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Replevin RULE 60 Secs. 1 - 10.

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Presentation on theme: "Replevin RULE 60 Secs. 1 - 10."— Presentation transcript:

1 Replevin RULE 60 Secs

2 Definition Replevin A form of action which lies to regain the possession of personal chattels which have been taken from the plaintiff unlawfully. The writ by virtue of which the sheriff proceeds at once to take possession of the property therein described and transfer it to the plaintiff upon his giving pledges which are satisfactory to the sheriff to prove his title, or return the chattels taken if he fails to do so.

3 Nature of Replevin Action Writ
the action for recovery of personal property possessory action, plaintiff need not prove that he is the owner as he can merely show that he is entitled to possession. Writ the provisional remedy associated with the action to recover personal property, by which possession of the property may be obtained by the plaintiff and retained during the pendency of the action.

4 Codal Provision 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. (1a)

5 Who May Avail of Replevin
Plaintiff – where the complaint prays for the recovery of possession of personal property. Defendant – where a counterclaim was set out in the answer for the recovery of personal property.

6 Subject Matter Applicable only to Personal Property
Personal Property are listed in Art. 416 of the Civil Code. Does not apply to real property or incorporeal property Real Property are those listed in Art. 415 of the Civil Code Incorporeal personal property

7 Codal Provision 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 detained by 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 such seizure 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.

8 Affidavit Formal Requirement Content Executed by the applicant
Someone who personally knows of the facts Content Applicant is the owner or is entitled to the possession subject of the writ. The property subject of the writ is being wrongfully detained. Property is not Distrained or taken for tax assessement Not taken as a fine pursuant to law Not in custodia legis/ in custodia legis but exempt from seizure Actual Market Value of the property

9 Right of Applicant Among the rights of an owner is the right to possess the thing he owns. The applicant may also prove he is lawfully entitled to the possession of the property. Example: Lessee of the personal property.

10 Concept: Wrongfully Detained
The detention by the defendant should not have any legal basis: Not taken for tax assessment. Not taken as a fine pursuant to law. Not in custodia legis/ in custodia legis but exempt from seizure.

11 Bond Double the value of the property.
Based on the amount stated in the affidavit of the applicant.

12 Codal Provision 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.

13 Codal Provision – Sec. 4 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 take possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same. (4a)

14 Procedure of Seizure Sheriff receives the order and writ of replevin from the court. Sheriff serves upon the adverse party a copy of the Order and the writ a copy of the application and bond Simultaneous with the service of proper documents, Sheriff seizes the property. If property is concealed/ enclosed – Sheriff can break open Safekeep the property until paid his fees and expenses. Sheriff must file a return with the court within ten (10) days from taking the property. (Sec. 8)

15 Codal Provision – Sec. 5 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.

16 Twin Remedies Post a counter-bond
Within five (5) days from taking: Post a counter-bond in double the value of said property; Serve plaintiff with a copy thereof Question the sufficiency of the bond or the surety or sureties thereon Forecloses the right to file a counter-bond If denied, appeal by certiorari under Rule 65

17 Third Party Claim (Terceria)
Third party serves upon the sheriff an affidavit showing his title to the property of his right to possess the same. The affidavit is served upon the sheriff and the applicant while he is in possession of the property. Applicant must file a bond to indemnify the third party claimant otherwise, the sheriff is not bound to keep the property. Value of the bond should not be less than the value of the property as stated in the affidavit. If applicant is the Republic, no bond is required. The third party claimant can file a separate action for damages and recovery of the property. The applicant can file a separate action for damages against the third party claimant who filed a frivolous or spurious claim.

18 Codal – Secs. 8, 9, 10 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. (8a) 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 in case delivery cannot be made, and also for such damages as either party may prove, with costs. (9a) 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. (10a)

19 Claim Against the Bond Requisites for recovery against replevin bond
Application showing right to damage; Notice is given to the plaintiff/ applicant and the surety; There must be a hearing in case recovery is opposed; and Award of damages must be included in the judgment. Independent action is not allowed.

20 Bachrach vs. Summers, G.R. No. L-17393 July 21, 1921
Car made subject of chattel mortgage. Defendant defaulted in payment. Plaintiff sought recovery of the car through sheriff under the chattel mortgage contract. Defendant refused to surrender car. Plaintiff filed an action for replevin. Defendant posted counter-replevin bond. Plaintiff insisted that sheriff proceed with seizure. Held: Plaintiff must litigate before seizing the car to expose it to a public sale.

21 Machinery Engineering Supply vs. CA, 96 Phil 70
Machinery was attached to the land, particularly to the concrete foundation of said premises, in a fixed manner, in such a way that it could not be separated without breaking the material or deterioration of the object. Pursuant to a writ of replevin, the sheriff unbolted the equipment and cut some of its wooden supports. After seizure, the defendant posted a counter-bond for the release of the equipment. The court ordered the return of the property and the plaintiff complied by simply dumping the equipment beside the road. Upon persistent requests from defendant, sheriff requested plaintiff to furnish the funds necessary to re-install the equipment. Plaintiff refused. The Supreme Court ruled that - Under the rules, the defendant is entitled to the return of the property upon posting of a counter-bond. The plaintiff is responsible for the expenses incident to such return. When the restitution of what has been ordered, the goods in question shall be returned in substantially the same condition as when taken.

22 Yang vs. Valez, 177 SCRA 141 Is it necessary that the replevin bond be backed-up by cash or property? The Affidavit of Justification in support of the bond states: We, MILAGROS MORANTE and BAYANI L. CALONZO, both of legal age, Filipinos, married and residents of Maltana, Tampakan, South Cotabato, and General Santos City, respectively, after having been duly sworn to in accordance with law do hereby depose and say: 1. That each of them is a resident householder or free-holder within the Philippines; 2. That each of them is worth the amount specified in the under-taking assumed by them in the above bond over and above all debts, obligations and property exempt from execution. IN WITNESS WHEREOF, we have hereunto set our hands, this 4th day of January, 1985, at General Santos City, Philippines. HELD: It is not necessary that the bond be backed-up by securities.

23 Yang vs. Valez, 177 SCRA 141 The property was seized via a writ of replevin on 7 January Summons was served upon the defendant on 25 January When should the 5 day period to file a counter-bond be counted from? The period should be counted from the day the property was seized and not on the day service of summons was made.

24 Chiao Liong Tan vs. CA, 228 SCRA 75
Can a court in a replevin case decide the issue of ownership? When the title to the property is distinctly put in issue by the defendant’s plea and by reason of the policy to settle in one action all the conflicting claims of the parties to the possession of the property in controversy, the question of ownership may be resolved in the same proceeding.

25 Cases Filinvest Credit Corp. vs. CA, Sept. 27, 1995
Fernandez vs. The International Corp. Bank, 316 SCRA 326 Universal Motors vs. Velasco, 98 SCRA 545 Paat vs. CA, 266 SCRA 167 Vlasons vs. CA, 155 SCRA 186 Pagkalinawan vs. Gomez, 21 SCRA 1275 Bagalihog vs. Fernandez, 198 SCRA 614 Chua vs. CA, 222 SCRA 85 Nantz vs. Hugo, 77 Phil 517 La Tondena Distillers vs. CA, 209 SCRA 553 Citibank vs. Court of Appeals, 304 SCRA 679 Tillson vs. CA, G.R. No May 28, 1991 Maningo vs. IAC, 183 SCRA 691

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