PROVISIONAL REMEDIES

Justice Ma. Cristina J. Cornejo

Preliminary attachment and injunction

- maybe made at the commencement of How may defendant ask for damages? Through:
the main case or before judgment 1) motion in the same case; or
Replevin 2) counterclaim in the answer
– before filing an answer
Receivership How to discharge the attachment?
- may be made even after judgment 1) motion
Support 2) by filing a counterbond
– maybe raised even 1st time on appeal
provided support No longer in issue - BUT if the COA of your attachment
constitutes the COA for your main case,
Garnishment discharge may be made only by filing of
- a specie of attachment counterbond
- Garnishee is a mere court intervenor
because he holds possession of credit, thus no Injunction
summons is needed to acquire jurisdiction over - Preliminary attachment may be issued
him ex parte but not preliminary injunction
- Memorize: grounds for intervention - Injunction may be a main action or
provisional remedy or both
Provisional remedies in criminal case
- only applies to the civil aspect - If the grant of preliminary injunction
impliedly instituted in the criminal case would already decide the case on the merits,
do not grant it! Eg. Main case is if law is null
Preliminary attachment in relation to estafa and void. If you grant preliminary injunction,
and Bp 22 you virtually acknowledge the nullity of the
law
Preliminary attachment
- Against: 1) non resident defendant 2) Temporary Restraining Order
WITH property in the Philippines 3) IN FRAUD - still needs to be set for hearing and
of its creditors needs to be resolved within 24 hours
- the Rules states it maybe issued "ex - BUT if super duper extreme with
parte" but SC states it's better to have a hearing multiple sala court, the EXECUTIVE JUDGE
- affidavit + attachment bond may issue EX PARTE TRO valid up to 72
- memorize the following which must be hours and within such time must be raffled
stated in the affidavit for issuance of preliminary to the regular court to determine WON to
attachment: extend the lifetime of TRO to its full lifetime
of 20 days reckoned from the day of
1) sufficient COA exists issuance
2) ground - Lifetime of TRO non extendible,
3) no other sufficient security automatically expires, not extendible or
4) amount due or value of prop is as much as renewable based on the SAME GROUND
the sum for which the writ is granted is over or for which it was issued. Does it mean you
above the counterclaim can renew the lifetime on the DIFFERENT
- ALL OF THESE MUST BE STATED IN THE ground? NO! kasi nga non renewable! You
WRIT! if not, the court issued such is considered have to apply for a DIFFERENT TRO.
to have acted in grave abuse of discretion
What if the judge motu proprio extended the
Writ may be ISSUED even before the court has lifetime before its expiration? The judge is
acquired jurisdiction over the person of the not tama! Very clear naman na non
defendant, but it CANNOT be enforced or extendible! No authority to extend it!
implemented without jurisdiction over the person
of the defendant (prior or contemporaneous Irreparable injury on injunction
service of summons)
Injunction bond: is there a need to post a
- know the exceptions to the prior or TRO bond? Yes. Same standing as
contemporaneous service preliminary injunction

Juby Bernadette R. Ruiz Page 1

 PROVISIONAL REMEDIES
Justice Ma. Cristina J. Cornejo

receiver, damages should be claimed in a

TRO may be issued outside its territorial SEPARATE action.
jurisdiction but within its JUDICIAL region.

When not allowed to issue preliminary REPLEVIN:

injunction: provisional remedy or main action
FILIALO
1) Foreclosure by government financial Factoran case 1996: even if the writ of replevin
institution may be issued ex parte, the burden is still on the
2) Intra-corporate dispute applicant that the thing is unjustly detained; ex
3) Labor dispute parte hearing
4) Infrastructure and natural resources
development project Contents in the application
5) Agrarian reform
6) Licensing and permit for natural resources Bond: DOUBLE the value of the thing subject of
7) Order of public service commission, PCGG, replevin
SSS, and Customs
Discharge of writ of replevin: you DON'T
GR: Criminal prosecution as a rule will not be discharge, NOT COUNTER bond but
enjoined or prohibited. REDELIVERY BOND 5 days from the day when
the property was taken
XPNS: Contents of Judgment:
OP2A2 1) who is entitled
1) Orderly administration of justice 2) if plaintiff is the one who is entitled, the
2) Prevent youth on strong arms of the law in defendant is ordered to deliver or if
oppressive and vindictive manner cannot return, pay the value plus
3) Avoid multiplicity of action damages
4) Afford protection of constitutional rights
5) in Proper cases because the statute relied SUPPORT PENDENTE LITE
upon is unconstitutional Off spring: there must be SI (not Serious Injury!
Sexual Intercourse!)
GR: Filing of Counter bond is insufficient to
cause the dissolution of the preliminary Support pending litigation is allowed provided
injunction or TRO before judgment one may do so only when the question of
support is no longer in issue
XPN: unless the claimant could show that the
continuance of the act to be enjoined would Answer 5 days from receipt of application for
cause irreparable injury or damage to the party support
enjoined
Hearing not more than 3 days from filing of
RECEIVERSHIP answer
Can be availed of even after final judgment
Purpose is to preserve the property and protect Order granting support PENDENTE lite is an
the interest of parties interlocutory order. Nevertheless, in defiance of
that order, the court may issue a writ of
Appointment CANNOT be done ex parte, there execution; an exception to the rule that you can
must be prior 1) notice, 2) hearing and 3) execute an order only when it is FINAL.
receivers bond
Can he appeal from the order? No. Only
Receivers bond: function is to answer for certiorari because interlocutory order. And to
damages by reason of the receivership stop it, ask for preliminary injunction.
You can claim damages against the receivers
bond, you may claim damages in the SAME
case. If NOT by reason of receivership, eg.
Malfeasance of the receiver, or wrong doing of

Juby Bernadette R. Ruiz Page 2