Preliminary Attachment - Dean Riano Transcript

RULE 57 Preliminary Attachment

SECTION 1. Grounds Upon Which Attachment May Issue. — 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:

(a) 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, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors;

(b) 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;

(c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;

(d) 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 is brought, or in the performance thereof;

(e) 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

(f) 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. (1a)

- By the way, you can avail also of the writ of preliminary action in order to convert the action in personam into an action quasi-in rem where the defendant is a non-resident and is outside the Philippines.

- Sample questions: I sued X for damages. And in my allegations, I was asking for moral damages. I said that X is about to leave the Philippines with intent to defraud me. Based on this, will the court grant my writ of attachment? No. Because you cannot ask for a writ of prelim attachment where the damages you are recovering are only moral and exemplary damages.

- Can you ask for a writ of prelim attachment in all actions in the recovery of sum of money? No. The mere action is

not a ground for a writ of prelim attachment. In letter (a), if you are going to ask for that writ and you are recovering damages and sum of money, you have to specify the amount which you cannot do in a moral and exemplary damages as they are dependent on judicial discretion.

- Suppose you specify the amount of money you are trying to recover, you must specifically allege that the defendant (a) intended to depart from the Philippines with (b) intent to defraud. Or you allege those in the subsequent letters in that provision.

- X filed an action to collect sum of money against D. X alleged that D is on the verge of insolvency. X is now asking for a writ of preliminary attachment. Court granted. Is the court correct? No. Insolvency is not a ground for the issuance of the writ of preliminary attachment. Be careful of these grounds!

- C sued D for a sum of money. C alleged in his complaint that D is about to depart from the Philippines. On that basis, can the court grant it? No. The allegations were incomplete. It must be shown that his departure was with intent to defraud him.

- Suppose, D borrowed P10M from B. D gave TCT as a collateral. B found out that the TCT was a fraud. B sued me for a sum of money. Can B successfully apply for the writ of prelim attachment? Yes. (d) 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 is brought, or in the performance thereof;

- I am the treasurer of the corporation. I embezzled the money of the corporation. It filed against me for the recovery of the money embezzled and applied for writ of attachment. I countered in saying that there is no showing that I am concealing and removing my property.

Is my defense against the application for the writ, valid?

No. With respect to money or property embezzled, it is enough that it is alleged that you are holding a fiduciary position. It is not necessary to allege that you are concealing the property.

Could a writ of preliminary attachment be issued without a hearing, meaning ex parte? Yes. SECTION 2. Issuance and Contents of Order. — 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 Court of Appeals or the Supreme Court, and must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant's demand or the value of the property to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. (2a)

- Because if you notify him of the application for the writ, he would immediately conceal his property. That’s why the Rules allowed ex parte application.

- And you notice that the writ of prelim attachment can be applied for at the commencement of the action. Kung isabay mo sa pag-file ng action ang pag-apply ng writ of prelim attachment, wala pang summons yan sa defendant. Ang effect yan ay ex parte talaga yan. Pero hindi mo ma-enforce or execute ang writ of attachment if no prior or contemporaneous service of summons. Kasi how can you make it effective upon a person who is not yet in the jurisdiction of the court? So issuance does not jurisdiction over the defendant. But the implementation of it requires that the court should have jurisdiction over the person of the defendant.

- When you apply for the writ of prelim attachment you should post a bond. The Attachment Bond.

- If defendant ka, yung properties mo ang inattach, papaano mo madidischarge yung attachment? File a counter-bond. Mawawala ang writ of attachment.

- Eh, papaano kung walang counter-bond? Section 13.

Sasabihin mo na yung application nya is not one of those cases where attachment is allowed. Or say na his bond is not sufficient. Yung counterbond para yun sa mga can afford. Sa mga can’t afford, utak ang gagamitin.

Injunction is a main action. Preliminary injunction is a provisional remedy. There are 2 kinds of preliminary injunction: preliminary, mandatory

Illustration: I sued X because by stealth and strategy he occupied my house. Forcible Entry. What is my remedy to have possession of the house even before the FE case has been finally decided by the court? Avail of a prov rem. Rule 70, SECTION 15. Preliminary Injunction. — The court may grant preliminary injunction, in accordance with the provisions of Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the plaintiff.

A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof. (3a)

I filed a petition for certiorari against RTC in order to interrupt the RTC from proceeding below while the petition for certiorari is pending in CTA, what is my remedy? Rule 65, SECTION 7. Expediting Proceedings; Injunctive Relief. — The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case, unless a temporary restraining order or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case.

The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or

upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge.

By the way, a writ of preliminary injunction cannot be issued without a hearing. Rule 58, SECTION 5. Preliminary Injunction Not Granted Without Notice; Exception. — No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. 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 to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, 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.

However, and subject to the provisions of the preceding sections, 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 restraining order effective for only seventy-two (72) hours from issuance but he shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard.

In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein.

In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining order is deemed automatically vacated. The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect and no court shall have authority to extend or renew the same on the same ground for which it was issued.

However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A restraining order issued by the Supreme Court or a member thereof shall be effective until further orders. (5a)

But suppose there is a need to immediately prevent the act of a person and there is no time for hearing, avail of TRO. TRO is a prov rem within a prov rem. No hearing. Can be issued ex parte. Its normal decision is 20 days from its issuance. When it expires it cannot be extended. That is why the court must conduct a summary hearing within that 20-day period to

determine whether it can be converted to preliminary injunction

Is hte bond mandatory in the issuance of writ of preliminary injunction? NO. Rule 58, SECTION 4. Verified Application and Bond for Preliminary Injunction or Temporary Restraining Order. — A preliminary injunction or temporary restraining order may be granted only when: x x x

(b) Unless exempted by the court, the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, 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 temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approvalof the requisite bond, a writ of preliminary injunction shall be issued. (4a)

- The phrase “Unless exempted by the court,” means that the court in the exercise of its discretion may not actually require the posting of the bond.

If you want to prevent the property subject of litigation from being wasted and dissipated during pendency of the action.

What remedy to avail? Receivership. There are two bonds needed here. A bond for the application of the receiver and another bond when the receiver takes his oath as a receiver.

Actually, we call Provisional remedies: the battle of the bonds

^_^

But there is one provisional remedy to recover personal property for the meantime that the main action is not over.

Replevin. Take note, you cannot ask for the replevin of the property that is already in custodia legis. It applies to a personal property capable of manual delivery. You cannot ask a replevin of real property.

What is that prov rem where a bond is not required for its application? Support Pendente Lite.

Are provisional remedies also available in criminal procedures? Yes. Rule 127. RULE 127

Provisional Remedies in Criminal Cases

SECTION 1. Availability of Provisional Remedies. — The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. (1a)

It is not enough that you say something in court you have to prove what you are asserting or alleging.

EVIDENCE.

What is evidence? Rule 128 Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.

Implications:

 You can only insist the rules of evidence on judicial proceedings. You cannot insist the rules of evidence as a matter of right on non-judicial proceedings, i.e.

SEC, NLRC

 Purpose of evidence is to ascertain the truth which is not necessarily the actual truth; only the legal truth.

The truth depending upon the evidence. Evidence depends upon certain rules. c.f. Pp v. Amminudin; Pp v. Mengote;

Admissibility of Evidence

- Not all evidences are evidence. Dapat admissible.

- The most important concept

- Evidence is admissible when: RELEVANT and COMPETENT

- Relevance is a matter of logic and common sense. When it has a relationship to the fact in issue. It must be responsive.

- Competence is a matter of law and rule. When it is not excluded by law and rule.

Sometimes, an evidence may be admitted for various purposes – the Doctrine of Multiple Admissibility

Sometimes when you present an evidence you cannot immediately show its relevance and sometimes it would be excluded. So you offer it in evidence under the Doctrine of Conditional Admissibility. You say, Your Honor, later on I can show the relationship to the issue of this evidence, please admit this on the basis of the doctrine of conditional admissibility. Later on you were not able to show the relevance, the evidence will be stricken out of the records.

Which is stronger? Positive or Negative Evidence? A positive evidence. An assertion is stronger than the denial

There are concepts you need for MCQ. What is the jurisprudential name for the facts you should establish to prove. Factum Probandum.

What is the means to prove the factum probandum? The factum probans. The evidence.

There are only 3 major types of evidence:

1. Object 2. Documentary 3. Testimony

The rule is everything you assert must be proven. You must have evidence. Except on three matters which need not be proven:

1. Judicial Notice – Rule 129 2. Judicial Admissions – Rule 129 3. Presumptions – Rule 131

There are matters which the court should not require evidence, i.e. matters of mandatory judicial notice. Illustration: Your honor, I saw the victim fell on the building. The other party said, “objection your honor, move to strike out the evidence because there is no showing that the law of gravity exist”

@.@ You do not have to prove the laws of nature. It is a mandatory judicial notice.

Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.

But there are also matters subject to judicial notice but only discretionary

Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a)

Can a court take judicial notice that Espana Boulevard near UST gets flooded when it rains? Yes. Common knowledge na.

But the most critical part here is judicial admission. When is an admission judicial?

Should it be in writing? No. Can it be oral? Yes. But it must be an admission in the same case. The phrase “same case” is critical. Illustration: P and D in the RTC Manila, Branch 51, Case No. 10127-14. Incidentally, they are also same litigants in RTC Manila, Branch 51, Case No. 10128-14. These are 2 different cases. A judicial admission was made in the first case. That is a judicial admission only in that case. You do not have to prove that admission in that case because it becomes automatic.

If you want to present that admission in the other case, that is not a judicial admission. It is an Extra-judicial admission in relation to that other case. It is not a judicial admission, so you must offer them as evidence first before they become admitted in the other case. It’s not the same case.

You cannot contradict a judicial admission. The only way to contradict is through Rule 129, Section 4. Judicial admissions.

— An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such

In document Dean Riano Transcript (Page 46-54)