Motion for New Trial vs Motion for Reopening of Trial The RTC to whom the case was raffled

The RTC to whom the case was raffled will require/ order the appellant to submit his Memorandum On
Appeal within 15 days from receipt of the order and to serve a copy to the appellee
Motion for New Trial Motion for reopening of trial
Found in the rules Not in the rules  If the appellant does not file his memorandum on appeal, the appeal will be dismissed.
There is a decision rendered already but it is not No decision yet but parties have already rested  The appellee may also file / submit his memorandum on appeal. However, his failure to
yet final their respective cases and the cases are deemed file the same has no effect because he is the winning party
submitted for decision. o The appellee may also adopt the decision of the MTC as his memorandum on
Grounds: appeal
a. FAME How many days does the judge have to render
b. Newly Discovered evidence decision? If the appellee fails to file his memorandum on appeal with the 15 day period, there can be a mediation on
 Under SC Circular, 90 days appeal.
When? When the appellant files his memorandum on appeal, wait for the period of the appellee within
 As long as there is no decision yet, any which to file his memorandum on appeal to end. (JDR on appeal)
party can file a motion for re-opening  What to mediate? – e.g. terms of payment
of trial based on ANY GROUND  IF no agreement was reached, the case will be re-raffled and will go to another RTC judge
---------------------------------------------------------------------------------------------------------------------------- who shall resolve the case.
Problems:
 When an RTC decision is appealed to the Court of Appeals, the case will be raffled to the
I.
several divisions, then it will be re-raffled to the 3 justices of the division. The justice to
A case was filed with the MTC; Plaintiff vs Defendant
whom the case will be raffled shall be the ponente.
The defendant filed a motion to dismiss on the ground of lack of jurisdiction over the subject matter.
The Court grants the motion. Thus, the case is dismissed.
Other 2 justices:
 The order of dismissal is a final order WE CONCUR
 Final order- those that dispose of the case ______signature________ ______signature______ or
Remedy of plaintiff: Concurring Opinion or
1.) Appeal with the RTC Concurring – Dissenting Opinion
A. If the dismissal is affirmed
 If the RTC believes that indeed it has jurisdiction, it will take cognizance of the case as The Court of Appeals shall require both of the parties to submit their respective briefs which contain
if it was filed there for the first time assignment of errors (e.g. the court erred in stating that it has jurisdiction)
 The plaintiff will be directed to pay additional docket fees - Appellant’s brief
 There is no need to summon the defendant, the Court will direct the defendant to file - Appellee’s brief
the answer  The Court of Appeals may dismiss the case outright if the appellant fails to submit his brief
B. If on appeal, the dismissal is reversed  It is possible for the parties to have a compromise even if the decision becomes final and
 The RTC will remand the case to the MTC. executory
II.
Same case as above, plaintiff vs Defendant Ordinary Appeal Petition for Review Rule 45
The D filed an answer but it contains an affirmative defense which states that the Court has no MTC to RTC MTC to RTC to CA MTC to RTC to CA to SC
jurisdiction over the subject matter. The MTC denies and proceeds. The defendant did not waive his
RTC to CA RTC to CA to SC
right to question and continuously objects. Despite the objections, the case goes on, there was trial, and
a judgment was rendered. However, the MTC did not render judgment on the merits as it agrees with
the defendant that it has no jurisdiction over the subject matter. Thus, the case was dismissed. Modes of Appeal (continuation)
b. Petition for Review
Plaintiff appeals (same effects as I)  Only happens when the case originates from the MTC and when the decision of the
A. If the RTC affirms the dismissal, it will take cognizance of the case as if it was filed there for RTC is a decision rendered by virtue of its appellate jurisdiction
the very first time even if there was already trial.  There is no such thing as a petition for review if the case originates from the RTC
- The RTC will adopt everything but it may require the parties to other position papers,
etc. How the title shall look like
- It will decide the case on the merits
- It will require the plaintiff to pay additional docket fees
B. If the RTC reverses the order of dismissal, it will remand the case to the MTC to decide the Defendant,
case on the merits. Petitioner
vs
 The principles in the problem as above stated apply only to cases where the ground is lack of Plaintiff,
jurisdiction over the subject matter. Respondent
----------------------------------------------------------------------------------------------------------------------------
 An appeal taken from the MTC to the RTC will go the Office of the Clerk of Court for
raffling

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How many days does the petitioner have to file a petition for review?
 15 days REMEDIES AFTER FINALITY
 Motion for extension is allowed and this is filed with the Court of Appeals under the  Construed strictly against whoever is using it – why? Because the party should have
condition that there be prior payment of necessary docket fees. availed of the remedies before finality but did not.
a. Petition for Relief from Judgment
Is there a requirement to comply with Verification and Certificate of non-forum shopping?  Where to file?
YES, even if it is a mode of appeal. Because a petition for review is in the form of an initiatory - Same court that rendered the decision
pleading.  GROUNDS:
- Fraud, Accident, Mistake, Excusable Negligence
 The Court of Appeals may dismiss the petition outright even without asking for the  Must be accompanied by Affidavit of Merits
respondent to file his comment to the petition such that the same is, on its face, lacking,  Period to File
dilatory (to delay the execution), etc. - within 60 days from notice of judgment (when the party received a copy of the
 IF the CA finds the petition to be meritorious, it will require the respondent to file his decision) AND within 6 months from entry of judgment (date of finality).
comments to the petition Example:
o No summons will be issued because it is a mode of appeal The defendant received a writ of execution but was surprised since his lawyer never informed him
that he lose in the case.
c. Petition for Review on Certiorari / Appeal by Certiorari under Rule 45 Notice of Judgment 1 August 2016
Rule 65 Rule 45 Date of Entry 30 June 2016
Special Civil Action Mode of Appeal The defendant wants to change his lawyer and thus went to another lawyer
Petition for relief from judgment 2 September 2016
 Mode of appeal by which the Supreme Court can be reached 1 August 2016 – 2 September 2016 within 60 days
 Within 15 days 30 June 2016 – 2 September 2016 within 6 months
- Motion for extension is allowed provided there is payment of docket fees Thus, it was filed on time.
 The absence of Verification and Certificate of Non-Forum Shopping is a sufficient cause for
the dismissal of the petition Notice of Judgment 1 August 2016
 Only questions of law can be raised Date of Entry 28 February 2016
Petition for relief from judgment 2 September 2016
Defendant,
Petitioner 28 February 2016 – 2 September 2016 – outside of the 6 months
vs Thus, it was not filed on time
Plaintiff,
Respondent Notice of Judgment 1 August 2016
Date of Entry 30 June 2016
If the case is from the RTC and appealed directly to the Supreme Court, what mode of appeal can Petition for relief from judgment 3 November 2016
be used? 1 August 2016- 3 November 2016 – outside of the 60 days
- Petition for Review on Certiorari Thus, it was not filed on time.
 Thus, as long as the case reaches the Supreme Court, regardless of where it originated, the
mode of appeal is always Petition for Review on Certiorari  In one of the cases decided by the Supreme Court, the Court considered the Petition for Relief
from judgment which was filed within 6 months but on the 61st day (liberal).
If Granted If denied
a. Remedies before finality are Motion for Reconsideration, Motion for As if a motion for new trial has been granted, Remedy:
New Trial, and Appeal decision is vacated Petition for Certiorari under Rule 65 on the
b. These remedies can be filed within 15 days from the time of receipt of ground of grave abuse of discretion
the decision. Sec 6, Rule 38: The Court shall then proceed to
c. IF all of the remedies were used by the parties, act first on the motion hear and determine the case as if a timely motion
for reconsideration / motion for new trial before acting on the appeal for new trial had been granted by it.
d. As far as the records are concerned, it is a requirement that the records (MR – FAME is not a ground)
of the case be submitted from the MTC to the RTC; RTC to CA in
ordinary appeal Thus, the Court shall render a new decision and
e. The RTC may submit the original records emanating from the MTC to the party can go back to all the remedies before
the CA if the latter requires finality. (that is why it is filed in the same court)
V it
f. The Trial Court ALWAYS does the implementation of a decision which
has attained finality, NEVER the appellate court. The Trial Court shall b. Annulment of Judgment
wait for the records to be transmitted back to it.
g. However, the court of origin may already implement the decision even  Where to file?
if the records have not yet been transmitted back to it provided that the Higher Court
motion for execution is complete (attach certificate of finality, copy of
final decision)

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How many
 Regular Rules: Rule 47 2. DISCRETIONARY
MTC to RTC RTC to CA  when the winning party asks for an execution even if the decision is not yet final and
o Only exclusive original jurisdiction of the CA executory
 Grounds - it is dependent upon the Court whether or not to allow it
a. Extrinsic Fraud MOTION FOR EXECUTION PENDING APPEAL (LITIGATED)
 The same as the F in FAME - There is an adverse party whose rights will be affected since the decision is still on
 Can only be used ONCE appeal and yet the winning party wants it to be executed already.
 Prescriptive period: 4 years from discovery of fraud - The 3-day notice and 10-day hearing rule should be complied with

b. Lack of Jurisdiction REQUIREMENT: show good cause and prove the same during the hearing of the motion
Prescriptive Period: Imprescriptible Examples (under jurisprudence)
Exception: 1) 91 year old woman who is in a very poor health condition and the money is needed for
a. Laches- unreasonable delay in the enforcement of one’s rights her support until she passes away
b. Estoppel 2) when the defendant is facing bankruptcy
3) when the defendant is slowly disposing of his properties
 Can the Court of Appeals conduct trial ? Will it receive evidence? 4) the nature of goods
Note: using Fraud as a ground is a factual issue o these goods are needed to be delivered immediately otherwise, they will all rot
No. The Court of Appeals cannot conduct trial but it shall assign an RTC judge to receive the
evidence and forward the same to the Court of Appeals. However, it shall still be the Court of POSTING OF BOND
Appeals who shall decide whether or not the judgment shall be annulled.  The Court can determine whether or not to grant and if the Court believes that the movant
has a good cause, it will require the movant to POST A BOND to answer for damages
 If the judgment is annulled, do we go to trial again? No more, because the grounds are fraud which the losing party may suffer.
and lack of jurisdiction. e.g. the decision which is a subject of appeal has already been executed (motion for execution
Thus, remedy is to file the case in the Court who has proper jurisdiction if the cause of action pending appeal has been granted) but the appellate Court overturned the decision, the bond
has not yet prescribed or if the ground is fraud, file the case again and this time “BEHAVE” shall be given to the defendant.
  However, if the decision appealed is affirmed all throughout, the bond will be cancelled, it
shall go back to the winning party who posted the bond.
 Remember: The 2 remedies after finality are acts of grace so the period of time within which  The bond is merely temporary and will only stay in Court for a while. There is no interest
to file should be construed strictly against those who avail of it and the grounds are limited. when it is returned to the winning party or given to the defendant, as the case may be,
because the Court is not a bank.
EXECUTION (end part of Civil Procedure)
 It is the final decision which shall be executed  Show good cause first as it is more important before posting a bond
 If the case has been appealed and the appellate Court modified the decision, it is that  If restitution is possible, the winning party will get back the bond
decision that will be implemented
 Trial court always executes the decision Where to file
- Even if the case reaches the Supreme Court, the case shall always go back to the trial 1. Motion for execution shall be filed in the TRIAL COURT
court for execution 2. Motion for execution pending appeal
It depends:
Kinds of Execution 1. Trial Court
1. MINISTERIAL o If the records are still with the trial court but it has given due course to the
 A matter of right for the winning party appeal, the trial court may take cognizance of the motion by virtue of its
 It happens if the judgment is final and executory residual jurisdiction.
 There is no more remedy availed of and there is 2. Appellate Court
o If the records have already been forwarded to the appellate Court, it shall act
already an entry of judgment
on the motion
 The winning party should file for a MOTION FOR EXECUTION (non-litigated)
- It is a non-litigated motion because it is a matter of right. There is no more adverse
 However, even if the motion for execution pending appeal has been granted by the appellate
party to be affected. There is no need to comply with the 3-day notice and 10-day
Court, it shall be the trial court which shall execute the decision
hearing rules.
- It is an ex parte motion
Period to file the motion for execution:
What to allege in the motion to show that it is a matter of right?
Within 5 years from entry of judgment (date of finality)
 To show that a decision has been rendered by the Court and that it has not been
 After 5 years, the decision can be executed no longer by motion but by an ACTION FOR
appealed and therefore it has become final and executory.
REVIVAL OF JUDGMENT
 There is already an entry of judgment
1) What to file?
 Attach the CERTIFICATE OF FINALITY
Petition for Revival of Judgment
Who issues the certificate of finality? The Court that rendered the decision - Initiatory pleading
 The entry of judgment is the same as the certificate of finality - Certificate of Non-forum shopping and Verification are required

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 2) Where to file?  The moment the sheriff already has the writ of execution, he shall go to the defendant
Either in the: and collect the amount stipulated and turnover the same to the winning party.
a. RTC – because it is incapable of pecuniary estimation; or 2. The sheriff shall make a RETURN when the writ is fully satisfied.
b. In the Court that rendered the original judgment a. When the Court receives the return, the Court will issue an order stating that the
writ has been fully satisfied
3) Payment of docket fees is required b. The case will be closed and terminated
c. The case will go to the archives to be disposed after ten years
4) When the Court grants the petition,such that the decision of the Court is that the judgment
should be revived, the judgment shall become final and executory again. In cases of recovery of sum of money and the defendant has no money, the sheriff may result to:
“This decision is now revived and so this revived judgment becomes final and executory 1) GARNISHMENT
again”  Usually issued to banking institution
 this gives rise to a double finality of judgment  The Sheriff issues a notice to all banks within the vicinity where the defendant resides and
asks whether or not the defendant has an account in such bank and if there is, whether or not
What is DOUBLE FINALITY OF JUDGMENT? the amount in such account is sufficient to satisfy the judgment.
 Only happens when the judgment which has not been executed by motion becomes a If the amount is sufficient, the Sheriff shall issue the notice of garnishment and the bank shall hold
subject of revival of judgment the amount deposited in the bank.

5) After which, the winning party shall file a Motion for Execution again (within 5 years) 2) THE SHERIFF MAY LEVY ON PERSONAL PROPERTIES/ REAL PROPERTIES
Personal Properties may include anything except those exempted from execution (Section 13,
Is an action for revival of revived judgment possible? Rule 39, Rules of Court)
Yes provided that it is filed within the 10 year prescriptive period from the date the judgment has  These properties shall be brought to the Court wherein it will be announced that it is for
been revived. public auction sale and the date of the sale
o The cash paid in the public auction shall satisfy the judgment
6) The moment the Court grants a motion for execution, it issues a writ of execution addressed o If the winning party is also bidding, he does not need to pay in cash
to the sheriff because it is his responsibility to execute the judgment  If the personal properties are not sufficient, the sheriff may now levy on the real properties
The writ shall contain owned by the losing party which shall also be sold
a) The decision is final and executory; o If the property has been sold to the highest bidder, the sheriff shall issue a
b) quote Dispositive portion of the judgment- that portion that is final and executory SHERIFF’s CERTIFICATE OF SALE
c) the date when the decision became final and executory  Must be registered with the Registry of Deeds where the property is
located
The writ of execution shall have its own dispositive portion  Must be annotated on the title of property
Examples Tax Dec- assessor’s office
A. SUM OF MONEY  Registration is important because it is only from such date of registration when the 1-year
“Now, therefore, you (sheriff)are commanded to collect the amount of P1,000,000 redemption period will start to run.
from the defendant and deliver the same to the plaintiff.” - If you don’t register it, the 1 year redemption period will never happen.

Problem: In one case, the property levied upon was sold through public auction to the highest
In the dispositive portion of the judgment, there was no statement of interest. bidder who is the winning party. He was not able to pay the fees collected by the registry of
However, in the dispositive portion of the writ of execution it says, “Now, deeds, thus, the sale was never registered. 2 years later, the children of the judgment debtor
therefore, you are commanded to collect the amount of P1,000,000 with legal interest thereon decided to redeem the property. They made a notice of redemption and served the same to the
until fully paid. Sheriff and the winning party. The winning party objected and stated that the 1 year
└ Obviously there is a discrepancy between the dispositive portion of the judgment redemption period has already lapsed. Is he correct?
quoted and the dispositive portion of the writ of execution No. The sale has never been registered, the 1-year redemption period never
└ Thus, the writ of execution is null and void as it did not agree with the dispositive started. The children have the right to redeem the property anytime.
portion of the judgment.
o It is imperative to quote the dispositive of the judgment so that it may be  The redemption price is not the same amount in the Sheriff’s certificate of sale. The amount of
compared with the dispositive portion of the writ of execution and determine if the notice of levy, publication, interest, etc shall be added.
they agree.
During the 1-year redemption period, ho can redeem the property?
Remedy of the defendant (losing party): File a Motion to quash the writ of execution on the ground a. Owner/ losing party;
that the writ is null and void since the dispositive portion of the judgment did not agree with the b. His heirs;
dispositive portion of the writ of execution. c. Assignees;
 The Court has to issue a new writ of execution d. Transferees;
e. Creditors, etc
 It is unlikely for a writ of execution to be executed all along, in cases for collection of sum of  For b-e in the enumeration above, the person must state in what capacity is he redeeming the
money, the Court becomes the collection agent property
1. The sheriff is directed to notify the Court every 30 days on what is happening to the writ of
execution

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Within the 1-year redemption period, who has the right to possess the property (including the
fruits such as rental)?
 The owner. But he may only maintain (make minor repairs) the property, he cannot make
major improvements during the redemption period. Otherwise, he cannot get back such
improvement as he is deemed a builder in bad faith.
2) The Court shall order for the issuance of a new owner’s duplicate copy in the name of the
defendant and such new duplicate as well as the deed of reconveyance shall be submitted to
the Registry of Deeds.
└ the Registry of Deeds shall issue a new title in the name of the Plaintiff
 Expenses in the transactions stated above shall be shouldered by the defendant

 If no redemption happens within the 1-year redemption period, the sheriff shall issue a PROVISIONAL REMEDIES
FINAL CERTIFICATE OF SALE and a new title will be issued in the name of the winning  Temporary
party or new owner (highest bidder)  May be availed of by any party to afford temporary remedies in order to stop any violation of
 If the amount of real property sold through public auction is not sufficient to satisfy the a right by the defendant
judgment debt, the Sheriff shall still have to collect every 30 days.  Cannot be availed of by themselves, must always be coupled with a MAIN ACTION
1. Preliminary Attachment  Must be accompanied by an affidavit of the applicant
If one of the levied properties does not belong to the losing party, what is the remedy of the real 2. Preliminary Injunction (affiant) stating the reason or ground for applying the
owner? 3. Receivership provisional remedy
1. File a THIRD PARTY CLAIM (not the same as third party complaint) 4. Replevin + a bond must be posted
 An affidavit executed by a third party who claims that his personal property has been 5. Support – no affidavit needed
wrongfully levied upon by the sheriff in the implementation of the writ of execution  Can only be applied through a support pendent lite
 What should he allege?  Support is the main action
a. That he is the real owner of the property  Provisional remedy is Support Pendente Lite
b. Attach a proof of ownership, if there is o Through a petition – there is no bond required
c. Reason why his property is with the losing party 1. PRELIMINARY ATTACHMENT
2. Give to the sheriff, the winning party, and the Court a copy of his third-party claim Main Action: usually collection of sum of money
 The moment the sheriff receives a third party claim, he should no longer sell the  Provisional remedy wherein properties are attached
property or he should return the property o taken under custodia legis
 If the winning party states that the property is really owned by the losing party, he must post  What the plaintiff wants: Secure for himself property of the defendant which he may levy on
a bond before the sheriff can get back the property. if he gets a favorable decision at the end of the case.
 If it turns out that the real owner is really the party who filed the third party claimant: How? Through attachment
a) If the property has already been sold: the bond shall be given to the third party  In order to attach the property, the ground must be alleged.
claimant Usual ground (prove): that the debtor is disposing his properties with the intent to defraud
b) If the property has not yet been sold: return the property to the 3rd party claimant his creditors

B. RECOVERY OF POSSESSION
 The defendant is directed to turn over the premises peacefully
IF there are plants on the land:
Allow the defendant to harvest
If there is a house:
Give the defendant the chance to vacate the entire house
Usually, the defendant is given 5-10 days to vacate the house
 The plaintiff can file a MOTION FOR ISSUANCE OF WRIT OF DEMOLITION
(Litigated Motion)
- to give the defendant a chance to appeal or demolish it themselves and get the materials
C. RECONVEYANCE
The defendant is directed to execute a deed of reconveyance in the name of the plaintiff
so that a title in the name of the defendant will be cancelled and a new title will be
issued
 “Defendant shall execute the necessary deed of reconveyance.”
If the defendant refuses (not tantamount to contempt of Court)
Remedy:
a. The Court shall order the Clerk of Court to issue a deed of reconveyance.
“By virtue of the order given by the Court dated 3 November 2016, I now execute
a deed of reconveyance”
 In every transaction with the Registry of Deeds, a duplicate shall be surrendered. Thus,
the Court shall order the defendant to surrender the duplicate. (PD 1529)
 If the defendant refuses to surrender the duplicate
1) The Court shall order that the owner’s (defendant’s) duplicate copy of the title which is in the
possession of the defendant be cancelled.
What to file? Sum of money with prayer for issuance of a writ of preliminary attachment
 This is one provisional remedy where you can apply for it ex parte
If the Court is satisfied that there is a ground to issue a writ of preliminary attachment
└ it will direct the plaintiff to post bond (Why? To answer for damages which the other
party (defendant) may suffer in the event that his property may wrongfully be attached)
KINDS OF BONDS:
1) Cash Bond
2) Surety Bond- must be accredited by the Supreme Court
3) Property Bond
- Must be within the jurisdiction of the Court
o Because the use of the property is limited
- Based on the assessed value of the property
When the Court issues a writ of preliminary attachment
 In the affidavit for the application of the writ of preliminary attachment, the affiant must state
the ground for the application, the location of the property, and what is the property that will
be attached
 Real or personal property may be attached
 The ISSUANCE of a writ of preliminary attachment can be ex parte
 In the IMPLEMENTATION of the writ, the Court cannot do it ex parte
a. Before the implementation of the writ, the Court must have jurisdiction over the person of the
defendant; or
b. The implementation must be contemporaneous with the service of summons.
Otherwise, the implementation shall be null and void and the defendant may move to quash the writ
of preliminary attachment.

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 Provisional Remedy: Preliminary Injunction
As a general rule, transactions should be reflected in the owner’s duplicate title except in cases of
involuntary transactions Preliminary Prohibitory Injunction
└ E.g. attachment  To stop
 It is sufficient for the Sheriff to go to the Registry of Deeds and say, “may I attach this Preliminary Mandatory Injunction
property, this is the writ of preliminary attachment”  To do
Memorandum of Encumbrances
 Second page of every title You arrived home one night and you there is a notice from BENECO stating that it will disconnect your
 Annotation: Entry No. 1. Writ of Preliminary Attachment issued by the Honorable Judge of electricity tomorrow because you have not paid your electric bills. You believe that you paid your bills
RTC 1, entered on 3 November 2016, attaching this property. and that probably it is their accounting system that is wrong. The following day, you went to Court
 Encumbrance shall follow the title You want to stop BENECO from disconnecting your electricity
What to file? Injunction with prayer for the issuance of writ of preliminary prohibitory
 The only time when the writ of preliminary attachment can be applied ex parte is at the injunction
commencement of the case. Suppose, when you get arrived home your house is already in total darkness (and the ghost is starting to
 However, when it is not prayed for at the commencement of the case, a MOTION FOR THE lurk)
ISSUANCE OF A WRIT OF PRELIMINARY ATTACHMENT (LITIGATED) may be If you want BENECO to restore your electricity
filed anytime to avail of such provisional remedy What to file? Injunction with issuance of writ of preliminary mandatory injunction
 It will require the defendant to answer
 It is now dependent upon the Court whether or not to grant the motion Other main action aside from injunction:
Recovery of possession with prayer for writ of preliminary injunction, temporary restraining order, 72-
Remedy of the defendant hour temporary restraining order
- MOTION TO LIFT WRIT OF PRELIMINARY ATTACHMENT (LITIGATED)
- It is litigated because from the moment that it is granted, the plaintiff will no longer
have any security Defendant is building a fence on the plaintiff’s parcel of land using
If granted, the Court may direct the defendant to post a counter bond (to answer the damages which the concrete hollowblock. You want defendant to stop immediately.
plaintiff may suffer as he has no security).
 If the defendant cannot post a counter bond, the writ of preliminary attachment shall There must be a hearing even if it is applied for at the
1. Temporary restraining order commencement of the action or during the proceedings (as
remain.
2. Writ of preliminary injunction compared with writ or preliminary attachment)
 However, the Court may also lift the writ of preliminary attachment without requiring
the posting of the counter bond if it finds out that the property was wrongfully attached.
3. 72- hour temporary restraining order
- Can be done ex parte
Suppose the real property has already been attached,there is already a judgment rendered by the
- Who can act on it?
Court directing the defendant to pay the sum of money. The judgment is final and executory.
If single sala – court : the judge of such Court
Sheriff collects from the defendant but he has no cash there are no personal properties available.
If the Court is a multi-sala Court, only the executive judge can grant
 Thus, the Sheriff may levy the real property but the attachment must be cancelled first
To be granted:
 Levy and attachment are 2 different concepts. Attachment is the holding of the property for a. Prove urgency
security reasons but you cannot levy if such property is held for security reasons even if it is b. Grave irreparable injury
the same Court which issued the writ of preliminary attachment.
 The plaintiff shall ask for the cancellation of the writ of preliminary attachment If the Court is convinced, it will grant the 72- hour (3 days) temporary restraining order.
 When the Court grants, the attachment shall be cancelled and dissolved. Thus, the levy may  The implementation must always be contemporaneous with the service of summons or the
now levy the property. The property shall be sold through public auction for the satisfaction summons must have been served before the implementation
of the money judgment.  Who will implement? The Sheriff of the Office of Clerk of Court
Defendant is out of the country and he has the intention to stay there forever because he ran Within the 72- hour period, the Executive Judge has to raffle the case. The Court to whom it was raffled
with the plaintiff’s money. The plaintiff filed a case for sum of money. Can the defendant be shall issue a notice of hearing (within the 3-day period) to the plaintiff and the defendant for the hearing
summoned extraterritorially through publication? of the Temporary Restraining Order, there is no need for service of summons (service of summons
 No. Extraterritorial service of summons applies only in cases which affects the status of the should only be done once).
defendant or in cases which involves his properties located in the Philippines  To determine whether or not to extend the period to the full 20- day period
Extraterritorial Service of Summons is not applicable in cases for collection of sum of Money  The 72- hour in the 72- hour temporary restraining order is already part of the 20 days
because it is a personal action.
 There should be no extension of the TRO, any extension of the TRO shall be null and void.
 The remedy of the plaintiff is to convert the action into quasi – rem by availing of the remedy
TRO PERIOD
of preliminary attachment (so that the properties of the defendant will be involved). If so,
extraterritorial service of summons can already be used. MTC / RTC 20 days
Court of Appeals 60 days
2. PRELIMINARY INJUNCTION Supreme Court Until lifted
 To enjoin If the Court is convinced, it will issue a Temporary Restraining Order
 Only provisional remedy that can be an action in itself Who shall issue? Regular Court where the case is raffled
Main Action: Injunction

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 Even if the Executive Judge denies the 72- hour Temporary Restraining Order, and a TRO is likewise
prayed, it will raffle the case immediately to the regular Courts for the hearing of the TRO
 Notice of hearing will be issued by the Court
 Attach to the notice of hearing the summons for the defendant
If no summons was served, the Court can proceed with the hearing but it will not bind the defendant
because the Court has no jurisdiction over the person of the defendant unless there is voluntary
appearance by the defendant unless such appearance is for the purpose of questioning the jurisdiction of
the Court on the ground that summons has not been served.

 The hearing for the temporary restraining order must be done and concluded within 72- hours. If it
has lapsed, there is nothing more to be extended

Real Goal: The issuance of the writ of preliminary injunction

 The hearing must be within 20 – day period
 Continue hearing to decide whether or not to continue with the writ of preliminary
injunction

If granted in the BENECO case (example above)

- The BENECO can no longer disconnect your electricity while the case is going on
In the recovery of possession case (example above)
- The defendant cannot construct a fence as long as the preliminary injunction is effective.

Maintenance of the status quo

o Last peaceful situation before the controversy erupted.
o Tantamount to a TRO

 In the hearing, the applicant / movant must show that he has the right to the preliminary
injunction

The Executive Judge issued a 72- hour TRO (no bond), in granting the TRO, the plaintiff is directed to
post P50,000 as bond. The plaintiff posted P50,000. Would that be sufficient for the writ of preliminary
injunction?
 It depends on the Court. The Court may sometimes increase the injunction bond.

The writ of preliminary injunction may be applied for during the proceedings through a motion. (motion
for the issuance of a writ of preliminary injunction / TRO)

Preliminary Injunction – original remedy

Temporary Restraining Order- provisional remedy of the provisional remedy
72- hour Temporary Restraining Order- provisional remedy of the provisional remedy of the provisional
remedy.

LIMITATIONS
1) No TRO can be issued against government infrastructure projects
2) No TRO can be issued to enjoin the collection of taxes
If a tax law seems to be unconstitutional, pay under protest. If you win, claim a refund
3) No TRO can be issued to compel the spouse to stay at home / return home
4) No TRO can be issued to stop the PCGG from confiscating ill-gotten wealth

 At any stage of the proceeding, the defendant can also file a motion to lift the writ of
preliminary injunction
 If the plaintiff can prove that he really is entitled to the preliminary injunction, the same shall
become permanent

IF the Defendant continues to do what he is ordered to stop doing despite receipt of 72-hour TRO,
TRO, or Preliminary Injunction
 Remedy: Motion to cite defendant in contempt of court
 Violation of a 72- hour TRO/ TRO/ Preliminary injunction constitutes contempt of court