1

PROVISIONAL REMEDIES
(2023 EDITION)

GROUNDS (strictly construed! – EXCLUSIVE )

NOT A CIVIL ACTION
Writs and processes available during the pendency of the action which may be resorted to by a a. Recovery of specified amount of money and damages, except moral or
litigant to preserve and protect rights and interests therein pending rendition, and for the purpose exemplary, where party is about to depart from the Phils with intent to
of ultimately affecting a final judgment in the case.
defraud creditors(damages must be liquidated—DAPAT AMOUNT is
SPECIFIED!, it cannot be issued if allegation in affidavit is insufficient nor
where demand is not yet due and payable)
4BLUE95. The court which has jurisdiction over the main action is the court which may grant or
issue a provisional remedy. (RIANO, 2009) All inferior courts can grant all appropriate b. Action for money or property embezzled or for willful violation of duty by
provisional remedies. The enforcement of said writs outside the territorial jurisdiction of the public officers, officers of corporation, agent, or fiduciary--main action here
inferior court no longer requires the approval of the RTC. Except for the provisional remedy of is estafa, even if upon filing criminal case you did not resume civil action,
support pendente lite, because the main case wherein this remedy may be involved is within the you can still file for prelim. Attachment (rule 127-2)
jurisdiction of the Regional Trial Court. (Regalado, 2008)
c. Recovery of possession of property (both real and personal) unjustly
detained, when the property is concealed or disposed of to prevent is being
found or taken;
1.PRELIMINARY ATTACHMENT (BAR) d. Action against party guilty of fraud in contracting the debt or incurring the
obligation or in the performance thereof;
(ex: in good faith in terms kung mangutang, pero bad faith kung bayaran
it is a remedy by w/c property of defendant is taken into custody of law either at na—DOLO INCIDENTE)
commencement of action or at anytime before entry of judgement that defendant may
recover. 4BLUE95. Fraud Must be Alleged With Particularity A writ of preliminary
attachment is too harsh a provisional remedy to be issued based on mere
It is a proceeding quasi in rem. (Banco-Español Filipino v. Palanca, G.R. No. L-11390, abstractions of fraud. Rather, the rules require that for the writ to issue, there
Mar. 26, 1918) The attachment of the property of the defendant converts an ordinary action must be a recitation of clear and concrete factual circumstances manifesting
in personam into an action quasi in rem. In such case, jurisdiction over the person of the that the debtor practiced fraud upon the creditor at the time of the execution
defendant is not required as long as the court acquires jurisdiction over the res. (Biaco v. of their agreement in that said debtor had a preconceived plan or intention
Countryside Rural Bank, G.R. No. 161417, 2007) not to pay the creditor. (Equitable Bank v. Special Steel, G.R. No. 175350,
2012)
An application for the issuance of a writ of attachment may be filed: 4BLUE95. Fraud committed Need Not be Criminal Fraud.
a. At the commencement of the action; or
b. At any time before entry of judgment. e. Action against party who is concealing or disposing of property, or is about
to do so, with intent to defraud creditors – actual transfer not necessary, mere
desire to dispose it is sufficient like dahan dahan ang pagdispose, however,
The attachment does not affect the decision of the case on the merits, the right to an execution of a mortgage in favor of another creditor is not one of the
recover judgment on the alleged indebtedness and the right to attach the property means of fraudulently disposing of one’s property since ownership is not
of the debtor being entirely separate and distinct. As a rule, the judgment in the transferred.)
main action neither changes the nature nor determines the validity of the f. Action against party who is NOT A RESIDENT OF THE PHILS AND
attachment. (Peroxide Philippines Corp. v. Court of Appeals, G.R. No. 92813, CANNOT BE FOUND therein or upon who service by publication can be
1991) made—you cannot sue by publication when action is personam, so you must
convert it to In rem or Quasi in rem by attaching property(located in Phils) of
4blue95:PRELIMINARY ATTACHMENT can ONLY be attained if there’s a pending non-resident defendant then court acquires jurisdiction over the Res as such
case(so di pwede kung wala pang kaso) jurisdiction over the person is not required.
4blue95 notes: WRIT OF ATTACHMENT can be issued ex parte (even if other party
doesn’t know it,and even if there’s no hearing as long as there’s a bond and such writ is
verifed) 4blue95. IN GROUNDS a-e, the FRAUD (e.g. fraud of creditors, fraudulent detention or
4blue95:however, in serving or enforcing the writ, the other party must be informed. removal, embezzlement etc..) is an ESSENTIAL REQUISITE.
4blue95. INSOLVENCY is not a ground for ISSUANCE OF WRIT
4blue95 Pointers:
4blue95. The execution of a mortgage in favor of another creditor is not conceived by the
a. Available even if the recovery of personal property is only an incidental Rules as one of the means of fraudulently disposing of one’s property. By mortgaging a
relief sought in the action piece of property, a debtor merely subjects it to a lien but ownership is not parted with.
b. May be resorted to even if the personal property is in the custody of a third (Adlawan v Torres, G.R. Nos. 65957-58, July 5, 1994)
person
c. Extends to all kinds of property, real or personal or incorporeal;
d. To recover possession of personal property unjustly detained, presupposes
REMOVAL OF PROPERTY
that the same is being concealed, removed, or disposed of to prevent its
being found or taken by the applicant; Under Sec. 1(e) of Rule 57, two requisites must be satisfied to justify a preliminary
attachment:
e. Can still be resorted to even if the property is in custodia legis, as long as the
property belongs to the defendant, or is one in which he has proprietary a. There is a removal or disposal of the property; and
interests, AND with permission of the court
b. The removal or disposal must be with intent to defraud the creditor. (RIANO,
f. Available only to Plaintiff ( except if defendant files counterclaim, then ,this 2009, p. 544).
time, latter becomes plaintiff so he may avail of preliminary attachment)
g. 2 instance where plaintiff can issued preliminary attachment even if debt is
4BLUE95.Mere removal or disposal of property, by itself, is not ground for
secured by mortgage: (1) he abandons security or (2) foreclosure proceedings
issuance of preliminary attachment, notwithstanding absence of any security for
and such property mortgaged is not sufficient.
the satisfaction of any judgment against the defendant. The removal or disposal, to
justify preliminary attachment, must have been made with intent to defraud
defendants’ creditors. (Carpio v. Macadaeg, G.R. No. 17797, 1963).
KINDS OF ATTACHMENT:
1. PRELIMINARY ATTACHMENT - issued at the commencement of the action or
at any time before entry of judgment as security for the satisfaction of any judgment
that may be recovered. The court takes custody of the property. (Sec. 1, Rule 57);
2. GARNISHMENT - plaintiff reaches a credit/s belonging to the defendant and
EFFECTIVITY OF PRELIMINARY ATTACHMENT
owing to him from a third person who is a stranger to the litigation. It does not
involve actual seizure of the property; it simply impounds the property in the The lien continues until the debt is paid, or the sale is made under execution issued on the
garnishee’s possession and maintains the status quo until the main action is finally judgment, or until the judgment is satisfied, or the attachment discharged or vacated in the
decided. (Sec. 7(d), Rule 57; Sec. 9(c), Rule 39); same manner provided by law. (Lim, Jr. v. Sps. Lazaro, G.R. No. 185734, 2013)
3. LEVY ON EXECUTION - the writ issued by the court after judgment by which
the property of the judgment obligor is taken into custody of the court before the sale
of the property on execution. (Sec. 9[b], Rule 39)
 2
GRULE: SERVICE OF SUMMON FIRST BEFORE ATTACHMENT (DAVAO
LIGHT CASE)
STAGES OF PRELIMINARY ATTACHMENT:
No levy on attachment pursuant to the writ issued under Section 2, Rule 57 shall be
enforced unless preceded, or contemporaneously accompanied by service upon the
1. court issues order granting the application defendant within the Philippines of the following:

1. Summons;
An application may be filed at the commencement of the action, or at any
time before entry of judgment. (Rule 57, Sec. 1) 2. A copy of the complaint;

If applied for at the commencement of the action, it must be incorporated in 3. The application for attachment;
a verified complaint alleging all the grounds relied upon and complying with
all the requisites for the grant of the application. Here, the writ may be 4. The applicant’s affidavit and bond; and 5. The order and writ of attachment. (Sec.
granted ex parte or even before summons is served. If not applied for at the 5, Rule 57; Davao Light and Power Co., Inc. v. CA, G.R. No. 147058, 2006)
commencement of the action, it must only be applied for after service of
summons upon the defendant. (Davao Light & Power Co., Inc. v. Court of
Appeals, G.R. No. 93262, 1991). Principle of Prior or Contemporaneous Jurisdiction:
4BLUE95. It is not enough to state that a sufficient cause of action exists.
The applicant must state the facts constituting the cause of action, as well as Enforcement of writ of preliminary attachment must be preceded by or
facts, i.e. place, time, date, to illustrate the grounds for attachment relied simultaneously accompanied by service of summons, copy of complaint, application
upon. A bare allegation that an encumbrance of property is in fraud of and affidavits for the attachment and the bond upon the adverse party; BUT the
creditors does not suffice. Factual bases for such conclusion must be clearly requirement of prior or contemporaneous service of summons shall not apply where
averred. (Adlawan v Torres, G.R. No. 65957-58, 1994) the summons could not be served despite diligent efforts, or the defendant is a
resident of the Phils temporarily absent therefrom, or the defendant is a non-resident
of the Phils or the action is in rem or quasi in rem.
2. writ is issued : ( in 1&2 the jurisdiction over the person of the defendant is
not necessary
3. implementation : jurisdiction over the person of defendant is necessary in EXCEPTION:When prior or contemporaneous service of summons not required for
order for him to be binded ,so prior or contemporaneous service to defendant the enforcement of a writ of attachment
is necessary.
( here , the purpose of summons by publication is not to acquire jurisdiction over the
person but only for the purpose of due process)
2022 Note: For Stages 1 and 2, it is NOT necessary that jurisdiction over the person of the 1. summons could not be served personally or by substituted service despite
defendant be first obtained. But in Stage 3, the court must have acquired jurisdiction over diligent efforts
the defendant, because without such jurisdiction, the court has no power or authority to act
in any manner against the defendant. (Cuartero v. CA, G.R. No. 102448, 1992). 2. the defendant is a resident of the Philippines temporarily absent

3. defendant is a non-resident of the Philippines

4. the action is one in rem or quasi in rem

REMEDIES OF THE THIRD PERSON CLAIMING A PROPERTY SUBJECT OF 2022 Note: In exceptions 1 to 3, the principal action may be an action in personam. If
A WRIT OF ATTACHMENT the court issues a writ of preliminary attachment, it converts the action in personam
a. File a TERCERIA by executing an affidavit of his title or right of possession into an action quasi in rem.
over the property levied on attachment and serving the same to the office making Recall: In actions in rem and quasi in rem, jurisdiction over the person of the
the levy and the adverse party or third party claim (Sec. 16, Rule 39; Sec. 14, Rule defendant is not required. What is required is jurisdiction over the res although
57); summons must also be served on the defendant in order to satisfy due process
b. A writ of replevin (Sec. 7, Rule 60); requirements. (See De Pedro v. Romasan Dev’t, G.R. No. 194751, 2014)

c. Motion for summary hearing on his claim for the purpose of determining
whether the sheriff has acted rightly or wrongly in the performance of his duties in
the execution of the writ of attachment, more specifically if he has indeed levied
on attachment and taken hold of property not belonging to the plaintiff; PROCEDURE FOR ATTACHMENT OF PROPERTY
d. File a separate action to nullify the levy with damages resulting from the
unlawful levy and seizure.

1.real property
-file with the RoD a copy of the writ and notice of attachment with description of the
4BLUE95. The remedies are CUMULATIVE and any one of them may be resorted to property
without availing of the other remedies. (Ching v. CA, G.R. No. 124642, 2004). -leave a copy of the writ and notice with the occupant of the property
2.personal property
2022 Notes: In that in item no. 3 above, it does not refer to intervention under the Rules of
Court. It is rather simply an invocation of the Court's power of supervision and control -take and keep the property in custody
over the actuations of its officers and employees to the end that it be assured that these -issue a receipt
conform to the law. (Ong v. Tating, G.R. No. L-61042, 1987).
3.stocks or shares – leave with the president or managing agent a copy of the writ and
notice of attachment

4.debts, credits, and personal property not capable of manual delivery – leave with
the person owning such debts or in possession of control of such property a copy of the
writ and notice of attachment

5.interest in estate proceedings ( Rule 57 allows you to attach the share of a person in
estate of deceased although no specificproperty is yet to be given).

6.in custodia legis (allows a property already attach to be attached again) – file a copy of
the writ of attactment with the tribunal, and serve notice of the attachment to the custodian
of the property
 3
REMEDIES OF DEFENDANT WHOSE PROPERTY WAS ATTACHED Sec. 15. Satisfaction of judgment out of property attached; return of sheriff.
(DISCHARGE OF PRELIMINARY ATTACHMENT)
If judgment be recovered by the attaching party and execution issue thereon, the sheriff
may cause the judgment to be satisfied out of the property attached, if it be sufficient for
a. Debtor posts a COUNTERBOND (sec12) or makes requisite cash that purpose in the following manner:
deposit- if attachment to be discharged is with respect to particular
(a) By paying to the judgment obligee the proceeds of all sales of perishable or other
property, counterbond or deposit shall be equal to the value of the
property sold in pursuance of the order of the court, or so much as shall be necessary to
property as determined by the court; in all other cases, amount of
satisfy the judgment;
counterbond should be equal to the amount fixed in the order of
attachment. (b) If any balance remains due, by selling so much of the property, real or personal, as
 CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff's
PAYMENT OF ANY JUDGMENT THAT ATTACHING PARTY hands, or in those of the clerk of the court;
MAY RECOVER (FILING of COUNTERBOND is NOT a Matter of
Right, so it needs a hearing) (c) by collecting from all persons having in their possession credits belonging to the
judgment obligor, or owing debts to the latter at the time of the attachment of such credits
 Filing of a COUNTERBOND NOT A WAIVER to Claim Damages or debts, the amounts of such credits and debts as determined by the court in the action,
Under the Attachment Bond and stated in the judgment, and paying the proceeds of such collection over to the
judgment obligee.

COUNTERBOND is Discharged Either: The sheriff shall forthwith make a return in writing to the court of his proceedings under
this section and furnish the parties with copies thereof.
a. Wholly when there is full satisfaction of the judgment or court finally
absolved surety; or
b. In part with the security given. (Sec. 12, Rule 57)

b. Applicant’s bond is insufficient or sureties fail to justify (sec13);

Attachment was improperly or irregularly issued or

enforced ―Improperly‖ (e.g. writ of attachment was not
based on the grounds in Sec. 1)

―Irregularly‖ (e.g. writ of attachment was executed

without previous or contemporaneous service of
summons).

c. Property attached is exempt from execution;

d. Judgment is rendered against attaching party;
e. Attachment is excessive – discharge is with respect to the excess

Application for discharge may only be filed with the court where the action
is pending and may be filed even before enforcement of the writ so long as
there has been an order of attachment.
2022 notes: the fact that defendant puts up a counterbond under sec12 does
not automatically discharge the attachment earlier made. There must be a
hearing and judge must order the discharge of attachment.

CLAIM FOR DAMAGES FOR ILLEGAL ATTACHMENT

2022 Notes: Attachment is IRREGULAR when any of the six (6) grounds for attachment
are present but attachment was not made according to the rules. ( plaintiff & surety must be informed)

4blue95:If the motion be made on affidavits on the part of the movant but not otherwise, 1.it must be done in same action, not in separate action
the attaching party may oppose the motion by counter-affidavits or other evidence in 2.it can be claim before trial (as a matter of right) or before final judgment or before
addition to that on which the attachment was made. final appeal or in the appellate court for damages pending appeal, before judgment
becomes executory.

NOTICE AND HEARING When judgment becomes executory, sureties on counterbond to lift attachment are charged
and can be held liable for the amount of judgment and costs upon notice and summary
Discharge is not automatic. There must be due notice served on the attaching party and hearing. There is no need to first execute judgment against the judgment obligor before
hearing and an order issued by the court. Should it involve a cash deposit, a notice of the proceeding against sureties.
deposit shall likewise be served on the attaching party. (Sec. 12, Rule 57).
To claim on the counter-bond, the applicant may file his claim after the finality of the
judgment.
4blue95:After due notice and hearing, the court shall order the setting aside or the
corresponding discharge of the attachment if it appears that it was improperly or
To claim on the applicant’s bond, adverse party must file his claim for damages before
irregularly issued or enforced, or that the bond is insufficient, or that the attachment is
finality. (In both cases,the surety must be notified)
excessive, and the defect is not cured forthwith (PARTIAL DISCHARGE)
4BLUE95. Any FORM OF DISCHARGE, a HEARING is Necessary

Claims for damages cannot be subject of independent action except:

a. When principal case is dismissed by the trial court for lack of jurisdiction
CALDERON DOCTRINE states the following principles: without giving the claiming party opportunity to prove claim for damages;
1. person can file a counterbond and at the same time move to discharge b. When damages sustained by a third person not a party to the action.
2. he can file a counterbound w/ respect to only one property and continue the
hearing under sec13 w/ respect to the other property . You don’t waive
sec.13 since you apply sec12.
 4
Q: The plaintiff obtained a writ of preliminary attachment upon a bond of P1 million. The Q: Briefly discuss/differentiate the following kinds of Attachment: preliminary attachment,
writ was levied on the defendant’s property, but it was discharged upon the posting by the garnishment, levy on execution, warrant of seizure and warrant of distraint and levy. (2012
defendant of a counterbond in the same amount of P1 million. After trial, the court Bar)
rendered judgment finding that the plaintiff had no cause of action against the defendant A: Preliminary attachment is a provisional remedy under Rule 57. It may be sought at the
and that he had sued out the writ of attachment maliciously. Accordingly, the court commencement of an action or at any time before entry of judgment where property of an
dismissed the complaint and ordered the plaintiff and its surety to pay jointly to the adverse party may be attached as security for satisfaction of any judgment, where this
defendant P1.5 million as actual damages, P0.5 million as moral damages and P0.5 million adverse party is about to depart from the Philippines, where he has intent to defraud or has
as exemplary damages. Evaluate the soundness of the judgment from the point of view of committed fraud, or is not found in the Philippines. An affidavit and a bond is required
procedure. (2002 Bar) before the preliminary attachment issues. It is discharged upon payment of a counter bond.
A: The judgment against the surety is not sound if due notice was not given to him of the Garnishment is a manner of satisfying or executing judgment where the sheriff may levy
applicant for damages (Sec. 20, Rule 57). Moreover, the judgment against the surety debts, credits, royalties, commissions, bank deposits and other personal property not
cannot exceed the amount of its counterbond of P1 million. capable of manual delivery that are in the control or possession of third persons and are
due the judgment obligor. Notice shall be served on third parties. The third party garnishee
Q: In a case, the property of an incompetent under guardianship was in custodia legis. Can must make a written report on whether or not the judgment obligor has sufficient funds or
it be attached? Explain. (1999 Bar) credits to satisfy the amount of the judgment. If not, the report shall state how much funds
A: Although the property of an incompetent under guardianship is in custodia legis, it may or credits the garnishee holds for the judgment obligor. (Section 9[c], Rule 39)
be attached as in fact it is provided that in such case, a copy of the writ of attachment shall Levy on execution is a manner of satisfying or executing judgment where the sheriff may
be filed with the proper court and notice of the attachment served upon the custodian of sell property of the judgment obligor if he is unable to pay all or part of the obligation in
such property (Sec. 7, Rule 57). cash, certified bank check or any other manner acceptable to the obligee. If the obligor
does not chose which among his property may be sold, the sheriff shall sell personal
Q: May damages be claimed by a party prejudiced by a wrongful attachment even if the property first and then real property second. He must sell only so much of the personal or
judgment is adverse to him? Explain. (1999 Bar) real property as is sufficient to satisfy judgment and other lawful fees. (Sec. 9 [b], Rule 39)
A: Yes, damages may be claimed by a party prejudiced by a wrongful attachment even if Warrant of seizure is normally applied for with a search warrant, in criminal cases. The
the judgment is adverse to him. This is authorized by the Rules. A claim for damages may warrant of seizure must particularly describe the things to be seized. While it is true that
be made on account of improper, irregular or excessive attachment, which shall be heard the property to be seized under a warrant must be particularly described therein and no
with notice to the adverse party and his surety or sureties. (Sec. 20, Rule 57; Javellana v. other property can be taken thereunder, yet the description is required to be specific only
D.O. Plaza Enterprises Inc., G.R. No. L-28297, March 30, 1970) insofar as the circumstances will ordinarily allow. An application for search and seizure
warrant shall be filed with the following: (a) any court within whose territorial jurisdiction
Q: May a writ of preliminary attachment be issued ex parte? Briefly state the reason(s) for a crime was committed; (b) for compelling reasons stated in the application, any court
your answer. (2001 Bar) within the judicial region where the crime was committed if the place of the commission of
A: Yes, an order of attachment may be issued ex parte or upon motion with notice and the crime is known, or any court within the judicial region where the warrant shall be
hearing (Sec. 2, Rule 57). The reason why the order may be issued ex parte is that enforced. However, if the criminal action has already been filed, the application shall only
requiring notice to the adverse party and a hearing would defeat the purpose of the be made in the court where the criminal action is pending. Warrant of distraint and levy is
provisional remedy and enable the adverse party to abscond or dispose of his property remedy available to local governments and the BIR in tax cases to satisfy deficiencies or
before a writ of attachment issues. (Mindanao Savings and Loan Association, Inc. v. Court delinquencies in inheritance and estate taxes, and real estate taxes. Distraint is the seizure
of Appeals, G.R. No. 84481, April 18, 1989) of personal property to be sold in an authorized auction sale. Levy is the issuance of a
certification by the proper officer showing the name of the taxpayer and the tax, fee,
Q: May a preliminary injunction be issued ex parte? Why? (2001 Bar) charge or penalty due him. Levy is made by writing upon said certificate the description of
A: No, a writ of preliminary injunction may not be issued ex parte. As provided in the the property upon which levy is made.
Rules, no preliminary injunction shall be granted without hearing and prior notice to the
party or person sought to be enjoined (Sec. 5, Rule 58). The reason is that a preliminary
injunction may cause grave and irreparable injury to the party enjoined. Q: Bayani, an overseas worker based in Dubai, issued in favor of Agente, a special power
of attorney to sell his house and lot. Agente was able to sell the property but failed to remit
Q: Katy filed an action against Tyrone for collection of the sum of P1 million in the RTC, the proceeds to Bayani, as agreed upon. On his return to the Philippines, Bayani, by way of
with an ex parte application for a writ of preliminary attachment. Upon posting of an a demand letter duly received by Agente sought to recover the amount due him. Agente
attachment bond, the court granted the application and issued a writ of preliminary failed to return the amount as he had used it for the construction of his own house. Thus,
attachment. Apprehensive that Tyrone might withdraw his savings deposit with the bank, Bayani filed an action against Agente for sum of money with damages. Bayani
the sheriff immediately served a notice of garnishment on the bank to implement the writ subsequently filed an exparte motion for the issuance of a writ of preliminary attachment
of preliminary attachment. The following day, the sheriff proceeded to Tyrone’s house and duly supported by an affidavit. The court granted the ex parte motion and issued a writ of
served him the summons, with copies of the complaint containing the application for writ preliminary attachment upon Bayani’s posting of the required bond. Bayani prayed that the
of attachment, Katy’s affidavit, order of attachment, writ of preliminary attachment and court’s sheriff be deputized to serve and implement the writ of attachment. On November
attachment bond. Within fifteen (15) days from service of the summons, Tyrone filed a 19, 2013, the Sheriff served upon Agente the writ of attachment and Agente levied on the
motion to dismiss and to dissolve the writ of preliminary attachment on the following latter’s house and lot. On November 20, 2013, the Sheriff served upon Agente summons
grounds: (i) the court did not acquire jurisdiction over his person because the writ was and a copy of the complaint. On November 22, 2013, Agente filed an Answer with Motion
served ahead of the summons; (ii) the writ was improperly implemented; and (iii) said writ to Discharge the Writ if Attachment alleging that at the time the writ of preliminary
was improvidently issued because the obligation in question was already fully paid. attachment was issued, he has not been served with summons and, therefore, it was
Resolve the motion with reasons. (2005 Bar) improperly issued. (2014 Bar) a. Is Agente correct?
A: The motion to dismiss and to dissolve the writ of preliminary attachment should be A: No. Agente is not correct. Section 2, Rule 57 provides that a writ of attachment may be
denied. The fact that the writ of attachment was served ahead of the summons did not issued ex parte or upon motion with notice and hearing by the Court in which the action is
affect the jurisdiction of the court over his person. It makes the writ, unenforceable (Sec. 5, pending. Under the Rules, the applicant of the writ is only required to (i) submit an
Rule 57). However, all that is needed to be done is to re- serve the writ. (Onate v. Abrogar, affidavit and (ii) post a bond before the court can validly issue the writ of attachment. The
G.R. No. 197393, February 23, 1985) Further, the writ was improperly implemented. Rules do not require prior service of summons for the proper issuance of a writ of
Serving a notice of garnishment, particularly before the summons is served, is not proper. attachment. (Torres v. Satsatin, G.R. No. 166759, November 25, 2009).
It should be a copy of the writ of attachment that should be served on the defendant, and a Accordingly, the issuance of the writ of attachment is valid notwithstanding the absence of
notice that the bank deposits are attached pursuant to the writ. (Sec. 7[d], Rule 57) Also, a prior service of summons to Agnete. b. Was the writ of preliminary attachment properly
the writ was improvidently issued if indeed it can be shown that the obligation was already executed? (2014 Bar)
fully paid. The writ is only ancillary to the main action (Sec. 13, Rule 57). The alleged A: No. The writ of preliminary attachment was not properly executed. Although a writ of
payment of the account cannot serve as a ground for resolving the improvident issuance of attachment may issue even before summons is served upon the defendant, the same,
the writ, because this matter delves into the merits of the case, and requires full-blown however, may not bind and affect the defendant until jurisdiction over his person is
trial. Payment, however, serves as a ground for a motion to dismiss. obtained (Davao Light and Power Co., Inc. v. Court of Appeals, G.R. No. 93262
December 29, 1991). Thus, the writ of preliminary attachment must only be served
simultaneous or at least after the service of summons to the defendant. (Torres v. Satsatin,
Q: Distinguish attachment from garnishment. (1999 Bar) G.R. No. 166759, November 25, 2009)
A: Attachment and garnishment are distinguished from each other as follows: attachment
is a provisional remedy that effects a levy on property of a party as security for the
satisfaction of any judgment that may be recovered, while garnishment is a levy on debts
due the judgment obligor or defendant and other credits, including bank deposits, royalties
and other personal property not capable of manual delivery under a writ of execution or a
writ of attachment.

Q: A sues B for collection of a sum of money. Alleging fraud in the contracting of the
loan, A applies for preliminary attachment with the court. The Court issues the preliminary
attachment after A files a bond. While summons on B was yet unserved, the sheriff
attached B's properties. Afterwards, summons was duly served on B. B moves to lift the
attachment. Rule on this. (2012 Bar)
A: I will grant the motion since no levy on attachment pursuant to the writ shall be
enforced unless it is preceded or contemporaneously accompanied by service of summons.
There must the prior or contemporaneous service of summons with the writ of attachment.
(Sec. 5, Rule 57)
 5
2.PRELIMINARY INJUNCTION (BAR) REQUISITES FOR THE ISSUANCE OF THE WRIT OF PRELIMINARY
INJUNCTION
A writ of preliminary injunction is issued upon the applicant’s showing of two important
order granted at any stage of an action prior to final judgement requiring a person to requisite conditions:
refrain from a particular act. It requires urgent need and clear right of plaintiff and that
injunction is necessary to restore prior relation 1. The right to be protected exists prima facie; and
BEFORE ISSUANCE OF A WRIT OF PRELIM.INJUCTION, Court shall issue a 2. The acts sought to be enjoined are violative of that right. (Bicol Medical Center v.
Temporary Restraining Order (TRO) It is a temporary or provisional order to Botor, G.R. No. 214073, 2017)
maintain the subject of controversy in status quo until the hearing of an application
for a preliminary injunction. (Incorporators of the Mindanao Institute v. United
Church, G.R. No. 171765, 2012)
WHAT MUST BE PROVEN FOR A WRIT OF PRELIMINARY INJUNCTION TO
The court to which the application for preliminary injunction was made may issue a ISSUE (GROUNDS)
TRO, effective for 20 days from 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 The following requisites must be proved before a writ of preliminary injunction, be it
great or irreparable injury would result to the applicant before the matter can be mandatory or prohibitory, will issue:
heard on notice. (Sec. 5, Rule 58).
1. The applicant must have a clear and unmistakable right to be protected, that is a
right in esse;
Requisites for preliminary injunction or temporary restraining order
4blue95. Clear and Unmistakable Right is One clearly founded in or granted by law
1. verified application showing facts entitling the applicant to the relief demanded or is enforceable as a matter of law. (Australian Professional Realty v. Municipality
of Padre Garcia, G.R. No. 183367, 2012)
2. bond conditioned on paying the party enjoined 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
2. There is a material and substantial invasion of such right;
3. GR: hearing. Exception: court may issue TRO if plaintiff may suffer grave or
3. There is an urgent need for the writ to prevent irreparable injury to the applicant;
irreparable injury
and
4blue95: A STATUS QUO ANTE ORDER (ABS-CBN v NTC, 2020 case) is
4. No other ordinary, speedy, and adequate remedy exists to prevent the infliction of
deemed to have the nature of a TRO. Thus, it cannot exceed 20-day term and
cannot be indefinite. It is also an Interlocutory order. irreparable injury. (Municipality of Famy, Laguna v. Municipality of Siniloan,
Laguna, G.R. No. 203806, 2020)
4blue95. The Supreme Court may issue SQAOs without restriction.
The Rules require that the applicant's right must be a right in esse, that which is, clear
or unmistakable, actual, and positive especially calling for judicial protection. (Id.).

4blue95: CHR is NOT A JUDICIAL OR QUASI JUDICIAL BODY hence w/o

authority to issue injunction or TRO so remedy of CHR is to seek assistance of
proper courts.

4blue95: Writ of Injunction can only be issued W/IN THE REGION.

Except: if head office of corporation is in Manila,so ,file in Manila for an injunction
over acts here in Davao of such corporation.

INJUNCTION MAY BE REFUSED OR DISSOLVED WHEN:

a. Complaint is insufficient;
If an action is pending before the CA or SC, preliminary injunction may be issued by a member,
unlike in preliminary attachment which must be issued by the CA or SC as a body. b. Affidavits of persons enjoined is opposed by applicant also by affidavits
Injunction is resorted to only when there is a pressing necessity to avoid injurious consequences
which cannot be remedied under any standard compensation. The sole Purpose of preliminary c. Although applicant is entitled to injunction or restraining order, the
injunction is to PRESERVE STATUS QUO OF PARTIES (which means it will maintain the last issuance/continuance would cause irreparable damages to the party or
peacable unconstested status w/c preceded the controversy – the way things were) (Unilever v CA, person enjoined
G.R. No. 119280, 2006)
d. If it appears that the extent of PI or restraining order is too great ,then it may
be modified
PERSONS BOUND BY WRIT; RELATIONS CREATED
e. other grounds upon affidavit of the party or person enjoined insufficiency of
A preliminary injunction is merely a provisional remedy, an adjunct to a main suit; hence, a the bond
person who is not a party in the main suit cannot be bound by the writ. (Mabayo Farms v. CA,
G.R. No. 140058, 2002) f. insufficiency of the surety or sureties
A preliminary injunction should not establish new relations between the parties but merely
maintain or re-establish the pre-existing relationship between them. (Bustamante v. CA, G.R. No.
126371, 2002)

FILING OF COUNTERBOND TO DISSOLVE INJUNCTION IS NOT A MATTER OF

WHEN WRIT MAY NOT BE ISSUED:
RIGHT
1.Ex parte (since notice & hearing is required but opportunity to be heard is
Unlike the counter-bond to discharge attachment, which the court shall order after due notice and
hearing if the party whose property has been attached files a bond sufficient to secure the payment
sufficient)
of any judgment that the attaching party may recover in the action, the counterbond to dissolve
2.There’s irreparable injury (inadequacy of pecuniary compensation and
injunction may be approved by the court after hearing if:
prevention of multiplicity of suits)
1. The court in the exercise of its discretion, finds that the continuance of the injunction would
cause great damage to the defendant, while the plaintiff can be fully compensated for such
3.Against courts/tribunals of co-equal ranks (ex: RTC-NLRC; RTC-PCGG)
damages as he may suffer; AND
4.Transfer possession where title is not clear except:Art 539 & 1674 NCC:
2. The defendant files a counter-bond Forcible entry and unlawful detainer case or in an action for recovery where
title is clear and cannot be attacked collaterally.
THE INJUNCTION SHALL BE DISSOLVED:
5.Restrain criminal prosecution
1. If the applicant's bond is found to be insufficient in amount, or if the surety or sureties
thereon fail to justify the insufficiency; AND 6.Against disposing of a case on the merits

7.Against consummated acts (since it has become moot and academic)

2. A bond sufficient in amount with sufficient sureties approved after justification is not
filed forthwith.
8.Restrain collection of taxes
 6
KINDS OF INJUNCTION

1. PROHIBITORY(PREVENTIVE)-commands person to refrain from JUDICIAL INTERFERENCE IN PRELIMINARY INJUNCTION

performing a particular act

a. Preliminary (Rule 58)

General Rule: Under the doctrine of judicial stability or non-interference, no court has the
4blue95 notes: Mere motion to file a counterbond is not sufficient to power to interfere by injunction with the judgments or decrees of a court of concurrent or
quash the writ of preliminary injunction. A preliminary injunction coordinate jurisdiction. (Dy Chiao v. Bolivar, G.R. No. 192491, 2016).
can be granted or dissolved only upon good and valid grounds. Mere
offer to post a counterbond does not suffice to warrant the Exception: A judge in charge of a branch of a trial court has jurisdiction to issue a
dissolution of the preliminary writ of injunction. preliminary injunction in a case pending in that branch notwithstanding the fact that a
similar injunction had been denied by another judge in another branch of the court, and in
a. Final –court may issue it ,if after trial, it appears that plaintiff is the absence of gross abuse of discretion, the injunction granted will not be interfered with
entitled thereto. It is included in the judgment as a relief or part by certiorari. (Sabado v. Cristina Gonzalez, Inc., G.R. No. 28890, 1928)
thereof . The requirement of a bond is a mandatory/essential
requisite. The denial of a petition for a preliminary injunction is not a final determination of the
matter and is no obstacle to the subsequent granting of a renewed petition for the issuance
of such injunction upon further information and consideration. (Id.).

2. MANDATORY – an order which requires the performance of a

particular act or acts to correct a wrong in the past

Requisites for issuance of Mandatory Injunction is when invasion of right is

material or substantial , right of complainant is clear and unmistakable and MUNICIPAL TRIAL COURTS (MTC/METC/MCTC)
urgent and permanent necessity for the writ to prevent serious damage
i. A possessor deprived of his possession through forcible entry may within ten days from
Ex: X had dispute with Davao Light over Electric Billing, so while case is the filing of the complaint present a motion to secure from the competent court, in the
being litigated, X may ask court for a preliminary mandatory injunction to action for forcible entry, a writ of preliminary mandatory injunction to restore him in his
return the electricity in his house while case is being heard. possession. The court shall decide the motion within thirty (30) days from the filing
thereof. (Art. 539, Civil Code);

ii. In ejectment cases where an appeal is taken, the remedy granted in Article 539, second
paragraph, shall also apply, if the higher court is satisfied that the lessee’s appeal is
frivolous or dilatory, or that the lessor’s appeal is prima facie meritorious. The period of
ten days referred to in said article shall be counted from the time the appeal is perfected.
(Art. 1674, Civil Code);

iii. A possessor deprived of his possession through forcible entry or unlawful detainer 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. (Sec. 15, Rule 70);

iv. Provided the main action is within its jurisdiction, an inferior court can appoint a
receiver and it has jurisdiction to issue a writ of preliminary injunction in either forcible
entry or unlawful detainer cases. (Day vs. RTC of Zamboanga City, G.R. No. 79119, 1990,
citing Regalado, Remedial Law Compendium, Second Revised Edition, p. 33)

ACTION FOR INJUNCTION V. WRIT OF PRELIMINARY INJUNCTION

The main action for injunction is distinct from the provisional or ancillary remedy of REGIONAL TRIAL COURTS (RTC)
preliminary injunction which cannot exist except only as part or an incident of an
independent action or proceeding. In an action for injunction, the auxiliary remedy of For Regional Trial Courts, the issuance of a writ of injunction is only enforceable within
preliminary of injunction, whether prohibitory or mandatory, may issue. (Urbanes v. CA, their respective regions. (Sec. 21, B.P. 129). The RTC has no authority to restrain or enjoin
G.R. No. 117964, 2001) acts being perpetrated or to be perpetrated outside the territorial boundaries of its region.
(Acosta vs. Alvendia, G.R. No. L-14598, 1960)
The main action for injunction seeks a judgment embodying a final injunction, which is
distinct from, and should not be confused with, the provisional remedy of preliminary Where the main action is the annulment of the action of the respondent and injunction is
injunction, the sole object of which is to preserve the status quo until the merits are heard. merely corollary, the trial court of locality where questioned act is to be implemented has
jurisdiction. (Feria 2013, citing Decano vs. Edu, 99 G.R. No. L-30070, 1980)

INSTANCES WHEN INJUNCTION IS PROPER:

3. Petition for certiorari, prohibition and mandamus

4. Petition for relief from judgement
5. Action for annulment of judgment or to enjoin enforcement of the same on GENRULE: Criminal Prosecution may not be restrained or stayed by injunction,
grounds of fraud ,collusion or lack of jurisdiction of the court rendering it. preliminary or final since public interest requires that criminal acts be immediately
6. In an action to restrain a criminal prosecution under an unconstitutional investigated and prosecuted for the protection of society.
statute. Exception:
7. Restrain the threatened enforcement of an invalid law.
2022 notes: court may impose other conditions as may be proper and just for the purpose a.afford adequated protection to the constitutional rights of the accused.
of protecting the interest of all persons concerned. b.when necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions
4blue95:A possessor deprived of his possession through forcible entry or unlawful detainer c.when there is a prejudicial question
may, within five (5) days from the filing of the complaint, present a motion in the action d.when acts of the officer are w/o or in excess of authority
for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory e.where prosecution is under an invalid law, ordinance or regulation
injunction to restore him in his possession. The court shall decide the motion within thirty f.when double jeopardy is clearly apparent
(30) days from the filing thereof. g.where court has no jurisdiction over the offense
h.where it is a case of persecution rather than prosecution
i.where charges are manifestly false and motivated by the suit for vengeance
INSTANCES WHEN IT IS NOT PROPER: j.when there is clearly no prima facie case vs the accused and a motion to quash
on that ground has been denied.
1.Action to compel spouse to cohabit w/ the other k.preliminary injunction has been issued by the Supreme court to prevent the
2.Restraining consummated acts – except if the complaint alleges that the defendant will, threatened unlawful arrest of petitioners.
if not prevented ,continue to perform the objectionable acts
3.Enjoin a public official from performing duties specifically imposed by law(not proper
also if such is for the purpose of stopping govt project) 2022 notes: A mortgagor cannot argue that the consolidation of title during pendency
4.Injunction not proper to transfer possession of a property from another (an exception is of an action for annulment and reconveyance will cause irreparable injury to him (
where applicant’s right is clearly established and defendants are mere intruders). David v IBAA)
 7
DURATION OF RESTRAINING ORDERS:

A writ cannot be issued exparte since there must be hearing, but if party believes that there c.issued with summary hearing (to determine whether the applicant will suffer great or
irreparable injury) within 24 hours after sheriff’s return of service and/or records are
must be preliminary injunction before hearing since injustice might be committed onto the
received by the branch selected by raffle
party, then ,he may ask the court to issue a TRO(temporary restraining order).
d.Within 20-day period court must
Application of TRO shall be acted upon only after all parties are heard in a
summary hearing w/c shall be conducted w/in 24 hours after sheriff/s return 1.order said party or person to show cause why the injunction should not be granted
of service or the records are receive by the branch selected by raffled and to
w/c the records shall be transmitted immediately. 2.determine whether or not the preliminary injunction shall be granted, and
accordingly issue the corresponding order.including the original 72 hours, total
TRO may be granted only when applicant files a bond w/ court where effectivity of TRO shall
proceeding is pending.TRO cannot be extended in same ground for w/c it
was issued. -not exceed 20 days, if issued by a RTC

-not exceed 60 days, if issued by the CA or a member thereof until futher orders, if
4blue95: Since a TRO still needs a hearing, what then is the remedy if the act
issued by the SC
sought to be restrained must be restrained right NOW, then it is a 72 hour
TRO. e. TRO is automatically vacated upon expiration of the period and without granting of
preliminary injunction(or denial of application also automatically vacates the TRO)
4blue95: Irreparable injury is always a requisite in TROs. i. effectivity is not extendible without need of any
judicial declaration to that effect
ii. no court shall have authority to extend or renew the
same on the same ground for which it was issued.
4blue95: But in the 72 hour TRO, grave injustice must also be shown. In the
20 day TRO, the ground is great or irreparable injury. 2022 notes: RTC loses jurisdiction the moment it is brought to the appellate court.

3.PRELIMINARY INJUNCTION

(difference bet PI and TRO is that the former remains until it is dissolve)

Hearing and prior notice to the party sought to be enjoined

If application is included in initiatory pleading

i.Notice of raffle shall be preceded, or contemporaneously accompanied, by service

of summons, together with a copy of the complaint or initiatory pleading and the
applicant's affidavit and bond, upon the adverse party in the Philippines.
1.72 HOUR TRO (ISSUED BY JUDGE EX PARTE WHENEVER : )
ii.Raffled only after notice to and in the presence of the adverse party or the person
to be enjoined
This is the TRO while there is a summary hearing know if TRO be extended for 20 days. iii.Applicant posts a bond

a. if the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury

b. issued by executive judge of a multiple-sala court or the presiding judge of

a single-sala court 4.FINAL INJUNCTION

c. thereafter must Note that a bond is required only in preliminary injunctions, but is not required in TROs.

1) serve summons and other documents

2) order said party or person to show cause why the injunction 4BLUE95.:It is not a sufficient ground to dissolve an injunction if the defendant posts a bond
should not be granted since the granting and dissolution of the prelim injunction is a matter of discretion of the court.
3) determine whether or not the preliminary injunction shall be
granted, and accordingly issue the corresponding order. 4BLUE95. Order of dissolution of injunction is immediately effective even though it is not final .
4) Within 72 hrs (kaya nga 72 hrs ang life nito!), conduct A dismissal, discontinuance or non-suit of an action in which a restraining order or tempo
summary hearing to determine whether the TRO shall be extended injunction has been granted operates as a dissolution of the TRO and no formal order or
to 20 days until the application for preliminary injunction can be dissolution is necessary for the reinstatement of an injunction. There must be a new exercise of
heard judicial power.

4BLUE95. After lapse of the 20 day TRO, the court can still grant a preliminary injunction.

2.20-DAY TRO (RTC) (BAR) A TRO was issued. Can the trial court issue a status quo order if there is no injunction
issued?No, injunction must be issued since a status quo order is same as TRO w/c cannot extend
A lower court cannot issue a second TRO where 1st was issued by Supreme Court
the TRO
Court cannot issue Ex Parte a status quo order w/c operates as TRO or Injunction.
(BAR) A lower court cannot issue a second TRO of w/c the 1st was issued by the SC, as such the
4blue95: during the 20-day TRO efficacy, court will now hear on matters with regard issuance of remedy is to issue an injunction.
the preliminary injunction.

4blue95: 20-day TRO cannot be extended on same ground for w/c it was issued, it can be
extended if there are other grounds (TRO issued by SC has no specific lifetime and it is effective 2022 notes: The TRO issued by the Court of Appeals or a member thereof has a lifetime of 60
until final orders). days form service on the party or person sought to be enjoined.

It can only be granted when applicant files w/ court where proceeding is pending a BOND 2022 notes: The lifetime of the TRO is only 20 days(or 60 days) including the original 72 hours,it
executed to the person enjoined in an amount to be fixed by the court. cannot be extended. And no court shall have authority to extend or renew the same on the same
ground for which it was issued.--- it can be extended on other grounds arising other than the
a.If it shall appear from the facts shown by affidavits or by the verified application that ground for which it was originally issued.
great or irreparable injury would result to the applicant before the matter can be heard on
notice 2022 notes: The effect of the denial of the application for injunction shall automatically vacate the
temporary restraining order. The rules provide that in the event that the application for prelim
b.If application is included in initiatory pleading injunction is denied or not resolve w/in 20days,TRO is deemed vacated(sec5)

Notice of raffle shall be preceded, or contemporaneously accompanied, by service 4BLUE95 .No court, except the Supreme Court, shall issue any TRO, preliminary
of summons, together with a copy of the complaint or initiatory pleading and the injunction, or preliminary mandatory injunction against the government, or any of its
applicant's affidavit and bond, upon the adverse party in the Philippines. subdivisions, officials, or any person or entity, whether public or private, acting under the
government’s discretion
Raffled only after notice to and in the presence of the adverse party or the person to
be enjoined
 8
Q: Define a temporary restraining order (TRO). Differentiate a TRO from a status quo Q: A temporary restraining order (TRO) was issued on September 20, 2017 by the RTC
order. (2006 Bar) against defendant Jeff enjoining him from entering the land of Regan, the plaintiff. On
A: A temporary restraining order is issued upon application of a party and upon the posting October 9, 2017, upon application of Regan, the trial court, allegedly in the interest of
of the required bond. On the other hand, a status quo order maybe issued motu proprio on justice, extended the TRO for another 20 days based on the same ground for which the
equitable considerations, and does not require the posting of a bond. Unlike a temporary TRO was issued. On October 15, 2017, Jeff entered the land subject of the TRO. May Jeff
restraining order or a preliminary injunction, a status quo order is more in the nature of a be liable for contempt of court? Why? (2017 Bar)
cease and desist order, since it neither directs the doing or undoing of acts as in the case of A: No, Jeff may not be liable for contempt. Under the Rule on Preliminary Injunction, a
prohibitory or mandatory injunctive relief. (Garcia v. Mojica, G.R. No. 139043, September TRO is effective only for a period of 20 days from service on the person sought to be
10, 1999) enjoined. It is deemed automatically vacated if the application for preliminary injunction is
denied or not resolved within the said period and no court shall have the authority to
extend or renew the TRO on the same ground for which it was issued (Sec. 5, Rule 58).
Here the extension of the TRO by the RTC was invalid since it was for the same ground
Q: What are the requisites for the issuance of (a) a writ of preliminary injunction; and (b) a for which the TRO was issued. Hence the TRO was deemed automatically vacated and
final writ of injunction? (2006 Bar) thus Jeff may not be liable for contempt for ignoring it.
A: The requisites for the issuance of a writ of preliminary injunction are: (1) a right in esse
or a clear and unmistakable right to be protected; (2) a violation of that right; (3) that there
is an urgent and permanent act and urgent necessity for the writ to prevent serious damage.
(Tayag v. Lacson, G.R. No. 134971, March 25, 2004) A final writ of injunction may be Q: Mrs. G defaulted in the payment of her loan obligation with Z Bank. As such, Z Bank
granted if after trial of the action, it appears that the applicant is entitled to have the act or extrajudicially foreclosed Mrs. G's mortgaged property and sold it at public auction where
acts complained of permanently enjoined. (Sec. 9, Rule 58) it emerged as the highest bidder. Eventually, a certificate of sale was issued in Z Bank's
favor, and title to the property was later consolidated under the bank's name. Claiming that
Q: Distinguish between injunction as an ancillary remedy and injunction as a main action. Z Bank used fraudulent machinations in increasing the interest and penalty charges on the
(2006 Bar) loan, thereby making it impossible for her to pay, Mrs. G filed before the Regional Trial
A: Injunction as an ancillary remedy presupposes the existence of a principal or a main Court (RTC) a complaint for cancellation of consolidation of ownership over a real
action (Vallangca v. Court of Appeals, G.R. No. 55336, May 4, 1989). Its main function is property with prayer for the issuance of a writ of preliminary injunction against Z Bank.
to preserve the status quo until the merits can be heard and resolved.(Urbanes v. Court of Immediately thereafter, the RTC issued an ex parte writ of preliminary injunction
Appeals, G.R. No. 117964, March 28, 2001) On the other hand, an injunction as the main enjoining Z Bank from disposing of the foreclosed property or taking possession thereof.
action is brought specifically to obtain a judgment perpetually restraining or commanding Did the RTC err in issuing the writ of preliminary injunction ex parte? Explain. (2019 Bar)
the performance of an act after trial. (Del Mar v. PAGCOR, G.R. No. 138298, November
29, 2000) A: Yes. An application for the issuance of a writ of preliminary injunction and/or TRO
may be granted upon the filing of a verified application showing facts entitling the
Q: While window-shopping at the mall on August 4, 2008, Dante lost his organizer applicant to the relief demanded. Essential to granting the injunctive relief is the existence
including his credit card and billing statement. Two days later, upon reporting the matter to of an urgent necessity for the writ in order to prevent serious damage. A TRO issues only
the credit card company, he learned that a one-way airplane ticket was purchased online if the matter is of such extreme urgency that grave injustice and irreparable injury would
using his credit card for a flight to Milan in mid- August 2008. Upon extensive inquiry arise unless it is immediately issued. Based on Section 5, Rule 58 of the Rules of Court, an
with the airline company, Dante discovered that the plane ticket was under the name of one ex parte TRO may be issued based on the following: 1. It is issued only in matters of
Dina Meril. Dante approaches you for legal advice. a. What is the proper procedure to extreme urgency and the applicant will suffer grave injustice and irreparable injury; 2. It
prevent Dina from leaving the Philippines? shall be effective for only 72 hours counted from its issuance; 3. Within this original 72-
A: hour period, the issuing judge must conduct a summary hearing to determine the
(1) The filing of an appropriate criminal action cognizable by the RTC against Dina and proprietary of extending the TRO; and 4. In no case shall the total period of the TRO
the filing in said criminal action a Motion for the issuance of a Hold Departure Order; which shall include the original 72 hours exceed 20 days. Within the aforesaid 72-hours,
(2) thereafter, a written request with the Commissioner of the Bureau of Immigration for a the judge before whom the case is pending shall conduct a summary hearing to determine
Watch List Order pending the issuance of the Hold Departure Order should be filed; whether the TRO shall be extended until the application for preliminary injunction can be
(3) then, the airline company should be requested to cancel the ticket issued to Dina. b. heard. In no case shall the total period of effectivity of the TRO exceed 20 days, including
Suppose an Information is filed against Dina on August 12, 2008 and she is immediately the original 72 hours provided herein. Thus, the issuance of the ex parte 72 hours TRO
arrested. What pieces of electronic evidence will Dante have to secure in order to prove the upon compliance with the parameters above, shall be included in the computation of the
fraudulent online transaction? (2010 Bar) A: He will have to present (a) his report to the 20-day period. The same cannot be extended. After the lapsed 20 days period and no
bank that he lost his credit card; (b) that the ticket was purchased after the report of the lost injunction has been issued, the TRO becomes functus officio. The criterion above cited are
add; and (c) the purchase of one-way ticket. Dante should bring an original (or an absent in the case of Mrs. G. Hence, the RTC erred in the issuance of ex June 25, 2018)
equivalent copy) printout of: (a) the online ticket purchase using his credit card; (b) the
phone call log to show that he already alerted the credit card company of his loss; and (c)
his credit card billing statement bearing the online ticket transaction.

Q: Can a suit for injunction be aptly filed with the Supreme Court to stop the President of
the Philippines from entering into a peace agreement with the National Democratic Front?
(2003 Bar)
A: A suit for injunction cannot be filed with the Supreme Court to stop the President of the
Philippines from entering into a peace agreement with the National Democratic Front,
which is a purely political question (Madarang v. Santamaria,G.R. No. L- 13316,
December 11, 1917). The President of the Philippines is immune from suit. Q: May the
RTC issue injunction without bond? (2006 Bar) A: Yes, if the injunction issued is a final
injunction. Generally, however, a preliminary injunction may not be issued without the
posting of a bond, unless exempted by the trial court (Sec. 4 [b], Rule 58) or otherwise
provided for by law.

Q: An application for a writ of preliminary injunction with a prayer for a temporary

restraining order is included in a complaint and filed in a multi-sala RTC consisting of
Branches 1, 2, 3 and 4. Being urgent in nature, the Executive Judge, who was sitting in
Branch 1, upon the filing of the aforesaid application immediately raffled the case in the
presence of the judges of Branches 2, 3 and 4. The case was raffled to Branch 4 and judge
thereof immediately issued a temporary restraining order. Is the temporary restraining
order valid? Why? (2001, 2006 Bar)
A: No. It is only the Executive Judge who can issue immediately a temporary restraining
order effective only for seventy-two (72) hours from issuance. No other Judge has the right
or power to issue a temporary restraining order ex parte. The Judge to whom the case is
assigned will then conduct a summary hearing to determine whether the temporary
restraining order shall be extended, but in no case beyond 20 days, including the original
72- hour period. (Sec. 5, Rule 58)

Q: May a justice of a Division of the Court of Appeals issue a TRO? (2006 Bar)
A: Yes, a Justice of a Division of the Court of Appeals may issue a TRO, as authorized
under Rule 58 and by Section 5, Rule VI of the Internal Rules of Court of Appeals which
additionally requires that the action shall be submitted on the next working day to the
absent members of the division for their ratification, modification or recall. (Heirs of
Reyes v. Court of Appeals, G.R. Nos. 135180-81; 135425-26, August 16, 2000)
 9
3.RECEIVERSHIP GENERAL POWERS OF A RECEIVER
Subject to the control of the court in which the action is pending, a receiver shall have the power
Proper only if the property subject of litigation is in danger of being destroyed(applicable to to:
both plaintiff and defendant).But if subject is sum of money, then receivership is not proper.
Receiver cannot be appointed ex parte since court require applicant to file a bond executed 1. Bring and defend actions in his own name in his capacity as receiver;
to the party against whom the application is presented.
2. Take and keep possession of the property subject of the controversy;
WHEN RECEIVER MAY BE APPOINTED: 3. Receive rents;
a. Party has an interest in the property or fund subject of the action and such is in 4. Collect debts due to himself as receiver or to the fund, property, estate, person, or
danger of being lost, removed, or materially injured; corporation of which he is the receiver;
b. Action by mortgagee for foreclosure of mortgage when the property is in danger of 5. Compound for and compromise the same;
being wasted or materially injured and that its value is probably insufficient to
discharge the mortgage debt, OR that the parties have stipulated in the contract of 6. Make transfers;
mortgage; 7. Pay outstanding debts;
c. After judgment, to preserve the property during the pendency of the appeal, or to 8. Divide the money and other property that shall remain among the persons legally entitled
dispose of it to receive the same; and
4blue95: A vs B. Nanalo si B so property goes to him. A appeal.While on appeal, A 9. Generally to do such acts respecting the property as the court may authorize.
can file receivership on RTC (Even if appeal has already been perfected & court
has already loses jurisdiction but it may still do the ff (sec9,rule 41)):-issue orders 10.Invest funds in his hands, only by order of the court upon the written consent of all the
for protection of rights of parties w/c do not involve any matter litigated on appeal parties (Sec.6, Rule 59)
d. or to aid in execution when execution has been returned unsatisfied or the judgment
debtor refuses to apply his property to satisfy judgment, or to carry out the
judgment. 4BLUE95. No action may be filed by or against a receiver without leave of the court which
appointed him.
e. When appointing one is the most convenient and feasible means to preserve,
administer, or dispose of the property in litigation.
A receiver may be appointed in a partition proceeding where relations of the co-owners KINDS OF BONDS IN RECEIVERSHIP
are strained or where not satisfactory arrangement for administration can be accomplished.

The following are the kinds of bonds in receivership:

REQUIREMENTS BEFORE ISSUANCE OF AN ORDER APPOINTING A RECEIVER A. Applicant’s bond (Sec. 2, Rule 59)
The following are the requirements before the issuance of an order appointing a person as  Bond on appointment of the receiver
receiver:
 A bond executed to the party against whom the application is presented, in an amount to be fixed
1. Verified application for the appointment of a receiver based on any of the grounds enumerated by the court, to the effect that the applicant will pay such party all damages he may sustain by
in Section 1, Rule 59; and reason of the appointment of such receiver in case the applicant shall have procured such
2. Bond filed by the applicant and executed to the party against whom the application is presented, appointment without sufficient cause
in an amount to be fixed by the court, to the effect that the applicant will pay such party all Given before the issuance of the order of appointment
damages the latter may sustain by reason of the appointment of such receiver in case the applicant
should have procured the same without sufficient cause. (Sec. 2, Rule 59).
The court may, in its discretion, at any time after the appointment, require an additional bond as B. Additional bond (Sec. 2, Rule 59)
further security for such damages.
Bond on appointment of the receiver
 Given at any time after the appointment
WHEN RECEIVERSHIP MAY BE DENIED/LIFTED
 May be required by the court in its discretion
a. Appointment sought is without sufficient cause;
b. Adverse party files sufficient bond for damages;
C. Counterbond (Sec. 3, Rule 59)
c. Applicant or receiver’s bond is insufficient.
The application may be denied, or the receiver discharged, when the adverse party files a bond
4BLUE95.Both the applicant for the receivership and the receiver appointed must executed to the applicant, in an amount to be fixed by the court, to the effect that such party will
file separate bonds. pay the applicant all damages he may suffer by reason of the acts, omissions, or other matters
4BLUE95. Unauthorized contracts of a receiver do not bind the court in charge of specified in the application as ground for such appointment.
receivership. They are the receiver’s own contracts and are not recognized by the If the bond of the adverse party is found to be insufficient in amount or the surety or sureties
courts as contracts of receivership. (Pacific Merchandising Corporation v. thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after
Consolacion Insurance & Surety Co., G.R. No. L-30204, 1976) justification is not filed forthwith, the receiver shall be appointed or re- appointed, as the case may
be. (Sec. 5, Rule 59)

APPOINTMENT OF RECEIVER – DISCRETIONARY

The appointment of a receiver pendente lite, like the granting of an interlocutory D. Receiver’s bond (Sec. 4, Rule 59)
injunction, rests in the discretion of the court where the application is made which Bond executed to such person and in such sum as the court may direct, to the effect that he will
shall consider the entire circumstances of the case. As such, the action of the lower faithfully discharge his duties in the action or proceeding and obey the orders of the court
court in appointing or denying the appointment of a receiver pendente lite will not
be disturbed in appeal unless there has been a clear abuse. Given by the receiver before entering upon his duties

THE FOLLOWING ARE THE REQUISITES FOR RECEIVERSHIP: LIABILITY FOR DAMAGES
In order to determine which bond is liable for damages, it is important to identify the cause.
1. That the application for receivership is based on the grounds under Sec. 1 of Rule 59; If the damage is caused by reason of the appointment of the receiver, applicant is liable through its
bond (applicant’s bond). This must be claimed in the court where appointment of receivership is
2. That the properties being placed under receivership are those involved in the litigation. (Central made; cannot file a separate action.
Sawmills v. Alto Surety & Insurance, G.R. No. L-24508, 1969);
If the damage is caused by the negligence or acts of the receiver, receiver is liable through the
3. That the plaintiff must not be in the actual possession of the property being placed under receiver’s bond. This includes acts of mismanagement or fraud, i.e., fictitious, pays himself
receivership. (Calo v. Roldan, G.R. No. L-252, 1946); This is because there would be no reason instead of creditor. (Dela Riva v. Molina Salvado, G.R. No. L-10106, 1915)
for such appointment, for the owner and possessor of a property is more interested than other
persons in preserving and administering it. (Id.);
4. The rights of the parties must not depend on the pending determination of adverse claims of TERMINATION OF RECEIVERSHIP; COMPENSATION OF RECEIVER.
legal title to real property and one party is in possession. (Descallar v. Court of Appeals, G.R. No.
106473, 1993) Whenever the court, motu proprio or on motion of either party, shall determine that the necessity
for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle
Exception: Only when the property is in danger of being materially injured or lost, as by the
the accounts of the receiver, direct the delivery of the funds and other property in his possession to
prospective foreclosure of a mortgage thereon for non-payment of the mortgage loans
the person adjudged to be entitled to receive them, and order the discharge of the receiver from
despite the considerable income derived from the property, or if portions thereof are being
further duty as such. The court shall allow the receiver such reasonable compensation as the
occupied by third persons claiming adverse title thereto, may the appointment of a receiver
circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned,
be justified.
as justice requires.
The guiding principle for resorting to receivership is the prevention of imminent danger to the
property. If an action by its nature, does not require such protection or preservation, said remedy
cannot be applied for and granted. (Commodities Storage v. CA, G.R. No. 125008, 1997)
 10
4.REPLEVIN
WHEN APPLICATION MAY BE FILED
both a form of principal remedy and of a provisional relief. It may refer either to the action
itself, i.e., to regain the 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
A party may apply a writ of replevin to recover the possession of a personal property:
thing during the pendency of the action and hold it in pendente lite. (Rivera v. Vargas, G.R.
No. 165895, 2009) a. At the commencement of the action; or

SCENARIO: Party is asking at commencement of action that PERSONAL PROPERTY be b. At any time before defendant files answer. (Rule 60, Sec. 1)
placed in his custody as case is being heard. 4blue95 Note: there can be no replevin before the appellate court
a. Available only where the principal relief sought in the action is the recovery of
possession of personal property;
b. Can be sought only where the defendant is in the actual or constructive
REQUISITES OF REPLEVIN:
possession of the personal property involved (APPLICANT need not be the
owner of the property, it is enough that he has a right to its possession). (1) there must be an AFFIDAVIT reciting that the
c. Extends only to personal property capable of manual delivery; (a)applicant is owner or entitled to possession thereof.
d. Available to recover personal property even if the same is NOT being (b)that property is wrongfully detained by the adverse party
concealed, removed, or disposed of;
(c) property has not been distrained or taken for tax assessment or seized under a
e. Cannot be availed of if property is in custodia legis, as where is it under writ of execution or preliminary attachment or otherwise placed under custodia
attachment, or was seized under a search warrant or distrained for tax legis (or if so seized, that it is exempt from such seizure or custody)
assessment.
(d)actual market value and that
4blue95: Court jurisdiction is based on amount of property and also on the amount of
damages for unpaid rental.
4blue95:replevin could either BE IN REM (as with regard the property) or in (2) there must be a BOND (double the value of the property)
PERSONAM ( for unpaid rental) Applicant must give a replevin bond, executed to the adverse party and double the
value of the property. (Rule 60, Sec. 2); Note: A replevin bond is simply intended
to indemnify the defendant against any loss that he may suffer by being compelled
ENFORCEABILITY OF A WRIT OF REPLEVIN A writ of replevin issued by a Regional to surrender the possession of the disputed property pending the trial of the action.
Trial Court or a Municipal Trial Court may be enforced anywhere in the Philippines. (Fernandez (Alim v. CA, G.R. No. 93213, 1991)
v. International Corporate Bank, G.R. No. 131283, 1999)
Upon the filing of such affidavit and approval of the bond, the court shall issue an
order and corresponding writ of replevin describing the personal property alleged to
be wrongfully detained and requiring the sheriff forthwith to take such property
into his custody. (Sec. 3, Rule 60)

4blue95: upon filing of affidavit and bond, court shall issue an order and the
corresponding writ of replevin describing the personal property alleged to be
wrongfully detained and requiring sheriff forthwith to take such property into his
custody.
Property will be on sheriff’s custody for 5 days, why? Since he will wait for the
adverse party to post a counter bond(double the amount from that of the property)
and if he will post then property will go to him & serve upon plaintiff a copy
thereof (MANDATORY)
But if adverse party will not post a bond (or bond is insufficient), the property shall
be delivered to plaintiff.
If for any reason that property is not delivered to plaintiff, the sheriff must return it
to the adverse party.

4blue95: aside from posting a counterbond, adverse party may object to the
sufficiency of the applicant’s bond or surety. But he is not allowed to file motion to
question the application for replevin is insufficient (unlike in injunction &
attachment where you can file motion due to insufficiency)
4blue95: third party may claim over the property subject of replevin same way in
execution and attachment.
4blue95: plaintiff who obtains possession of property by a writ of replevin does not
acquire absolute title thereto, nor does defendant acquire such title by re-bonding
the property as they only hold property subject to the final judgment in the action.
Surety’s liability under the replevin bond should be included in final judgment to
prevent duplicity of suits or proceedings.

IF MAIN CASE IS DISMISSED, THE WRIT’S EXISTENCE AND EFFICACY DISSOLVES

EFFECT OF WRIT OF REPLEVIN THAT HAS BEEN IMPROPERLY SERVED

Service of the writ upon the adverse party is mandatory in line with the constitutional guaranty on
procedural due process and as safeguard against unreasonable searches and seizures. The writ or
order of replevin should comply with all the requirements as to matters of form or contents
prescribed by the Rules of Court. The writ must also satisfy proper service in order to be valid and
effective, i.e., it should be directed to the officer who is authorized to serve it; and it should be
served upon the person who not only has the possession or custody of the property involved but
who is also a party or agent of a party to the action. Consequently, a trial court is deemed to have
acted without or in excess of its jurisdiction with respect to the ancillary action of replevin if it
seizes and detains a personalty on the basis of a writ that was improperly served.

The proper remedy of the person being served with the writ should be to file a motion to quash the
writ of replevin or a motion to vacate the order of seizure. It now becomes imperative for the trial
court to restore the parties to their former positions by returning the seized property to petitioner
and by discharging the replevin bond filed by respondent. (Rivera v. Vargas, G.R. No. 165895,
2009).
 11
5.SUPPORT PENDENTE LITE

APPLICATION. - At the commencement of the proper action or proceeding, or at any

time prior to the judgment or final order, a verified application for support pendente lite
may be filed by any party stating the grounds for the claim and the financial conditions of
both parties, and accompanied by affidavits, depositions or other authentic documents in
support thereof.

An application for support pendente lite may be filed at any time prior to judgment or final
order.

Hearing. - After the comment is filed, or after the expiration of the period for its filing, the
application shall be set for hearing not more than three (3) days thereafter. The facts in
issue shall be proved in the same manner as is provided for evidence on motions.

4BLUE95: failure to comply with an order granting support pendent elite may warrant the
issuance of an order of execution against the non-complying party.
He may likewise be liable for contempt( if X don’t want to give support,then pwede siya
makulong)

4LBUE95: support pendent elite is interlocutory, the same may be modified at any stage of
the proceedings.

Remedies of party who was erroneously compelled to give support:

1. apply for an order for such reimbursement by the recipient on motion in the
trial court in the same case unless such restitution is already included in the
judgment.

2. failing therein, file a separate action for reimbursement against the person
legally obliged to give support.

BAR QUESTIONS

Receivership

Q: Joaquin filed a complaint against Jose for the foreclosure of a mortgage of a furniture
factory with a large number of machinery and equipment. During the pendency of the
foreclosure suit, Joaquin learned from reliable sources that Jose was quietly and gradually
disposing of some of his machinery and equipment to a businessman friend who was also
engaged in furniture manufacturing such that from confirmed reports Joaquin gathered, the
machinery and equipment left with Jose were no longer sufficient to answer for the latter’s
mortgage indebtedness. In the meantime, judgment was rendered by the court in favor of
Joaquin but the same is not yet final. Knowing what Jose has been doing. If you were
Joaquin’s lawyer, what action would you take to preserve whatever remaining machinery
and equipment are left with Jose? Why? (2001 Bar)
A: To preserve whatever remaining machinery and equipment are left with Jose, Joaquin's
lawyer should file a verified application for the appointment by the court of one or more
receivers. The Rules provide that receivership is proper in an action by the mortgagee for
the foreclosure of a mortgage when it appears 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. (Sec. 1[b], Rule 59)

Replevin

Q: What is replevin? (1999 Bar)

A: Replevin or delivery of personal property consists in the delivery, by order of the court,
of personal property by the defendant to the plaintiff, upon the filing of a bond.(Calo v.
Roldan, G.R. No. L-252, March 30, 1946)

Support pendente lite

Q: Before the RTC, A was charged with rape of his 16-year old daughter. During the
pendency of the case, the daughter gave birth to a child allegedly as a consequence of the
rape. Thereafter, she asked the accused to support the child, and when he refused, the
former filed a petition for support pendente lite. The accused, however, insists that he
cannot be made to give such support arguing that there is as yet no finding as to his guilt.
Would you agree with the trial court if it denied the application for support pendente lite?
Explain. (1999, 2001)
A: No. The provisional remedy of support pendente lite may be granted by the RTC in the
criminal action for rape. In criminal actions where the civil liability includes support for
the offspring as a consequence of the crime and the civil aspect thereof has not been
waived, reserved or instituted prior to its filing, the accused may be ordered to provide
support pendente lite to the child born to the offended party allegedly because of the crime.
(Sec. 6, Rule 61)
 12

PROVISIONAL REMEDIES UNDER SPECIAL LAWS

1. PROVISIONAL REMEDIES OF THE FAMILY COURTS (R.A. 8369) 3. ANTI-VIOLENCE AGAINST WOMEN AND CHILDREN ACT (R.A.9262)

Restraining Order: Applicability of Protection Orders to Criminal Cases

The Family Court may issue a restraining order: Provisions on protection orders shall be applicable in impliedly instituted with the criminal actions
involving violence against women and their children. (Sec. 22, R.A. 9262)
1. Upon a verified application for relief of abuse by:
a. The complainant; or Purpose of a Protection Order
b. The victim for relief from abuse.
The purpose of a protection order is to prevent further acts of violence against a woman or her
2. The application is based on the ground of violence among immediate family members living in child and granting other necessary relief. The relief granted should serve the purpose of:
the same domicile or household; and 1. Safeguarding the victim from further harm;
2. Minimizing any disruption in the victim's daily life; and
3. Such order is directed against the accused or defendant. (Sec. 7, R.A. No. 8369) 3. Facilitating the opportunity and ability of the victim to independently regain control over her
life. (Sec. 8, R.A. 9262)
Other Reliefs That May be Awarded:
Kinds of Protection Orders
The Family Court may also:
1. Barangay protection order (BPO);
a. Order the temporary custody of children in all civil actions for their custody; 2. Temporary protection order (TPO); and
3. Permanent protection order (PPO).
b. Order support pendente lite, including deduction from the salary and use of conjugal
home and other properties in all civil actions for support Note: Such reliefs shall be granted even in the absence of a decree of legal separation or
annulment or declaration of absolute nullity of marriage.

2. ANTI-MONEY LAUNDERING ACT (R.A. 9160, AS AMENDED) Who May file Petition for Protection Orders

Authority to Issue Freeze Order a. The offended party;

b. The parents or guardians of the offended party;
A freeze order refers to a provisional remedy aimed at blocking or restraining monetary c. The ascendants, descendants or collateral relatives within the fourth civil degree of
instruments or properties in any way related to an unlawful activity, as herein defined, from being consanguinity or affinity;
transacted, withdrawn, deposited, transferred, removed, converted, concealed, or otherwise moved d. Officers or social workers of the DSWD or social workers of local government units
or disposed without affecting the ownership thereof. (Sec. 1 (mm), Rule 2, 2018 IRR of the (LGUs);
AMLA) e. Police officers, preferably those in charge of women and children's desks;
f. The Punong Barangay or Barangay Kagawad;
Monetary instruments or properties related to an unlawful activity refers to: g. The lawyer, counselor, therapist or healthcare provider of the petitioner; or
h. At least 2 concerned responsible citizens of the city or municipality where the
i. All proceeds of an unlawful activity; violenceagainst women and their children occurred and who has personal knowledge of
the offense committed. (Sec. 9, R.A. 926
ii. All instrumentalities of an unlawful activity, including all moneys, expenditures, payments,
disbursements, costs, outlays, charges, accounts, refunds, and other similar items for the financing,
operations, and maintenance of any unlawful activity;

iii. All monetary instruments or property, including monetary, financial or economic means, WHERE TO APPLY FOR A PROTECTION ORDER
devices, accounts, documents, papers, items, objects or things, used in or having any relation to
any unlawful activity or money laundering, regardless of the current owner or possessor, and
circumstances of ownership or acquisition; and A. BPO – in accordance with the rules on venue under Section 409 of the Local Government
Code, to wit:
iv. For purposes of freeze order and bank inquiry order: related and materially-linked accounts. a. Those involving residents of the same barangay, then in the Punong Barangay
(Sec. 1 (fff), Rule 2, 2018 IRR of the AMLA) therein;
b. Those involving actual residents of different barangays within the same city or
The Court of Appeals may issue a freeze order of monetary instrument or property upon: municipality shall be brought in the barangay where the respondent or any of the
respondents actually resides, at the election of the complainant;
1. A verified ex parte petition by the Anti-Money Laundering Council (AMLC); and
If the parties reside in different municipalities or cities, the Punong Barangay or
2. After determination that probable cause exists that any monetary instrument or property is in any kagawad of the barangay where the victim-survivor resides shall assist the
any way related to an unlawful activity as defined in Section 3(i) of the R.A. 9160, as amended. victim-survivor/applicant in filing an application for a Protection Order from the
(Sec. 10, R.A. 9160, as amended) court within 2 hours from the request. (Sec. 15, IRR of R.A. 9262).

The freeze order shall be effective immediately, which shall not exceed 6 months depending upon The place of residence or location of the victimsurvivor/petitioner may include the
the circumstances of the case. (Id.) place where the victim-survivor temporarily resides or where she sought
refuge/sanctuary to escape from and avoid continuing violence from the
if there is no case filed against a person whose account has been frozen within the period respondent. (Id.).
determined by the court, the freeze order shall be deemed ipso facto lifted. (Id.)

In any case, the court should act on the petition to freeze within 24 hours from filing of the
petition. If the application is filed a day before a nonworking day, the computation of the 24-hour B. TPO or PPO – in the Family Court in the place of residence of the petitioner, if any.
period shall exclude the nonworking days. (Id.) Otherwise, the application shall be filed with the RTC or MeTC/MTC with territorial
jurisdiction over the place of residence of the petitioner. (Sec. 10, R.A. 9262)
No court shall issue a temporary restraining order or a writ of injunction against any freeze order,
except the Supreme Court. (Id.) The place of residence of the victim-survivor may include the place where she
temporarily resides or where she sought refuge/sanctuary to escape from and avoid
A person whose account has been frozen may file a motion to lift the freeze order and the court continuing violence from the respondent. (Sec. 21, R.A. 9262)
must resolve this motion before the expiration of the freeze order. (Id.)

Procedure for the Issuance of a Freeze Order

1. The AMLC, through the Solicitor General, files an ex parte application for a freeze order with
the Court of Appeals (Sec. 2.1, Rule 2, 2018 IRR of the AMLA);

2. The application shall be in the form of a verified petition accompanied by a certificate against
forum shopping, personally signed by an official of the AMLC (Sec. 45, A.M. No. 05-11- 04-SC);

3. After determination that probable cause exists that any monetary instrument or property is in
any way related to an unlawful activity, the Court of Appeals may issue a freeze order, which shall
be effective immediately, for a period of 20 days (Sec. 2.5, Rule 2, 2018 IRR of the AMLA);

4. Before the expiration of the 20-day freeze order, the Court of Appeals shall conduct a summary
hearing, with notice to the parties, to determine whether or not to modify or lift the freeze order, or
to extend its effectivity. Pending resolution by the Court of Appeals, the freeze order shall remain
effective. (Sec. 2.7, Rule 2, 2018 IRR of the AMLA);

5. The freeze order shall take effect immediately and shall remain effective for a total period not
exceeding 6 months. (Sec. 2.8, Rule 2, 2018 IRR of the AMLA);
 13
TPO
HOW TO APPLY FOR A PROTECTION ORDER
It refers to the protection order issued by the court on the date of filing of the application after ex
1. The application for a protection order must be: parte determination that such order should be issued. (Sec. 15, R.A. 9262)
i. In writing; :
ii. Signed by the applicant; and A TPO may grant some or all reliefs available for a protection order. It is effective for thirty 30
iii. Verified under oath by the applicant. days. (Id.)

2. It may be filed as an independent action or as incidental relief in any civil or criminal case the The court shall schedule a hearing on the issuance of a PPO prior to or on the date of the
subject matter or issues thereof partakes of a violence as described in Sec. 5 of R.A. 9262. expiration of the TPO. (Id.)

3. A standard protection order application form, written in English with translation to the major PPO
local languages, shall be made available to facilitate applications for protections order and shall
contain the following information: It is the protection order issued by the court after notice and hearing. A PPO may grant some or all
i. names and addresses of petitioner and respondent; reliefs available for a protection order. It shall be effective until revoked by a court upon
ii. description of relationship between petitioner and respondent; application of the person in whose favor the order was issued. (Sec. 16, R.A. 9262)
iii. a statement of the circumstances of the abuse;
iv. description of the reliefs requested by petitioner as specified in Section 19 herein; Respondents non-appearance despite proper notice, or his lack of a lawyer, or the nonavailability
v. request for counsel and reasons for such; of his lawyer shall not be a ground for rescheduling or postponing the hearing on the merits of the
vi. request for waiver of application fees until hearing; and issuance of a PPO. If the respondent appears without counsel on the date of the hearing on the
vii. an attestation that there is no pending application for a protection order in another court. PPO, the court shall appoint a lawyer for the respondent and immediately proceed with the
hearing. In case the respondent fails to appear despite proper notice, the court shall allow ex parte
4. If the applicant is not the victim, the application must be accompanied by an affidavit of the presentation of the evidence by the applicant and render judgment on the basis of the evidence
applicant attesting to: presented. (Id.)
i. The circumstances of the abuse suffered by the victim; and
ii. The circumstances of consent given by the victim for the filing of the application. The court shall allow the introduction of any history of abusive conduct of a respondent even if the
same was not directed against the applicant or the person for whom the applicant is made. (Id.)
5. When disclosure of the address of the victim will pose danger to her life, it shall be so stated in The court shall not deny the issuance of protection order on the basis of the lapse of time between
the application. (Sec. 11, R.A. 9262) the act of violence and the filing of the application. (Id.) Regardless of the conviction or acquittal
of the respondent, the Court must determine whether or not the PPO shall become final. Even in a
An application for protection order filed with a court shall be considered an application for both a dismissal, a PPO shall be granted as long as there is no clear showing that the act from which the
TPO and PPO. (Id.) order might arise did not exist. (Id.)

BPO
Reliefs Included in Protection Orders
It is a protection order issued by the Punong Barangay ordering the perpetrator to desist from
committing the following acts:
i. Prohibition of the respondent from threatening to commit or committing, personally or through a. Causing physical harm to the woman or her child; or
another, any of the acts of violence under Sec. 5 of R.A. 9372; b. Threatening to cause the woman or her child physical harm. (Secs 5 (a) & (b), 14, R.A. 9262)

ii. Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise
communicating with the petitioner, directly or indirectly; The reliefs that may be granted by the BPO are:

iii. Removal and exclusion of the respondent from the residence of the petitioner, regardless of 1. Prohibition of the respondent from committing the acts mentioned above;
ownership of the residence, either temporarily for the purpose of protecting the petitioner, or
permanently where no property rights are violated, and if respondent must remove personal effects 2. Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise
from the residence, the court shall direct a law enforcement agent to accompany the respondent communicating with the victim-survivor, directly or indirectly. (Sec. 13, IRR of R.A. 9262)
has gathered his things and escort respondent from the residence;
It is issued by the Punong Barangay on the date of filing after ex parte determination of the basis
iv. Directing the respondent to stay away from petitioner and designated family or household of the application. If the Punong Barangay is unavailable to act on the application for a BPO, the
member at a distance specified by the court, and to stay away from the residence, school, place of application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a
employment, or any specified place frequented by the petitioner and any designated family or Barangay Kagawad, the order must be accompanied by an attestation by the Barangay Kagawad
household member; that the Punong Barangay was unavailable at the time for the issuance of the BPO. (Sec. 14, R.A.
9262)
v. Directing lawful possession and use by petitioner of an automobile and other essential personal
effects, regardless of ownership, and directing the appropriate law enforcement officer to The victim-survivor/petitioner may be accompanied by any non-lawyer advocate in the
accompany the petitioner to the residence of the parties to ensure that the petitioner is safely proceedings before the Punong Barangay. (Sec. 14, IRR of R.A. 9262) The BPO shall state the last
restored to the possession of the automobile and other essential personal effects, or to supervise known address of the respondent, the date and time of issuance, and the protective remedies
the petitioner's or respondent's removal of personal belongings; prayed for by the victimsurvivor/petitioner. The BPO shall be effective for 15 days. (Id.)

vi. Granting a temporary or permanent custody of a child/children to the petitioner; Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad
shall personally serve a copy of the same to the respondent, or direct any barangay official to
vii. Directing the respondent to provide support to the woman and/or her child if entitled to legal effect its personal service. It is deemed served upon:
support. Notwithstanding other laws to the contrary, the court shall order an appropriate
percentage of the income or salary of the respondent to be withheld regularly by the respondent's a. Receipt thereof by the respondent;
employer for the same to be automatically remitted directly to the woman. Failure to remit and/or b. Receipt by any adult who received the BPO at the address of the respondent;
withhold or any delay in the remittance of support to the woman and/or her child without c. In case the respondent or any adult at the residence of the respondent refuses, for whatever
justifiable cause shall render the respondent or his employer liable for indirect contempt of court; cause, to receive the BPO, by leaving a copy of the BPO at the said address in the presence of at
least 2 witnesses. (Id.).
viii. Prohibition of the respondent from any use or possession of any firearm or deadly weapon
and order him to surrender the same to the court for appropriate disposition by the court, including The barangay official serving the BPO must issue a certification setting forth the manner, place
revocation of license and disqualification to apply for any license to use or possess a firearm. If and date of service, including the reasons why the same remain unserved. (Id.).
the offender is a law enforcement agent, the court shall order the offender to surrender his firearm Within 24 hours after a BPO is issued, the Punong Barangay, or in her/his absence or inability,
and shall direct the appropriate authority to investigate on the offender and take appropriate action any available Barangay Kagawad shall assist the victim-survivor/petitioner in filing for an
on matter; application for a TPO or PPO with the nearest court in the place of residence of the victim-
survivor. (Id.).
ix. Restitution for actual damages caused by the violence inflicted, including, but not limited to, All BPOs shall be enforceable within the barangay which issued the order. The issuance of a BPO
property damage, medical expenses, childcare expenses and loss of income; or the pendency of an application for a BPO shall not preclude the victim-survivor/petitioner from
applying for, or the court from granting, a TPO or PPO. However, where a Temporary Protection
x. Directing the DSWD or any appropriate agency to provide petitioner may need; and has already been granted by any court, the barangay official may no longer issue a BPO. (Sec. 14,
IRR of R.A. 9262).
xi. Provision of such other forms of relief as the court deems necessary to protect and provide for Violation of a BPO shall be punishable by imprisonment of 30 days without prejudice to any other
the safety of the petitioner and any designated family or household member, provided petitioner criminal or civil action that the offended party may file for any of the acts committed. (Sec. 21,
and any designated family or household member consents to such relief. R.A. 9262)

A complaint for a violation of a BPO must be filed directly with any MeTC/MTC that has
territorial jurisdiction over the barangay that issued the BPO. (Id.)
 14
4. HUMAN SECURITY ACT (R.A. 9372) 5. PRECAUTIONARY HOLD DEPARTURE ORDERS

Restriction on Travel Nature of a Precautionary Hold-Departure Order (PHDO)

Travel outside the municipality or city, without the authorization of the court shall be deemed a It is a written order of the court commanding the Bureau of Immigration to prevent any attempt by
violation of the terms and conditions of his bail when the following are satisfied: a person suspected of a crime to depart from any Philippine airport or port. (Sec. 1, A.M. No. 18-
07- 05-SC)
1. An application for the limitation is made by the prosecutor;
2. The evidence of guilt against the accused is not strong; A.M. No. 18-07-05-SC authorizes the issuance of a PHDO even prior to the filing of an
3. The person charged with the crime of terrorism or conspiracy to commit information in court when justified under the circumstances. This recognizes the fact that the
terrorism is entitled to bail and is granted the same; and processes leading to the filing of a case usually take a while before they are concluded such that by
4. The limitation is in the interest of national security and public safety. (Sec. 26, the time the information is filed in court, the accused may have already left the country and is now
R.A. 9372) beyond the reach of courts. (Garcia v. Sandiganbayan, G.R. Nos. 205904-06, 2018)

Scope of Restriction PHDO are issued ex parte in cases involving crimes where:
Travel can only be done WITHIN the municipality or city where the accused resides or where the a. The minimum of the penalty prescribed by law is at least six (6) years and one (1) day; or
case is pending. (Id.) b. The offender is a foreigner, regardless of the imposable penalty. (Sec. 1, A.M. No. 18-07-05-
SC).
Effect of Violation of the Restriction
The bail shall be forfeited as provided under the Rules of Court. (Id.) Venue for Filing

House arrest A. Any RTC within whose territorial jurisdiction the alleged crime was committed, except:
The accused may also be placed under house arrest at his or her usual place of residence.
a. For compelling reasons, any RTC within the judicial region where the crime was
Restrictions when on House Arrest committed if the place of the commission of the crime is known;
Accused may not use telephones, cellphones, emails, computers, the internet or other means of
communications with people outside the residence until otherwise ordered by the court. (Id.). b. RTCs in Manila City, Quezon City, Cebu City, Iloilo City, Davao City, and Cagayan de
Oro City for applications filed by the prosecutor based on complaints instituted by the NBI,
Termination of Restrictions regardless of where the alleged crime was committed. (Sec. 2, A.M. No. 18- 07-05-SC);

a. When the accused is acquitted; B. Sandiganbayan, in cases falling within its jurisdiction. (Sec. 3, Rule VIII, 2018 Revised Internal
b. When the case is dismissed; Rules of the Sandiganbayan).
c. Upon the discretion of the court; or d. Upon motion of the prosecutor or accused. (Sec. 26,
R.A. 9372).
Requirements for filing an application for PHDO
1. A motion by the complainant in a criminal complaint filed before the office of the city or
Examination of Bank Deposits, Accounts, and Records provincial prosecutor;
2. Preliminary determination of probable cause based on the complaint and attachments;
The justices of the Court of Appeals, designated as a special court handling anti-terrorism cases, 3. Application filed by a prosecutor or the Office of the Ombudsman in the name of the People of
may authorize in writing any police or law enforcement officer, and the members of his/her team the Philippines; and
duly authorized in writing by the AntiTerrorism Council to: 4. Complaint-affidavit and its attachments, personal details, passport number and a photograph of
a. Examine, or cause the examination of, the deposits, placements, trust accounts, the respondent, if available. (Sec. 3, A.M. No. 18-07-05-SC)
assets and records in a bank or financial institution; and
b. Gather or cause the gathering of any relevant information about such deposits, Grounds for Issuance
placements, trust accounts, assets, and records from a bank or financial institution.
(Sec. 27, R.A. 9372) 1. There must be a determination by the judge or a Division of the Sandiganbayan, in whose court
the application is filed, that there is: i. Probable cause, and ii. High probability that respondent will
Before granting such authorization, the justices must satisfy themselves, in a hearing called for the depart from the Philippines to evade arrest and prosecution of crime.
purpose, of the existence of a probable cause that:
2. The judge or Division shall personally examine under oath or affirmation, in the form of
1. A person charged with or suspected of the crime of terrorism or, conspiracy to commit searching questions and answers in writing, the applicant and the witnesses he or she may produce
terrorism; on facts personally known to them and attaching to the record their sworn statements. (Sec. 4,
2. Of a judicially declared and outlawed terrorist organization, association, or group of A.M. No. 18-07-05-SC)
persons; and
3. Of a member of such judicially declared and outlawed organization, association, or Preliminary Finding of Probable Cause
group of persons. (Id.).
The finding of probable cause by the judge or Division, which is solely based on the complaint
Process of the Authorization for Examination and is specifically issued for the purpose of issuing the PHDO, is without prejudice to the
resolution of the prosecutor or the Office of the Ombudsman. (Sec. 5, A.M. No. 18-07-05-SC).
I. An ex parte application shall be filed by police or a law enforcement official who has been duly Dismissal of the criminal complaint by the prosecutor or the Office of the Ombudsman for lack of
authorized in writing to file such ex parte application by the Anti-Terrorism Council to file such probable cause is a ground for the lifting of the PHDO with the RTC or Division that issued the
ex parte application; order. (Id.)
The case with the court that issued the PHDO, on motion of the prosecutor, shall be consolidated
II. The application shall be filed in the Court of Appeals division designated as a special court to with the court where the criminal information is filed.
handle anti-terrorism cases;

III. An examination under oath or affirmation of the applicant and, the witnesses he may produce Form and Validity of PHDO
to establish the facts that will justify the need and urgency of examining and freezing the bank
deposits, placements, trust accounts, assets, and records of those whose accounts may be The PHDO shall contain:
examined, is conducted; and 1. The name of the respondent;
2. His or her alleged crime;
IV. The special court, in writing, shall grant the authorization to any law enforcement officer and 3. The time and place of its commission;
the members of his/her team duly authorized by the Anti-Terrorism Council upon: 4. The name of the complainant; and
1. Satisfaction of the need and urgency of examining and freezing the bank deposits, 5. A copy of the application, personal details, passport number, photograph of the
placements, trust accounts, assets, and records; and respondent, if available. (Sec. 6, A.M. No. 18- 07-05-SC)

2. Satisfaction of the probable cause that: The order shall be valid until lifted by the issuing court as may be warranted by the result of the
i. A person charged with or suspected of the crime of terrorism or, conspiracy to commit preliminary investigation. (Id.)
terrorism;
ii. Of a judicially declared and outlawed terrorist organization, association, or group of
persons; and
iii. Of a member of such judicially declared and outlawed organization, association, or
group of persons. (Secs. 27 & 28, R.A. 9372) Lifting of the Order

4blue95 Note: The bank or financial institution concerned, shall not refuse to allow such Upon verified motion of respondent before the issuing court for the temporary lifting of PHDO
examination or to provide the desired information, when so, ordered by and served with the alleging that:
written order of the Court of Appeals. (Sec. 27, R.A. 9372) a. Based on the complaint-affidavit and the evidence that he or she will present, there is
doubt that probable cause exists to issue the PHDO; or
2022 Note: the provisions of the human security act shall prevail over the Secrecy of Bank b. He or she is not a flight risk. (Sec. 7, A.M. No. 18-07-05-SC)
Deposits Act.
The lifting of the PHDO is without prejudice to the resolution of the preliminary investigation
against the respondent. (Id.)

Bond

Respondent is required to post a bond in an amount to be determined by the court, subject to the
conditions set forth in the Order granting the temporary lifting of the PHDO. (Sec. 8, A.M. No.
18-07-05-SC)
 15
6. FINANCIAL REHABILITATION AND INSOLVENCY ACT (R.A. 10142)

Stay or Suspension Order

Stay or Suspension Order shall refer to an order issued in conjunction with the commencement
order that shall:
1. Suspend all actions or proceedings, in court or otherwise, for the enforcement of claims
against the debtor;
2. Suspend all actions to enforce any judgment, attachment or other provisional remedies
against the debtor;
3. Prohibit the debtor from selling, encumbering, transferring or disposing in any manner
any of its properties except in the ordinary course of business; and
4. Prohibit the debtor from making any payment of its liabilities outstanding as of the
commencement date except as may be provided herein. (Sec. 16 (q), R.A. 10142)

Exceptions to the Stay Order:

The Stay or Suspension Order shall not apply to:

a. Cases already pending appeal in the Supreme Court as of commencement date;
b. Cases pending or filed at a specialized court or quasi-judicial agency;
c. Enforcement actions against sureties and other persons solidarily liable with the debtor,
and third party or accommodation mortgagors as well as issuers of letters of credit, unless
the property subject of the third party or accommodation mortgage is necessary for the
rehabilitation of the debtor as determined by the court upon recommendation by the
rehabilitation receiver;

d. Action of customers or clients of a securities market participant to recover moneys and

securities entrusted to the latter in the ordinary course of the latter's business as well as any
action of such securities market participant or the appropriate regulatory agency or
selfregulatory organization to pay or settle such claims or liabilities;

e. Actions of a licensed broker or dealer to sell pledged securities of a debtor pursuant to a

securities pledge or margin agreement for the settlement of securities transactions;

f. Clearing and settlement of financial transactions through the facilities of a clearing agency
or similar entities duly authorized, registered and/or recognized by the appropriate
regulatory agency like the Bangko Sentral ng Pilipinas (BSP) and the SEC as well as any
form of actions of such agencies or entities to reimburse themselves for any transactions
settled for the debtor; and

g. Criminal action against the individual debtor or owner, partner, director or officer of a
debtor. (Sec. 18, R.A. 10142)

Rehabilitation Receiver

Upon the commencement of the rehabilitation proceedings through the issuance of a

Commencement Order pursuant to a court supervised rehabilitation, a rehabilitation receiver shall
be appointed. (Sec. 16 (h), R.A. 10142)

The rehabilitation receiver shall be deemed an officer of the court with the principal duty of
preserving and maximizing the value of the assets of the debtor during the rehabilitation
proceedings, determining the viability of the rehabilitation of the debtor, preparing and
recommending a Rehabilitation Plan to the court, and implementing the approved Rehabilitation
Plan. (Sec. 31, R.A. 10142)

Management During Rehabilitation

The rehabilitation receiver shall not take over the management and control of the debtor. However,
all disbursements, payments or sale, disposal, assignment, transfer or encumbrance of property, or
any other act affecting title or interest in property, shall be subject to the approval of the
rehabilitation receiver and/or the court. (Id.)

Exceptions:

a. Actual or imminent danger of dissipation, loss, wastage or destruction of the debtor's

assets or other properties;
b. Paralyzation of the business operations of the debtor; or
c. Gross mismanagement of the debtor, or fraud or other wrongful conduct on the part of, or
gross or willful violation of this Act by, existing management of the debtor or the owner,
partner, director, officer or representative/s in management of the debtor.

In which case, the court may appoint:

a. The rehabilitation receiver to assume the powers of management of the debtor; or
b. A management committee that will undertake the management of the debtor. (Sec. 36,
R.A. 10142).

"Equality is Equity" Principle

During rehabilitation receivership, the assets are held in trust for the equal benefit of all creditors
to preclude one from obtaining an advantage or preference over another by the expediency of an
attachment, execution or otherwise.
When a corporation threatened by bankruptcy is taken over by a receiver, all the creditors should
stand on an equal footing. Not anyone of them should be given any preference by paying one or
some of them ahead of the others. This is precisely the reason for the suspension of all pending
claims against the corporation under receivership. Instead of creditors vexing the courts with suits
against the distressed firm, they are directed to file their claims with the receiver who is a duly
appointed officer of the SEC. (New Frontier Sugar Corporation v. Regional Trial Court, Br. 39,
Iloilo City, G.R. No. 165001, 2007)