2. Filing a motion for summary hearing to determine the property of the attachment.
3. Filing a separate action to nullify the levy/ attachment with damages.

Salient points of Terceria

It is perfected by making of a third person of an affidavit of his title to the property or his right to the
possession thereof and serving the same to the sheriff.

-Upon service of the affidavit, the Sheriff shall not be bound to keep the property under attachment.

-The Sheriff can keep the property under attachment if the applicant posts a bond for the purpose of
indemnifying the sheriff against any claim by the intervenor to the property seized or for damages
arising from the seizure.

Caspe, Lera May B.

Types of Bonds in Preliminary Attachment

1. Applicants bond
2. Counter bond
3. Bond by applicant to prevent Terceria

How to prevent Attachment?

1. Filing a Motion to Discharge the attachment and making a deposit and counter bond ( There
must be notice and hearing)
2. Filing a Motion to Discharge attachment without need of a counter bond only on the following
grounds:
- The same was improperly or irregularly issued or enforced
- The bond is insufficient
- If the attachment is excessive, the discharge shall be limited to the excess.
- If the property is exempt from execution

How is the judgement satisfied out of the property attached?

1. By paying to the judgement oblige/attaching party the proceeds of the sale of perishable or
other property sold pursuant to an order of the court
2. If any balance remains due, by selling so much of the property, real or personal, as may be
necessary to satisfy the balance;
3. If there is still balance, by collecting from all persons having in their possession credits belonging
to the judgement obligor/ defendant

What happens to the properties attached which are not anymore needed to satisfy the judgement?

Whenever the judgement has been paid off, the sheriff, upon reasonable demand, must return to the
Defendant/judgment obligor the attached property remaining in his hand, and any proceeds of the sale
not applied to the judgment.

Grounds which attachment may issue:

- about to depart the country with INTENT to DEFRAUD his creditors

- money or property embezzled or fraudulently obtained, misapplied or converted.
- (officer) in a fiduciary capacity (relationship based on trust and confidence).

Recover the possession of property unjustly or fraudulently taken, detained or converted.

Rule 58 Preliminary Injunction

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 refrain from a particular act
or acts, in which case it shall be known as a preliminary mandatory injunction. (section 1 of rule 58 of
the rules of court)

Against whom can the writ of preliminary injunction is directed?

1. Party
2. Court

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 3. Agency
4. Person

What court may grant preliminary injunction?

It may be granted by the court where the action or proceeding is pending. If the action or proceeding is
pending in the court of Appeals or in the Supreme Court, it may be issued by the said court or any
member thereof. (section 2 of rule 58 of the rules of court)

Grounds for the issuance of preliminary injunction

a. That 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 acts or acts complained of, or in
requiring the performance of an act or acts either for a limited period or perpetually;
b. That the commission, continuance or non-performance of the act or acts complained of during
the litigation would probably work injustice to the applicant; or
c. That 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 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.

Purpose of Preliminary Injuction

To preserve and protect certain rights and interests during the pendency of an action. It’s sole objective
is to preserve the status quo until the merits of the case can be heard fully.

Status quo- last and actual peaceful and uncontested status that precedes the controversy.

Condonation Doctrine: ( Aguinaldo Doctrine) applied prospectively.

Kinds of preliminary injunction

- Prohibitory injunction- a preliminary injunction which commands one to refrain from doing
a particular act.
- Mandatory injunction- a preliminary injunction which commands the performance of some
positive act to correct a wrong in the past.

Things that the applicant need to specify in his petition/motion applying for PI:

To justify the issuance of a writ of preliminary mandatory injunction, it myst be shown that: 1 the
complaint has a clear legal right; 2 such right has been violated and the invasion by the other party is
material and substantial; and 3 there is an urgent and permanent necessity for the writ to prevent
serious damage. (Pelejo v Court of Appeals, 203 Phil 29, 33 (1982), as cited in Semirara coal corporation
v HGL Development Corporation, 532, 545 (2006); Pablo-Gualberto v Gualberto, 500 Phil 226, 253
(2005).

Quantum of Evidence

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The plaintiff is only required to show that they have an ostensible right to the final relief prayed for in
the complaint. It need not be conclusive and complete.

Requisites for the issuance of a writ of preliminary injunction

1. Verified application
2. A recital of the allegations showing that (1) the complainant has a clear legal right; (2) such right
has been violated and the invasion by the other party is material and substantial; (3) there is an
urgent and permanent necessity for the writ to prevent serious damage
3. Bond (unless exempted by court)
4. Notice and Hearing (Section 5 of Rule 58 of the Rules of Court)

A pleading is verified by an affidavit of an affiant duly authorized to sign said verification. The
authorization of the affiant to act on behalf of a party, whether in the form of a secretary’s certificate or
a special power of attorney, should be attached to the pleading, and shall allege the following
attestations:

a) The allegations in the pleading are true and correct on his or her personal knowledge, or based
on authentic documents;
b) The pleading is not filed to harass, cause unnecessary delay, or needlessly increase the cost of
litigation; and
c) The factual allegations therein have evidentiary support after a reasonable opportunity for
discovery.

The signature of the affiant shall further serve as a verification of the truthfulness of the allegations in
the pleading.

A pleading required to be verified that contains a verification based ob ‘information.

Temporary Restraining Order

It is an order to maintain the status quo to prevent great or irreparable injury to the applicant before the
application for a writ of preliminary injunction is heard by the court.

Can a TRO be granted ex parte?

Yes.

20 days from service to the party sought to be enjoined if great or irreparable injury is shown. Issued by
the court where the application for the writ was filed.

72 hours from issuance if extreme urgency is shown by the applicant. Issued by the executive judge if
the court belongs to a multi-sala court or by the presiding judge of a single sala court. To be extended to
20 days, a summary hearing must be conducted by the judge. 72 hour period included in the maximum
20 days period of the effectivity of the TRO issued by the RTC.

72 hour TRO (from the issuance)

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The judge issuing a 72 hour TRO is obliged to conduct a summary hearing within the effectivity of the 72
hour TRO is obliged to determine whether the TRO shall be extended in which case, the same is
converted into a 20-day TRO. Within the 20 day period of effectivity of the TRO the court shall
determine in a hearing whether or not the preliminary injunction is to be granted. This 20-day period is
inextendible.

Court of Appeals- 60 days from the issuance – lapse- defendant- no need for a judicial declaration to
dissolve the TRO.

Supreme Court- until further order

Multi Sala court- TRO ex parte

Ex parte- 72 hours- 20 days- (include the 72 hours sa 20 days)- 17 days left (---maximum 20 days---).

More than 20 days “grave abuse of discretion”.

CA- 60 days period lapse- automatically vacated/dissolved

Other Important Points about P.I

Sec. 1 of PD 1818 distinctly provides that no court in the Philippines shall have jurisdiction to issue any
restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or
controversy involving an infrastructure project of the government, to prohibit any person or persons,
entity or government official from proceeding with or continuing the execution or implementation of
any such project or pursuing any lawful activity necessary for such execution, implementation or
operation” (amended by RA 9875-allowing only the SC to issue TRO, preliminary injunction)

Non-Extendibility of TRO rule (section 5 of rule 58)

In the event that the application for preliminary injunction is denied or not resolved within the lifetime
of a TRO, the TRO is deemed automatically vacated after the lapse of the period (72hrs/20days/ 60days).

The effectivity of a TRO is not extendible without need of any judicial declaration to that effect.

No TRO or injunction in any case involving or growing of labor disputes shall be issued by any court
except as provided in the Labor Code;

The RTC cannot issue injunction against quasi judicial bodies of equal rank such as SSS and SEC;

GR: Injunction whether preliminary or final, will not lie to restrain a criminal prosecution.

EXC:

1. To afford adequate protection to the constitutional rights of the accused,

2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of
actions

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 3. When double jeopardy is clearly apparent
4. Where the charges are manifestly false and motivated by the lust for vengeance
5. Where there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied.

How to object to an application for TRO/ Preliminary Injunction

1. Insufficiency- e.g. not verified, not supported by the grounds under sec 3 of rule 58; not show
facts entitling the applicant to the relief prayed for;
2. Insufficiency of bond/ failure to post bond
3. Other grounds which must be stated in the affidavits
4. If it can be shown that irreparable injury shall be caused to the person enjoined- must be with a
counter bond. (the mere filing of counterbond is not enough to dissolve the TRO or injunction-
there must be a hearing on the merits of the opposition and the court should be satisfied that
the damages to be suffered by the defendant outweighs the damages that may be suffered by
the applicant.)

Damages

Damages may be awarded by the court-taken from the bond of the losing party.

Contents of the Affidavit

a. That the applicant is the 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, alleging the 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 tax assessment or a fine pursuant to
law, or seized under a writ of execution or preliminary attachment, or otherwise placed under
custodia legis, or if so seized, that it is exempt from such seizure or custody’ and
d. The actual market value of the property.

Receiver

A receiver is a representative of the court appointed by 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. The receiver is not the representative of any of the parties but of all of them to the
end that their interests may be equally protected with the least possible inconvenience and expense.
( Normandy v. Duque GR no. L-25407, august 29, 1969)

Nature of the duty of a receiver

He is not an agent or representative of any party to the action.

He is an officer of the court.

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He exercises his functions in the interests of neither plaintiff nor defendant but for the common benefit
of all parties in interest (Pacific Merchandising Corporation v. Consolacion Insurance, 73 SCRA 564)

In what cases may a receiver be appointed?

a) When it appears from the verified application, and such other proof as the court may require,
that the party applying for the appointment of a receiver 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.
b) When it appears in an action by the mortgage 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.

Requisites in the application for receivership

1. Verified application
2. The party applying for receivership has an existing interest in the property in litigation.
3. The case must be any one of those stated under sec rule 59.
4. Applicants bond
5. Receiver must be sworn to perform his duties faithfully and file a bond (Sec. 4, rule 59)

Applicants Bond

Before issuing an order the court shall require the applicant to file a bond in favor of the adverse party
in an amount fixed by the court, to the effect that the applicant will pay such party all damages he may
sustain by reason of the appointment of the receiver in case the appointment was procured without
sufficient cause.

The court may in its discretion, at any time before the appointment, require additional bond as further
security for such damages.

General powers of a receiver

-bring and defend, in such capacity, actions in his own name.

-to take and keep possession of the property in controversy; to receive rents.

-to collect debts due to himself as receiver or to the fund, property, estate, person or corporation of
which he is the receiver;

-compound for and compromise the same

-to make transfers

-to pay outstanding debts

-to divide the money and other property that shall remain among the persons legally entitled to receive
the same

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-and generally to do such acts respecting the property as the court may authorize.

Grounds for denial or lifting receivership

1. When the appointment sought or granted is without sufficient cause (Sec. 3, Rule 59)
2. When the adverse party files a sufficient bond to answer for damages (sec 3, rule 59)
3. When the bond posted by the applicant is found to be insufficient and a sufficient bond with
the sufficient surety is not filed forthwith (sec 3, Rule 59)
4. When the bond of the receiver is found to be insufficient and sufficient bond with sufficient
surety is not filed forthwith.

Termination of Receivership

When the court:

1. Shall have determined that necessity for a receiver no longer exists (sec 8, rule 59)
2. In his opinion, finds that the receivership is not justified by the facts and circumstances.
3. Is convinced that the powers are abused (Duque v. CFI of Manila, GR no. L-18369, 1965)

What shall the court do before the termination of receivership?

The court shall settle the accounts of the receiver, direct delivery of the funds or property in his
possession to the person adjudged entitled thereto and order the discharge of the receiver.

GR: Neither party to a litigation should be appointed as a receiver.

EXC: A party can be a receiver without the consent of the other because a receiver should be a person
indifferent to the parties and should be impartial and disinterested. (Commodities Storage & Ice Plant
Corp. v. CA, 274 SCRA 439)

Nature of Replevin

Replevin is both a form of principal remedy and of a provisional relief, it may refer either to the action
itself, i.e. to regain possession of personal chattels being wrongfully detained from the plaintiff by
another, or to the provisional remedy that would allow the plaintiff to retain the thing during the
pendency of the action and hold it pendente lite (Tillson v. CA, 197 SCRA 587)

The action is primarily possessory in nature and generally determines nothing more than the right of
possession. Replevin is so usually described as a mixed action, being partly in rem and partly in
personam. In rem insofar as the recovery of specific property is concerned and in personam as regards
to damages involved. As an “action in rem” , the gist of the replevin action is the right of the plaintiff to
obtain possession of specific personal property by reason of his being the owner of his having a special
interest therein. (BA Finance Corp v. CA, 258 SCRA 102)

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Primary relief sought for in the application for replevin

The return of the property in specie wrongfully detained by another person.

When a writ of replevin may be applied for?

1. At the commencement of the action

2. At any time before the Answer

Procedure for the Application of replevin

1. File an Application for a writ of replevin

2. Affidavit- executed by either the applicant or some other person who personally knows the facts
of the matters required under the rules
3. Bond- executed to the adverse party in the amount double the value of the property as stated in
the affidavit.

Replevin is not available when property is in custodia legis, under attachment or seized pursuant to law (
Pagkalinawan v Gomez, 21 SCRA 1275, 1279-1280)

What will be issued by the court to grant the remedy of replevin?

1. Order granting replevin

2. Writ of replevin- which shall;
a) Describe the personal property alleged to be wrongfully detained, and
b) Require the sheriff to take such property into his custody

How can the adverse party effect the return of his property under the custody of the sheriff?

1. Redelivery bond- double the value of the property

2. Bond is executed to the applicant
3. Serve a copy of the bond to the applicant
4. He must perform the above acts before the delivery of the property to the applicant (5 days
from taking of sheriff).
5. Bond is insufficient- only ground.

Caspe, Lera May B.

When is the remedy available?

1. Main action for support

2. Criminal actions where the civil liability includes support for the offspring as consequence of the
crime;
3. Legal separation (art 198 of the family code)
4. Declaration of nullity of marriage (art 198 of the family code)
5. Annulment of marriage (art 198 of the family code)

Who may ask for support pendente lite?

-Any party with a right to be supported.

When to apply for support pendente lite?

1. At the commencement of the proper action.

2. At any time prior to the judgement or final order

Procedure for application for support pendente lite:

1. Verified application -stating the a.) grounds for the claim and b)financial conditions of both
parties;
2. Verified Comment of adverse party within five (5) days from service of summons/application
with supporting documents
3. Hearing- which will b set not more than three (3) days after receipt of comment or of expiration
of time for filing;
4. Order of the court- either granting or denying the application

Contents of order granting application for support pendente lite:

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 1. Amount of money to be provisionally paid or such other forms of support
2. Terms of payment or mode of providing support.

Adultery as a defense

The adultery of the wife is a defense in an action for support. However, the alleged adultery of the wife
must be established by competent evidence. The mere allegations that the wife has committed adultery
will not bar her from the right to receive support pendente lite. Adultery is a good defense and if
properly proved and sustained will defeat the action ( Reyes vs. Ines-Luciano, 88 SCRA 803, 807)

Cooling off period not bar to provisional support

Although in an action for legal separation, there is a cooling off period of six months under Article 103 of
the civil code (now article 58 of the family code) to make possible a reconciliation between the spouses,
but this practical expedient does not have the effect of overriding other provisions such as the
determination of alimony and support pendente lite (Araneta vs Conception, 99 Phil. 709, 713 [1956]. In
other words, the application for support pendente lite may be heard by the trial court during such
cooling off period.

Amount of support and evidence needed

In determining the amount to be awarded as support pendente lite it is not necessary to go fully into the
merits of the case, it being sufficient that the court ascertain the kind and amount of evidence which it
may deem sufficient to enable it to justly resolve the application, one way or the other, in view of the
merely provisional character of the resolution to be entered. Mere affidavits may satisfy the court to
pass upon the application for support pendente lite (reyes vs ines-luciano, 88 SCRA, 809[1979] citing
sanchez.

How is the order granting support pendente lite enfoced?

1. Voluntary compliance by the adverse party of the order of the court

2. Order of execution shall be issued by the court against the adverse party motu propio or upon
motion. (even if merely interlocutory).
3. Contempt

Can a third person obtain a writ of execution against the person ordered to give support?

- Yes provided that:

a. There is due notice and hearing in the same case
b. That such third person furnished the support to the applicant because of the refusal or failure to
do so by the person ordered to give support.

What happens when the person who was ordered to give support pendente lite is not indeed liable to
give support?

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 - The court shall order the recipient to make a legal interest from the date of actual payment.
Should the recipient fail to do so, the person who gave the support may file a separate
action against the person legally obliged to give such support. (section 7 rule 61).

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