Saturday, April 7, 2012

notes: remedial/

provisional remedies: session ii

session ii

-hints: read about the subject on the day it will be taken.

preliminary injuction:
-in the life of the judge. it is the most controversial can make or break a judge. its where a lot of discretion is given to the judge. it may be abused.

what is PI? an order granted by the court where the action is pending at any stage prior to the judgment. its almost the sme as attachment but this time the purpose is different. requiring a party, court or agency to rfrain from doin a particular act. either to preserve the status quo or restore the status quo ante.

status quo- its very important in PI.

what is the nature of the remedy? it is ancillary. its just a mere adjunct. it cannot exist by its own but there has to be a main proceeding.
-interim and collateral like attachment.
-it is preserves, insures the protection a party's substantive right/interest pending judgment in the principal action.

-provisional-meaning temporary-subject to the final disposition of the principal action.

there are two kinds of PI: prohibitory and mandatory.
-prohibits a person or anybdy to do something.
-when you say mandatory-it directs a person or a certain tribunal to do somthin.

purpose? to prevent future injury and to maintain the status quo.

-again rule57,section 1.
-status quo-the last actual peaceable, uncontested status which preceeded the principal action.

its sole object is to maintain the status quo.
suspension orders are equivalennt to injunction.

upon agreement of the party's. say. defendant has committed that all the acts will be suspended.

independet PI, is not allowed as a primary action.

ex. you own a land and there are squatters. PI is not possible. it may be UDetainer or Forcible Entry.

a substantive relief must be sought.

is not to correct a wrong of the past. it prevents further injury.

to stop to the last uncontested thing before the case was filed in court.

essential requisites. PI: a right i esse, the existent of a right to be protected.

rights-if you are the possessor of a property. is that a rgiht in esse? yes

if you are cultivating a rented land and some persons want to get it. it that a right in esse? yes.

a forcible entry is a clear violation of the right to possess.

there is an irreparable injury.

there is no other speedy adequate remedy .

ex. FE & UD has been filed and the was not injuction filed. then it was decided. can INJ still be filed? no more. the remedy of EXECUTION is already available.

SC has issued circular. to exercise utmost caution, prudence, and judiciousness.

a TRO can make a lot of difference.

a directive for something to be stopped or done.

hearings required? it is necessary but an exec. judge is not req. to conduct one for a 72hr TRO.

what is an exec. judge? if you've been to our local court there are many RTC judges. there is 1,2, or 3 exec.judges. they have additional assignments. they act as administrative officers of the entire Hall of Justice. the have many function like the issuance of 72hr TRO or a 20day TRO. who makes a decision w/not to issue. its called an executive TRO. bond and hearing is not required.

after(72hr TRO) it has been granted. there will be a need for hearing to extend it to 20days. a summary hearing is required.

-summary hearing:submission of affidavits documents.sometimes counsels are makulit. no evidence or witnesses required.

who conducts the summary hearing?
are you aware of the raffling procedure in the courts?

when a complaint is filed before the MTC or RTC.there has to be a raffling.if there is an application for a 72hr TRO before the raffling the exec.judge shall make decision w/not to issue the 72hr TRO. after it grants or even if it denies then that complaint will have to be raffled among the judges.

it will be raffled among the judges and it goes to a a specific court. that specific court will now be the one to conduct a summary hearing w/not to grant a 30-day TRO or to extend the 72hr TRO already granted by the EJ. so again, hearings are conducted except when the 72hr TRO is the one being considered.

there are many cases that are like this thats why it gets muddled. it deserves repeating. it concerns/more of a warning to the judges more than the counsels but you should be aware of it.

although the judges are like measured in granting . when you deny, there should also be a ground stated for the denial. there was a case where the judge denied it without a hearing he just denied it flatly so it was questioned by the applicant that there was no proper hearing. the judge thought that hearing was required only in granting.

most judges think that a denial does not need a hearing. this is wrong. so summary denial without hearing is denial of 'due process' of law.

when hearing on the merits not necessary? if the ground of denial is the insufficiency of a complaint which is apparent from the complaint itself.or it does not state what are suppose to be stated.under r58sec6. the court may also refuse an injunction upon its own assessment the court may issue an auto denial.

always, hearing is necessary w/not granted. except the 72hr TRO.

TRO's are not just issued by RTC or MTC. SC and CA also does. CA 60 days. SC limitless (eff.until further orders).

the SC issued a TRO against the BMJE agreement or MOA. dispose as rendered moot and academic because malacanan did not pursue it anyway.

procedure for application:
verified application showing the nec. facts. with AOM. bond to be filed unless the court exempts it. hearing/notice required as a general rule ex

where PROPER:
-to restrain continued breach of a valid negative obligation.  to restrain a spouse from alienating or encumbering conjugal property during the pendency of legal separation or an annulment. one issue in annulment is the separation of properties.

-to enjoin repeated tresspass on land.
-to restrain the city from proceeding with the abatement of a nuissance per accidens until it has been judicially declared to be such.
-to restrain voting of disputed shares of stocks.

-restrain the sherif from selling property from execution not belonging to a judgment debtor. remedy under r39 when a certain property is attach not belonging to the judgment debtor.
-restrain criminal prosecutions for the orderly  under the fll. cases.for the orderly administration of justice.
ex.can the court restrain/order mandatory injunction on the DOJ ? ex. agra to include additional respondents???
to prevent the strong arm of the law in an opressive and vendictive avoid multiplicity of actions. where there is res judicata. accussed has been filed the case several times
-to afford adequate protection of constitutional rights.where the stature relied upon was unconstitutional or held invalid. cases to be cited...

injunction IMproper:
-restrain the collection of taxes except in cases of irreparable injury or ordinance as basis is declared to be illegal.
-restrain a mayor who has been duly elected to assume his office. an election protest is the proper remedy. maybe quo warranto.
-against consumated acts. why? purpose is to it cannot be done.
-where possession of a property to another where the title is still being disputed.since the func. of the inj is to presere the status quo ante. ex. a certain person has been renting/planting banana on a land on a valid lease agreement for the past 5yrs.when the owner wants it back without any valid they filed a case to eject that person who has been there. they have already filed an injunction now the court granted the injunction. possession was transfered. that cannot be allowed. INJ is suppose to preserve the status is already giving the main prayer to give it back to them.this cannot be done.the inj is not suppose to revert to another status.
-against another court or courts of equal rank.RTC not to another RTC in doing some acts.or tribunals of co-equal rank.
-against the APT(asset privatization trust).this is a specific proclamation no.50 during the time of cory aquino.when during the time of marcos. there were many dummys' suppbsibly private company's but acquired by public funds(like coco levy) or property with many loans from the govt.they can be classified as quasi-govt entities. the purpose of APT is to privatize public corp that are no longer profitable. rem NONUC mining. a private company with loans that they cannot pay.PANTRNCO is another case. it was privatized and changed to another name. the loan was very big that the govt just had to take it. also PNB. it seemed to be was no lonegr a profitable biz. it was bought by lucio tan. injunction cannot be granted against the APT for them to stop privatization because was for the 'common good'public policy so and was allowed in its enabling law.
-labor disputes/cases under the labor code. court has no jurisdiction against the NLRC or any labor arbiter.
-no injunction beyond the prayer in the complaint.the basic rule when you become lawyers is to always see your prayers. the relief being ask for from the court. when the court decides(in a civil case) 'wherefore',(after the discussion and all things else) find in favor..what is the remedy asked for?the court goes back to this in the counsels complaint.if no relief sought, none will be the same manner if the INJ askd for is different from what the court grants. ex.another person was prohibited from is not a proper INJ. rem to pray for what you really want. you cannot leave it to the court. it must be prayed for and the relief sought must be stated there
-in cases to enjoin the prosecution of criminal proceedings. that is why the court cannot ex. sec. of DOj.from prosecuting.
-cases involving govt infra project. there are sherifs who are punished by dismissal because of this though it is the judge's fault. the judge gets a reprimand but the sherif is dismissed from construction of bridges, roads, which are ordered by the courts to be stopped.its a sad story.
-if against govt financing institutions regarding mandatory foreclosures where arrears amount to at least 20% of the outstanding obligation. what are these govt fin.inst. land bank, DBP,only two? law req. govt fund deposited in govt.FI. why GSIS deposits in UNIONbnk? food for thought.
-no INJ on the implimentation of the CARP or CARper.

***those are all preliminary prohibitory injunctions.

how about mandatory  injunctions?
can be granted to prevent serious damage.
-the effect cannot be made to make a new relation between the parties.
when improper:
-one cannot compel cohabitation. you cannot force a man to cohabit with a woman.or a woman to cohabit with a man.that is so illegal.
-cancellation of attachment cannot be the subject of injunction.
-to release imported goods pending with the commissioner of customs. it is not proper case for injunction to be issued.
-to take one property under the control of another party. again why?the purpose of injunction is to preserve the status quo. and if you are goin to transfer it to another person. you are not preserving the status quo. you are making another status is not preserving.
-a TRO issued by the CA or RTC against the MTC or the CA against the RTC. the SC against the CA. the higher court in those cases should decide the main case petition must decide within 6months from the issuance if the writ.

as a distinction,this does not apply to the SC. if there is no TRO the lower court must proceed. this is a new rule. sometimes the RTC's orders are brought up to the CA on certiorari. the RTC awaits the CA ruling. hierarchy of the courts, nkkhija but under ther new amendment of 2007, the lower court should proceed with the proceedings unless there is a TRO.long ago, even if there is no TRO the lower court does not proceed in deference to the higher court.lower courts are reprimanded.Now the ruleis very clear.

(end of session ii)

Monday, April 2, 2012

notes: remedial law/provisional remedies


there are plenty of definitions. they are those that are applied for pending litigation. the keyword is pending litigation. for the purpose of securing judgments and preserving the status quo.

provisional remedies
1. under the last bar, only rules under ROC but ther are new rules specially
2. new ruleswrit on amparo, rules on writ of habeas data, writ of kalikasan
3. rules on environmental cases.
-effective may 2010

sometimes examiners are so unreasonable. ex. azcunas writ of amparo, the questions could be answered now but not during that time.ICC justices

defined: they are those that are applied for peding litigation for the purpose of securing the judgment and preserving the status quo.

1, provisional-interim-'in between'. litigants may resort to during the pendency of an action. interim-as the action is stated but before it closes.
2. collateral-because cannot exist is permitted in connection with a regular action. there has to be a principalk case which may be specific performance or sum of money.not a principal case in the same manner as preliminary injuction cannot be a case by itself. they are collateral.
-ex. prelim. attachement
1997 roc we have 5 provisional remedies. and they are the things that you should worry about. generally
1.r57-attachment,r58-preliminary injunction,r59-receivership,r60-replevin,r61-support pendente lite-not exclusive-there are other prov.rems. and specially with the onslaught of a lot of rules passed by the supreme court. not just these.almost all new laws have new rulesprovisional remedies.
2. a new law has new rules-like anti-bouncing. annulment..there are rules on annulment and sometimes there are some specific rules that fall under provisional remedies.

so what are the other remedies that do not fall under the rules of court?though you may not be asked on these specifically but again going to the sight of some other examiners. they just get so unreasonable. specially if the person is or has an expertise on some laws for which they have specific knowledge.

other PR's-
under special laws.
under ra9262 , when you apply for TPO(temporay protection order).mostly by a woman on a man . it is a provisional remedy.
under ra9372,human security act anti terrorism act,ther are also different provisional remedies like the examination of bank accounts and freeze orders. take note that when you open a bank account these days. its so meticulous. so many info needed.
-not because of banking law but because of the special act. sources of funds should be properly explained. like when you receive 1M. they try to trace it. that is why there is what we call a provisional remedy under the act where your bank accounts may be frozen.that is a provisional remedy.
provisional because there cannot be a case just for that inspection there has to be a case filed against you for a violation of the act.the anti terror law traces the source of funds. illegal activities.
-seizure and sequestration of accounts and assets,iif it has been found that indeed the source of fund has been illegal then there can be a provisional remedy to seize/ sequester such accounts and assets in favor of the govt.
sometimes the travel of the person subject to the case ra 9372 can be restricted. that is also a provisional remedy.

-under SC issuances, rule on the writ of amparo.
there is waht we call the rule on the writ of amparo. to apply for its issuance is the case but there can be provisional remedies under such rule.
-case, is its issuance, but there can be a TPO, if ther is a TPO under bouncy ther is also one under WOA.

-inspection orders, files, buildings can be inspected to be discussed under special proceedings, but there are..PR's under such a rule
-production orders, documents may be asked to be produced by the court.that is provisional
-there is also a stay order under the rule on corp. bancrupcy, insolvency, that are filed against corporations.there is a provisional remedy under a stay order.
-still under SC issuance provisinal remedies under the rule on provisional orders.there can be PR's for spousal support while cases for annulments, legal separation, are pending,there can also be PR's for child support while there is a pending cse for child custody, take note hold departure as spouse can be held and may not be allowed to go out of the country if there is an annulment cases or legal separation and that is a PR.order, also admin of common property.that is also a PR. what is the main action under these cses under the PR's or under the rule on PO's -cases for annulment, declaration of nullity, and legal separation.
so these are the main cases.

other PR's under SC issuances, PR'son the
-rule on involuntary commitment of children. the parents may or  if there aregrounds for the child to be committed to a rehabilitation and ifthe parents refuse to have the child committed the dswd may apply with the court for an involuntary committment. there can be guardian ad litem for child, when parents are found to be unfit or not competent to become guardians, also for temporary custody of the child.

still other PR's
-in criminal cases, r127 revised rules of criminal procedure, provides that the prov. rem. available under the rules of civil procedure or on civil actions like attachment, injuction, replevin, receivership , and support are also available if applicable to criminal actions.
there is special mention also a rule if a
if crim. case is pending in the RTc any person may apply after arraignment, for a hold departure order for the accussed not to be allowed to travel abroad.MIC no, only in the RTC.restriction that can hold an accussed. he cannot be allowed to leave the country.

thee is also under ra9775,anti-child porno act, you can apply for the PR of issuance of a protective order where the cilhd is a victim of porn and may be brought under custody or under a protective order.

these are basically the other provisional orders.aside from the five main ones under the rules of court.for a broader understanding the rest are mentioned.

common requirements: even those not within the ROC.
1. if you apply for a PR, there should always be an affidavit of merit, and how does it differ from other affidavits or an ordinary one? its basically the same,
exert effort to put all the facts necessary to prove your case.these affidavit of merit, they are require to support
except one which is receivership..take note of the exception but all the rest , there should be an AOM.

2. generally a bond is necessary to answer for damages by reason of the issuance of the writ. attachment bond is needed.except in injuction, where the bond is only discretionary not mandatory.most judges feel they should be mandatory. judges mostly ask for a bond as a caution against administrative cases against the judge. even if discretionary, a bond is required for injuction.

3. the following exempted from bond, a) 72hr TRO, but who can issue? only the executive judge. b) support pendente lite..none, c) inspection of accounts..none, d) inspection and production orders under the rule on the writ of amparo.d) seizure and sequestration of accounts and assets under the human security act and the hold departure orders. HDO for a certain accussed. you will not be made topost a bond. genrally it is exempted from the bond requirement.

let us start with the first PR under the ROC which is attachment. defined as a provisional remedy issued upon the commencement of a trial or any time before the entry of judgment where an action is pending. ordering the levy of the property of the defendant therein.
-it is self explanatory

by way of an illustration suppose a case for sum of money is filed. against a person to pay for him to pay a certain monetary obligation. it so happened that same person against whom you have filed a caseis about to abscond,together with your original complaint you can also file for a writ of Prelim  attachment -so that the properties of the debtor of yourscan be levied or attach  placed by way of custodia legis. if you win. the property will serve as a payment. that is the simple explanation of attachment.

-the purpose of attachment is contained in the definition
-to secure the judgment for the payment of pecuniary, is the main purpose.
 also to secure secure a lien against defendant property..

and to enable court( a diferent kind of purpose) to acquire the actual or constructive seizure of the property..

suppose one owes you money,he's not in the PH, you want to collect because he has property's here. you can file a case, to able to acquire jurisdiction over such person, a writ of attachment must be applied for so that his property's are attach, not the necessarilt person but the subject matter of the action, that is one purpose. to secure satisfaction of any judgment and to enable the court to acquire jurisdiction, so if you are asked in the bar, can you file any personal action against somebody who is outside the country? if it is personal, no, because it has to be an action in rem. why? because you are going to attach the property of the efendant this time.personal summons cannot be served against a person who is outside the country..

what is the nature of attachment?
it is purely statutory, meaning if it is not mentioned in the rules, then it does not exist..
under section 1 of rule 57, if not mentioned, it is not a ground..there are up to F..memorize these laws..those are the only basis for its issuance.
sufficient cause of action exist.

rule on construction. it must be construed strictly in favor dependant. if the requisites is not present the court will have to deny. it will be considere to have acted in excess of jurisdiction. the court should only issue on concrete and specific grounds..again r57s1.

attachment can either be proceeding in rem or in this pro in rem, when the defendant does not appear. usually it starts as a personal action. summons are issued. note: what are summons? if you file a case, a civil case for a sum of money, the rules says, upon filing of complaint, summons are issued so that the court acquires jurisdiction over the person of the defendant.a piece of paper which directs the defendant to submit an answer. it is not the judge who signs, it is the clerk of court. if it is given to the defendant. he recives in then he files an answer.that is already an appearance on the court. then court already has jurisdiction of the defendent.sometimes the defendant cannot be found in the philippines.what does the complainant/plaintif do? they ask the court to have the summons published or what we call substituted service. this is civil procedure.

anyway, if there is. if the defendant is not in PH or does not appear that is when you can have his property those cases where there is attachment then the procedings becomes a proceeding in rem.

upon application. upon filing of complaint. and there is an application. is there a need for a hearing? not necessarity. if the debtor will know, he will hide his assets. but its so risky for the judge to depend or trust the complainant. what if he lied, thats why an affidavit of merit is necessary. it should be clear enough to convince the court that there is a ground to issue the writ. the court will issue an order..saying finding merit in the grounds stated and discusses whether or not what are those facts that would fit to the requirements under r57sec1. if it finds the applicatione meritorious then it grants the writ of attachment.

the first stage is when the court orders the COC to issue the WOA. signed by the COC directing the sherif(implements) enforces it.during the implementation, the defendant should have been properly served. if not, his property's cannot be taken. jurisdiction over the defendant is very necessary. the court should insure that all the requisites has been complied with.the judge can be held administratively liable. if the judge acts in excess of jurisdiction, the remedy is certiorari under rules.

first 2 stages-jurisdiction of defendant is not yet necessary.

case is one mention in rule 57, section is placed in the affidavit of should be alledged therein that:
1.that the amount due to the applicantis as much the sum.
2.a sufficient cause of action exists.
3.there is no sufficient security for the claim sought to be enforced.

court should evaluate w/not these 4 things are in the AOM.
a judge has a very wide latitude of discretion to decide w/not the affidavit of merit is sufficient. if the narration of facts is sufficient enough to support the issuance of the writ. in the exercise of sound discretion. it should further evaluate whether or not the affidavit really fulfills the requirement of the law.
the mere filing of the AOM is not sufficient to compel the judge to grant the writ.
failure of the affidavit to show the facts that are required as stated. it should be denied.
the court in the exercise of discretion is the one to determine that the facts are all setup in the affidavit.
rule of thumb is when in doubt, deny attachment.
what is the rule on construction? it should be strictly construed against the defendant because it is very prejudicial if your properties are taken away from you and it turn out that it was unconscionable.
there is a requirement for the applicant to submit abond.
unlike in injuction where the bond is discretionary in the part of the court. the applicant must submit the bond executed to the adverse party in the amountto be fixed by the court.condiftioned on the all cost which may be adjudged to the adverse party,2.and any damages which he may sustain by reason of the attachment.
so if the judge issues an attachment without a bond. it is not correct. a bond is required.
the judge may be administratively charge for that.
you can question his issuance of an order granting attachment by way of certiorari. orders granting or denying provisional remedies are merely 'interlocutory' and thus cannot be subject of an appeal.
certiorari under rule 65. note that it is different from your review on certiorari under rule 45.

writ may be issued 'ex parte'. hearings are not required. why ex parte? if you let the defendant know, he might hide all his property's.
even whesummons are issued.
the writ can be granted even without hearing but cannot be implemented unless the court has acquired jurisdiction over the defendant. he is really caught unaware. merely served a copy of the complaint and also the summons and the writ attachment. if the ground relied upon is impending fraudulent removal of defendant's property. affidavit submitted to gather facts to prove the allegation of fraud. hearing is required. submission of affidavit to gather facts to prove the allegation of fraud.
 multiple writs may be allowed.
let us suppose that the property's of a certain defendant is not only contained in one jurisdiction.
a writ that is issued by the clerk of court of davao may not be used in manila. so in that case then, the court may also order other jurisdictions to issue the writ of other sherifs.
several writ may be issued at the same time by sheriffs of the courts from different judicial regions.
so there can be several writs may be allowed. property levied upon by virtue of a WOA becomes one under 'custodia legis'.
it becomes a property of the court.
a subsequent extra judicial foreclosure of a third party mortgagee does not affect it. they may proceed.
although a lien may be attach to it.
it may be recorded but the property remains with the court.
it cannot be taken away from the court as long as the attachment was proper.

insolvency of the defendant debtor is not a ground for the issuance of a writ of preliminary attachment. why? because it is not mentioned in the rule57 section1.
only when the debtor absconds.

property excempt from execution is also exempt from preliminary attachment or garnishment. it has a limit with regard to it value. exemption is only up to a certain amount(300K).
if the value is more than that then it can still be attached.low cost housing these days costs around 500K.
it is not totally exempt.

special proceedings.there will be new amendmends soon. under newer rules. ther should be many amendments.
its a continuing study.
later the values may be different. jurisdiction should always be learned by heart.
garnishment does not lie against the funds of regular offices or branches of govt. but funds of public corporations are not exempt. NPC is a public corporation.
there seems to be only a few.
it appears mostly have been privatized.

if you are the owner. you want to get rid of an attachment. by doing the can discharge the writ and keep the property with you by posting a counter bond or make a cash deposit in the amount set by the court. the cash deposit will still serve as the security.if improperly or irregularly issued. if excessive, like debt is 1M but the amount of property attached is worth 2M. the excess amount should be discharged.

when judgment has already been rendered. against the attaching creditor. then the attachment should be returned because it was not favorable to the creditor.
attachment in criminal cases. it is specific under rule 127 that when civil action is instituted with the criminal case. if the criminal case is filed. the general rule is the civil action goes with it. except when there has been a reservation or when the civil action action has been filed ahead of the criminal action. r137 applies whe civil action was instituted with the criminal cse.meaning the criminal case was filed without a reservation.
when the folowing acts are obtaining then there can be an attachment;
1) when the accussed is about to abscond. specially estafa, theft, or something to do with retrieving certain property's with the accussed. even in criminal cases. malversation and other cases where a certain public officer is suppose to give back some amount of public money then there can be attachment of the property's of the public oficer;
2) accussed hides property so he cannot pay;
3) accussed resides out of the country.
take note that he cannot be tried in the criminal aspect of the case because he needs to be served with a warrant of arrest. if your main reason for filing a case against an accussed is to get a civil liability in your favor, go for this, you may attach an accussed property.

it either you did not undestand or you have not studied it. anyway my advise to you is before you go to class. you should at least have read what is going to be discussed.

Sunday, July 4, 2010

hints and tips: corporate law

It is an error to say that " a corporation is an artificial person". It should be " artificial being" not "artificial person". Under the "doctrine of concession", the state grants it a separate and independent personality separate from that of its officers, board of directors, or employees. Consistent with the concept of "person" in the Civil Code.

A juridical person rather than a natural one.