Replevin
RULE 60
Secs. 1 - 10
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.
Nature of Replevin
• Action
– 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.
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)
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.
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
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.
Affidavit
• Formal Requirement
– 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
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.
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.
Bond
• Double the value of the property.
• Based on the amount stated in the affidavit of
the applicant.
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.
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)
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)
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.
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
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.
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)
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.
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.
Machinery Engineering Supply vs. CA, 96 Phil 70
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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.
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.
Yang vs. Valez, 177 SCRA 141
• The property was seized via a writ of replevin
on 7 January 1985. Summons was served
upon the defendant on 25 January 1985.
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.
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.
Cases
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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. 89870 May 28, 1991
Maningo vs. IAC, 183 SCRA 691