Filled Under: ,

Replevin

Civil Procedure Replevin

RULE 60
Replevin

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.

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. 

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. 

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. 

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 by sheriff. — 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. 

Section 7. Proceedings where property claimed by third person. — If the property taken is claimed by any person other 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 and a 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 the 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.

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. 

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. 

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. (Rule 60, Rules of Court)

* * * * * * * * * * 

What is replevin? (Bar 1999)

Replevin, broadly understood, is both a form of principal remedy and of a provisional relief. It may refer either to the action itself, i.e., to regain the possession of personal chattels being wrongfully detained from the plaintiff by another, or to the provisional remedy that would allow the plaintiff to retain the thing during the pendency of the action and hold it pendente lite. The action is primarily possessory in nature and generally determines nothing more than the right of possession. (BA Finance Corporation vs. CA, G.R. No. 102998. July 5, 1996)


When is it available?


1.) available only where the principal relief sought in the action is the recovery of possession of personal property;

2.) can be sought only where the defendant is in the actual or constructive possession of the personal property involved.

3.) extends only to personal property capable of manual delivery;

4.) available to recover personal property even if the same is not being concealed, removed, or disposed of;

5.) cannot be availed of if property is in custodia legis,  as where it is under attachment, or was seized under a search warrant or distrained for tax assessment.


Who may apply for a writ of replevin?

● A party praying for the recovery of possession of personal property. (Sec 1, Rule 60) 

● Applicant need not be the owner. It is enough that he has right to its possession. "The provisional remedy of replevin is in the nature of a possessory action and the applicant who seeks immediate possession of the property involved need not be holder of the legal title to the property. It suffices, if at the time he applies for a writ of replevin, he is, in the words of Section 2, Rule 60, "entitled to the possession thereof." (Yang vs. Valdez, G.R. No. 73317, August 31, 1989)


When may a person apply for a writ of replevin?

At the commencement of the action or at any time before answer. (Sec 1, Rule 60)


What is the procedure for the issuance of a writ of replevin?


1. APPLICATION. - Applicant must file an application for writ of replevin filed at the commencement of an action or at any time before the defendant answers

2. AFFIDAVIT. - Applicant or some other person must execute an affidavit stating:

(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.

3. BOND. - Applicant must give a bond, executed to the adverse party and double the value of property. The bond is 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. (Sec 2, Rule 60)


What is the duty of the court upon filing of the application?

When the court approves the application, the court shall issue an order and the corresponding writ of replevin. This order shall require the sheriff to take the property under his custody. (Sec 3, Rule 60)


What is the duty of the sheriff after the court issues an order?


● Upon receipt of the court order. The sheriff must:

1. Serve a copy of the order, copy of application, affidavit and bond on the adverse party;

2. Take the custody of the property and must keep it in a secure place;

3. Within 5 days from taking of the property, the sheriff shall wait for the move of the adverse party. If the adverse party does not object to the sufficiency of the bond after said period or performs an act to effect the return to him of the property taken, the property shall be delivered to the applicant. (Sec 4, Rule 60)


● The law presumes that every possessor is a possessor in good faith. He is entitled to be respected and protected in his possession as if he were the true owner thereof until a competent court rules otherwise. Before a final judgment, property cannot be seized unless by virtue of some provision of law. The Rules of Court, under Rule 60, authorizes such seizure in cases of replevin. However, a person seeking a remedy in an action for replevin must follow the course laid down in the statute, since the remedy is penal in nature. When no attempt is made to comply with the provisions of the law relating to seizure in this kind of action, the writ or order allowing the seizure is erroneous and may be set aside on motion by the adverse party. Be it noted, however, that a motion to quash the writ of replevin goes to the technical regularity of procedure, and not to the merits of the case in the principal action.

The process regarding the execution of the writ of replevin in Section 4 of Rule 60 is unambiguous: the sheriff, upon receipt of the writ of replevin and prior to the taking of the property, must serve a copy thereof to the adverse party together with the application, the affidavit of merit, and the replevin bond. The reasons are simple, i.e., to provide proper notice to the adverse party that his property is being seized in accordance with the courts order upon application by the other party, and ultimately to allow the adverse party to take the proper remedy consequent thereto.

Service of the writ upon the adverse party is mandatory in line with the constitutional guaranty on procedural due process and as safeguard against unreasonable searches and seizures. If the writ was not served upon the adverse party but was instead merely handed to a person who is neither an agent of the adverse party nor a person authorized to receive court processes on his behalf, the service thereof is erroneous and is, therefore, invalid, running afoul of the statutory and constitutional requirements. The service is likewise invalid if the writ of replevin was served without the required documents. Under these circumstances, no right to seize and to detain the property shall pass, the act of the sheriff being both unlawful and unconstitutional.

The trial court is reminded that not only should the writ or order of replevin comply with all the requirements as to matters of form or contents prescribed by the Rules of Court.[43] The writ must also satisfy proper service in order to be valid and effective: i.e. it should be directed to the officer who is authorized to serve it; and it should be served upon the person who not only has the possession or custody of the property involved but who is also a party or agent of a party to the action. Consequently, a trial court is deemed to have acted without or in excess of its jurisdiction with respect to the ancillary action of replevin if it seizes and detains a personalty on the basis of a writ that was improperly served.  (Rivera vs. Vargas, G.R. No. 165895, June 5, 2009)


How can the adverse party seek the return of the property?


● If a defendant in a replevin action wishes to have the property taken by the sheriff restored to him, he should within five days from such taking, (1) post a counter-bond in double the value of said property, and (2) serve plaintiff with a copy thereof, both requirements as well as compliance therewith within the five-day period mentioned being mandatory. (Spouses Bautista vs. Sula, A.M. No. P-04-1920, August 17, 2007)

● If the bond is sufficient and in proper form, the adverse party gets the property back.

● Where the adverse party did not object to the party's bond nor posted a redelivery bond, the sheriff is obligated to deliver the property to the applicant.

● A defendant in a replevin suit may demand return of possession of the property replevied by filing a redelivery bond within the periods specified in Sections 5 and 6 of Rule 60. Under Section 5, petitioner may "at any time before the delivery of the property to the plaintiff" require the return of the property; in Section 6, he may do so, "within five (5) days after the taking of the property by the officer." Both these periods are mandatory in character. Thus, a lower court which approves a counter-bond filed beyond the statutory periods, acts in excess of its jurisdiction. (Yang vs. Valdez, G.R. No. 73317, August 31, 1989)


When is the defendant entitled to return of property taken under writ?


The defendant is entitled to return of property if:

1.) he seasonable posts a redelivery bond
2.) plaintiff’s bond if insufficient or defective
3.) property is not delivered to plaintiff for any reason.


Where can the writ of replevin be served?

A writ of replevin may be validly enforced anywhere in the Philippines. (Fernandez vs. International Corporate Bank, G.R. No. 131283. October 7, 1999)


Where Property Claimed by Third Person

When third party claims the property and such person makes affidavit of his title thereto stating his grounds, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy upon the applicant, the sheriff SHALL NOT BE BOUND to keep property under replevin or deliver property to the applicant UNLESS the applicant files a bond approved by the court in favor of the third person (the bond should not be less than the value of stated under Sec. 60, Sec. 2; the court shall determine the value in case of disagreement).

 

Copyright © Remedial Law Notes™ is a registered trademark.
Blogger Templates Designed by Templateism. Hosted on Blogger Platform.