R U L E 60

PAGE 42PROVISIONAL REMEDIES (Rule 60)

R U L E 60

REPLEVINUnder the previous rule, it is entitled "delivery of personal property". But its popular term is replevin.

Q: What is the main action here?

A: The main action is the recovery of possession of personal property.

At the commencement of the main action at any time before answer, the plaintiff may pray for an order, for the delivery of the property to him, meaning, he will ask for the issuance of a writ of seizure or writ of replevin. So, replevin is a term that could be used to describe the main action or to describe a provisional remedy.

This was stated by the SC in the recent case of

BA Finance Corp. vs. CA

253 S 102

(July 05, 1996)

According to Justice Vitug, replevin as understood is both a form of principal remedy and a provisional remedy. It may refer either to the action itself, that is to regain the possession of personal property or to the provisional remedy to disallow the plaintiff to retain the thing during the pendency of the action. The actionis possessory nature, being to determine who has the right to possession. Replevin is usually described as a mixed action, being partly in rem and personam. In rem in so far as the recovery of specific personal property is concerned and in personam as regard to damages involved because damages are also sought in the pleadings.

Section 1. Application - A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided.

Q: When do you seek this provisional remedy?A: Under section 1, at the commencement of the action or at anytime before answer.

So very limited. It is shorter. If you look at the old Rules, it provides for at the commencement of the action and at anytime before JUDGMENT and in the new rules, it's anytime before answer.

Again, the main action is recovery of personal property.

Example: Somebody borrowed your personal property. Ayaw isauli. The procedure is to file a case to recover possession of the personal property and in the meantime that the case is going on, you can apply for a provisional remedy of replevin.

Section 2. Affidavit and bond.-The applicant must show by his own affidavit or that of some other person who personally knows the facts:

a. That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;

b. That the property is wrongfully detainedby the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief;

c. That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from suchseizure or custody; and

d. The actual market value of the property.The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action.

Q: What are the ESSENTIAL REQUISITES OF REPLEVIN ?

1.) SWORN AFFIDAVIT executed by the applicant or some other persons who personally knows the fact alleging the essential allegations as stated in Section 2, a to d.

Q: What does entitled to the property mean under letter a?

A: The applicant here is not the owner but he is entitled to the property.

Example: A sold a car to B on installment basis. B, now the owner mortgaged the car to C. B failed to pay A. So, A became an unpaid seller and one of his remedies is to file a foreclosure proceeding. How can A get the possession of the property? File a provisional remedy of replevin. A in this case is no longer the owner of the property but he is entitled to the property.

There is a slight change in par. c compared to the previous Rule. In par. c, the affiant/applicant must allege under oath that the property has not been distrained or taken for a tax assessment or a fine pursuant to law or seized under a writ of execution or preliminary attachment or otherwise placed under custodia legis.

The addition is: otherwise placed under custodia legis.

And the last allegation is that the affidavit must allege the actual market value of the property. They added the word "market value". Before it is only value.

Q: Can the court take cognizance of a replevin suit considering that the object was the recovery of lumber seized and forfeited by law enforcement agents of the DENR pursuant to P.D. 705?

A: Answer is in the case of Dy vs. CA

DY vs CA

March 9, 1999 (304 SCRA 331)

FACTS: Two trucks with Plate Nos. KAK-542 and KBL-214 and loaded with lumber approached the checkpoint. They were flagged down by the operatives. Forester Resurreccion Maxilom of the DENR issued a temporary seizure order and a seizure receipt for the two vehicles and their cargo consisting of several pieces of lumber . On October 20, 1993, more than two months after the lumber had been forfeited, petitioner, claiming to be the owner of the lumber, filed a suit for replevin in the Regional Trial Court of Butuan City (Branch 5) for its recovery. The next day, October 21, 1993, the trial court issued a preliminary writ of replevin.

HELD: The appeal is without merit. The rule is that a party must exhaust all administrative remedies before he can resort to the courts. In a long line of cases, we have consistently held that before a party may be allowed to seek the intervention of the court, it is a pre-condition that he should have availed himself of all the means afforded by the administrative processes. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before a court's judicial power can be sought. The premature invocation of a court's intervention is fatal to one's cause of action. Accordingly, absent any finding of waiver or estoppel, the case is susceptible of dismissal for lack of cause of action.

2) The applicant must post a REPLEVIN BOND double the value of the property.

That is to guarantee the return to the adverse party in case the return is adjudged and for damages caused by the unlawful replevin. What is the basis of the jurisdiction of the court.

Q: Does the MTC have jurisdiction to entertain replevin case ?

A: Yes. If the value of the property is P100,000.00 and below and in Metro Manila, P200,000.00.

Take note: The basis of the jurisdiction is the value of the property and NOT the value of the bond.

Section 3. Order.- Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the 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.

The order is issued without hearing. It is based only on the allegation in the pleading because of the time element.

Section 4. Duty of the sheriff.- Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the property entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same.

Q: What happens after the court issues the writ if replevin ?

A: Section 4. The sheriff has to take possession of the property from the defendant and it will in the sheriff for 5 days.

Section 5. Return of property.- If the adverse party objects to the sufficiency of the applicant's bond, or of the surety or sureties thereon, he cannot immediately require the return of the property, but if he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof, by filing with the court where the action is pending a bond executed to the applicant, in double the value of the property as stated in the applicant's affidavit for the delivery thereof to the applicant, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the adverse party, and by serving a copy of such bond on the applicant.

Section 6. Disposition of property bysheriff.- If within five(5) days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant's bond or approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party.

Under Section 5, there are two options or alternatives for the defendant:

1. Put up a counter-bond which is double the value of the property. If he does so, he has the right to demand the return of the property to him.

2. Object to the sufficiency of the replevin bond.

Purpose of the counter-bond: The counter-bond is to answer for damages that the plaintiff maysuffer if it turns out that all along the plaintiff is entitled the possession of property. And also if after the case is won by the plaintiff and defendantis ordered to retain the property, by that time, the property is already dilapidated and depreciated. Therefore, the plaintiff is no longer willing to accept it and therefore has to hold the counter-bond liable for the value of the property. Also within the five-day period, either the defendant will put up a counter-bond or object to the sufficiency of the replevin bond.

According to jurisprudence, if the defendant questions the sufficiency of the bond, then he can no longer require the return of the property by putting the counter-bond. The authority there is the ruling in the case of

La Tondena Distillers Inc. vs. CA

209 S 553 The SC explained: If the defendant in the replevin action wishes to have the property taken be restored to him, he should within 5 days from such taking:

1.) post a counter-bond double the value of the property taken,

2.) serve the plaintiff a copy thereof:

Both requirements as long as compliance therewith within the 5-day period mentioned being mandatory. Alternatively the defendant may object to the sufficiency of the plaintiff bonds but if he objects to the sufficiency of the bond, he cannot require the return of the property by putting up a counter-bond.

Q: What is the reason why the property has to stay with the sheriff for 5 days?

A: Because during the 5-day period, the defendant has to think which of the two options/ alternatives he will choose.

Q: Suppose the defendant will not use any of the options?

A: The sheriff will deliver the property to the defendant.

Q: Can the defendant file a motion to dissolve the writ of replevin on the ground that the plaintiff has no right to file a case, meaning, he is not entitled to the possession?

A: As explained by the SC in La Tondena Distillers case, that is not a ground. It should be resolved in the main action.

Difference between Replevin and Attachment under Rule 57 or Injunction under Rule 58:

Replevin Replevin Attachment & Injunction

Title or right to the property cannot be questioned in the motion to discharge the writ of replevin. It must be threshed out during the trial.

You can question the title or right of the plaintiff to attach the property.

The court said in La Tondena, in other words the law does not allow the defendant to file a motion to discharge or destroy the writ of seizure or delivery on the grounds of insufficiency of the complaint or on the grounds relied upon therefore and thereby put at issue the matter of title or right of possession over the specific chattel subject of the replevin. Thepolicy apparently being that said matter should be ventilated and determined only at the trial on the merits. Therefore, the defendant cannot filea motionto dissolve the writ of replevin on the ground that the plaintiff has no right.

In the case of

Aravest Industrial Philippines vs. CA

216 S 602

HELD: The requirement in Section 5 & 6 that there must be a counter- bond assumes that the replevin bond validly filed. So, if there is a void replevin bond, there is no obligation for the defendant to put up a counter-bond. " The requirement of posting a counter-bond to acquire re-possession of the chattel subject of the writ of replevin presupposes a valid writ of replevin." The assumption is that the writ of replevin is valid.

Take note: If the defendant puts up a counter-bond, he is saying that the writ of replevin filed by the plaintiff is valid.

Section 7. Proceedings where property claimed by third person.- If the property taken is claimed by any personother than the party against whom the writ of replevin had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has possession of the property anda copy thereof upon the applicant, the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine the same. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of filing of the bond.

The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third party claimant if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action.

When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the replevin, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.Q: Suppose the property seized is claimed by a third person. What is the remedy of the third person ?

A: The same remedy of TERCERIA, third-party claim or, there is nothing there preventing him to file a correct action to litigate his claim.

So, third party claim is a remedy applicable in execution, preliminary attachment and replevin. Section 7 of Rule 60 should be read also with Section 16 of Rule 39 and Section 14 of Rule 57 on third party claim on preliminary attachment.

Section 8. Return of papers.-The sheriff must file the order, with his proceedings indorsed thereon, with the court within ten (10) days after taking the property mentioned therein.

The sheriff must make a report to the court as to what happened to the property ordered to be seized by the court.

Section 9. Judgment - After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value is case delivery cannot be made, and also for such damages as either party may prove, with costs.Q: What is the nature of the judgment in a replevin action ?

A: The judgment is ALWAYS IN THE ALTERNATIVE, either the defendant will be ordered to return the chattel to the plaintiff or alternatively to pay for the value.

Q: Why ?

A: According to the SC, the reason is to afford the plaintiff a measure of relief. If the property cannot be returned in substantially the same condition, the right to reject the property can be exercised not only after judgment but also in seeking delivery of the property pendente lite. The personal property is useless. So, it will also answer for damages.

Section 10. Judgment to include recovery against sureties.-The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be claimed, ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57.

It should be recovered in the very same case and not in a separate action.

1 Property of

LAKAS ATENISTA