Provisional Remedies Chart
Provisional Remedies Chart
Provisional Remedies Chart
Preliminary Attachment --- at the commencement of the action or at any time before entry of
judgment.
Grounds:
a) Action for recovery of specified sum of money or damages other than moral or
exemplary damages arising from any recognized legal source of obligation.
b) Money or property is embezzled or fraudulently misapplied or converted.
c) Recovery of possession of property which have been unjustly or fraudulently
taken, detained or converted.
d) Guilty of fraud in contracting the debt or incurring the obligation.
e) Party, with intent to defraud, removed or disposed his property.
Affidavit:
The attachment of the interest of an heir should not impair the rights of the Administrator or
Executor.
Discharge:
Filing:
Not bound to keep the property unless the attaching party shall file a bond approved by the
court.
Note: nothing shall prevent the claimant from enforcing his claim in a separate action or
prevent the attaching party from filing a claim of damages arising from the claim of the
Preliminary Injunction – nature: at any stage of an action or proceeding prior to the or judgment
or final order.
requiring a party, court, agency or person to refrain from a
particular act or acts / requiring the performance of a particular
acts or act (preliminary mandatory injunction)
Grounds:
a) Applicant is entitled to the relief demanded, and the whole or part of such relief consists:
1. Restraining the commission or continuance of the acts complained of; or
2. Requiring the performance of an act.
b) The commission, continuance or non-performance of the acts complained of will work
injustice.
c) The party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some acts or acts probably in violation of the rights of
the applicants respecting the subject of the action or tendering to render the judgment
ineffectual.
Order:
Temporary Restraining Order (TRO) only for a period of twenty (20) days from service on
the party sought to be enjoined.
The matter is of extreme urgency and the applicant will suffer grave injustice and
irreparable injury.
The judge shall conduct a summary hearing to determine for the extension of the TRO to
20 days, the 72 hours is included.
If issued by the Court of Appeals, the TRO shall be effective for 60 days.
If issued by the Supreme Court, effective until further orders.
within 6 months from the issuance the issuing court must decide the main
action.
Receivership
Grounds:
a) The party has an interest in the property or fund which is the subject of the
action and the property is in danger of being lost, removed, or materially injured.
b) Upon foreclosure of the mortgaged property, it is in danger of being wasted or
dissipated or materially injured.
c) After judgment: preserve the property pending appeal
Dispose according to the judgment
To aid execution
Refuse to apply the property for satisfaction
d) most convenient mean of preserving, administering or disposing of the property
in litigation.
Bond: Applicant
Adverse party
Receiver
Powers:
1. bring and defend action in his name;
2. keep possession of the property;
3. receive rents;
4. collect debts due;
5. to compound for and compromise the same;
6. to make transfers;
7. to pay outstanding debts;
8. divide and distribute money upon liquidation; and
9. to do such acts as the court may authorize.
No funds to be invested unless upon order of the court upon written consent
of all the parties.
No action to be filed against the receiver without leave of court.
Refusal: contempt or liable for the money or value of the property.
Replevin
At the commencement of the action or at any time before answer.
Affidavit:
a) Applicant is the owner
b) Property is wrongfully detained
c) Property is not: distrained
Take for tax assessment
Seized under writ of execution
Seized under preliminary attachment
Custodia legis
Exempt from execution
d) Actual market value
Bond is double the value of the property.
Delivery to the applicant:
a. Adverse party does not object to the bond
b. Affirmation of the applicant’s bond.
c. Counter bond is denied or insufficient.
Interpleader
Whenever conflicting claims upon the same subject matter are or may be
made against a person who claims no interest whatever in the subject matter,
or an interest which in whole or in part is not disputed by claimants.
Motion to Dismiss:
a) Impropriety, or No FPR
b) Grounds under Rule 16
If any claimant fails to file an answer, the court, on motion, may declare the
party in default.
Declaratory Relief
Who may file: any person interested in any deed, will, contract or other written
instrument; or
Whose rights are affected by a statute, executive order
or regulation, ordinance, or any other governmental
regulation.
Other actions: reformation of instrument
Quieting of title of real property
remove clouds therefrom
consolidate ownership
By motion; or Ex parte
Filed within thirty (30) days from notice of judgment sought to be reviewed
Respondent to file comment within ten (10) days from notice thereof
The filing of the petition shall not stay the execution of the judgment or final
order or resolution sought to be reviewed, unless the Supreme Court directs
otherwise.
Public respondents shall not appear in or file an answer or comment to the petition.
Injunctive relief:
Court may issue TRO/Preliminary Injunction for the preservation of the rights
of the parties.
Unless granted, TRO/Preliminary Injunction, the petition shall not interrupt
the course of the principal case.
Court may moto proprio based on res ipsa loquitor impose disciplinary action against erring
lawyers.
Quo Warranto
RTC, CA, SC
Where respondent resides; If brought by the SolGen, RTC Manila.
Limitations:
For claim of damages within one (1) year from entity of judgment
Within one (1) year after cause of ouster.
Expropriation
Complaint: State the right, purpose, describe the property, and join all
persons having interest therein.
The fact that the title belongs to the Republic of the
Philippines although occupied by private individuals, or
that
title is obscure or doubtful must be stated in the
complaint.
Right to enter: R.A. No. 8974 government is required to make immediate direct
payment
to the property owner upon the filing of the complaint to
be
entitled to a writ of possession.
Standard initial compensation; market value of the
property
a) tax declaration; b) relevant zonal
valuation
Purpose is for national infrastructure project
Rule 67: Government has only to make an initial deposit with an authorized
government
depository.
Initial deposit merely equivalent to the assessed value of the property for
purposes of taxation.
Purpose is other than for national infrastructure project.
Payment of Just Compensation:
Partition
The parties may make partition among themselves with the confirmation of
the court which shall be recorded.
- The order may be appealed by the
aggrieved party.
Parties unable to agree the same shall be submitted to the commissioners.
- Not more than three (3) competent
and disinterested person persons.
- When it cannot be divided without
prejudice to the interests the court
may:
a) Assign it to one upon
payment of such amount, or
b) Order the property sold if one
of the parties asks.
Contempt
Indirect:
a) Misbehavior in the performance of his official duties.
b) Disobedience of or resistance to a lawful writ, process, or order.
c) Abuse or interference with the processes/proceedings of a court not a
direct contempt.
d) Improper conduct tending, directly/indirectly, to impede, obstruct, or
degrade the administration of justice.
e) Assuming to be an attorney or officer of the court acting without
authority.
f) Failure to obey subpoena, and
g) Rescue or attempt to rescue a person/property in custody of the law.