PROVISIONAL REMEDIES

Attachment; Bond
The filing of the counterbond by the defendant is not a waiver of his right to proceed
against the attachment bond of the plaintiff for damages arising from unwarranted attachment.
Rules of Court provides that the defendant may apply and claim for damages against the
attachment bond of the plaintiff due to improper, irregular, excessive attachment. The award
for such damages is included in the judgment of the main case.

Attachment; Garnishment
To attach the bank deposit of obligor in order to satisfy the judgment against him Ask
the court for the Writ of Garnishment.

In the event that the bank denies the existence of the deposit

The obligee may ask the court for an order requiring the bank, the debtor of the
judgment debtor, to appear before the court for examination. Rules of Court provides that a
person, corporation, or juridical entity which has the property of the judgment debtor or is
indebted to him may be required to appear before the court and be examined on the same.

Attachment; Kinds of Attachment

Preliminary Attachment
Provisional remedy
May be sought anytime at the commencement of action and before entry of judgment.
To attach the property of the adverse party for satisfaction of judgment, and the
adverse party:
1. About to depart from the country
2. When he has committed fraud, or intended to defraud
3. When the adverse party is not found in the Philippines

The applicant should file a bond, and the attachment is discharged should the adverse
party post a counterbond

Garnishment
Manner of satisfying the judgment
Sheriff may levy debts, credits, royalties, commission, banks deposits, personal property
not capable of manual delivery of the judgment debtor which are in possession or in
control of a 3rd persons.
The 3rd persons shall be notified, and shall be required to submit a report on whether or
not the judgment obligor has sufficient funds.

Levy on Execution
In order to satisfy the judgment
The sheriff may sell the property of the judgement obligor if the latter is unable to pay

Warrant of Seizure
In criminal cases, warrant of seizure is normally applied for with warrant of arrest
The property to be seized under a search warrant must be particularly described.

Warrant of Distraint and Levy

Remedy available to local government and BIR in tax cases to satisfy deficiencies in
inheritance, real estate, estate taxes.

Distraint is the seizure of personal property to be sold in the auction sale.

Levy is the issuance of certificate by the proper officer, bearing the name of the
taxpapey and tax / penalty.

Attachment; Preliminary Attachment

The Writ of Preliminary Attachment must be preceded or contemporaneously
accompanied by the service of summon. Should the writ be issued before the service of
summon, such issuance is deemed irregular; the adverse party may move to lift the
attachment.

Rojas, RG 1
Preliminary Injunction
Suit for injunction is accion personam, restaining order like injunction operates upon a person.

Provisional Remedies: PPRRS

1. Preliminary Injunction
2. Preliminary Attachment
3. Receivership
4. Replevin
5. Support Pendente Lite

Attachment of Property under Custodia Legis

Yes, the property may still be subject to attachment to satisfy the judgment. The custodian of
the property shall be furnished with Writ of Attachment.

Damages for Wrongful Attachment

Yes, the Rules of Court provides that a party prejudiced by improper, excessive, irregular
attachment may claim for damages; the claim shall be heard with notice to the adverse party.

Ex parte Issuance of Writ of Preliminary Attachment

Yes, Writ of Preliminary Attachment may be issued ex parte in order to ensure the satisfaction
of judgment against the judgment debtor, under the following cases:
1. Jurisdiction over the person of the judgment debtor cannot be obtained, because he is not
found in the Philippines, the action may be converted into quasi in rem by attachment of his
properties found in the Philippines;
2. Where the Defendant has committed fraud or is about to commit a fraudulent act;
3. Where the Defendant is about to leave the Philippines.

The Writ of Preliminary Attachment may be issued ex parte, otherwise it will defeat its purpose
of a provisional remedy, and will enable the adverse party to abscond.

Provisional Remedy Attachment

The Defendant filed a motion to dissolve the issuance of Writ of Preliminary Attachment due to
the following grounds:

1. The court did not acquire jurisdiction over his person, writ was served ahead of the summon
- May be issued ex parte
- Should the Writ preceded the issuance of summon, the Writ becomes
unenforceable. However, such irregularity will not affect the acquisition of
jurisdiction over the person of the Defendant. A new Writ may be issued thereafter.
2. Writ was improperly issued
- May claim for damages, which shall be heard with notice to the adverse party
- The service of Writ of Garnishment prior to the issuance of summon the writ is
irregularly issued.
3. Writ was improvidently issued, because the obligation on question was already paid
- The Writ may be improvidently issued if indeed it can be shown that the obligation
was already fulfilled.
- The alleged payment however cannot serve as a means of resolving the issuance
of improvident Writ, their should be a trial and notice to the adverse party.
- Payment however may be a ground for the dismissal of the main action.

Attachment vs Garnishment
1. Attachment is a provisional remedy whereby the properties of a party is attached is order to
ensure the satisfaction of judgment rendered against him.
2. Garnishment is a type of attachment, whereby the properties / credits of a party under the
control / possession of banking institutions or 3rd persons are attached in order to ensure
the satisfaction of judgment.
- Levy on debts due to the judgment debtor and other credits

Writ of Preliminary Injunction cannot be issued ex-parte, exceptions:

GR: there should be a hearing and notice to the adverse party
1. Irreparable damage will be suffered by the applicant
2. Extreme urgency, that the applicant may suffer grave injustice

Rojas, RG 2
Injunction
Whether or not an injunction may be issued against the President to enjoin him from entering
into a peace agreement with National Defense.

Writ of Injunction cannot be issued, the issue of propriety of entering into a peace agreement
by the President is a political question which is not under the authority of the courts to
determine.

Injunction as an Ancillary Remedy and Injunction as Main Action

1. Injunction as Ancillary Remedy
- This is a preliminary injunction which requires the existence of a principal case, to
enjoin the party from doing / not doing an act until the main case is settled.
2. Injunction as Main Action
- Main action in itself which prays for the remedy of permanently restraining the
party from doing / not doing an act complained of.

Posting a Bond for the Issuance of Injunction

General Rule: Bond should be posted in order for the Writ to be issued, unless exempted by the
court

Requisites for issuance:

1. Writ of Preliminary Injunction
- Verified complaint
- Existence of right
- Violation / threat of violation of such right
- Damages sustained / will be sustained
- Notice and Hearing
- Posting of Bond
2. Final Writ of Injunction
- Rendered by judgment after trial

SPECIAL CIVIL ACTION

Certiorari; Petition for Certiorari

Should the trial court be confronted with motion to withdraw the information on the ground of
lack of probable cause the trial court has the duty to make an independent assessment of
merits of the motion. Reliance on the resolution of DOJ alone amounts to abdication of the
courts duty. Otherwise the judge acted with grave abuse of discretion remedy is Certiorari
Rule 65.

Certiorari; Petition for Contempt

Indirect Contempt is initiated through verified petition, and not by mere motion of the
applicant. The Judge committed grave abuse of discretion by granting the motion.

Expropriation; Motion to Dismiss

The defendant to an expropriation proceeding may not move for the dismissal of the complaint,
the proper remedy would be to file an Answer and set forth his defenses.

Writ of Possession
For the issuance of Writ of Possession, the government agency / instrumentality
exercising the power of expropriation must make a 100% deposit of the value of the
property based on the tax declaration and determined by the BIR.

Forcible Entry
Elements:
1. Prior valid possession of the applicant
2. Applicant was deprived of possession by means of Force, Intimidation, Stealth,
Threat, Strategy
3. The action must be instituted with 1 year from unlawful dispossession.

The action is governed by Summary Proceeding and is filed before the MTC.

Rojas, RG 3
 However, Conciliation before the Lupon is a pre-requisite prior to the filing of the action
before the court of justice.

Foreclosure; Certificate of Non-Forum Shopping

Filing a compulsory counterclaim does not require an attachment of Certificate of Non-Forum
Shopping. General rule is that an Certificate of Non-Forum Shopping is a requirement for the
filing of initiatory pleading.

A compulsory counterclaim which arising from the complaint is not an initiatory pleading.

Permissive counterclaim requires certificate of nonforum shopping

Jurisdiction; Accion Publiciana

Depending of the value of the property, MTC:
Not more than Php 20, 000; not exceeding Php 50, 000 in Metro Manila

Jurisdiction; Unlawful Detainer

MTC has the exclusive jurisdiction for complaint of unlawful detainer / forcible entry,
irrespective of the amount of damages.

Mandamus
Dismissal of the case due to improper venue, the proper remedy would be PROHIBITION, to
restrain the judge from further proceeding. Mandamus will not lie to compel performance of a
discretionary duty.

To move for the dismissal of the case due to improper venue is not a ministerial duty.

Partition; Non-joinder
Non joinder of the parties is not a ground for dismissal of the complaint for partition; the
remedy should be to implead the indispensable parties.

Misjoinder / non joinder of the parties is not ground for the dismissal of the complaint, the court
may either order to drop or join the parties.

Rules 1 -56

Cause of Action
1. Recovery for small money claims (amount claimed within the jurisdiction of MTC) should be
filed before the MTC where the Petitioner or the Defendant resides

2. Claim for Moral Damages is one that is not capable of pecuniary estimation, thus should be
filed before the RTC where the Petitioner or the Defendant resides.

3. Claim for damages against the LGU liable for defective roads, public buildings, and other public
works under their control or jurisdiction. (as provided under the LGC / Civil Code)

Cause of Actions; Specific Performance

Defective goods upon delivery to the purchaser

This is a breach of contractual obligation, that is the obligation of the vendor to deliver the
goods to the purchaser in good condition. The purchaser may avail the remedy of:

1. Specific performance, to deliver the goods

2. Recission of contract

The purchaser may also claim damages for both, arising from breach of contract.

Appeal

From order of execution of RTC (void judgment) to CA under Rule 65 (certiorari GAD,
prohibition to retrain the RTC from further proceeding with the execution

Rojas, RG 4
 RTCs denial of Writ of Amparo appeal before the SC under Rule 45, within 5 working
days; the appeal may raise both questions of law / fact (Rule on Writ of Amparo)
Judgment of MTC on land registration case based on its delegated jurisdiction appeal
before the CA file a notice of appeal (Rule 41)
Decision of CTA first division appeal before CTA en banc; further appeal may be made
before the CA under Rule 45 on questions of law; or Certiorari for GAD under Rule 65.
Judgment of RTC denying the petition for Writ of Habeas data to SC under Rule 45
within 5 working days; may raise both questions of fact or law.
Family court denying petition for habeas corpus in relation to the custody of minor
Notice of appeal to CA under Rule 41 within 48 hours from judgment

Modes of Appeal (RTC to CA)

Ordinary appeal where RTC is exercising original jurisdiction and the notice of appeal is
filed before the RTC
Petition for Review where RTC is exercising appellate jurisdiction; notice of appeal is
filed before the CA

Second Notice of Appeal

Should the adverse party timely filed a notice of appeal, however due to motion for New
Trial filed by the winning party to increase the amount of award and was granted. In
order to perfect the appeal, the adverse party must file a 2nd notice of appeal after
receiving the amended decision (the new decision)

Constitutional certiorari vs Rule 65

Constitutional certiorari applied even if the decision was not rendered by a judicial or
quasi-judicial body.
Rule 65 limited only in cases of grave abuse of discretion on part of any branch or
instrumentality of the government and there is no other plain, speedy remedy available.

Demurer to Evidence Criminal Case (no motion for recon)

Demurer to evidence was granted, the prosecution filed a motion for recon, will the
motion prosper?
The grant of the demurer amounts to the dismissal of the case and acquittal of the
accused. The order of acquittal is immediately executory and no appeal could be made
therefrom. Otherwise, the Constitutional prohibition against double jeopardy is
committed.

Demurer to evidence (Civil vs Criminal Case)

Criminal Case
With leave of court should the same be denied, the accused may present evidence
Without leave of court should the demurer be denied, the accused has waived his
right to present evidence.
Once granted, no motion for recon / new trial / appeal may be granted otherwise it will
violate the accused right against double jeopardy.

Civil Case
Without leave of court may still present evidence. Should the demurer be granted
without leave of court, the defendant loses right to present if the adverse party
appealed, the appellate court will only decide the case based on the evidence of the
plaintiff on the record.
Once granted a motion for new trial / recon / appeal may be filed.

Refusal to Appear at the Deposition-taking

1. Find out the reason for failure to appear;

2. If with valid cause reschedule the taking of deposition
3. If without valid cause file a motion before the court where the action is pending to
issue an order against the party who failed to appear to show cause for the refusal to
submit to the modes of discovery

Rojas, RG 5
 4. The court may issue appropriate order for non-compliance, aside from contempt of
court.

Discovery; Production and Inspection

Chemical components / ingredients of the products are trade secrets within the
contemplation of the law.
Trade secrets may no be subject to compulsory disclosure by reason of confidential /
privileged character.

Enforcement of Judgment

Rules of Court provides that the execution of judgment may be done within the period
of 5 years; in the lapse of 5 years from the date the judgment becomes final and
executory, the motion for execution of judgment is no longer available
Within 10 years thereafter, an action to enforce judgment is required.

Execution of Judgment; Obligors Death

Death of obligor prior to the issuance of Writ of Execution of Judgment, the said may
not be enforced.
Judgment for money may only be enforced against the estate of the deceased
defendant in a probate proceeding by way of filing a claim with the probate court.
(Filing of money claim against the settlement of estate of the deceased obligor)

Means to stay the execution of judgment rendered by MTC (ejectment case)

Perfect the appeal before the RTC

File a supesedeas bond to pay the damages and costs of the appealed judgment
Monthly deposit of rent (of the property) before the RTC

Execution of RTC Decision

Decision of RTC in ejectment cases shall be immediately executory, without prejudice

to further appeal that may be taken therefrom.
The immediate execution of the RTC decision does not render the appeal before the CA
moot and academic. The appealed judgment should be resolved.

Execution of Judgment

The judgment is void, where a co-owner was not impleaded.

The purchaser in good faith, who acquired ownership of the land before the action
was instituted becomes a co-owner thus should be impleaded, otherwise the
judgment shall not bind him.
The transfer of interest pending litigation, the action may be continued against the
original party, or by order of the court upon motion, direct the person to whom the
property was transferred to be substituted or joined in the original action.
A purchaser pending litigation is deemed as a successor in interest and is bound by the
judgment, even if not impleaded in the litigation.
The judgment is conclusive upon the parties and their successor-in-interest

Foreign Arbitral Award

Rules in recognition and enforcement of judgment of foreign court:

- Judgment of foreign courts may be enforced in the Philippines through an action
validly heard in the RTC. Thus, a judgment of Philippine courts enforcing a foreign
judgment that shall be executed.
- Judgment against a thing conclusive upon the title of the thing, unless repelled by
contrary evidence (lack of jurisdiction, collusion, fraud, mistake of law or fact)
- Judgment against a person the judgment is presumptive evidence of right as
between the parties and their successor in interest by subsequent title.
How can a foreign arbitral award be enforced in the Philippines:
- Foreign arbitral award cannot be enforced in the Philippines, it does not constitute
as a foreign judgment.

Rojas, RG 6
 - Alternative Dispute Resolution Act the recognition and enforcement of foreign
arbitral award shall be in accordance with the rules of procedure to be promulgated
by the Supreme Court presently, the SC has not yet promulgated the said rules of
procedures???
Global Injunction issued by a foreign court to prevent dissipation of funds against the
defendant who has asset in the Philippines.
- Yes, the global injunction may be enforced. Under the rules of comity, utility,
convenience nations have established a usage among the civilized states by which
final judgments of foreign court of competent jurisdiction are reciprocally respected
and rendered efficacious under certain conditions that may vary in difference
countries.

Judgment on Pleadings

Failure of the file an answer for request for admission, results to an implied admission to
all matters which the admission is requested.
Where the defendant is deemed to have admitted to all matters contained in the
request for admission, the appropriate remedy is to move for judgment by pleading.

Judgment on Pleading

Failure to deny under oath an actionable document (e.g. promissory note) is an implied
admission to the genuineness and due execution of the document.
However, should the respondent raised other matters in the answer, particularly that he
was coerced to sign the promissory note does not amount to the admission.
The allegation of coercion is inconsistent with the admission to the due execution and
genuineness of the document.

Motion for summary judgment may be granted for the admission to the amount claimed
(though less than the amount claimed), if the amount could be summarily proved by
affidavits or depositions without going to trial.

Petition for relief; Party in Default

No, relief from judgment is available only on final order and executory, and no other
remedy is available.
The adverse party may still appeal the judgment by default.

Injunction

How to prevent the sale of property on execution

- Appeal the judgment
- File a preliminary injunction
- File a bond equivalent to the value of the property levied

Should the judgment creditor becomes the purchaser of the property, he has to pay the
amount in excess of the bid price minus the amount of judgment.

Where the property was sold to 3rd person plaintiff may avail of legal redemption
within 1 year from the registration of sale.

Amendment of Complaint

After pre-trial, amendment may be made, but only upon motion shall only be granted
upon due hearing.
Amendment before trial maybe granted to prevent manifest injustice.
The grant or denial of the motion for amendment depends upon the sound discretion of
the judge.

Motion to amend where the trial has already commenced may be denied.

Rojas, RG 7
 The pre-trial order is issued precisely to define the course of the trial. Where the trial
has already commenced, and the adverse party has already presented the evidences, it
would be unfair to grant the amendment of the pleading.

Any modification of the pre-trial order shall be done before the commencement of the
trial to prevent injustice.

Amendment of the Complaint

A motion to dismiss was filed, general rule is that the complaint may still be amended as
a matter of right.
But the amendment should only refer to the facts occurred prior to the filing of the
original action.
Complaint which cause of action has not yet accrued (the amount claimed is not yet
due) cannot be cured by subsequent amendment of the complaint or filing of
supplemental pleading.
Filing of supplemental complaint to raise the subsequent accrual of cause of action
will not cure the defect of the original complaint.

Dismissal of Complaint

Dismissal of complaint will not result to the dismissal of the counterclaim.

Should a counterclaim be filed, prior to the service of motion to dismiss; the dismissal
shall be limited only to the

Choice of property to levy for satisfaction of judgment

The option which of the properties to be levied upon for the satisfaction of judgment is
vested by law upon the judgment debtor.
Only when the judgment obligor fails to exercise such option to choose when the sheriff
is authorized to levy the properties, first personal properties, and if insufficient, the real
properties.

Pleading

Counterclaim is a pleading which the defending party makes a claim against the
opposing party
Motion is not a pleading, but an application for relief other than by pleading.

Motion for Bill of Particulars

No requirement of hold a hearing for motion of Bill of Particulars, it shall be the duty of
the Clerk of Court to bring the motion to the attention of the judge; the latter may
grant, deny, or grant the parties the opportunity to be heard.
Failure to comply with the Bill of Particulars the judge may order the dismissal of the
case, or striking out of the pleading, or any other order at his discretion.

Omnibus Motion Rule

Motion to dismiss was filed by the defendant on the ground of failure to state the cause
of action which was denied, and an Answer was filed; subsequently a second motion to
dismiss based on improper venue was filed.
Under the Omnibus Motion Rule, a motion (to dismiss) attacking a pleading should
include all objections available, otherwise the objection is deemed waived:
The following are the exceptions:
- Lack of jurisdiction over the subject matter
- Prescription
- Res Judicata
- Litis Pendencia
Failure to raise the Rule, the judge may proceed to resolve the motion to dismiss
In the event of failure to move for the execution of the judgment, what is the remedy of
the adverse party, to prevent the increase of interest:
- Tender of Payment

Rojas, RG 8
 - If refused, apply for consignation before the court that rendered judgment

Viatory Right of the Witness

Refers to the right of the witness not to attend upon a subpoena, by reason of distance
from residence to place where he was ordered to testify (distance of 100 km).
Available in civil cases only.

Summon by Publication

Partition is an action quasi in rem.

To acquire jurisdiction over the person of the Defendant no found in the Philippines:
1. Publication of summon in newspaper of general circulation
2. Registered mail of copy of summon, and publication to the last known address of
the defendant
If the above is complied, then the court has acquired jurisdiction over the property of
the defendant.

Valid Service of Summon

In action strictly personam (complaint for sum of money) the preferred service of
summon is personal service.
Other modes of service shall only be resorted if there was a failure to effect the
personal service of summons despite the earnest effort to comply; may resort to:
1. Substituted service of summon
2. Summon by publication in rem / quasi in rem

Rojas, RG 9